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Exhibit 10.21
CREDIT AGREEMENT dated as of June 13, 1996,
among INTERNATIONAL MANUFACTURING SERVICES, INC., a
Delaware corporation ("IMS"), IMS BORROWER, INC., a
Delaware corporation (the "U.S. Borrower"), IMS
HOLDCO, INC., a Delaware corporation ("IMS Foreign
Holdings"), MAXTOR (HONG KONG) LIMITED, a company
organized under the laws of Hong Kong (the "HK
Borrower"), IMS INTERNATIONAL MANUFACTURING SERVICES
(THAILAND) LIMITED, a limited company organized under
the laws of Thailand (the "Thai Borrower"), and
DONGGUAN IMS ELECTRONICS LTD., a company organized
under the laws of the People's Republic of China
("IMS PRC"), IMS INTERNATIONAL MANUFACTURING
SERVICES, LIMITED, an exempted company incorporated
in the Cayman Islands ("IMS Cayman"), the Lenders (as
defined in Article I), and CHEMICAL BANK, a New York
banking corporation, as fronting bank (in such
capacity, the "Fronting Bank"), as administrative
agent (in such capacity, the "Administrative Agent")
and as collateral agent (in such capacity, the
"Collateral Agent") for the Lenders.
The Borrowers (such term and each other capitalized term used
but not otherwise defined herein having the meaning assigned thereto in Article
I) have requested the Lenders to extend credit in the form of Loans at any time
and from time to time prior to the Maturity Date, in an aggregate principal
amount at any time outstanding not in excess of the difference between
$32,000,000 (as such amount may be reduced from time to time in accordance with
the terms hereof) and the L/C Exposure at such time. The Borrowers have
requested the Fronting Bank to issue letters of credit in an aggregate face
amount at any time outstanding not in excess of $5,000,000 to support payment
obligations incurred in the ordinary course of business by the Borrowers.
The proceeds of up to $7,000,000 of the Loans will be used on
the Closing Date to provide funds to repay certain existing Indebtedness of the
Borrowers, to make certain other payments in connection with the
Recapitalization and for working capital. Except as provided in the immediately
preceding sentence, the proceeds of the Loans and letters of credit in an
aggregate face amount at any time outstanding not in excess of $5,000,000 will
be used solely for working capital and other general corporate purposes.
The Lenders are willing to extend such credit to the Borrowers
and the Fronting Bank is willing to issue letters of credit for the accounts of
the Borrowers on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Revolving Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Account" shall mean any right to payment for goods sold or
leased or for services rendered, whether or not earned by performance.
"Account Debtor" shall mean, with respect to any Account, the
obligor with respect to such Account.
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"Adjusted LIBO Rate" shall mean, with respect to any
Eurodollar Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the product of
(a) the LIBO Rate in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent Fees" shall have the meaning assigned to
such term in Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
person specified.
"Aggregate Credit Exposure" shall mean the aggregate amount of
the Lenders' Credit Exposures.
"Alternate Base Rate" shall mean for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such
day plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. If for any reason the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Base CD Rate or the Federal Funds Effective Rate or both
for any reason, including the inability of the Administrative Agent to obtain
sufficient quotations in accordance with the terms of the definition thereof,
the Alternate Base Rate shall be determined without regard to clause (b) or (c),
or both, of the preceding sentence, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
The term "Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective on the date such change is publicly announced as being
effective. The term "Base CD Rate" shall mean the sum of (a) the product of (i)
the Three-Month Secondary CD Rate and (ii) Statutory Reserves and (b) the
Assessment Rate. The term "Federal Funds Effective Rate" shall mean, for any
day, the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day,
the average of the quotations for the day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Applicable Obligor" shall have the meaning assigned to such
term in Section 2.22.
"Applicable Percentage" of any Lender at any time shall mean
the percentage of the Total Revolving Credit Commitment represented by such
Lender's Revolving Credit Commitment. In the event the Revolving Credit
Commitments shall have expired or been terminated, the Applicable Percentages
shall be determined on the basis of the Revolving Credit Commitments most
recently in effect, but giving effect to assignments pursuant to Section 9.04.
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"Assessment Rate" shall mean for any date the annual rate
(rounded upwards, if necessary, to the next 1/100 of 1%) most recently estimated
by the Administrative Agent as the then current net annual assessment rate that
will be employed in determining amounts payable by the Administrative Agent to
the Federal Deposit Insurance Corporation (or any successor thereto) for
insurance by such Corporation (or such successor) of time deposits made in
dollars at the Administrative Agent's domestic offices.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee, and accepted by the
Administrative Agent, in the form of Exhibit B or such other form as shall be
approved by the Administrative Agent.
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States of America.
"Borrowers" shall mean, collectively, the Domestic Borrowers
and the Foreign Borrowers.
"Borrowing" shall mean any Revolving Credit Borrowing, Thai
Facility Borrowing, Thai Offered Rate Borrowing or HK Offered Rate Borrowing.
"Borrowing Request" shall mean a request by any Borrower in
accordance with the terms of Section 2.03 and substantially in the form of
Exhibit C.
"Business Day" shall mean any day other than a Saturday,
Sunday or day on which banks in New York City are authorized or required by law
to close; provided, however, that (i) when used in connection with a Eurodollar
Loan, the term "Business Day" shall also exclude any day which is not a London
Business Day and (ii) when used in connection with a Foreign Borrower, the term
"Business Day" shall exclude any day on which banks in Hong Kong and the
jurisdiction in which such Foreign Borrower is organized are not open for
general banking business. A "London Business Day" shall mean any day on which
banks are open for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" shall mean, for any person in respect
of any period, the sum of (a) the aggregate of all expenditures incurred by such
person during such period that, in accordance with GAAP, are or should be
included in "additions to property, plant or equipment" or similar items
reflected in the statement of cash flows of such person and (b) to the extent
not covered by clause (a) above, the aggregate of all expenditures incurred by
such person during such period to acquire by purchase or otherwise the business,
property or fixed assets of, or stock or other evidence of beneficial ownership
of, any other person; provided, however, that Capital Expenditures shall not
include (i) expenditures of proceeds of insurance settlements in respect of
lost, destroyed or damaged assets, equipment or other property to the extent
such expenditures are made to replace or repair such lost, destroyed or damaged
assets, equipment or other property within 12 months of such destruction or
damage or (ii) acquisitions of property in connection with Permitted Sale and
Lease-Back Transactions.
"Capital Lease Obligations" of any person shall mean the
obligations of such person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
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"Capital Stock" of any person shall mean any and all shares,
interests, share capital, rights to subscribe for or purchase, warrants,
options, participation or other equivalents of or interests in (however
designated) equity of such person, including any preferred stock, any limited or
general partnership interest and any limited liability company membership
interest, but excluding any debt securities convertible into or exchangeable for
such equity.
"Certificate of Incorporation" shall mean the Amended and
Restated Certificate of Incorporation of IMS, in substantially the form
heretofore delivered to the Administrative Agent and the Lenders, with no
changes therefrom or amendments thereto adverse to IMS or the Lenders, as
amended from time to time in accordance with Section 6.09.
A "Change in Control" shall be deemed to have occurred if:
(a) the Prudential Investor, the Oak Investors, the Management
Investors holding common stock of IMS or options to acquire such stock
on the Closing Date or the Continuing Shareholder (collectively, the
"Designated Persons") or any combination of Designated Persons, shall
cease to own and control, beneficially and of record, shares in the
aggregate representing more than 50% of the aggregate ordinary voting
power represented by the issued and outstanding Capital Stock of IMS;
(b) a majority of the seats (excluding vacant seats) on the
board of directors of IMS shall at any time after the Closing Date have
been occupied by persons who were neither (i) nominated by any one or
more Designated Persons or by a majority of the board of directors of
IMS, nor (ii) appointed by directors so nominated;
(c) a change in control with respect to IMS or any Subsidiary
(or similar event, however denominated) shall occur under or in any
instrument or agreement in respect of or evidencing Indebtedness in a
principal amount in excess of $2,000,000 to which IMS or any Subsidiary
is party if the effect thereof is to cause, or to permit the holder or
holders of such Indebtedness or a trustee on its or their behalf (with
or without the serving of notice, the lapse of time or both) to cause,
such Indebtedness to become due prior to its stated maturity;
(d) any person or group other than the Designated Persons
shall otherwise directly or indirectly Control IMS;
(e)(i) IMS shall not own and control, of record and
beneficially, 100% of each class of outstanding Capital Stock, and
securities convertible into or exchangeable for Capital Stock, of the
U.S. Borrower free and clear of all Liens (other than any Lien under
the Security Documents); (ii) the U.S. Borrower shall not own and
control, of record and beneficially, 100% of each class of outstanding
Capital Stock, and securities convertible into or exchangeable for
Capital Stock, of IMS Foreign Holdings free and clear of all Liens
(other than any Lien under the Security Documents); or (iii) IMS
Foreign Holdings shall not own and control, directly or indirectly, of
record and beneficially, 100% of each class of outstanding Capital
Stock, and warrants to purchase and rights to subscribe for, and
securities convertible into or exchangeable for, Capital Stock, of each
Foreign Subsidiary; or (iv) 100% of each class of outstanding Capital
Stock, and warrants to purchase and rights to subscribe for, and
securities convertible into or exchangeable for, Capital Stock, of any
Domestic Subsidiary shall not be owned and controlled, of record and
beneficially, free and clear of all Liens (other than any Lien under
the Security Documents), by another Domestic Subsidiary
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or, solely in the case of the U.S. Borrower, by IMS; in each case
subject to directors' or similar qualifying shares required by
applicable law; or
(f) the Prudential Investor and the Oak Investors shall cease
to own and control, of record and beneficially, (i) shares in the
aggregate representing more than 75% of the shares of Preferred Stock
originally issued to the Prudential Investor and the Oak Investors and
(ii) Subordinated Notes in an aggregate principal amount in excess of
75% of the aggregate principal amount of Subordinated Notes originally
issued to the Prudential Investor and the Oak Investors.
"Change in Law" shall mean (a) the adoption of any law, rule
or regulation after the date of this Agreement, (b) any change in any law, rule
or regulation or in the interpretation or application thereof after the date of
this Agreement or (c) compliance by any Lender or the Fronting Bank with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Closing Date" shall mean the date of the first Credit Event.
"Code" shall mean the United States Internal Revenue Code of
1986, as amended from time to time.
"Collateral" shall mean all the "Collateral" as defined in any
Security Document and shall also include the Mortgaged Properties.
"Commitment Fee" shall have the meaning assigned to such term
in Section 2.05(a).
"Confidential Information Memorandum" shall mean the
Confidential Information Memorandum of IMS dated May 1996.
"Consolidated Cash Interest Expense" shall mean, with respect
to IMS and the Subsidiaries on a consolidated basis for any period, Consolidated
Interest Expense for such period less the sum of pay-in- kind or accreted
Consolidated Interest Expense not involving any payment of cash.
"Consolidated Current Assets" shall mean, with respect to IMS
and the Subsidiaries on a consolidated basis at any date of determination, all
assets (other than cash and Permitted Investments or other cash equivalents)
that would, in accordance with GAAP, be classified on a consolidated balance
sheet of IMS and the Subsidiaries as current assets at such date of
determination.
"Consolidated Current Liabilities" shall mean, with respect to
IMS and the Subsidiaries on a consolidated basis at any date of determination,
all liabilities that would, in accordance with GAAP, be classified on a
consolidated balance sheet of IMS and the Subsidiaries as current liabilities at
such date of determination, other than (a) the current portion of long-term
Indebtedness, (b) accruals of Consolidated Interest Expense (excluding
Consolidated Interest Expense that is due and unpaid) and (c) Loans classified
as current.
"Consolidated Interest Expense" shall mean, with respect to
IMS and the Subsidiaries on a consolidated basis for any period, interest and
fees accrued, accreted or paid by IMS and the Subsidiaries during such period in
respect of the Indebtedness of IMS and the Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
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"Consolidated Tangible Assets" shall mean at any time, the
aggregate amount of assets (less applicable reserves and other properly
deductible items) of IMS and the Subsidiaries, on a consolidated basis, adjusted
for inventories on the basis of cost or current market value, whichever is
lower, and deducting therefrom all goodwill, trade names, patents and other like
intangibles, computed in accordance with GAAP.
"Consolidated Working Capital" shall mean, with respect to IMS
and the Subsidiaries on a consolidated basis at any date of determination,
Consolidated Current Assets at such date of determination minus Consolidated
Current Liabilities at such date of determination.
"Contingent Payment Notes" shall mean the $20,000,000
aggregate principal amount of Senior Subordinated Notes of IMS and the HK
Borrower and the Senior Subordinated Evidences of Indebtedness of the Thai
Borrower payable to the order of the Continuing Shareholder, in each case in
substantially the form heretofore delivered to the Administrative Agent and the
Lenders, with no changes therefrom or amendments thereto adverse to IMS, the
Subsidiaries or the Lenders, as amended from time to time in accordance with
Section 6.09.
"Contingent Payment Notes Guarantees" shall mean the
Guaranties dated as of the date hereof made by IMS and the Subsidiary Guarantors
in favor of the Continuing Shareholder in respect of the obligations of the HK
Borrower and the Thai Borrower under the Contingent Payment Notes and by the
Domestic Guarantors (other than IMS) in favor of the Continuing Shareholder in
respect of the obligations of IMS under the Contingent Payment Notes, in each
case in substantially the form heretofore delivered to the Administrative Agent
and the Lenders, with no changes therefrom or amendments thereto adverse to IMS,
the Subsidiaries or the Lenders, as amended from time to time in accordance with
Section 6.09.
"Continuing Shareholder" shall mean Maxtor Corp., a Delaware
corporation.
"Control" shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Credit Event" shall have the meaning assigned to such term in
Section 4.01.
"Credit Exposure" shall mean, with respect to any Lender at
any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender to all the Borrowers, plus the aggregate amount
at such time of such Lender's (w) L/C Exposure, (x) Thai Facility Exposure, (y)
Thai Offered Rate Facility Exposure and (z) HK Offered Rate Facility Exposure.
"Customer Account Equipment" shall mean customer-unique
equipment which is purchased by any Subsidiary with the intention of selling
such equipment to a specific customer of such Subsidiary within 180 days after
such purchase, and which is in fact sold to such customer within 180 days after
such purchase, all in the ordinary course of business of such Subsidiary.
"Debt Service" shall mean, with respect to IMS and the
Subsidiaries on a consolidated basis for any period, the sum of (a) Consolidated
Cash Interest Expense of IMS and the Subsidiaries for such period plus (b)
scheduled principal amortization of Total Debt (other than the Contingent
Payment Notes) for such period.
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"Default" shall mean any event or condition which upon notice,
lapse of time or both would constitute an Event of Default.
"Designated Excess Cash Flow Amount" shall have the meaning
assigned to such term in Section 2.09(e).
"Designated Persons" shall have the meaning assigned to such
term in the definition of Change of Control.
"dollars" or "$" shall mean lawful money of the United States
of America.
"Domestic ABR Borrowing" shall mean any Domestic Borrowing
that is an ABR Borrowing.
"Domestic Borrowers" shall mean, collectively, the U.S.
Borrower and any Permitted Additional Borrower that is not a Foreign Subsidiary.
"Domestic Borrowing" shall mean (i) any Borrowing made by a
Domestic Borrower and (ii) any Revolving Credit Borrowing made by the HK
Borrower that is not a Foreign Revolving Borrowing.
"Domestic Guarantors" shall mean, collectively, IMS and each
other Guarantor that is not a Foreign Subsidiary.
"Domestic Subsidiary" shall mean any Subsidiary incorporated
or organized under the laws of the United States of America, any State thereof
or the District of Columbia.
"EBITDA" shall mean, with respect to IMS and the Subsidiaries
on a consolidated basis for any period, the net income of IMS and the
Subsidiaries on a consolidated basis for such period plus, to the extent
deducted in computing such consolidated net income, without duplication, the sum
of (a) income tax expense, (b) interest expense, (c) depreciation and
amortization expense, (d) any extraordinary or non-recurring losses and (e)
other noncash items reducing such consolidated net income, minus, to the extent
added in computing such consolidated net income, without duplication, the sum of
(i) interest income, (ii) any extraordinary or non-recurring gains and (iii)
other noncash items increasing such consolidated net income, determined on a
consolidated basis in accordance with GAAP.
"environment" shall mean ambient air, surface water and
groundwater (including potable water, navigable water and wetlands), the land
surface or subsurface strata, the workplace or as otherwise defined in any
Environmental Law.
"Environmental Claim" shall mean any written accusation,
allegation, notice of violation, claim, demand, order, directive, cost recovery
action or other cause of action by, or on behalf of, any Governmental Authority
or any person for damages, injunctive or equitable relief, personal injury
(including sickness, disease or death), Remedial Action costs, tangible or
intangible property damage, natural resource damages, nuisance, pollution, any
adverse effect on the environment caused by any Hazardous Material, or for
fines, penalties or restrictions, resulting from or based upon (a) the
existence, or the continuation of the existence, of a Release, (b) exposure to
any Hazardous Material, (c) the presence, use, handling, transportation,
storage, treatment or disposal of any Hazardous Material or (d) the violation or
alleged violation of any Environmental Law or Environmental Permit.
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"Environmental Law" shall mean any and all applicable present
and future treaties, laws, rules, regulations, codes, ordinances, orders,
decrees, directives, judgments, injunctions, notices or binding agreements
issued, promulgated or entered into by any Governmental Authority, relating in
any way to the environment, preservation or reclamation of natural resources,
the management, Release or threatened Release of any Hazardous Material or to
health and safety matters, including, but not limited to the Enhancement and
Conservation of National Environmental Quality Act, Hazardous Substances Act,
Factories Act, Public Health Act, Air Pollution Control Ordinance, Air Pollution
Control Amendment Ordinance, Factories & Industrial Undertakings Ordinance,
Ozone Layer Protection Ordinance, Waste Disposal Ordinance, Water Pollution
Control Ordinance and any similar or implementing foreign, provincial, district,
regional, state or local law, and all amendments to, or regulations promulgated
under, any of the foregoing.
"Environmental Permit" shall mean any permit, approval,
authorization, certificate, license, variance, filing or permission required by
or from any Governmental Authority pursuant to any Environmental Law.
"Equity Net Proceeds" shall mean the cash proceeds from the
issuance or sale by IMS or any Subsidiary (other than the issuance or sale to
IMS or any wholly owned Subsidiary) of any equity security (or any option,
warrant or right to subscribe for or security convertible into or exchangeable
for any equity security) of IMS or any Subsidiary (other than sales of Capital
Stock of IMS to directors, officers, consultants or employees of IMS or the
Subsidiaries in connection with permitted employee compensation and incentive
arrangements), net of all taxes applicable to and customary fees, commissions,
costs and other expenses incurred in connection with such issuance or sale.
"Equity Net Proceeds Reduction" shall have the meaning
assigned to such term in Section 2.09.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated) that, together with any Domestic Borrower, is treated as a
single employer under Section 414(b) or (c) of the Code, or solely for purposes
of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued thereunder, with
respect to a Plan; (b) the adoption of any amendment to a Plan that would
require the provision of security pursuant to Section 401(a)(29) of the Code or
Section 307 of ERISA; (c) the existence with respect to any Plan of an
"accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (d) the filing pursuant to Section
412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan; (e) the incurrence of any
liability under Title IV of ERISA with respect to the termination of any Plan or
the withdrawal or partial withdrawal of any Domestic Borrower or any of its
ERISA Affiliates from any Plan or Multiemployer Plan; (f) the receipt by any
Domestic Borrower or any ERISA Affiliate from the PBGC or a plan administrator
of any notice relating to the intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (g) the receipt by any Domestic
Borrower or any ERISA Affiliate of any notice concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of
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Title IV of ERISA; (h) the occurrence of a "prohibited transaction" with respect
to which any Domestic Borrower or any of its subsidiaries is a "disqualified
person" (within the meaning of Section 4975 of the Code) or with respect to
which any Domestic Borrower or any such subsidiary could otherwise be liable;
(i) any other event or condition with respect to a Plan or Multiemployer Plan
that could reasonably be expected to result in material liability of any
Domestic Borrower; and (j) any Foreign Benefit Event.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loan" shall mean any Loan bearing interest at a
rate determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such
term in Article VII.
"Excess Cash Flow" shall mean, with respect to IMS and the
Subsidiaries on a consolidated basis for any fiscal year (or for the period
commencing on June 30, 1996 and ending on the last Saturday in March, 0000),
XXXXXX of IMS and the Subsidiaries on a consolidated basis for such fiscal year
or period minus, without duplication, (a) Debt Service of IMS and the
Subsidiaries on a consolidated basis for such fiscal year or period, (b) Capital
Expenditures by IMS and the Subsidiaries on a consolidated basis during such
fiscal year or period that are paid in cash, (c) all taxes paid in cash by IMS
and the Subsidiaries on a consolidated basis during such fiscal year or period,
(d) an amount equal to any increase in Consolidated Working Capital of IMS and
the Subsidiaries during such fiscal year or period, (e) cash dividends paid by
IMS on the Preferred Stock during such fiscal year or period in an aggregate
amount not in excess of $1,000,000, (f) cash expenditures made by IMS and the
Subsidiaries on a consolidated basis in respect of Interest Rate Protection
Agreements during such fiscal year or period, to the extent not reflected in the
computation of EBITDA, (g) amounts paid in cash by IMS and the Subsidiaries on a
consolidated basis during such fiscal year or period on account of items that
were accounted for as noncash reductions of consolidated net income of IMS and
the Subsidiaries in the current or a prior period, (h) any extraordinary or
non-recurring loss paid in cash by IMS and the Subsidiaries on a consolidated
basis during such fiscal year or period and (i) to the extent added in
determining EBITDA, all items that did not result from a cash payment to IMS and
the Subsidiaries on a consolidated basis during such fiscal year or period plus,
without duplication, (i) an amount equal to any decrease in Consolidated Working
Capital of IMS and the Subsidiaries during such fiscal year or period, (ii) all
proceeds received during such fiscal year or period from Capital Lease
Obligations, purchase money Indebtedness and any other Indebtedness to the
extent used to finance any Capital Expenditure (other than Indebtedness under
this Agreement to the extent there is no corresponding deduction to Excess Cash
Flow above in respect of the use of such Borrowings for such fiscal year or
period or any prior period), (iii) all amounts referred to in clause (b) above
to the extent funded with the proceeds of the issuance of Capital Stock of IMS
after the Closing Date or any amount that would have constituted Equity Net
Proceeds if not so spent, in each case to the extent there is a corresponding
deduction to Excess Cash Flow above for such fiscal year or period or any prior
period, (iv) cash payments received in respect of Interest Rate Protection
Agreements during such fiscal year or period to the extent not included in
EBITDA, (v) any extraordinary or non-recurring gain realized in cash during such
fiscal year or period (except to the extent such gain is subject to Section
2.09(d)(iii)), (vi) to the extent subtracted in the computation of EBITDA,
interest income and (vii) to the extent subtracted in determining EBITDA, all
items that did not result from a cash payment by IMS and the Subsidiaries on a
consolidated basis during such fiscal year or period.
"Excess Cash Flow Reduction" shall have the meaning assigned
to such term in Section 2.09(d).
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"Excess EBITDA" shall have the meaning assigned to such term
in Section 6.10.
"Excluded Taxes" shall mean, with respect to the
Administrative Agent, any Lender, the Fronting Bank or any other recipient of
any payment to be made by or on account of any obligation of any Borrower
hereunder, (a) income or franchise Taxes imposed on (or measured by) its net
income by the jurisdiction under the laws of which it is organized, or the
jurisdiction in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits or similar Tax imposed by the Relevant Jurisdiction and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by a Borrower
under Section 2.19(b)), any withholding Tax imposed on amounts payable to such
Foreign Lender under this Agreement because of its failure or inability to
comply with Section 2.18(e) or otherwise, unless (and to the extent that) (i)
such withholding Tax liability arises or is increased by reason of a Change in
Law occurring after such Foreign Lender becomes a Lender under this Agreement or
(ii) such Foreign Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the applicable Borrower with
respect to such withholding Tax liability pursuant to Section 2.18(a).
"Fee Letter" shall mean the Fee Letter dated April 17, 1996,
among the Prudential Investor, the Oak Investors, Chemical Bank and Chemical
Securities Asia Limited.
"Fees" shall mean the Commitment Fees, the Administrative
Agent's Fees, the LC Participation Fees, the Thai Facility Participation Fees,
the Thai Offered Rate Facility Participation Fees, the HK Offered Rate Facility
Participation Fees and the Fronting Bank Fees.
"Financial Officer" of any person shall mean the chief
financial officer, principal accounting officer, Treasurer or Controller of such
person.
"Foreign Benefit Event" shall mean (a) with respect to any
Foreign Pension Plan, (i) the existence of unfunded liabilities in excess of the
amount permitted under any applicable law, or in excess of the amount that would
be permitted absent a waiver from a Governmental Authority, (ii) the failure to
make the required contributions or payments, under any applicable law, on or
before the due date for such contributions or payments, (iii) the receipt of a
notice from a Governmental Authority relating to the intention to terminate any
such Foreign Pension Plan or to appoint a trustee to administer any such Foreign
Pension Plan, or to the insolvency of any such Foreign Pension Plan and (iv) the
incurrence of any liability of the Borrowers under applicable law on account of
the complete or partial termination of such Foreign Pension Plan or the complete
or partial withdrawal of any participating employer therein and (b) with respect
to any Foreign Plan, (i) the occurrence of any transaction that is prohibited
under any applicable law and could result in the incurrence of any liability by
the Borrowers, or the imposition on the Borrowers of any fine, excise tax or
penalty resulting from any noncompliance with any applicable law and (ii) any
other event or condition that could reasonably be expected to result in
liability of any of the Borrowers.
"Foreign Borrowers" shall mean, collectively, the HK Borrower
and the Thai Borrower and any Permitted Additional Borrower that is a Foreign
Subsidiary.
"Foreign Guarantors" shall mean, collectively, all Guarantors
that are Foreign Subsidiaries.
"Foreign Lender", with respect to any Loan, shall mean any
Lender making such Loan that is organized under the laws of a jurisdiction other
than the Relevant Jurisdiction.
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"Foreign Pension Plan" shall mean any benefit plan which under
applicable law is required to be funded through a trust or other funding vehicle
other than a trust or funding vehicle maintained exclusively by a Governmental
Authority.
"Foreign Plan" shall mean any plan or arrangement established
or maintained outside the United States for the benefit of present or former
employees of any of the Subsidiaries.
"Foreign Pledge Agreements" shall mean the following
agreements: (i) the Debenture in the form of Exhibit E-2 between the HK Borrower
and the Collateral Agent for the benefit of the Secured Parties; (ii) the Pledge
Agreement substantially in the form of Exhibit E-3 between IMS Cayman and the
Collateral Agent for the benefit of the Secured Parties and (iii) any Pledge
Agreement entered into pursuant to Section 5.11 by a Foreign Subsidiary formed
or acquired by IMS or any Subsidiary after the date hereof and the Collateral
Agent for the benefit of the Secured Parties, which shall be substantially in
the form of Exhibit E-1 with such changes as shall in the judgment of the
Collateral Agent be necessary or advisable under applicable law.
"Foreign Revolving Borrowing" shall mean any Revolving Credit
Borrowing made by a Foreign Borrower the funds comprising which are disbursed to
an account located outside the United States.
"Foreign Security Agreements" shall mean the following
agreements: (i) the Thailand Security Agreement, (ii) the Debenture
substantially in the form of Exhibit E-2 between the HK Borrower and the
Collateral Agent for the benefit of the Secured Parties, (iii) the Security
Agreement substantially in the form of Exhibit F-3 between IMS Cayman and the
Collateral Agent for the benefit of the Secured Parties and (v) any Security
Agreement entered into pursuant to Section 5.11 by a Foreign Subsidiary formed
or acquired by IMS or any Subsidiary after the date hereof and the Collateral
Agent for the benefit of the Secured Parties, which shall be substantially in
the form of Exhibit F-1 with such changes as shall in the judgment of the
Collateral Agent be necessary or advisable under applicable law.
"Foreign Subsidiary" shall mean any Subsidiary that is not a
Domestic Subsidiary.
"Fronting Bank Fees" shall have the meaning assigned to such
term in Section 2.05(c).
"GAAP" shall mean generally accepted accounting principles in
the United States applied on a consistent basis.
"GECC Loan" shall mean certain Indebtedness outstanding as of
the date hereof of the HK Borrower to General Electric Credit Corporation in a
principal amount equal to approximately $425,000.
"Governmental Authority" shall mean any Federal, state, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantee" of or by any person shall mean any obligation,
contingent or otherwise, of such person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (b) to purchase or lease property, securities
or services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (c) to maintain working
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capital, equity capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay such
Indebtedness; provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantee Agreements" shall mean the Parent Guarantee
Agreement and the Subsidiary Guarantee Agreement.
"Guarantors" shall mean IMS and each Subsidiary that has
entered into the Subsidiary Guarantee Agreement.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes, hazardous or toxic substances or wastes, pollutants,
solid, liquid or gaseous wastes, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HK Facility Lender" shall mean Chemical Bank. The HK Facility
Lender shall be a Lender.
"HK Offered Rate" shall mean with respect to any HK Offered
Rate Loan for any Interest Period, the rate per annum at which deposits in
dollars approximately equal in principal amount to such HK Offered Rate Loan and
for a maturity comparable to such Interest Period are offered by the HK Facility
Lender to prime banks in Hong Kong on the first day of such Interest Period.
"HK Offered Rate Borrowing" shall mean one or a group of HK
Offered Rate Loans made on a single date and as to which a single Interest
Period is in effect.
"HK Offered Rate Facility Commitment" shall mean the
commitment of the HK Facility Lender to make HK Facility Loans pursuant to
Section 2.01(d).
"HK Offered Rate Facility Exposure" shall mean at any time the
aggregate principal amount of all outstanding HK Offered Rate Loans at such
time. The HK Offered Rate Facility Exposure of any Lender at any time shall mean
its Applicable Percentage of the aggregate HK Offered Rate Facility Exposure at
such time.
"HK Offered Rate Facility Participations Event" shall have the
meaning assigned to such term in Section 2.01(d).
"HK Offered Rate Loan Payment Date" shall have the meaning
assigned to such term in Section 2.01(d)(vi).
"HK Offered Rate Loans" shall mean the HK Offered Rate Loans
made by the HK Facility Lender to the HK Borrower pursuant to Section 2.01(d).
"IMS PRC Borrower Date" shall have the meaning assigned to
such term in Section 6.15.
"IMS PRC Guarantee Issuance Date" shall have the meaning
assigned to such term in Section 5.11.
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"IMS PRC Security Grant Date" shall have the meaning assigned
to such term in Section 5.11.
"IMS Reorganization" shall mean the reorganization of IMS and
its subsidiaries as a result of which the organizational structure of IMS and
its subsidiaries will be as set forth on Schedule 4.02(n).
"Indebtedness" of any person shall mean, without duplication,
(a) all obligations of such person for borrowed money or with respect to
deposits or advances of any kind, (b) all obligations of such person evidenced
by bonds, debentures, notes or similar instruments, (c) all obligations of such
person upon which interest charges are customarily paid, (d) all obligations of
such person under conditional sale or other title retention agreements relating
to property or assets purchased by such person, (e) all obligations of such
person issued or assumed as the deferred purchase price of property or services
(excluding trade accounts payable), (f) all Indebtedness of others secured by
(or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on property owned or acquired by such
person, whether or not the obligations secured thereby have been assumed, (g)
all Guarantees by such person of Indebtedness of others, (h) all Capital Lease
Obligations of such person, (i) all payments that such person would have to make
in the event of an early termination, on the date Indebtedness of such person is
being determined, in respect of outstanding interest rate protection agreements,
foreign currency exchange agreements or other interest or exchange rate hedging
arrangements and (j) all obligations of such person as an account party in
respect of letters of credit and bankers' acceptances. The Indebtedness of any
person shall include the Indebtedness of any partnership in which such person is
a general partner.
"Indemnified Taxes" shall mean Taxes other than Excluded
Taxes.
"Indemnity, Subrogation and Contribution Agreement" shall mean
the Indemnity, Subrogation and Contribution Agreement, substantially in the form
of Exhibit D, among the Subsidiary Guarantors and the Collateral Agent.
"Interest Coverage Ratio" shall have the meaning assigned to
such term in Section 6.11.
"Interest Payment Date" shall mean, with respect to any Loan,
the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurodollar Borrowing with an Interest
Period of more than three months' duration, each day that would have been an
Interest Payment Date had successive Interest Periods of three months' duration
been applicable to such Borrowing, and, in addition, the date of any prepayment
of such Borrowing or conversion of such Borrowing to a Borrowing of a different
Type.
"Interest Period" shall mean (a) as to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing or on the last
day of the immediately preceding Interest Period in effect for such Borrowing
and ending on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6
months thereafter, as the applicable Borrower may elect and (b) as to any ABR
Borrowing, Thai Offered Rate Borrowing or HK Offered Rate Borrowing, the period
commencing on the date of such Borrowing or on the last day of the immediately
preceding Interest Period in effect for such Borrowing and ending on the
earliest of (i) the next succeeding March 31, June 30, September 30 or December
31, (ii) the Maturity Date and (iii) in the case of an ABR Borrowing, the date
such Borrowing is converted to a Borrowing of a different Type in accordance
with Section 2.10 or repaid or prepaid in accordance with Section 2.11, and in
the case of an Offered Rate Borrowing, on the
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day such Borrowing is repaid or converted into a Eurodollar Borrowing in
accordance with Section 2.01; provided, however, that if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case of a Eurodollar
Borrowing only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day. Interest shall accrue from and including the first day
of an Interest Period to but excluding the last day of such Interest Period.
"Interest Rate Protection Agreement" shall mean any interest
rate cap agreement or other agreement or arrangement satisfactory to the
Administrative Agent entered into by any Borrower designed to protect such
Borrower against fluctuations in interest rates.
"Investors" shall mean the Management Investors (as at the
time of determination), the Prudential Investor and the Oak Investors.
"L/C Commitment" shall mean the commitment of the Fronting
Bank to issue Letters of Credit pursuant to Section 2.20.
"L/C Disbursement" shall mean a payment or disbursement made
by the Fronting Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such time plus
(b) the aggregate principal amount of all L/C Disbursements that have not yet
been reimbursed at such time. The L/C Exposure of any Lender at any time shall
mean its Applicable Percentage of the aggregate L/C Exposure at such time.
"L/C Participation Fee" shall have the meaning assigned to
such term in Section 2.05(c).
"Lenders" shall mean (a) the financial institutions listed on
Schedule 2.01 (other than any such financial institution that has ceased to be a
party hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance.
"Letter of Credit" shall mean any letter of credit issued
pursuant to Section 2.20.
"Leverage Ratio" shall have the meaning assigned to such term
in Section 6.13.
"LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum equal to the
arithmetic average of the rates that appear on the Reuters Screen LIBO Page as
of 11:00 a.m., London time, two London Business Days prior to the commencement
of such Interest Period, for a maturity comparable to such Interest Period or,
in the event no such rates appear on the Reuters Screen LIBO Page, the rate at
which deposits in dollars approximately equal in principal amount to such
Borrowing and for a maturity comparable to such Interest Period are offered to
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two London Business Days prior to the commencement of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having
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substantially the same economic effect as any of the foregoing) relating to such
asset and (c) in the case of securities, any purchase option, call or similar
right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Letters of
Credit, the Guarantee Agreements, the Security Documents and the Indemnity,
Subrogation and Contribution Agreement.
"Loan Parties" shall mean the Borrowers and the Guarantors.
"Loans" shall mean the Revolving Loans, the Thai Facility
Loans, the Thai Offered Rate Loans and the HK Offered Rate Loans. Each Revolving
Loan shall be a Eurodollar Loan or an ABR Loan.
"Management Investors" shall mean at any time the officers and
directors of IMS and the Subsidiaries holding voting stock of IMS at such time.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse
effect on the business, assets, operations or financial condition of IMS and the
Subsidiaries taken as a whole, (b) material impairment of the ability of IMS or
any other Loan Party to perform its obligations under any Loan Document to which
it is or will be a party or (c) material impairment of the rights of or benefits
available to the Lenders under any Loan Document.
"Maturity Date" shall mean the fifth anniversary of the
Closing Date.
"Mortgaged Properties" shall mean the material owned real
properties and leasehold and subleasehold interests of the Loan Parties.
"Mortgages" shall mean the mortgages, deeds of trust,
leasehold mortgages, assignments of leases and rents, modifications and other
security documents delivered pursuant to Section 5.11.
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Non-Equity Net Proceeds" shall mean (a) 100% of the cash
proceeds actually received by IMS or any Subsidiary (including cash proceeds
subsequently received in respect of noncash consideration initially received and
including all insurance settlements and condemnation awards in any fiscal year
of IMS but only as and when received), net of selling expenses (including
reasonable broker's fees or commissions, transfer and similar taxes and IMS's
good faith estimate of income tax liabilities incurred in connection with the
receipt of such cash proceeds) from any loss, damage, destruction or
condemnation of, or any sale, transfer or other disposition (other than (i) the
sale of Customer Account Equipment and inventory in the ordinary course, (ii)
sales of property in connection with Permitted Sale and Lease-Back Transactions
and (iii) sales, transfers or other dispositions effected as part of a Permitted
Intercompany Transfer) to any person in any transaction or related series of
transactions of any asset or assets of IMS or any Subsidiary, provided that if
IMS shall deliver a certificate of a Responsible Officer to the Administrative
Agent promptly following receipt of any such proceeds setting forth the
intention of IMS or the applicable Subsidiary to use any portion of such
proceeds to purchase assets useful in the business of IMS or the applicable
Subsidiary within 12 months of such receipt, such portion of such proceeds shall
not constitute Non-Equity Net Proceeds except to the extent not so used within
such 12-month period ("Reinvested Proceeds"); and
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provided further that if the proceeds realized from any such sale, transfer or
disposition transaction is less than $25,000 (a "De Minimis Sale"), then, so
long as such proceeds are used to purchase assets useful in the business of IMS
or the applicable Subsidiary within 12 months of receipt thereof, such proceeds
shall be deemed (regardless of the failure of IMS or such Subsidiary to deliver
a certificate as set forth above with respect to such De Minimis Sale) to
constitute Reinvested Proceeds unless the aggregate amount of all De Minimis
Sales (including such De Minimis Sale) in the fiscal year in which such De
Minimis Sale occurs exceeds $1,000,000; and (b) 100% of the cash proceeds from
the incurrence, issuance or sale by IMS or any Subsidiary of any Indebtedness of
IMS or any Subsidiary (other than Indebtedness permitted under Section 6.01,
other than by virtue of any waiver or amendment entered into to permit such
Indebtedness), net of all taxes applicable to and customary fees, commissions,
costs and other expenses incurred in connection with such issuance or sale.
"Non-Equity Net Proceeds Reduction" shall have the meaning
assigned to such term in Section 2.09(d).
"Oak Investor Parties" shall mean the Oak Investors and the
persons listed on Schedule 1.01(a).
"Oak Investors" shall mean, collectively, Oak Investment
Partners VI, L.P., a California limited partnership, and Oak VI Affiliates Fund,
L.P., a California limited partnership.
"Obligations" shall mean, without duplication, (a) the
obligations of the Borrowers (i) to pay the principal of and premium, if any,
and interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on the Loans, when and as due, whether
at maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (ii) to make each payment required to be made by the Borrowers under
this Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement of disbursements, interest thereon and
obligations to provide cash collateral and (iii) to pay and satisfy when due all
other monetary obligations, including fees, costs, expenses and indemnities,
whether primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Borrowers to the Secured Parties under
this Agreement and the other Loan Documents and (b) the obligations of the Loan
Parties to pay and perform when and as due all the covenants, agreements,
obligations and liabilities of the Loan Parties under or pursuant to this
Agreement and the other Loan Documents and under each Interest Rate Protection
Agreement entered into with any counterparty that was a Lender at the time such
Interest Rate Protection Agreement was entered into.
"Offered Rate Borrowings" shall mean Thai Offered Rate
Borrowings and HK Offered Rate Borrowings.
"Offered Rate Loans" shall mean Thai Offered Rate Loans and HK
Offered Rate Loans.
"Other Taxes" shall mean any and all present or future stamp
or documentary taxes or any other excise or property Taxes, charges or similar
levies arising from any payment made hereunder or from the execution or delivery
of, or otherwise with respect to, this Agreement.
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"Parent Guarantee Agreement" shall mean the Parent Guarantee
Agreement, substantially in the form of Exhibit D-1, made by IMS in favor of the
Collateral Agent for the benefit of the Secured Parties.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"Perfection Certificate" shall mean a Perfection Certificate
substantially in the form of Annex 1 to the Security Agreement.
"Permitted Additional Borrower" shall mean any wholly owned
Subsidiary that was formed or acquired pursuant to a Permitted Business
Acquisition and which, pursuant to Section 2.21, has undertaken all the
liabilities and obligations of a Borrower under this Agreement.
"Permitted Business Acquisition" shall mean any acquisition of
all the shares (excluding directors' or similar qualifying shares required by
applicable law) of Capital Stock (and warrants or rights to subscribe for and
securities convertible into or exchangeable for Capital Stock) (including the
formation of a new Subsidiary), or of all or substantially all the assets of, a
person or division or line of business of a person if immediately after giving
effect thereto: (a) no Default or Event of Default shall have occurred and be
continuing or would result therefrom, (b) all transactions related thereto shall
be consummated in accordance with applicable laws, (c) all the Capital Stock
(and all warrants or rights to subscribe for and securities convertible into or
exchangeable for Capital Stock) of any acquired or newly formed person (i) that
is a Domestic Subsidiary shall be owned directly by a wholly owned Domestic
Subsidiary and (ii) that is a Foreign Subsidiary shall be owned directly by IMS
Foreign Holdings, and all actions required to be taken with respect to any such
Domestic Subsidiary or Foreign Subsidiary under Section 5.11 (including with
respect to such party entering into a Security Agreement and a Guarantee
Agreement with the Collateral Agent for the benefit of the Secured Parties)
shall have been taken or shall have been provided for, and the Required Lenders
and the Collateral Agent shall be reasonably satisfied with all matters
pertaining to compliance with such Section 5.11 and with the guarantee and
collateral arrangements with respect to such person (and with an opinion of
counsel reasonably acceptable to the Collateral Agent relating to any such
person and such arrangements) and the Collateral Agent shall have delivered
written notice to IMS confirming such satisfaction, (d) any acquired assets
shall be used in, and any acquired or newly formed person shall be engaged in
the business currently conducted by, IMS and the Subsidiaries and business
activities reasonably related or incidental thereto, and (e)(i) IMS and the
Subsidiaries shall be in compliance, on a pro forma basis after giving effect to
such acquisition or formation, with the covenants contained in Sections 6.11,
6.12, 6.13, and 6.14 (A) recomputed as at the last day of the most recently
ended fiscal quarter of IMS as if such acquisition had occurred on the first day
of the relevant period for testing such compliance and (B) computed for each
relevant period during the remaining term of this Agreement (based, in the case
of such projected compliance for future periods, upon reasonable assumptions as
to costs to be incurred and revenues to be realized from such acquisition or
formation), and IMS shall have delivered to the Administrative Agent a
certificate of a Responsible Officer to such effect, together with all relevant
financial information for such Subsidiary or assets and calculations
demonstrating such compliance, and (ii) any acquired or newly formed Subsidiary
shall not be liable for any Indebtedness except for Indebtedness permitted by
Section 6.01.
"Permitted Intercompany Transfer" shall mean any transfer, by
means of issuance and incurrence of Indebtedness, investment, purchase and sale
or otherwise, of any asset from IMS or any Subsidiary to any wholly owned
Guarantor or to IMS PRC if, after giving effect to such transfer:
(a) the aggregate obligations of each Subsidiary shall be in
an amount, and shall involve payments, that can reasonably be supported
by such Subsidiary taking into account the actual and
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reasonably expected cash flows of such Subsidiary, the value of the
assets of such Subsidiary included in the Collateral and the
Indebtedness and obligations of such Subsidiary;
(b) Consolidated Tangible Assets representing not less than
90% of the total Consolidated Tangible Assets of IMS and the
Subsidiaries shall be owned by the Borrowers; and
(c) all rights of IMS and the Subsidiaries in contracts
representing not less than 90% of the consolidated projected
contractual revenues of IMS and the Subsidiaries under contracts for
the production of goods that are in effect at the time of determination
shall be held by the Borrowers.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, a rating of A1 from Standard & Poor's Ratings Service or
P1 from Xxxxx'x Investors Service, Inc.;
(c) investments in certificates of deposit, banker's
acceptances, time deposits and other deposits maturing within one year
from the date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank that has a combined capital and
surplus and undivided profits of not less than $250,000,000 or a rating
of A1 from Standard and Poor's Ratings Service or P1 from Xxxxx'x
Investors Service, Inc.;
(d) readily marketable direct obligations of any State of the
United States of America or any political subdivision of any such State
having, at such date of acquisition, a rating of at least AA by S&P and
Aa2 by Moody's, in each case maturing within one year after the date of
acquisition thereof; and
(e) other investment instruments approved in writing by the
Required Lenders and offered by financial institutions which have a
combined capital and surplus and undivided profits of not less than
$250,000,000.
"Permitted Sale and Lease-Back Transaction" shall have the
meaning assigned to such term in Section 6.03.
"person" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership or government, or any
agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other
than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 307 of ERISA, and in respect of which IMS or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreements" shall mean the U.S. Pledge Agreement and
the Foreign Pledge Agreements.
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"Preferred Stock" shall mean the Series A 10% Preferred Stock
of IMS and the Series B 10% Preferred Stock of IMS, with an aggregate initial
liquidation preference of $10,000,000, to be issued to the Prudential Investor
and the Oak Investors on the Closing Date pursuant to the Recapitalization
Agreement.
"Production Agreement" shall mean the Manufacturing Services
Agreement to be dated as of or prior to the Closing Date to be entered into by
the Continuing Shareholder and IMS, in substantially the form heretofore
delivered to the Administrative Agent and the Lenders, with no changes therefrom
or amendments thereto (other than those that would not constitute, and could not
reasonably be expected to result in, a Material Adverse Effect), as amended from
time to time in accordance with Section 6.09.
"Proposed Permitted Additional Borrower" shall have the
meaning assigned to such term in Section 2.21.
"Prudential Investor" shall mean Prudential Private Equity
Investors III, L.P., a Delaware limited partnership.
"Prudential Investor Parties" shall mean the Prudential
Investor and the persons listed on Schedule 1.01(b).
"Purchase Commitment Default" shall mean any breach by the
Continuing Shareholder of its Purchase Commitment (as defined in the Production
Agreement).
"Recapitalization" shall mean the consummation of the
following transactions: (a) the purchase by the Investors and the other Oak
Investor Parties and Prudential Investor Parties of common stock of IMS that on
a fully diluted basis and after giving effect to the other transactions referred
to in this definition (including the issuance of the Warrants) will represent
78.5% of the issued and outstanding common stock of IMS, (b) the receipt by the
Continuing Shareholder of cash payments in an aggregate amount not in excess of
$26,000,000 consisting of approximately $10,000,000 from the redemption of
common stock of IMS held by the Continuing Shareholder, approximately
$15,000,000 from the repayment of notes by certain Subsidiaries to the
Continuing Shareholder and not more than $1,000,000 from the repayment by IMS to
the Continuing Shareholder of capital advances made by the Continuing
Shareholder to IMS between January 1, 1996 and the Closing Date, (c) the
issuance by IMS, the HK Borrower and the Thai Borrower to the Continuing
Shareholder of the Contingent Payment Notes in an aggregate principal amount of
$20,000,000, (d) the issuance by IMS to the Continuing Shareholder of the
Warrants, (e) the issuance by IMS of the Subordinated Notes in an aggregate
principal amount of $12,500,000 and the Preferred Stock with an aggregate
initial liquidation preference of $10,000,000, in each case as set forth on
Schedule 1.01(c), (f) the issuance by IMS to the Management Investors of certain
stock options, with the result that, upon such issuance and after giving effect
to the other transactions referred to in this definition (including the issuance
of the Warrants), the common stock of IMS will be held on a fully diluted basis
as set forth on Schedule 1.01(c), (g) the execution and delivery by the
Continuing Shareholder and IMS of the Production Agreement, (h) the consummation
of the IMS Reorganization and (i) the execution and delivery of, and the
consummation of the other transactions contemplated by, the Recapitalization
Agreement and the Redemption Agreement.
"Recapitalization Agreement" shall mean the Recapitalization
Agreement among IMS, the Continuing Shareholder and the Investors in
substantially the form heretofore delivered to the Administrative Agent and the
Lenders, with no changes therefrom or amendments thereto adverse to IMS or the
Lenders, as amended from time to time in accordance with Section 6.09.
"Redemption Agreement" shall mean the Redemption Agreement
between IMS and the Continuing Shareholder in substantially the form heretofore
delivered to the Administrative Agent and the
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Lenders, with no changes therefrom or amendments thereto adverse to IMS or the
Lenders, as amended from time to time in accordance with Section 6.09.
"Register" shall have the meaning given such term in Section
9.04(d).
"Regulation G" shall mean Regulation G of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Regulation U" shall mean Regulation U of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Regulation X" shall mean Regulation X of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
"Related Claims" shall mean, in respect of any Borrower, all
obligations of such Borrower in respect of any Loans and L/C Disbursements.
"Release" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing, depositing, dispersing, emanating or migrating of any Hazardous
Material in, into, onto or through the environment.
"Relevant Jurisdiction" shall mean (i) in the case of any Loan
to any Domestic Borrower, the United States of America, and (ii) in the case of
any Loan to any Foreign Borrower, the jurisdiction imposing (or having the power
to impose) withholding Tax on payments by such Foreign Borrower under this
Agreement.
"Remedial Action" shall mean all actions required by any
Governmental Authority or voluntarily undertaken to: (a) cleanup, remove, treat,
xxxxx or in any other way address any Hazardous Material in the environment; (b)
prevent the Release or threat of Release, or minimize the further Release of any
Hazardous Material so it does not migrate or endanger or threaten to endanger
public health, welfare or the environment; or (c) perform studies and
investigations in connection with, or as a precondition to, (a) or (b) above.
"Required Lenders" shall mean, at any time, Lenders having
Revolving Loans, L/C Exposure, Thai Facility Exposure, Thai Offered Rate
Facility Exposure, HK Offered Rate Facility Exposure and unused Revolving Credit
Commitments representing at least 66-2/3% of the sum of all Revolving Loans
outstanding, L/C Exposure, Thai Facility Exposure, Thai Offered Rate Facility
Exposure, HK Offered Rate Facility Exposure and unused Revolving Credit
Commitments at such time.
"Responsible Officer" of any corporation shall mean any
executive officer or Financial Officer of such corporation and any other officer
or similar official thereof responsible for the administration of the
obligations of such corporation in respect of this Agreement.
"Revolving Credit Borrowing" shall mean a group of Revolving
Loans of a single Type made by the Lenders to a single Borrower on a single date
and as to which a single Interest Period is in effect.
"Revolving Credit Commitment" shall mean, with respect to each
Lender, the commitment of such Lender to make Revolving Loans hereunder as set
forth in Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender assumed its Revolving Credit Commitment, as applicable, as the same
may be (a) reduced from time to time pursuant to Section 2.09 or pursuant to
Section 2.19 and (b)
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reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04.
"Revolving Loan Borrowers" shall mean the U.S. Borrower, the
HK Borrower and any Permitted Additional Borrower.
"Revolving Loans" shall mean the Revolving Loans made by the
Lenders to the Revolving Loan Borrowers pursuant to Section 2.02(a).
"Sale and Lease-Back Transaction" shall have the meaning
assigned to such term in Section 6.03.
"Secured Party" shall mean each person designated as a
"Secured Party" in any Security Document.
"Security Agreements" shall mean the U.S. Security Agreement
and the Foreign Security Agreements.
"Security Documents" shall mean the Mortgages, the Security
Agreements, the Pledge Agreements and each of the security agreements, mortgages
and other instruments and documents executed and delivered pursuant to any of
the foregoing or pursuant to Section 5.11.
"Statutory Reserves" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board (a) with respect to the Base CD Rate, for
new negotiable nonpersonal time deposits in dollars of over $100,000 with
maturities approximately equal to three months, and (b) with respect to the
Adjusted LIBO Rate, for Eurocurrency Liabilities (as defined in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurodollar Loans shall be deemed to constitute Eurocurrency
Liabilities and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Subordinated Notes" shall mean up to $12,500,000 aggregate
principal amount of Junior Subordinated Notes of IMS issued pursuant to the
Recapitalization Agreement in substantially the form heretofore delivered to the
Administrative Agent and the Lenders, with no changes therefrom or amendments
thereto adverse to IMS or the Lenders, as amended from time to time in
accordance with Section 6.09.
"subsidiary" shall mean, with respect to any person (herein
referred to as the "parent"), any corporation, partnership, association or other
business entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or more than 50% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held, or (b) that is, at the
time any determination is made, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent.
"Subsidiary" shall mean any subsidiary of IMS.
"Subsidiary Guarantee Agreement" shall mean the Guarantee
Agreement substantially in the form of Exhibit D-2 by the U.S. Borrower, IMS
Foreign Holdings, the Thai Borrower, the HK Borrower and IMS Cayman in favor of
the Collateral Agent for the benefit of the Secured Parties.
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"Suspended Contingent Payment Note Interest" shall have the
meaning assigned to such term in Section 2.22.
"Target EBITDA" shall mean (w) with respect to the fiscal year
of IMS ended on the last Saturday of March, 1998, $25,400,000, (x) with respect
to the fiscal year of IMS ended on the last Saturday of March, 1999, $32,900,000
and (y) with respect to each fiscal year of IMS thereafter, $41,100,000.
"Taxes" shall mean any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Thai Facilities Lender" shall mean Chemical Bank. The Thai
Facilities Lender shall be a Lender.
"Thai Facility Borrowing" shall mean one or a group of Thai
Facility Loans of a single Type made by the Thai Facilities Lender to the Thai
Borrower on a single date and as to which a single Interest Period is in effect.
"Thai Facility Commitment" shall mean the commitment of the
Thai Facilities Lender to make Thai Facility Loans pursuant to Section 2.01(b).
"Thai Facility Exposure" shall mean at any time the aggregate
principal amount of all outstanding Thai Facility Loans at such time. The Thai
Facility Exposure of any Lender at any time shall mean its Applicable Percentage
of the aggregate Thai Facility Exposure at such time.
"Thai Facility Loans" shall mean the loans made by the Thai
Facilities Lender to the Thai Borrower pursuant to Section 2.01(b).
"Thai Facility Participations Event" shall have the meaning
assigned to such term in Section 2.01(b).
"Thailand Security Agreement" shall mean the Security
Agreement substantially in the form of Exhibit F-2 between the Thai Borrower and
the Collateral Agent for the benefit of the Secured Parties.
"Thai Offered Rate" shall mean with respect to any Thai
Offered Rate Loan for any Interest Period, the rate per annum at which deposits
in dollars approximately equal in principal amount to such Thai Offered Rate
Loan and for a maturity comparable to such Interest Period are offered by the
Thai Facilities Lender to prime banks in Thailand on the first day of such
Interest Period.
"Thai Offered Rate Borrowing" shall mean one or a group of
Thai Offered Rate Loans made on a single date and as to which a single Interest
Period is in effect.
"Thai Offered Rate Facility Commitment" shall mean the
commitment of the Thai Facilities Lender to make Thai Facility Loans pursuant to
Section 2.01(c).
"Thai Offered Rate Facility Exposure" shall mean at any time
the aggregate principal amount of all outstanding Thai Offered Rate Loans at
such time. The Thai Offered Rate Facility Exposure of any Lender at any time
shall mean its Applicable Percentage of the aggregate Thai Offered Rate Facility
Exposure at such time.
"Thai Offered Rate Facility Participations Event" shall have
the meaning assigned to such term in Section 2.01(c).
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"Thai Offered Rate Loan Payment Date" shall have the meaning
assigned to such term in Section 2.01(c)(vi).
"Thai Offered Rate Loans" shall mean the Thai Offered Rate
Loans made by the Thai Facilities Lender to the Thai Borrower pursuant to
Section 2.01(c).
"Three-Month Secondary CD Rate" shall mean, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical Release
H.15(519) during the week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day, the average of the
secondary market quotations for three-month certificates of deposit of major
money center banks in New York City received at approximately 10:00 a.m., New
York City time, on such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by the Administrative Agent from three New York
City negotiable certificate of deposit dealers of recognized standing selected
by it.
"Total Debt" shall mean, with respect to IMS and the
Subsidiaries on a consolidated basis at any time, all Indebtedness (other than
Indebtedness described in clause (i) of the definition of "Indebtedness") of IMS
and the Subsidiaries at such time, determined on a consolidated basis in
accordance with GAAP.
"Total Revolving Credit Commitment" shall mean, at any time,
the aggregate amount of the Revolving Credit Commitments in effect at such time.
"Transactions" shall have the meaning assigned to such term in
Section 3.02.
"Type", when used in respect of any Loan or Borrowing, shall
refer to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, the term "Rate"
shall include the Adjusted LIBO Rate, the Alternate Base Rate, the Thai Offered
Rate and the HK Offered Rate.
"U.S. Pledge Agreement" shall mean the Pledge Agreement,
substantially in the form of Exhibit E-1, among IMS, the U.S. Borrower, IMS
Foreign Holdings and the Collateral Agent for the benefit of the Secured
Parties.
"U.S. Security Agreement" shall mean the Security Agreement,
substantially in the form of Exhibit F-1, among IMS, the U.S. Borrower, IMS
Foreign Holdings and the Collateral Agent for the benefit of the Secured
Parties.
"Warrants" shall mean warrants to purchase common stock of IMS
having an exercise price equal to the price per share (on a fully diluted basis)
that results in a valuation of the equity of IMS on the Closing Date at
$100,000,000, issued pursuant to the Recapitalization Agreement and in
substantially the form heretofore delivered to the Administrative Agent and the
Lenders.
"wholly owned Domestic Guarantor" shall mean any wholly owned
Guarantor that is a Domestic Subsidiary.
"wholly owned Foreign Guarantor" shall mean any wholly owned
Guarantor that is a Foreign Subsidiary.
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"wholly owned Guarantor" shall mean any Guarantor that is a
wholly owned Subsidiary.
"wholly owned subsidiary" of any person shall mean a
subsidiary of such person of which securities (except for directors' qualifying
shares) or other ownership interests representing 100% of the equity or 100% of
the ordinary voting power or 100% of the general partnership interests are, at
the time any determination is being made, owned, controlled or held by such
person or one or more wholly owned subsidiaries of such person or by such person
and one or more wholly owned subsidiaries of such person.
"wholly owned Subsidiary" shall mean any wholly owned
subsidiary of IMS.
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that if IMS notifies the Administrative Agent
that IMS wishes to amend any covenant in Article VI or any related definition to
eliminate the effect of any change in GAAP occurring after the date of this
Agreement on the operation of such covenant (or if the Administrative Agent
notifies IMS that the Required Lenders wish to amend Article VI or any related
definition for such purpose), then compliance with such covenant shall be
determined on the basis of GAAP in effect immediately before the relevant change
in GAAP became effective, until either such notice is withdrawn or such covenant
is amended in a manner satisfactory to IMS and the Required Lenders.
ARTICLE II. THE CREDITS
SECTION 2.01. Commitments. (a) Subject to the terms and
conditions and relying upon the representations and warranties herein set forth,
each Lender agrees, severally and not jointly, to make Revolving Loans to each
Revolving Loan Borrower in dollars, at any time and from time to time on or
after the date hereof, and until the earlier of the Maturity Date and the
termination of the Revolving Credit Commitment of such Lender in accordance with
the terms hereof, in an aggregate principal amount at any time outstanding for
all Revolving Loan Borrowers that will not result in such Lender's Credit
Exposure exceeding such Lender's Revolving Credit Commitment.
(b) (i) Subject to the terms and conditions and relying upon
the representations and warranties herein set forth, and subject to the
limitations set forth below with respect to the maximum amount of Thai Facility
Loans permitted to be outstanding from time to time, the Thai Facilities Lender
agrees to make Thai Facility Loans to the Thai Borrower in dollars at any time
and from time to time on or after the date hereof and until the earlier of the
Maturity Date and the termination of the Thai Facility Commitment in accordance
with the terms hereof, in an aggregate principal amount at any time outstanding
that will not result in any Lender's Credit Exposure exceeding such Lender's
Revolving Credit Commitment. Thai Facility Loans may be made notwithstanding the
fact that such Thai Facility Loans, when aggregated with the Thai Facilities
Lender's outstanding Revolving Loans, L/C Exposure, Thai Offered Rate Facility
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Exposure, HK Offered Rate Facility Exposure and Thai Facility Exposure, may
exceed the Thai Facilities Lender's Applicable Percentage of the aggregate
Credit Exposures.
(ii) Upon the occurrence of (x) any Event of Default resulting
from a default in the payment of any principal of or interest on any Thai
Facility Loan, (y) any Event of Default resulting from a default under
subparagraph (h) or (i) of Article VII hereof or (z) any action taken pursuant
to clause (ii) of such Article VII (any such occurrence, a "Thai Facility
Participations Event"), then the Thai Facilities Lender may at any time, on one
Business Day's notice, require each Lender, including the Thai Facilities
Lender, and each Lender hereby agrees, subject to the provisions of this Section
2.01(b), to purchase a participation in the Thai Facility Loans in an amount
equal to such Lender's Applicable Percentage of the principal of and interest
accrued but unpaid on the outstanding Thai Facility Loans. In the event any
Lender fails to make available to the Thai Facilities Lender the amount of such
Lender's participation, the Thai Facilities Lender shall be entitled to recover
such amount on demand from such Lender together with interest at the customary
rate set by the Thai Facilities Lender for correction of errors among banks in
Bangkok, Thailand for one Business Day and thereafter a rate equal to the
Adjusted LIBO Rate plus 2.25%.
(iii) Each Lender acknowledges and agrees that its obligation
to acquire participations in respect of Thai Facility Loans in accordance with
this Section 2.01(b) is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the Thai Facilities
Lender, the Thai Borrower or any other person for any reason whatsoever; (B) the
occurrence or continuance of an Event of Default or a Default or the termination
of the Revolving Credit Commitments or the Thai Facility Commitments; (C) any
adverse change in the condition (financial or otherwise) of IMS or any of the
Subsidiaries; (D) any breach of this Agreement by IMS, any Borrower or any
Lender; or (E) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
(iv) A copy of each notice given by the Thai Facilities Lender
pursuant to this Section 2.01(b) shall be promptly delivered by the Thai
Facilities Lender to the Administrative Agent and the Thai Borrower.
(v) Notwithstanding anything herein to the contrary, the Thai
Facilities Lender shall not make any Thai Facility Loan at any time the Thai
Facilities Lender is aware that the conditions to the making of such Thai
Facility Loan set forth in Section 4.01 have not been satisfied unless such
conditions shall have been waived in accordance with this Agreement.
(c) (i) Subject to the terms and conditions and relying upon
the representations and warranties herein set forth, and subject to the
limitations set forth below with respect to the maximum amount of Thai Offered
Rate Loans permitted to be outstanding from time to time, the Thai Facilities
Lender agrees to make Thai Offered Rate Loans to the Thai Borrower in dollars at
any time and from time to time on or after the date hereof and until the earlier
of the Maturity Date and the termination of the Thai Offered Rate Facility
Commitment in accordance with the terms hereof, in an aggregate principal amount
at any time outstanding (A) not in excess of $2,000,000 and (B) that will not
result in any Lender's Credit Exposure exceeding such Lender's Revolving Credit
Commitment. Thai Offered Rate Loans may be made notwithstanding the fact that
such Thai Offered Rate Loans, when aggregated with the Thai Facilities Lender's
outstanding Revolving Loans, Thai Facility Loans, L/C Exposure, HK Offered Rate
Facility Exposure and Thai Offered Rate Facility Exposure, may exceed the Thai
Facilities Lender's Applicable Percentage of the aggregate Credit Exposures.
(ii) Upon the occurrence of (x) any Event of Default resulting
from a default in the payment of any principal of or interest on any Thai
Offered Rate Loan, (y) any Event of Default resulting from a default under
subparagraph (h) or (i) of Article VII hereof or (z) any action taken pursuant
to clause (ii) of
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such Article VII (any such occurrence, a "Thai Offered Rate Facility
Participations Event"), then the Thai Facilities Lender may at any time, on one
Business Day's notice, require each Lender, including the Thai Facilities
Lender, and each Lender hereby agrees, subject to the provisions of this Section
2.01(c), to purchase a participation in the Thai Offered Rate Loans in an amount
equal to such Lender's Applicable Percentage of the principal of and interest
accrued but unpaid on the outstanding Thai Offered Rate Loans. In the event any
Lender fails to make available to the Thai Facilities Lender the amount of such
Lender's participation, the Thai Facilities Lender shall be entitled to recover
such amount on demand from such Lender together with interest (A) at the
customary rate set by the Thai Facilities Lender for correction of errors among
banks in Bangkok, Thailand for one Business Day, (B) at a rate equal to the Thai
Offered Rate plus 2.25% for two Business Days thereafter and (C) thereafter at a
rate equal to the Adjusted LIBO Rate plus 2.25%, provided that on the third
Business Day following the delivery of such notice each Thai Offered Rate
Borrowing shall be converted into a Eurodollar Borrowing with an applicable
Interest Period of one month.
(iii) Each Lender acknowledges and agrees that its obligation
to acquire participations in respect of Thai Offered Rate Loans in accordance
with this Section 2.01(c) is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including (A) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against the Thai
Facilities Lender, the Thai Borrower or any other person for any reason
whatsoever; (B) the occurrence or continuance of an Event of Default or a
Default or the termination of the Revolving Credit Commitments or the Thai
Offered Rate Facility Commitments; (C) any adverse change in the condition
(financial or otherwise) of IMS or any of the Subsidiaries; (D) any breach of
this Agreement by IMS, any Borrower or any Lender; or (E) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
(iv) A copy of each notice given by the Thai Facilities Lender
pursuant to this Section 2.01(c) shall be promptly delivered by the Thai
Facilities Lender to the Administrative Agent and the Thai Borrower.
(v) Notwithstanding anything herein to the contrary, the Thai
Facilities Lender shall not make any Thai Offered Rate Loan at any time the Thai
Facilities Lender is aware that the conditions to the making of such Thai
Offered Rate Loan set forth in Section 4.01 have not been satisfied unless such
conditions shall have been waived in accordance with this Agreement.
(vi) The Thai Borrower shall give the Thai Facilities Lender
telephonic, written or telecopy notice (in the case of telephonic notice, such
notice to be promptly confirmed in writing or by telecopy) not later than 10:00
a.m., Bangkok time, on the day of a proposed Thai Offered Rate Borrowing. Such
notice shall be delivered on a Business Day, shall be irrevocable, shall refer
to this Agreement and shall specify the requested date (which shall be a
Business Day) and the amount of such Thai Offered Rate Loan and the account of
the Thai Borrower maintained by the Thai Facilities Lender to which such
Borrowing is to be credited and the day (which shall be on or prior to the
Maturity Date) on which the Thai Borrower will repay such Thai Offered Rate Loan
(with respect to such Thai Offered Rate Loan, the "Thai Offered Rate Loan
Payment Date"). The Thai Facilities Lender shall give the Administrative Agent,
which shall in turn give to each Lender, prompt written or telecopy advice of
any notice received from the Thai Borrower pursuant to this paragraph.
(d) (i) Subject to the terms and conditions and relying upon
the representations and warranties herein set forth, and subject to the
limitations set forth below with respect to the maximum amount of HK Offered
Rate Loans permitted to be outstanding from time to time, the HK Facility Lender
agrees to make HK Offered Rate Loans to the HK Borrower in dollars at any time
and from time to time on or after the date hereof and until the earlier of the
Maturity Date and the termination of the HK Offered Rate Facility Commitment in
accordance with the terms hereof, in an aggregate principal amount at any time
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outstanding (A) not in excess of $2,000,000 and (B) that will not result in any
Lender's Credit Exposure exceeding such Lender's Revolving Credit Commitment. HK
Offered Rate Loans may be made notwithstanding the fact that such HK Offered
Rate Loans, when aggregated with the HK Facility Lender's outstanding Revolving
Loans, L/C Exposure, Thai Offered Rate Facility Exposure and HK Offered Rate
Facility Exposure, may exceed the HK Facility Lender's Applicable Percentage of
the aggregate Credit Exposures.
(ii) Upon the occurrence of (x) any Event of Default resulting
from a default in the payment of any principal of or interest on any HK Offered
Rate Loan, (y) any Event of Default resulting from a default under subparagraph
(h) or (i) of Article VII hereof or (z) any action taken pursuant to clause (ii)
of such Article VII (any such occurrence, a "HK Offered Rate Facility
Participations Event"), then the HK Facility Lender may at any time, on one
Business Day's notice, require each Lender, including the HK Facility Lender,
and each Lender hereby agrees, subject to the provisions of this Section
2.01(d), to purchase a participation in the HK Offered Rate Loans in an amount
equal to such Lender's Applicable Percentage of the principal of and interest
accrued but unpaid on the outstanding HK Offered Rate Loans. In the event any
Lender fails to make available to the HK Facility Lender the amount of such
Lender's participation, the HK Facility Lender shall be entitled to recover such
amount on demand from such Lender together with interest (A) at the customary
rate set by the HK Facility Lender for correction of errors among banks in Hong
Kong for one Business Day, (B) at a rate equal to the HK Offered Rate plus 2.25%
for two Business Days thereafter and (C) thereafter at a rate equal to the
Adjusted LIBO Rate plus 2.25%, provided that on the third Business Day following
the delivery of such notice each HK Offered Rate Borrowing shall be converted
into a Eurodollar Borrowing with an applicable Interest Period of one month.
(iii) Each Lender acknowledges and agrees that its obligation
to acquire participations in respect of HK Offered Rate Loans in accordance with
this Section 2.01(d) is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the HK Facility
Lender, the HK Borrower or any other person for any reason whatsoever; (B) the
occurrence or continuance of an Event of Default or a Default or the termination
of the Revolving Credit Commitments or the HK Offered Rate Facility Commitments;
(C) any adverse change in the condition (financial or otherwise) of IMS or any
of the Subsidiaries; (D) any breach of this Agreement by IMS, any Subsidiary or
any Lender; or (E) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
(iv) A copy of each notice given by the HK Facility Lender
pursuant to this Section 2.01(d) shall be promptly delivered by the HK Facility
Lender to the Administrative Agent and the HK Borrower.
(v) Notwithstanding anything herein to the contrary, the HK
Facility Lender shall not make any HK Offered Rate Loan at any time the HK
Facility Lender is aware that the conditions to the making of such HK Offered
Rate Loan set forth in Section 4.01 have not been satisfied unless such
conditions shall have been waived in accordance with this Agreement.
(vi) The HK Borrower shall give the HK Facility Lender
telephonic, written or telecopy notice (in the case of telephonic notice, such
notice to be promptly confirmed in writing or by telecopy) not later than 10:00
a.m., Hong Kong time, on the day of a proposed HK Offered Rate Borrowing. Such
notice shall be delivered on a Business Day, shall be irrevocable, shall refer
to this Agreement and shall specify the requested date (which shall be a
Business Day) and the amount of such HK Offered Rate Loan and the account of the
HK Borrower maintained by the HK Facility Lender to which such Borrowing is to
be credited and the day (which shall be on or prior to the Maturity Date) on
which the HK Borrower will repay such HK Offered Rate Loan (with respect to such
HK Offered Rate Loan, the "HK Offered Rate Loan Payment Date"). The HK Facility
Lender shall give the Administrative Agent, which shall in turn give to each
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Lender, prompt written or telecopy advice of any notice received from the HK
Borrower pursuant to this paragraph.
(e) Within the limits set forth in paragraphs (a), (b), (c)
and (d) above, the Borrowers may borrow, pay or prepay and reborrow Revolving
Loans, and the Thai Borrower may borrow, pay or prepay and reborrow Thai
Facility Loans and borrow, pay and reborrow Thai Offered Rate Facility Loans and
the HK Borrower may borrow, pay and reborrow HK Offered Rate Loans, in each case
on or after the Closing Date and prior to the Maturity Date, subject to the
terms, conditions and limitations set forth herein.
SECTION 2.02. Loans. (a) Each Revolving Loan shall be made as
part of a Borrowing consisting of Revolving Loans made by the Lenders ratably in
accordance with their respective Revolving Credit Commitments; provided,
however, that the failure of any Lender to make any Loan shall not in itself
relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other Lender). Except
for Offered Rate Loans (which may, subject to Sections 2.01(c)(i) and
2.01(d)(i), be in any aggregate principal amount requested by the applicable
Borrower) and Loans deemed made pursuant to Section 2.02(f), the Loans
comprising any Borrowing shall be in an aggregate principal amount that is (i)
(A) in the case of the HK Borrower, an integral multiple of $1,000,000 and in
the case of any other Borrower, an integral multiple of $500,000 and (B) in the
case of HK Borrower, not less than $1,000,000 and in the case of any other
Borrower not less then $500,000, or (ii) equal to the remaining available
balance of the applicable Revolving Credit Commitments.
(b) Subject to Sections 2.08 and 2.13, (i) each Domestic
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
applicable Borrower may request pursuant to Section 2.03 and (ii) each Foreign
Revolving Borrowing other than Offered Rate Borrowings shall be comprised
entirely of Eurodollar Loans. Each Lender may at its option make any Eurodollar
Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Eurodollar Loan; provided that any exercise of such option shall not
affect the obligation of such Borrower to repay such Loan in accordance with the
terms of this Agreement. Borrowings of more than one Type may be outstanding at
the same time; provided, however, that no Borrower shall be entitled to request
any Borrowing that, if made, would result in more than (i) five Eurodollar
Borrowings outstanding hereunder to such Borrower at any time or (ii) 12
Eurodollar Borrowings outstanding hereunder to all the Borrowers at any time.
For purposes of the foregoing, Borrowings having different Interest Periods,
regardless of whether they commence on the same date, shall be considered
separate Borrowings.
(c) Except with respect to Revolving Loans deemed made
pursuant to Section 2.02(f), each Lender shall make each Revolving Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to such account as the Administrative Agent may
designate (i) in the case of Loans comprising Domestic Borrowings, in New York
City not later than 11:00 a.m., New York City time, or (ii) in the case of Loans
comprising Foreign Revolving Borrowings, in Hong Kong not later than 10:30 a.m.,
New York City time; and the Administrative Agent shall (A) by 12:00 (noon) New
York City time, in the case of Domestic Borrowings, and (B) by 11:30 a.m. New
York City time, in the case of Foreign Revolving Borrowings, credit the amounts
so received to an account in the name of the applicable Borrower maintained with
the Administrative Agent and designated by such Borrower in the applicable
Borrowing Request or, if a Borrowing shall not occur on such date because any
condition precedent herein specified shall not have been met, return the amounts
so received to the respective Lenders. The Thai Facilities Lender shall by 11:30
a.m. New York City time credit any Thai Facility Loan, and by 12:00 (noon)
Bangkok time credit any Thai Offered Rate Loan, in either case to be made to the
Thai Borrower in accordance with Section 2.01(b) or 2.01(c), as applicable, to
an account in the name of the Thai Borrower maintained by the Thai Facilities
Lender and designated by the Thai Borrower in the case of a Thai Facility
Borrowing, in the applicable Borrowing Request, and in the case of a Thai
Offered Rate Loan, in the Thai Borrower's request
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for such Thai Offered Rate Loan. The HK Facility Lender shall by 12:00 (noon)
Hong Kong time credit any HK Offered Rate Loan to be made to the HK Borrower in
accordance with Section 2.01(d) to an account in the name of the HK Borrower
maintained by the HK Facility Lender and designated by the HK Borrower in its
request for such HK Offered Rate Loan.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Revolving Credit Borrowing that such
Lender will not make available to the Administrative Agent such Lender's portion
of such Revolving Credit Borrowing, the Administrative Agent may assume that
such Lender has made such portion available to the Administrative Agent on the
date of such Revolving Credit Borrowing in accordance with paragraph (c) above
and the Administrative Agent may, in reliance upon such assumption, make
available to the applicable Borrower on such date a corresponding amount. If the
Administrative Agent shall have so made funds available then, to the extent that
such Lender shall not have made such portion available to the Administrative
Agent, such Lender and such Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
such Borrower until the date such amount is repaid to the Administrative Agent
at (i) in the case of such Borrower, the interest rate applicable at the time to
the Loans comprising such Revolving Credit Borrowing and (ii) in the case of
such Lender, a rate determined by the Administrative Agent to represent its cost
of overnight or short-term funds (which determination shall be conclusive absent
manifest error). If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Lender's Revolving Loan
as part of such Revolving Credit Borrowing for purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date.
(f) If the Fronting Bank shall not have received from any
Borrower the payment required to be made by such Borrower pursuant to Section
2.20(e) within the time specified in such Section, the Fronting Bank will
promptly notify the Administrative Agent of the L/C Disbursement and the
Administrative Agent will promptly notify each Lender of such L/C Disbursement
and its Applicable Percentage thereof. Each Lender shall pay by wire transfer of
immediately available funds to the Administrative Agent not later than 2:00
p.m., New York City time, on such date (or, if such Lender shall have received
such notice later than 12:00 (noon), New York City time, on any day, not later
than 10:00 a.m., New York City time, on the immediately following Business Day),
an amount equal to such Lender's Applicable Percentage of such L/C Disbursement
(it being understood that such amount shall be deemed to constitute an ABR Loan
of such Lender and such payment shall be deemed to have reduced the L/C
Exposure), and the Administrative Agent will promptly pay to the Fronting Bank
amounts so received by it from the Lenders. The Administrative Agent will
promptly pay to the Fronting Bank any amounts received by it from the applicable
Borrower pursuant to Section 2.20(e) prior to the time that any Lender makes any
payment pursuant to this paragraph (f); any such amounts received by the
Administrative Agent thereafter will be promptly remitted by the Administrative
Agent to the Lenders that shall have made such payments and to the Fronting
Bank, as their interests may appear. If any Lender shall not have made its
Applicable Percentage of such L/C Disbursement available to the Administrative
Agent as provided above, such Lender and such Borrower severally agree to pay
interest on such amount, for each day from and including the date such amount is
required to be paid in accordance with this paragraph to but excluding the date
such amount is paid, to the Administrative Agent for the account of the Fronting
Bank at (i) in the case of such Borrower, a rate per annum equal to the interest
rate applicable to Loans pursuant to Section 2.06(a), and (ii) in the case of
such Lender, for the first such day, the Federal Fund Effective Rate, and for
each day thereafter, the Alternate Base Rate.
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SECTION 2.03. Borrowing Procedure. In order to request a
Borrowing (other than an Offered Rate Borrowing or a deemed Borrowing pursuant
to Section 2.02(f), as to which this Section 2.03 shall not apply), the
applicable Borrower shall hand deliver or telecopy to the Administrative Agent a
duly completed Borrowing Request (a) in the case of a Domestic Eurodollar
Borrowing, at its offices in New York City not later than 1:00 p.m., New York
City time, three Business Days before the proposed Borrowing, (b) in the case of
a Foreign Revolving Borrowing, at its offices in Hong Kong and New York City not
later than 11:00 a.m., Hong Kong time, three Business Days before the proposed
Borrowing and (c) in the case of an ABR Borrowing, at its offices in New York
City not later than 12:30 p.m. New York City time one Business Day before the
proposed Borrowing. Each Borrowing Request shall be irrevocable, shall be signed
by or on behalf of the applicable Borrower requesting such Borrowing and shall
specify the following information: (i) the Borrower requesting such Borrowing;
(ii) in the case of a Domestic Borrowing, whether the Borrowing then being
requested is to be a Eurodollar Borrowing or an ABR Borrowing; (iii) the date of
such Borrowing (which shall be a Business Day), (iv) whether the Borrowing then
being requested is to be a Domestic Borrowing or a Foreign Revolving Borrowing,
(v) the number and location of the account to which funds are to be disbursed
(which shall be an account that complies with the requirements of Section
2.02(c)); (vi) the amount of such Borrowing; and (vii) if such Borrowing is to
be a Eurodollar Borrowing, the Interest Period with respect thereto; provided,
however, that, notwithstanding any contrary specification in any Borrowing
Request, each requested Borrowing shall comply with the requirements set forth
in Section 2.02. If no election as to the Type of Borrowing is specified in any
such notice in the case of a Domestic Borrowing, then the requested Borrowing
shall be an ABR Borrowing. If no Interest Period with respect to any Eurodollar
Borrowing is specified in any such notice, then the applicable Borrower shall be
deemed to have selected an Interest Period of one month's duration. The
Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section 2.03 (and the contents thereof), and of each Lender's
portion of the requested Borrowing. The Thai Borrower shall not be permitted to
request Revolving Credit Borrowings.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a)(i)
Each Borrower hereby unconditionally promises to pay to the Administrative Agent
(or, in the case of the Thai Borrower, if a Thai Facility Participations Event
has not occurred, to pay to the Thai Facilities Lender) on the Maturity Date for
the account of each Lender (or, in the case of the Thai Borrower, if a Thai
Facility Participations Event has not occurred, for the account of the Thai
Facilities Lender) the then unpaid principal amount of each Revolving Loan and
Thai Facility Loan made to such Borrower.
(ii) With respect to each Thai Offered Rate Loan, the Thai
Borrower hereby unconditionally promises to pay to the Thai Facilities Lender
(or if a Thai Offered Rate Facility Participations Event has occurred, to pay to
the Administrative Agent) on the Thai Offered Rate Loan Payment Date with
respect to such Thai Offered Rate Loan, for the account of the Thai Facilities
Lender (or of each Lender in the event a Thai Offered Rate Facility
Participations Event has occurred), the principal amount of such Thai Offered
Rate Loan.
(iii) With respect to each HK Offered Rate Loan, the HK
Borrower hereby unconditionally promises to pay to the HK Facility Lender (or if
a HK Offered Rate Facility Participations Event has occurred, to pay to the
Administrative Agent) on the HK Offered Rate Loan Payment Date with respect to
such HK Offered Rate Loan, for the account of the HK Facility Lender (or of each
Lender in the event a HK Offered Rate Facility Participations Event has
occurred), the principal amount of such HK Offered Rate Loan.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each Borrower to
such Lender resulting from each Loan made by such Lender from time to time,
including the amounts of principal and interest payable and paid such Lender
from time to time under this Agreement.
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(c) The Administrative Agent shall maintain accounts in which
it will record (i) the amount of each Loan made hereunder, the applicable
Borrower with respect thereto, the Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from each Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Administrative Agent or the Thai
Facilities Lender or the HK Facility Lender hereunder from any Borrower or any
Guarantor and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) above shall be prima facie evidence of the existence and
amounts of the obligations therein recorded; provided, however, that the failure
of any Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of each Borrower to repay
the Loans made to such Borrower in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in
the event any Lender shall request and receive a promissory note payable to such
Lender and its registered assigns, the interests represented by such note shall
at all times (including after any assignment of all or part of such interests
pursuant to Section 9.04) be represented by one or more promissory notes payable
to the payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrowers agree, jointly and
severally, to pay to each Lender, through the Administrative Agent, on the
Closing Date and on the last day of March, June, September and December in each
year and on each date on which the Revolving Credit Commitment of such Lender
shall expire or be terminated as provided herein, a commitment fee (a
"Commitment Fee") of 0.50% per annum on the average daily unused amount of the
Revolving Credit Commitment of such Lender during the preceding quarter (or
other period commencing with the date of acceptance by the Borrowers of the
Revolving Credit Commitment of such Lender or ending with the Maturity Date or
the date on which the Revolving Credit Commitments of such Lender shall expire
or be terminated). All Commitment Fees shall be computed on the basis of the
actual number of days elapsed in a year of 360 days. For the purpose of
calculating any Lender's Commitment Fee, the outstanding Thai Facility Exposure,
Thai Offered Rate Facility Exposure, HK Offered Rate Facility Exposure and L/C
Exposure shall be deemed to be utilization of the Revolving Credit Commitments.
The Commitment Fee due to each Lender commenced to accrue on the date of
acceptance by the Borrowers of the Revolving Credit Commitment of such Lender
and shall cease to accrue on the date on which the Revolving Credit Commitment
of such Lender shall expire or be terminated as provided herein.
(b) The Borrowers agree, jointly and severally, to pay to the
Administrative Agent, for its own account, the administrative fees set forth in
the Fee Letter at the times and in the amounts specified therein (the
"Administrative Agent Fees").
(c) The Borrowers agree to pay (i) to each Lender, through the
Administrative Agent, on the last day of March, June, September and December of
each year and on the date on which the Revolving Credit Commitment of such
Lender shall be terminated as provided herein, a fee (an "L/C Participation
Fee") calculated on such Lender's Applicable Percentage of the average daily
aggregate L/C Exposure (excluding the portion thereof attributable to
unreimbursed L/C Disbursements) during the preceding quarter (or shorter period
commencing with the date hereof or ending with the Maturity Date or the date on
which all Letters of Credit have been canceled or have expired and the Revolving
Credit Commitments of all Lenders shall have been terminated) at the rate of
2.25% per annum and (ii) to the Fronting Bank, on the last day of March, June,
September and December of each year and on the Maturity Date (or such earlier
date upon which all the Revolving Credit Commitments shall be terminated as
provided herein), a fee calculated on the average daily aggregate L/C Exposure
during the preceding quarter (or shorter period commencing with the date hereof
or ending with the Maturity Date or the date on which all Letters of Credit
shall have been canceled
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or have expired and the Revolving Credit Commitments of all Lenders shall have
been terminated), at the rate of 0.25% per annum, plus, in connection with the
issuance, amendment or transfer of any Letters of Credit or L/C Disbursement,
the Fronting Bank's customary documentary and processing charges (collectively,
the "Fronting Bank Fees"). All L/C Participation Fees and Fronting Bank Fees
shall be computed on the basis of the actual number of days elapsed in a year of
360 days.
(d) The Thai Borrower, IMS and IMS Cayman agree, jointly and
severally, to pay to each Lender, through the Administrative Agent, on the last
day of March, June, September and December of each year and on the date on which
the Thai Facility Commitment shall be terminated as provided herein, a fee (a
"Thai Facility Participation Fee") calculated on such Lender's Applicable
Percentage of the average daily aggregate Thai Facility Loans outstanding during
the preceding quarter (or shorter period commencing with the date hereof or
ending with the Maturity Date) at the rate of 2.25% per annum. All Thai Facility
Participation fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days.
(e) The Thai Borrower, IMS and IMS Cayman agree, jointly and
severally, to pay to each Lender, through the Administrative Agent, on the last
day of March, June, September and December of each year and on the date on which
the Thai Offered Rate Facility Commitment shall be terminated as provided
herein, a fee (a "Thai Offered Rate Facility Participation Fee") calculated on
such Lender's Applicable Percentage of the average daily aggregate Thai Offered
Rate Loans outstanding during the preceding quarter (or shorter period
commencing with the date hereof or ending with the Maturity Date) at the rate of
2.25% per annum. All Thai Offered Rate Facility Participation Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360
days.
(f) The HK Borrower agrees to pay to each Lender, through the
Administrative Agent, on the last day of March, June, September and December of
each year and on the date on which the HK Offered Rate Facility Commitment shall
be terminated as provided herein, a fee (a "HK Offered Rate Facility
Participation Fee") calculated on such Lender's Applicable Percentage of the
average daily aggregate HK Offered Rate Loans outstanding during the preceding
quarter (or shorter period commencing with the date hereof or ending with the
Maturity Date) at the rate of 2.25% per annum. All HK Offered Rate Facility
Participation Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days.
(g) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders, except that the Fronting Bank Fees shall be paid
directly to the Fronting Bank. Once paid, none of the Fees shall be refundable
under any circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions
of Section 2.07, the Loans comprising each ABR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be, when the Alternate Base Rate is determined by
reference to the Prime Rate and over a year of 360 days at all other times) at a
rate per annum equal to the Alternate Base Rate plus 1.25%.
(b) Subject to the provisions of Section 2.07, the Loans
comprising each Eurodollar Borrowing shall bear interest (computed on the basis
of the actual number of days elapsed over a year of 360 days) at a rate per
annum equal to the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus (i) 2.25% in the case of Revolving Loans and (ii) .25% in the
case of Thai Facility Loans.
(c) Subject to the provisions of Section 2.07, the Loans
comprising each Offered Rate Borrowing shall bear interest (computed on the
basis of the actual number of days elapsed over a year of 360 days) at a rate
per annum equal to (i) in the case of Thai Offered Rate Loans, the Thai Offered
Rate (or, commencing on the third Business Day after delivery of a notice under
Section 2.01(c)(ii), the Adjusted
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LIBO Rate for the Interest Period in effect for such Borrowing) plus .25% and
(ii) in the case of HK Offered Rate Loans, the HK Offered Rate (or commencing on
the third Business Day after delivery of a notice under Section 2.01(d)(ii), the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing) plus
.25%.
(d) Interest on each Loan shall be payable on the Interest
Payment Dates applicable to such Loan except as otherwise provided in this
Agreement. The applicable Alternate Base Rate, Adjusted LIBO Rate, Thai Offered
Rate or HK Offered Rate for each Interest Period or day within an Interest
Period, as the case may be, shall be determined by the Administrative Agent, and
such determination shall be conclusive absent manifest error.
SECTION 2.07. Default Interest. If any Borrower shall default
in the payment of the principal of or interest on any Loan or any other amount
becoming due hereunder, by acceleration or otherwise, or under any other Loan
Document, such Borrower shall on demand from time to time pay interest, to the
extent permitted by law, on such defaulted amount to but excluding the date of
actual payment (after as well as before judgment) (a) in the case of overdue
principal, at the rate otherwise applicable to such Loan pursuant to Section
2.06 plus 2.00% per annum and (b) in all other cases, at a rate per annum
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be, when determined by reference to the Prime Rate
and over a year of 360 days at all other times) equal to the sum of the
Alternate Base Rate plus 2.00%.
SECTION 2.08. Alternate Rate of Interest. In the event, and on
each occasion, that on the day two Business Days prior to the commencement of
any Interest Period for a Eurodollar Borrowing the Administrative Agent shall
have determined that dollar deposits in the principal amounts of the Loans
comprising such Borrowing are not generally available in the London interbank
market, or that the rates at which such dollar deposits are being offered will
not adequately and fairly reflect the cost to any Lender of making or
maintaining its Eurodollar Loan during such Interest Period, or that reasonable
means do not exist for ascertaining the Adjusted LIBO Rate, the Administrative
Agent shall, as soon as practicable thereafter, give written or telecopy notice
of such determination to the Borrowers and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrowers
and the Lenders that the circumstances giving rise to such notice no longer
exist, (a) any request by any Borrower for a Domestic Eurodollar Borrowing
pursuant to Section 2.03 shall be deemed to be a request for an ABR Borrowing
and (b) any request by any Foreign Borrower for a Foreign Revolving Borrowing
pursuant to Section 2.03 shall be deemed to be a request for a Borrowing bearing
a rate of interest agreed upon by such Borrower and the Lenders as adequately
and fairly reflecting the costs of the Lenders in making or maintaining Loans
during the applicable Interest Period plus 2.25% per annum and, unless such a
rate has been so agreed upon, no Loans shall be made in respect of such request
and all outstanding Foreign Revolving Borrowings shall be prepaid at the
expiration of the Interest Period applicable thereto. Each determination by the
Administrative Agent hereunder shall be conclusive absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a)
The Revolving Credit Commitments, the Thai Facility Commitment, the Thai Offered
Rate Facility Commitment, the HK Offered Rate Facility Commitment and the L/C
Commitment shall automatically terminate on the Maturity Date. Notwithstanding
the foregoing, all the Revolving Credit Commitments, the Thai Facility
Commitment, the Thai Offered Rate Facility Commitment, the HK Offered Rate
Facility Commitment and the L/C Commitment shall automatically terminate at 5:00
p.m., New York City time, on August 15, 1996, if the initial Credit Event shall
not have occurred by such time.
(b) Upon at least three Business Days' prior irrevocable
written or telecopy notice to the Administrative Agent, the Borrowers may at any
time in whole permanently terminate, or from time to time in part permanently
(subject to Section 2.09(e) with respect to Excess Cash Flow Reductions) reduce,
the Revolving Credit Commitments; provided, however, that (i) each partial
reduction of the Revolving Credit
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Commitments shall be in an integral multiple of $1,000,000 and in a minimum
amount of $5,000,000 and (ii) the Total Revolving Credit Commitment shall not be
reduced to an amount that is less than the Aggregate Credit Exposure at the
time.
(c) Prior to the Maturity Date, the Revolving Credit
Commitments shall be automatically and permanently reduced on the last business
day of each fiscal quarter of IMS, commencing with the fiscal quarter ending on
the last Saturday in June, 1997, by an amount equal to the "Quarterly Reduction"
set forth below opposite the fiscal year in which such fiscal quarter occurs:
Fiscal Year Ending the Quarterly
Last Saturday in March of Reduction
-------------------------- ---------
1998 $ 250,000
1999 $ 500,000
2000 $ 750,000
2001 $ 1,500,000
2002 $ 5,000,000
; provided, however, that (i) upon the occurrence of any Excess Cash Flow
Reduction or Equity Net Proceeds Reduction, in each case in accordance with
Section 2.09(d), the Quarterly Reductions shall be automatically and permanently
reduced as follows: (A) first, the Quarterly Reduction scheduled to occur on the
last Saturday in December, 2000, shall be automatically and permanently (subject
to Section 2.09(e) with respect to Excess Cash Flow Reductions) reduced by the
lesser of such Excess Cash Flow Reduction or Equity Net Proceeds Reduction, as
applicable, and $1,000,000 and (B) then, the remaining Quarterly Reductions
scheduled to occur prior to the last Saturday in December, 2000, shall be
reduced by the amount of such Excess Cash Flow Reduction or Equity Net Proceeds
Reduction, as applicable, that was not applied to reduce such Quarterly
Reduction to occur on the last Saturday in December, 2000, in the inverse order
of such remaining Quarterly Reductions scheduled to occur prior to the last
Saturday in December, 2000; (ii) upon the occurrence of any Non-Equity Net
Proceeds Reduction in accordance with Section 2.09(d), the remaining Quarterly
Reductions (including any Quarterly Reductions scheduled to occur on or after
the last Saturday in December, 2000) shall be reduced by the amount of such
Non-Equity Net Proceeds Reduction in the inverse order of all such remaining
Quarterly Reductions; and (iii) upon any reduction of the Revolving Credit
Commitments in accordance with Section 2.09(b), the remaining Quarterly
Reductions (including any Quarterly Reductions scheduled to occur on or after
the last Saturday in December, 2000) shall be reduced by the amount of such
reduction of the Revolving Credit Commitments in accordance with Section 2.09(b)
in the direct order of such remaining Quarterly Reductions.
(d) The Revolving Credit Commitments shall be permanently and
automatically reduced (i) on the date on which the financial statements with
respect to each fiscal year are delivered pursuant to Section 5.04(a), by an
amount equal to 50% of Excess Cash Flow for such fiscal year (each such
reduction, an "Excess Cash Flow Reduction"), provided, that with respect to the
period ended on the last Saturday in March, 1997, Excess Cash Flow shall,
notwithstanding anything to the contrary herein, be determined with respect to
the period beginning on June 30, 1996 and ending on the last Saturday in March,
1997; (ii) on the date which shall be specified in a certificate delivered by
IMS to the Administrative Agent, but in no event later than the fifth Business
Day, following receipt by IMS or any Subsidiary of any Equity Net Proceeds, by
an amount equal to 50% of such Equity Net Proceeds (each such reduction, an
"Equity Net Proceeds Reduction"); and (iii) on the date which shall be specified
in a certificate delivered by IMS to the Administrative Agent, but in no event
later than the fifth Business Day following receipt by IMS or any
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Subsidiary of any Non-Equity Net Proceeds, by 100% of such Non-Equity Net
Proceeds (each such reduction, a "Non-Equity Net Proceeds Reduction"); provided,
however, that in no event shall the Revolving Credit Commitments be reduced
pursuant to Section 2.09(d)(i) or (ii) if as of the time the applicable Excess
Cash Flow Reduction or Equity Net Proceeds Reduction would otherwise occur (x)
the Quarterly Reduction scheduled to occur on the last Saturday in December,
2000, shall have occurred or such Quarterly Reduction shall have been reduced to
$500,000 or less and (y) all Quarterly Reductions scheduled to occur prior to
the last Saturday in December, 2000, shall have occurred or been reduced to
zero. Not later than the date the financial statements referred to in clause (i)
above are due in respect of each fiscal year, IMS shall calculate the Excess
Cash Flow for such fiscal year and deliver a certificate containing such
calculation to the Administrative Agent.
(e) In the event that in any fiscal year of IMS the Borrowers
shall have reduced the Revolving Credit Commitments pursuant to Section 2.09(b),
IMS may in the certificate containing its calculation of Excess Cash Flow for
such fiscal year delivered pursuant to Section 2.09(d) designate all or a
portion of such reduction for such fiscal year (the "Designated Excess Cash Flow
Amount") to be a part of the Excess Cash Flow Reduction, if any, in respect of
such fiscal year, in which case (i) the effect of the Excess Cash Flow Reduction
in respect of such fiscal year shall be to reduce the Revolving Credit
Commitments by an amount equal to (A) the amount of the Excess Cash Flow
Reduction for such fiscal year minus (B) the Designated Excess Cash Flow Amount,
and (ii) the prior application of the Designated Excess Cash Flow Amount to
reduce the Quarterly Reductions pursuant to Section 2.09(c)(iii) shall be
reversed, and such Designated Excess Cash Flow Amount shall thereupon be
reapplied to reduce the remaining Quarterly Reductions as part of the Excess
Cash Flow Reduction for such fiscal year in accordance with Section 2.09(c)(i);
provided that (x) the aggregate amount of the reduction in the Revolving Credit
Commitments initially made pursuant to Section 2.09(b) for the applicable fiscal
year minus (y) the Designated Excess Cash Flow Amount for such fiscal year shall
be (A) equal to an integral multiple of $1,000,000 and not less than $5,000,000
or (B) equal to zero.
(f) Each reduction in the Revolving Credit Commitments
hereunder shall be made ratably among the Lenders in accordance with their
respective Revolving Credit Commitments. The Borrowers shall pay to the
Administrative Agent for the account of the applicable Lenders, on the date of
each termination or reduction, the Commitment Fees on the amount of the
Revolving Credit Commitments so terminated or reduced accrued to but excluding
the date of such termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. (a)
Each Borrower shall have the right at any time upon prior irrevocable notice to
the Administrative Agent, (i) at its offices in New York City not later than
12:30 p.m., New York City time, one Business Day prior to conversion, to convert
any Domestic Eurodollar Borrowing of such Borrower into an ABR Borrowing, (ii)
at its offices in New York City not later than 1:00 p.m., New York City time,
three Business Days prior to conversion, to convert any ABR Borrowing of such
Borrower into a Domestic Eurodollar Borrowing, (iii) in the case of any Domestic
Borrowing, at its offices in New York City not later than 1:00 p.m., New York
City time, three Business Days prior to continuation, and in the case of any
Foreign Revolving Borrowing, at its offices in New York City and Hong Kong, not
later than 11:30 a.m. Hong Kong time, three Business Days prior to continuation,
to continue any Eurodollar Borrowing of such Borrower as a Eurodollar Borrowing
for an additional Interest Period and (iv) in the case of any Domestic
Borrowing, at its offices in New York City, not later than 1:00 p.m., New York
City time, three Business Days prior to conversion, and in the case of any
Foreign Revolving Borrowing, at its offices in New York City and Hong Kong, not
later than 11:30 a.m.
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Hong Kong time, three Business Days prior to conversion, to convert the Interest
Period with respect to any Eurodollar Borrowing of such Borrower to another
permissible Interest Period; subject in each case to the following:
(i) each conversion or continuation shall be made pro rata
among the Lenders in accordance with the respective principal amounts
of the Loans comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified in Sections 2.02(a)
and 2.02(b) regarding the principal amount and maximum number of
Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the
new Loan of such Lender resulting from such conversion and reducing the
Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued interest on any Eurodollar Loan
(or portion thereof) being converted shall be paid by such Borrower at
the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, such Borrower
shall pay, upon demand, any amounts due to the Lenders pursuant to
Section 2.14;
(v) any portion of a Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as
a Eurodollar Borrowing; and
(vi) any portion of a Eurodollar Borrowing that cannot be
converted into or continued as a Eurodollar Borrowing by reason of the
immediately preceding clause shall be (A) in the case of Domestic
Borrowings, automatically converted at the end of the Interest Period
in effect for such Borrowing into an ABR Borrowing and (b) in the case
of Foreign Revolving Borrowings, prepaid by the applicable Borrower on
the last day of such Interest Period; and
(vii) upon notice to the Borrowers from the Administrative
Agent given at the request of the Required Lenders, after the
occurrence and during the continuance of a Default or Event of Default,
no outstanding Loan may be converted into, or continued as, a
Eurodollar Loan.
Each notice pursuant to this Section 2.10 shall be irrevocable
and shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the applicable Borrower requests be converted or continued, (ii)
whether such Borrowing is to be converted to or continued as a Eurodollar
Borrowing or an ABR Borrowing, (iii) if such notice requests a conversion, the
date of such conversion (which shall be a Business Day) and (iv) if such
Borrowing is to be converted to or continued as a Eurodollar Borrowing, the
Interest Period with respect thereto. If no Interest Period is specified in any
such notice with respect to any conversion to or continuation as a Eurodollar
Borrowing, the applicable Borrower shall be deemed to have selected an Interest
Period of one month's duration. The Administrative Agent shall advise the
Lenders of any notice given pursuant to this Section 2.10 and of each Lender's
portion of any converted or continued Borrowing. If the applicable Borrower
shall not have given notice in accordance with this Section 2.10 to continue any
Borrowing into a subsequent Interest Period (and shall not otherwise have given
notice in accordance with this Section 2.10 to convert such Borrowing), such
Borrowing shall, at the end of
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the Interest Period applicable thereto (unless repaid pursuant to the terms
hereof), automatically be continued (x) in the case of a Domestic Borrower, into
a new Interest Period as an ABR Borrowing and (y) in the case of a Foreign
Borrower, into an Interest Period of 30 days as a Eurodollar Borrowing.
SECTION 2.11. Prepayment. (a) Each Borrower shall have the
right at any time and from time to time to prepay any Borrowing (other than
Offered Rate Borrowings), in whole or in part, upon (x) prior written or
telecopy notice (or telephone notice promptly confirmed by written or telecopy
notice) of at least three Business Days with respect to Eurodollar Borrowings
and one Business Day with respect to ABR Borrowings (i) to the Administrative
Agent at its offices in New York City before 11:00 a.m., New York City time in
the case of any prepayment of a Domestic Borrowing and (ii) to the
Administrative Agent at its offices in Hong Kong before 11:00 a.m. Hong Kong
time in the case of any prepayment of a Foreign Borrowing or a Thai Facilities
Borrowing (and to the Thai Facilities Lender at its offices in Bangkok before
11:00 a.m. Bangkok time in the case of any prepayment of a Thai Facilities
Borrowing); provided, however, that each partial prepayment in accordance with
this Section 2.11(a) shall be in an amount that is (i) in the case of a
prepayment by the HK Borrower, an integral multiple of $1,000,000 and in the
case of a prepayment by any other Borrower, an integral multiple of $500,000 and
(ii) in the case of a prepayment by the HK Borrower, not less than $1,000,000
and in the case of a prepayment by any other Borrower, not less than $500,000.
The Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section 2.11(a) (and the contents thereof). The Borrowers will
not have the right to prepay any Offered Rate Borrowings.
(b) In the event of the termination of all the Revolving
Credit Commitments, each Borrower shall repay or prepay all its outstanding
Borrowings on the date of such termination. In the event of any partial
reduction of the Revolving Credit Commitments, then (i) prior to the effective
date of such reduction, the Administrative Agent shall notify the Borrowers and
the Lenders of the Aggregate Credit Exposure after giving effect thereto and
(ii) if the Aggregate Credit Exposure would exceed the Total Revolving Credit
Commitment after giving effect to such reduction, then the Borrowers shall, on
the date of such reduction, repay Borrowings or prepay Borrowings (other then
Offered Rate Borrowings) in an amount sufficient to eliminate such excess.
(c) Each notice delivered under this Section 2.11 shall
specify the Borrower that will make any prepayment, the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit such Borrower to prepay such Borrowing by the
amount stated therein on the date stated therein. All prepayments under this
Section 2.11 shall be subject to Section 2.14 but otherwise without premium or
penalty. All prepayments under this Section 2.11 shall be accompanied by accrued
interest on the principal amount being prepaid to the date of payment.
SECTION 2.12. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision of this Agreement, if after the date of
this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of or credit extended by any Lender or the Fronting Bank (except any
such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall
impose on such Lender or the Fronting Bank or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans made by such Lender
or any Letter of Credit or participation therein, and the result of any of the
foregoing shall be to increase the cost to such Lender or the Fronting Bank of
making or maintaining any Eurodollar Loan or increase the cost to any Lender of
issuing or maintaining any Letter of Credit or purchasing or maintaining
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a participation therein or to reduce the amount of any sum received or
receivable by such Lender or the Fronting Bank hereunder (whether of principal,
interest or otherwise) by an amount deemed by such Lender or the Fronting Bank
to be material, then the applicable Borrower will pay to such Lender or the
Fronting Bank, as the case may be, upon demand as provided in paragraph (c)
below such additional amount or amounts as will compensate such Lender or the
Fronting Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or the Fronting Bank shall have determined
that the adoption after the date hereof of any law, rule, regulation, agreement
or guideline regarding capital adequacy, or any change after the date hereof in
any such law, rule, regulation, agreement or guideline (whether such law, rule,
regulation, agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or the Fronting Bank or any Lender's or the
Fronting Bank's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Governmental Authority
has or would have the effect of reducing the rate of return on such Lender's or
the Fronting Bank's capital or on the capital of such Lender's or the Fronting
Bank's holding company, if any, as a consequence of this Agreement or the Loans
made or participations in Letters of Credit purchased by such Lender pursuant
hereto or the Letters of Credit issued by the Fronting Bank pursuant hereto to a
level below that which such Lender or the Fronting Bank or such Lender's or the
Fronting Bank's holding company could have achieved but for such applicability,
adoption, change or compliance (taking into consideration such Lender's or the
Fronting Bank's policies and the policies of such Lender's or the Fronting
Bank's holding company with respect to capital adequacy) by an amount deemed by
such Lender or the Fronting Bank to be material, then from time to time IMS
shall pay (or cause the Borrowers to pay) to such Lender or the Fronting Bank,
as the case may be, as provided in paragraph (c) below such additional amount or
amounts as will compensate such Lender or the Fronting Bank or such Lender's or
the Fronting Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Fronting Bank setting
forth the amount or amounts necessary to compensate such Lender or the Fronting
Bank or its holding company, as applicable, as specified in paragraph (a) or (b)
above shall be delivered to IMS and shall be conclusive absent manifest error.
IMS shall (or shall cause the applicable Borrower to) pay such Lender or the
Fronting Bank the amount shown as due on any such certificate delivered by it
within 30 days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Fronting
Bank to demand compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital shall not constitute a
waiver of such Lender's or the Fronting Bank's right to demand such
compensation. The protection of this Section shall be available to each Lender
and the Fronting Bank regardless of any possible contention of the invalidity or
inapplicability of the law, rule, regulation, agreement, guideline or other
change or condition that shall have occurred or been imposed.
SECTION 2.13. Change in Legality. (a) Notwithstanding any
other provision of this Agreement, if, after the date hereof, any change in any
law or regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, and such
Lender and the applicable Borrower shall not have agreed upon a solution to such
illegality after good faith negotiations occurring prior to the date on which
such change in law is given effect, then, by written notice to IMS and to the
Administrative Agent:
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(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods and
ABR Loans will not thereafter (for such duration) be converted into
Eurodollar Loans), whereupon any request for a Eurodollar Borrowing (or
to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a
Eurodollar Borrowing for an additional Interest Period) shall, as to
such Lender only, be deemed a request for an ABR Loan to the U.S.
Borrower (or a request to continue an ABR Loan as such for an
additional Interest Period or to convert a Eurodollar Loan into an ABR
Loan to the U.S. Borrower, as the case may be) or, at the option of the
applicable Borrower exercisable prior to the time on which such Loan is
required to be made, shall be withdrawn, unless such declaration shall
be subsequently withdrawn; and
(ii) in the event the continuance or maintenance of any Eurodollar
Loan by a Lender would result in a violation of applicable law, such
Lender may require that all outstanding Eurodollar Loans made by such
Lender be converted to ABR Loans or prepaid, in which event all such
Eurodollar Loans comprising Domestic Borrowings shall be automatically
converted to ABR Loans and all such Eurodollar Loans comprising Foreign
Revolving Borrowings shall be prepaid by the applicable Borrower, in
each case, as of the effective date of such notice as provided in
paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.13, a notice to IMS by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by IMS.
SECTION 2.14. Indemnity. The Borrowers agree to indemnify each
Lender against any loss or expense that such Lender may sustain or incur as a
consequence of (a) any event, other than a default by such Lender in the
performance of its obligations hereunder, which results in (i) such Lender
receiving or being deemed to receive any amount on account of the principal of
any Eurodollar Loan prior to the end of the Interest Period in effect therefor,
(ii) the conversion of any Eurodollar Loan to an ABR Loan, or the conversion of
the Interest Period with respect to any Eurodollar Loan, in each case other than
on the last day of the Interest Period in effect therefor, or (iii) any
Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to be
made pursuant to a conversion or continuation under Section 2.10) not being made
after notice of such Loan shall have been given by the applicable Borrower
hereunder (any of the events referred to in this clause (a) being called a
"Breakage Event") or (b) any default in the making of any payment or prepayment
required to be made hereunder. In the case of any Breakage Event, (x) such loss
shall be equal to the excess, if any, as reasonably determined by such Lender,
of (i) its cost of obtaining funds for the Eurodollar Loan that is the subject
of such Breakage Event for the period from the date of such Breakage Event to
the last day of the Interest Period in effect (or that would have been in
effect) for such Loan over (ii) the amount of interest likely to be realized by
such Lender in redeploying the funds released or not utilized by reason of such
Breakage Event for such period and (y) such expense shall be equal to such
Lender's actual costs and expenses incurred in connection with, or by reason of,
any event referred to in clause (a). A certificate of any Lender setting forth
any amount or amounts which such Lender is entitled to receive pursuant to this
Section 2.14 shall be delivered to IMS and shall be conclusive absent manifest
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error. IMS shall (or shall cause the applicable Borrower to) pay to each Lender
that delivers any such certificate the amount shown as due on such certificate
within 10 days after receipt of the same by IMS.
SECTION 2.15. Pro Rata Treatment. Except as required under
Section 2.13, each Borrowing, each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans, each payment of the Commitment
Fees, L/C Participation Fees, Thai Facility Participation Fees, Thai Offered
Rate Facility Participation Fees and HK Offered Rate Facility Participation
Fees, each reduction of the Revolving Credit Commitments and each conversion of
any Borrowing to or continuation of any Borrowing as a Borrowing of any Type
shall be allocated pro rata among the Lenders in accordance with their
respective applicable Revolving Credit Commitments (or, if such Revolving Credit
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Loans). Each Lender agrees
that in computing such Lender's portion of any Borrowing to be made hereunder,
the Administrative Agent may, in its discretion, round each Lender's percentage
of such Borrowing to the next higher or lower whole dollar amount.
SECTION 2.16. Sharing of Setoffs. Each Lender agrees that if
it shall, through the exercise of a right of banker's lien, setoff or
counterclaim against any Borrower or any other Loan Party, or pursuant to a
secured claim under Section 506 of Title 11 of the United States Code or other
security or interest arising from, or in lieu of, such secured claim, received
by such Lender under any applicable bankruptcy, insolvency or other similar law
or otherwise, or by any other means, obtain payment (voluntary or involuntary)
in respect of any Related Claims with respect to any Borrower as a result of
which the unpaid principal portion of its Related Claims with respect to such
Borrower shall be proportionately less than the unpaid principal portion of the
Related Claims of any other Lender, it shall be deemed simultaneously to have
purchased from such other Lender at face value, and shall promptly pay to such
other Lender the purchase price for, a participation in the Related Claims of
such other Lender, so that the aggregate unpaid principal amount of the Related
Claims and participations in Related Claims held by each Lender shall be in the
same proportion to the aggregate unpaid principal amount of all Related Claims
then outstanding as the principal amount of its Related Claims prior to such
exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all Related Claims outstanding prior to such exercise of
banker's lien, setoff or counter claim or other event; provided, however, that
if any such purchase or purchases or adjustments shall be made pursuant to this
Section 2.16 and the payment giving rise thereto shall thereafter be recovered,
such purchase or purchases or adjustments shall be rescinded to the extent of
such recovery and the purchase price or prices or adjustment restored without
interest. The Borrowers and IMS expressly consent to the foregoing arrangements
and agree that any Lender holding a participation in a Related Claim deemed to
have been so purchased may exercise any and all rights of banker's lien, setoff
or counterclaim with respect to any and all moneys owing by the Borrowers and
IMS to such Lender by reason thereof as fully as if such Lender had made a Loan
directly to the applicable Borrower in the amount of such participation.
SECTION 2.17. Payments. (a) Each Borrower and each other Loan
Party shall make each payment (including principal of or interest on any
Borrowing or any L/C Disbursement or any Fees or other amounts) hereunder and
under any other Loan Document in immediately available dollars, without setoff,
defense or counterclaim, as follows:
(i) in the case of (x) payments required to be made by
Domestic Borrowers and (y) other payments in respect of Domestic
Borrowings, not later than 12:00 (noon) New York City time on the date
when such payment is required to be made hereunder to the
Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx;
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(ii) in the case of payments required to be made by Foreign
Borrowers (other than (x) payments in respect of Domestic Borrowings
and (y) payments required to be made by the Thai Borrower solely with
respect to principal of and interest on (A) Thai Facility Borrowings if
a Thai Facility Participations Event has not occurred or (B) Thai
Offered Rate Facility Borrowings if a Thai Offered Rate Facility
Participations Event has not occurred), not later than 12:00 (noon)
Hong Kong time on the date when such payment is required to be made
hereunder to the Administrative Agent at its offices at Xxxxxxxxx
Xxxxx, 00 Xxxxx'x Xxxx, Xxxxxxx, Xxxx Xxxx; and
(iii) in the case of payments required to be made by the Thai
Borrower solely with respect to principal of and interest on (A) Thai
Facility Borrowings if a Thai Facility Participations Event has not
occurred or (B) Thai Offered Rate Facility Borrowings if a Thai Offered
Rate Facility Participations Event has not occurred, not later than
12:00 (noon) Bangkok time on the date when such payment is required to
be made hereunder to the Thai Facilities Lender at its offices in
Bangkok, Thailand;
provided, however, that the Fronting Bank Fees shall be paid directly to the
Fronting Bank.
(b) Whenever any payment (including principal of or interest
on any Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day
(except in the case of payment of principal of a Eurodollar Borrowing if the
effect of such extension would be to extend such payment into the next
succeeding month, in which case such payments shall be due on the immediately
preceding Business Day), and such extension of time shall in such case be
included in the computation of interest or Fees, if applicable.
SECTION 2.18. Taxes. (a) Any and all payments by or on account
of any obligation of any Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if any
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Fronting Bank (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) such Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrowers agree to pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) Each Borrower shall indemnify the Administrative Agent,
each Lender and the Fronting Bank, within ten Business Days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on amounts payable under
this Section) paid by the Administrative Agent, such Lender or the Fronting
Bank, as the case may be, with respect to payments by or on account of any
obligation of any Borrower hereunder and any liability (including penalties,
interest and reasonable expenses; provided, however, that no Borrower shall be
responsible for any increase in any such penalty, interest or expense directly
attributable to the period of time which commences five Business Days after the
Administrative Agent, Lender, or Fronting Bank, as the case may be, receives
notice of such item and which ends on the Business Day on which such party gives
notice of such item to such Borrower) arising therefrom or with respect thereto.
A certificate as to the amount of
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such payment or liability delivered to a Borrower by a Lender or the Fronting
Bank, or by the Administrative Agent on its own behalf or on behalf of a Lender
or the Fronting Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by any Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the Tax return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax on payments by a Borrower under this Agreement
pursuant to the law of the Relevant Jurisdiction or any treaty to which the
Relevant Jurisdiction is a party shall deliver to such Borrower (with a copy to
the Administrative Agent), at the required time or times, properly completed and
executed forms and other documentation (if any) prescribed by applicable law
that will permit such payments to be made without withholding or at a reduced
rate.
SECTION 2.19. Assignment of Commitments Under Certain
Circumstances; Duty To Mitigate. (a) In the event (i) any Lender or the Fronting
Bank delivers a certificate requesting compensation pursuant to Section 2.12,
(ii) any Lender or the Fronting Bank delivers a notice described in Section 2.13
or (iii) a Borrower is required to pay any additional amount to any Lender or
the Fronting Bank or any Governmental Authority on account of any Lender or the
Fronting Bank pursuant to Section 2.18, such Borrower may, at its sole expense
and effort (including with respect to the processing and recordation fee
referred to in Section 9.04(b)), upon notice to such Lender or the Fronting
Bank, the Thai Facilities Lender, the HK Facility Lender and the Administrative
Agent, require such Lender or the Fronting Bank to transfer and assign, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all of its interests, rights and obligations under this Agreement
to an assignee that shall assume such assigned obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that (x) such
assignment shall not conflict with any law, rule or regulation or order of any
court or other Governmental Authority having jurisdiction, (y) such Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Credit Commitment is being assigned, of the Fronting Bank, the
Thai Facilities Lender and the HK Facility Lender), which consent shall not
unreasonably be withheld, and (z) such Borrower or such assignee shall have paid
to the affected Lender or the Fronting Bank in immediately available funds an
amount equal to the sum of the principal of and interest accrued to the date of
such payment on the outstanding Loans or L/C Disbursements of such Lender or the
Fronting Bank, respectively, plus all Fees and other amounts accrued for the
account of such Lender or the Fronting Bank hereunder (including any amounts
under Section 2.12 and Section 2.14); provided further that, if prior to any
such transfer and assignment the circumstances or event that resulted in such
Lender's or the Fronting Bank's claim for compensation under Section 2.12 or
notice under Section 2.13 or the amounts paid pursuant to Section 2.18, as the
case may be, cease to cause such Lender or the Fronting Bank to suffer increased
costs or reductions in amounts received or receivable or reduction in return on
capital, or cease to have the consequences specified in Section 2.13, or cease
to result in amounts being payable under Section 2.18, as the case may be
(including as a result of any action taken by such Lender or the Fronting Bank
pursuant to paragraph (b) below), or if such Lender or the Fronting Bank shall
waive its right to claim further compensation under Section 2.12 in respect of
such circumstances or event or shall withdraw its notice under Section 2.13 or
shall waive its right to further payments under Section 2.18 in respect of such
circumstances or event, as the case may be, then such Lender or the Fronting
Bank shall not thereafter be required to make any such transfer and assignment
hereunder.
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(b) If (i) any Lender or the Fronting Bank shall request
compensation under Section 2.12, (ii) any Lender or the Fronting Bank delivers a
notice described in Section 2.13 or (iii) any Borrower is required to pay any
additional amount to any Lender or the Fronting Bank or any Governmental
Authority on account of any Lender or the Fronting Bank, pursuant to Section
2.18, then such Lender or the Fronting Bank shall use reasonable efforts (which
shall not require such Lender or the Fronting Bank to incur an unreimbursed loss
or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions or suffer any
disadvantage or burden deemed by it to be significant) (x) to file any
certificate or document reasonably requested in writing by the applicable
Borrower or (y) to assign its rights and delegate and transfer its obligations
hereunder to another of its offices, branches or affiliates, if such filing or
assignment would reduce its claims for compensation under Section 2.12 or enable
it to withdraw its notice pursuant to Section 2.13 or would reduce amounts
payable pursuant to Section 2.18, as the case may be, in the future. IMS hereby
agrees to pay (or to cause the applicable Borrower to pay) all reasonable costs
and expenses incurred by any Lender or the Fronting Bank in connection with any
such filing or assignment, delegation and transfer.
SECTION 2.20. Letters of Credit. (a) General. Any Borrower may
request the issuance of a Letter of Credit for its own account, denominated in
dollars, in a form reasonably acceptable to the Administrative Agent and the
Fronting Bank, at any time and from time to time while the Revolving Credit
Commitments remain in effect. This Section shall not be construed to impose an
obligation upon the Fronting Bank to issue any Letter of Credit that is
inconsistent with the terms and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. In order to request the issuance of a Letter of Credit (or to amend,
renew or extend an existing Letter of Credit), a Borrower shall hand deliver or
telecopy to the Fronting Bank and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, the date of issuance, amendment,
renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) below), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare such Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if, and upon issuance,
amendment, renewal or extension of each Letter of Credit the applicable Borrower
shall be deemed to represent and warrant that, after giving effect to such
issuance, amendment, renewal or extension (A) the L/C Exposure shall not exceed
$5,000,000 and (B) the Aggregate Credit Exposure shall not exceed the Total
Revolving Credit Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the
close of business on the earlier of the date one year after the date of the
issuance of such Letter of Credit and the date that is five Business Days prior
to the Maturity Date, unless such Letter of Credit expires by its terms on an
earlier date.
(d) Participations. By the issuance of a Letter of Credit and
without any further action on the part of the Fronting Bank or the Lenders, the
Fronting Bank hereby grants to each Lender, and each such Lender hereby acquires
from the applicable Fronting Bank, a participation in such Letter of Credit
equal to such Lender's Applicable Percentage from time to time of the aggregate
amount available to be drawn under such Letter of Credit, effective upon the
issuance of such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of the Fronting Bank, such Lender's
Applicable Percentage of each L/C Disbursement made by the Fronting Bank and not
reimbursed by the applicable Borrower (or, if
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applicable, another party pursuant to its obligations under any other Loan
Document) forthwith on the date due as provided in Section 2.02(f). Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or an Event of Default or the
termination of the Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement. If the Fronting Bank shall make any L/C
Disbursement in respect of a Letter of Credit, the applicable Borrower shall pay
to the Administrative Agent an amount equal to such L/C Disbursement not later
than one Business Day after such Borrower shall have received notice from the
Fronting Bank that payment of such draft will be made.
(f) Obligations Absolute. The applicable Borrower's
obligations to reimburse L/C Disbursements as provided in paragraph (e) above
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement, under any and all
circumstances whatsoever, and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, setoff, defense or other
right that such Borrower, any other party guaranteeing, or otherwise
obligated with, such Borrower or any subsidiary or other Affiliate
thereof or any other person may at any time have against the
beneficiary under any Letter of Credit, the Fronting Bank, the
Administrative Agent or any Lender or any other person, whether in
connection with this Agreement, any other Loan Document or any other
related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by the Fronting Bank under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of
the Fronting Bank, the Lenders, the Administrative Agent or any other
person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of the
applicable Borrower's obligations hereunder.
Without limiting the generality of the foregoing, it is
expressly understood and agreed that the absolute and unconditional obligation
of the applicable Borrower hereunder to reimburse L/C Disbursements will not be
excused by the gross negligence or wilful misconduct of the Fronting Bank.
However, the foregoing shall not be construed to excuse the Fronting Bank from
liability to the applicable Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived
by such Borrower to the extent permitted by applicable law) suffered by such
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Borrower that are caused by the Fronting Bank's gross negligence or wilful
misconduct in determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof; it is understood that the
Fronting Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary and, in making any payment under any Letter of
Credit (i) the Fronting Bank's exclusive reliance on the documents presented to
it under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereunder equals the
amount of such draft and whether or not any document presented pursuant to such
Letter of Credit proves to be insufficient in any respect, if such document on
its face appears to be in order, and whether or not any other statement or any
other document presented pursuant to such Letter of Credit proves to be forged
or invalid or any statement therein proves to be inaccurate or untrue in any
respect whatsoever and (ii) any noncompliance in any immaterial respect of the
documents presented under such Letter of Credit with the terms thereof shall, in
each case, be deemed not to constitute wilful misconduct or gross negligence of
the Fronting Bank.
(g) Disbursement Procedures. The Fronting Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Fronting Bank shall as promptly
as possible give telephonic notification, confirmed by telecopy, to the
Administrative Agent and the applicable Borrower of such demand for payment and
whether the Fronting Bank has made or will make an L/C Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
relieve such Borrower of its obligation to reimburse the Fronting Bank and the
Lenders with respect to any such L/C Disbursement. The Administrative Agent
shall promptly give each Lender notice thereof.
(h) Interim Interest. If the Fronting Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the applicable
Borrower shall reimburse such L/C Disbursement in full on the date thereof, the
unpaid amount thereof shall bear interest for the account of the Fronting Bank,
for each day from and including the date of such L/C Disbursement, to but
excluding the earlier of the date of payment by such Borrower or the date on
which interest shall commence to accrue on the ABR Loans resulting from such L/C
Disbursement as provided in Section 2.02(f), at the rate per annum that would
apply to such amount if such amount were an ABR Loan.
(i) Resignation or Removal of the Fronting Bank. The Fronting
Bank may resign at any time by giving 180 days' prior written notice to the
Administrative Agent, the Lenders and IMS, and may be removed at any time by IMS
by notice to the Fronting Bank, the Administrative Agent and the Lenders.
Subject to the next succeeding paragraph, upon the acceptance of any appointment
as the Fronting Bank hereunder by a Lender that shall agree to serve as
successor Fronting Bank, such successor shall succeed to and become vested with
all the interests, rights and obligations of the retiring Fronting Bank and the
retiring Fronting Bank shall be discharged from its obligations to issue
additional Letters of Credit hereunder. At the time such removal or resignation
shall become effective, the Borrowers agree to pay all accrued and unpaid fees
pursuant to Section 2.05(c)(ii). The acceptance of any appointment as the
Fronting Bank hereunder by a successor Lender shall be evidenced by an agreement
entered into by such successor, in a form satisfactory to IMS and the
Administrative Agent, and, from and after the effective date of such agreement,
(i) such successor Lender shall have all the rights and obligations of the
previous Fronting Bank under this Agreement and the other Loan Documents and
(ii) references herein and in the other Loan Documents to the term "Fronting
Bank" shall be deemed to refer to such successor or to any previous Fronting
Bank, or to such successor and all previous Fronting Banks, as the context shall
require. After the resignation or removal of the Fronting Bank hereunder, the
retiring Fronting Bank shall remain a party hereto
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and shall continue to have all the rights and obligations of the Fronting Bank
under this Agreement and the other Loan Documents with respect to Letters of
Credit issued by it prior to such resignation or removal, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall
occur and be continuing, each Borrower shall, on the Business Day it receives
notice from the Administrative Agent or the Required Lenders thereof and of the
amount to be deposited, deposit in an account with the Collateral Agent, for the
benefit of the Lenders, an amount in cash equal to the portion of the L/C
Exposure attributable to Letters of Credit issued for the account of such
Borrower as of such date. Such deposit shall be held by the Collateral Agent as
collateral for the payment and performance of the Obligations. The Collateral
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits in Permitted Investments, which investments shall be
made at the option and sole discretion of the Collateral Agent, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall automatically be
applied by the Administrative Agent to reimburse the Fronting Bank for L/C
Disbursements for which it has not been reimbursed, and any remaining amounts
either (i) be held for the satisfaction of the reimbursement obligations of the
applicable Borrower for the L/C Exposure at such time or (ii) if the maturity of
the Loans has been accelerated, be applied to satisfy the Obligations. If a
Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to such Borrower within three Business
Days after all Events of Default have been cured or waived.
SECTION 2.21. Permitted Additional Borrowers. If IMS, IMS
Foreign Holdings and the Borrowers desire that a wholly owned Subsidiary ("a
Proposed Permitted Additional Borrower") become a Permitted Additional Borrower
hereunder, IMS shall deliver a notice to the Administrative Agent containing all
relevant financial and business information reasonably requested by the
Administrative Agent relating to such Proposed Permitted Additional Borrower
(including projections of cash flow based on reasonable assumptions) and
proposed collateral and guarantee arrangements relating to such person becoming
a Permitted Additional Borrower. If the Required Lenders are satisfied with (i)
all financial and business matters relating to the Proposed Permitted Additional
Borrower and its ability to support Borrowings hereunder based on cash flow and
assets included in the Collateral and (ii) all proposed collateral and guarantee
arrangements relating to such Proposed Permitted Additional Borrower and an
opinion of counsel reasonably acceptable to the Required Lenders relating to
such Proposed Permitted Additional Borrower and such arrangements, then the
Administrative Agent shall so inform IMS and the Borrowers in writing and each
of the parties hereto shall thereupon execute and deliver an agreement pursuant
to which such Proposed Permitted Additional Borrower shall assume all the
rights, obligations and liabilities of a Borrower hereunder and all such other
documentation as the Administrative Agent shall require in order to effect the
terms of such assumption and the applicable collateral and guarantee
arrangements, whereupon such Proposed Permitted Additional Borrower shall become
a Permitted Additional Borrower for all purposes hereof. The Lenders shall use
reasonable efforts to make such determination within 30 Business Days after
receipt thereby of the notice and all the information referred to in this
Section 2.21 and all other information relating thereto reasonably requested by
the Lenders.
SECTION 2.22. Suspended Contingent Payment Note Interest. In
the event that a Purchase Commitment Default occurs and any of the obligors
under the Contingent Payment Notes elects not to make any payments of interest
in respect of any Contingent Payment Note which would otherwise have been due
after such Purchase Commitment Default and on or before June 30, 1997
("Suspended Contingent Payment Note Interest"), then such obligor (the
"Applicable Obligor") shall so notify the Administrative Agent and
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an amount equal to such Suspended Contingent Payment Note Interest shall be
deemed to be Consolidated Cash Interest Expense for the period in which it was
otherwise due under the Contingent Payment Notes but for such Purchase
Commitment Default. The Applicable Obligor shall have the right, if and only if
a Default or Event of Default has not occurred and is not continuing, following
delivery of a certificate of a Responsible Officer of such Applicable Obligor to
the Administrative Agent certifying that the applicable Purchase Commitment
Default has been cured, to make scheduled payments of such Suspended Contingent
Payment Note Interest (which payments shall be deemed not to constitute
Consolidated Cash Interest Expense), provided that if such a certificate has not
been delivered to the Administrative Agent by the first anniversary of the
delivery of the notice referred to above, then an amount equal to the Suspended
Contingent Payment Note Interest shall be deemed to constitute Excess Cash Flow
for the fiscal year in which such first anniversary occurs and shall be applied
in accordance with Section 2.09(d).
ARTICLE III. REPRESENTATIONS AND WARRANTIES
Each of IMS, IMS Foreign Holdings, IMS Cayman, IMS PRC and the
Borrowers represents and warrants to the Administrative Agent, the Collateral
Agent, the Fronting Bank and each of the Lenders that:
SECTION 3.01. Organization; Powers. Each of IMS and the
Subsidiaries (a) is a corporation, partnership or company duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has all requisite power and authority, and has in effect all
requisite permits, approvals and other authorizations from all applicable
Governmental Authorities, to own its property and assets and to carry on its
business as now conducted and as proposed to be conducted, (c) is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect, and (d) has the
corporate, partnership or company power and authority to execute, deliver and
perform its obligations under each of the Loan Documents and each other
agreement or instrument contemplated hereby to which it is or will be a party
and, in the case of each Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and
performance by each Loan Party of each of the Loan Documents to which it is a
party and the borrowings hereunder, the creation of the Liens provided for in
the Security Documents, the Recapitalization and the other transactions
contemplated hereby and thereby (collectively, the "Transactions") (a) have been
duly authorized by all requisite corporate, partnership or company (as
applicable) action and, if required, stockholder or other equity holder (as
applicable) action and (b) will not (i) violate (A) any provision of law,
statute, rule or regulation, or of the certificate or articles of incorporation
or other constitutive documents or by-laws of IMS, any Borrower or any other
Subsidiary, (B) any order of any Governmental Authority or (C) any provision of
any indenture, certificate of designation or certificate of incorporation
establishing preferred stock or other material agreement or instrument to which
IMS, any Borrower or any other Subsidiary is a party or by which any of them or
any of their property is or may be bound, (ii) be in conflict with, result in a
breach of or constitute (alone or with notice or lapse of time or both) a
default under, or give rise to any right to accelerate or to require the
prepayment, repurchase or redemption of any obligation under any such indenture,
certificate of designation or certificate of incorporation establishing
preferred stock or other material agreement or instrument or (iii) result in the
creation or imposition of any Lien upon or with respect to any property or
assets now owned or hereafter acquired by IMS, any Borrower or any other
Subsidiary (other than any Lien created hereunder or under the Security
Documents).
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SECTION 3.03. Enforceability. This Agreement has been duly
executed and delivered by each of IMS, IMS Foreign Holdings, IMS PRC, IMS Cayman
and the Borrowers and constitutes, and each other Loan Document when executed
and delivered by each Loan Party which is a party thereto will constitute, a
legal, valid and binding obligation of such Loan Party enforceable against such
Loan Party in accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or
approval of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except for
(a) the filing of Uniform Commercial Code financing statements and filings with
the United States Patent and Trademark Office and the United States Copyright
Office and comparable offices in foreign jurisdictions and equivalent filings in
foreign jurisdictions and (b) such as are listed on Schedule 3.04 and have been
made or obtained and are in full force and effect.
SECTION 3.05. Financial Statements. (a) IMS has heretofore
furnished to the Lenders the combined and combining balance sheets and
statements of income and changes in financial conditions of IMS as of and for
the fiscal year ended on the last Saturday in March, 1996 and the combined
balance sheets and statements of income and changes in financial condition of
IMS as of and for the fiscal years ended the last Saturday in March, 1994 and
the last Saturday in March, 1995, respectively, audited by and accompanied by
the opinion of Ernst & Young LLP, independent public accountants. Such financial
statements present fairly the financial condition and results of operations and
cash flows of IMS and the Subsidiaries as of such dates and for such periods.
Such balance sheets and the notes thereto disclosure all material liabilities,
direct or contingent and all long-term leases or unusual forward or long-term
commitments, including all interest rate or foreign currency hedging
transactions, of IMS and the Subsidiaries as of the dates thereof. Such
financial statements were prepared in accordance with GAAP applied on a
consistent basis.
(b) Each Loan Party has heretofore delivered to the Lenders
its unaudited pro forma consolidated balance sheet as of March 30, 1996,
prepared giving effect to the Recapitalization as if it had occurred on such
date. Each of such pro forma balance sheets has been prepared in good faith by
such Loan Party based on the assumptions used to prepare the pro forma financial
information contained in the Confidential Information Memorandum (which
assumptions are believed by such Loan Party on the date hereof and on the
Closing Date to be reasonable), is based on the best information available to
the Loan Parties as of the date of delivery thereof, accurately reflects all
adjustments required to be made to give effect to the Recapitalization and
presents fairly on a pro forma basis the estimated consolidated financial
position of such Loan Party and its consolidated Subsidiaries as of March 30,
1996, assuming that the Recapitalization had actually occurred at March 30,
1996.
SECTION 3.06. No Material Adverse Change. There has been no
material adverse change in the business, assets, operations, prospects,
condition, financial or otherwise, or material agreements of IMS and the
Subsidiaries, taken as a whole, or the U.S. Borrower and its subsidiaries, taken
as a whole, or the HK Borrower and its subsidiaries, taken as a whole, or the
Thai Borrower and its subsidiaries, taken as a whole, in each case since March
30, 1996.
SECTION 3.07. Title to Properties; Possession Under Leases.
(a) Each of IMS and the Subsidiaries has good title to, or valid leasehold
interests in, all its material properties and assets (including all Mortgaged
Property), except for defects incidental to the conduct of its business or the
ownership of such assets, which do not in the aggregate materially detract from
the value of such assets or impair the use thereof or the conduct of its
business. All such material properties and assets are free and clear of Liens,
other than Liens expressly permitted by Section 6.02.
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(b) Each of IMS and the Subsidiaries has complied with all
obligations under all material leases to which it is a party and all such leases
are in full force and effect. Each of IMS and the Subsidiaries enjoys peaceful
and undisturbed possession under all such material leases.
(c) Neither IMS nor any Subsidiary is obligated under any
right of first refusal, option or other contractual right to sell, assign or
otherwise dispose of any Mortgaged Property or any interest therein.
(d) Except as set forth on Schedule 3.07, each of IMS and the
Subsidiaries owns or possesses, or has a valid license to use, on terms not
materially adverse to it, all patents, trademarks, service marks, trade names,
copyrights, licenses and rights with respect thereto reasonably necessary for
the present conduct of its business as it is presently, and has recently been,
conducted and without any known conflict with the rights of others, and free
from any burdensome restrictions, except where such conflict and restrictions
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
SECTION 3.08. Capitalization; Subsidiaries. The authorized
capital stock or other equity interest, the par value, if any, thereof and the
amount of such authorized capital stock or equity interest issued and
outstanding for each of IMS and the Subsidiaries, and the jurisdiction of
organization of IMS and each Subsidiary, is set forth on Schedule 3.08 as of the
Closing Date (after giving effect to the Recapitalization). All such outstanding
shares of capital stock or other equity interests are fully paid and
nonassessable and, on and after the Closing Date (after giving effect to the
Recapitalization), will be owned beneficially and of record by persons, and in
the amounts, set forth on Schedule 3.08 and, on and after the Closing Date, will
be free and clear of all Liens and encumbrances whatsoever (other than (i) the
Liens created by the Security Documents and (ii) Liens permitted under Section
6.02(d) which rank junior to the Liens created by the Security Documents).
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as
set forth on Schedule 3.09, there are not any actions, suits or proceedings at
law or in equity or by or before any Governmental Authority now pending or, to
the knowledge of IMS or any Subsidiary, threatened against or affecting IMS or
any Subsidiary or any business, property or rights of any such person (i) that
involve any Loan Document or the Transactions or (ii) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.
(b) None of IMS or any of the Subsidiaries or any of their
respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation, or is in default with respect to
any judgment, writ, injunction, decree or order of any Governmental Authority,
where such violation or default could reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. Agreements and Other Restrictions. (a) None of
IMS or any of the Subsidiaries is a party to any agreement or instrument or
subject to any corporate or other restriction (other than, with respect to
clause (ii) below, as imposed by applicable law) that (i) has resulted or could
reasonably be expected to result in a Material Adverse Effect or (ii) limits the
ability of any Subsidiary to pay dividends or to make distributions or advances
to the U.S. Borrower or any other Subsidiary (other than this Agreement).
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(b) None of IMS or any of the Subsidiaries is in default in
any manner under any provision of any indenture or other agreement or instrument
evidencing Indebtedness, under any certificate of designation for preferred
stock or under any other material agreement or instrument to which it is a party
or by which it or any of its properties or assets are or may be bound, where
such default could reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.11. Federal Reserve Regulations. (a) None of IMS or
any of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of
Credit will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, to buy or carry Margin Stock or to refinance any
Indebtedness incurred for such purpose, or for any purpose that entails a
violation of, or that is inconsistent with, the provisions of the Regulations of
the Board, including Regulation G, U or X.
SECTION 3.12. Investment Company Act; Public Utility Holding
Company Act. None of IMS or any Subsidiary is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The Borrowers will use the
proceeds of the Loans and will request the issuance of Letters of Credit only
for the purposes specified in the preamble to this Agreement.
SECTION 3.14. Taxes. Each of IMS and the Subsidiaries has
filed or caused to be filed all material Federal, state, local and foreign Tax
returns and reports required to have been filed by it and has paid or caused to
be paid all Taxes due and payable by it and all assessments received by it,
except Taxes or assessments that are being or will be contested in good faith by
appropriate proceedings and for which IMS or such Subsidiary, as applicable, has
set aside on its books adequate reserves in accordance with GAAP.
SECTION 3.15. No Material Misstatements. None of (a) the
Confidential Information Memorandum or (b) any other information, report,
financial statement, exhibit or schedule furnished by or on behalf of IMS or any
Loan Party to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto contained, contains or will contain any material misstatement of fact or
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not misleading; provided that to the extent any such
information, report, financial statement, exhibit or schedule was based upon or
constitutes a forecast or projection, each of IMS and the Subsidiaries
represents only that it acted in good faith and utilized reasonable assumptions
and due care in the preparation of such information, report, financial
statement, exhibit or schedule.
SECTION 3.16. Employee Benefit Plans. (a) As of the Closing
Date, neither IMS nor any Subsidiary nor any ERISA Affiliate thereof maintains
or contributes to any Plan. Each of IMS and the Domestic Subsidiaries and their
ERISA Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in material liability of any Domestic
Borrower
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or any of its ERISA Affiliates. With respect to any Plan that may after the
Closing Date be maintained or contributed to by IMS or any Subsidiary or any
ERISA Affiliate thereof, the present value of all benefit liabilities under such
Plan (based on those assumptions used to fund such Plan) did not, as of the last
annual valuation date applicable thereto, exceed the fair market value of the
assets of such Plan, and the present value of all benefit liabilities of all
underfunded Plans (based on those assumptions used to fund each such Plan) did
not, as of the last annual valuation dates applicable thereto, exceed the fair
market value of the assets of all such underfunded Plans.
(b) Each Foreign Plan is in compliance in all material
respects with all requirements of law applicable thereto and the respective
requirements of the governing documents for such plan except to the extent such
non-compliance could not reasonably be expected to result in a Material Adverse
Effect. With respect to each Foreign Pension Plan, none of the Borrowers or the
other Subsidiaries or their respective Affiliates or any of their directors,
officers, employees or agents has engaged in a transaction which would subject
any of the Borrowers or the other Subsidiaries, directly or indirectly, to a
material tax or civil penalty which could reasonably be expected to result in a
Material Adverse Effect. With respect to each Foreign Plan, adequate reserves
have been established in the financial statements furnished to the Lenders in
respect of any unfunded liabilities in accordance with applicable law and
prudent business practice or, where required, in accordance with ordinary
accounting practices in the jurisdiction in which such Foreign Plan is
maintained. The aggregate unfunded liabilities, after giving effect to any such
reserves for such liabilities, with respect to such Foreign Plans could not
reasonably be expected to result in a Material Adverse Effect. There are no
material actions, suits or claims (other than routine claims for benefits)
pending or threatened against any of the Borrowers or the other Subsidiaries or
any of their Affiliates with respect to any Foreign Plan which could reasonably
be expected, individually or in the aggregate, to result in a Material Adverse
Effect.
SECTION 3.17. Environmental Matters. Except as set forth in
Schedule 3.17:
(a) To the best knowledge of IMS and the Subsidiaries, the
properties owned, operated or leased by IMS and the Subsidiaries (the
"Properties") do not contain any Hazardous Materials in amounts or
concentrations which (i) constitute, or constituted a violation of, (ii) require
Remedial Action under, or (iii) could give rise to liability under,
Environmental Laws, which violations, Remedial Actions and liabilities, in the
aggregate, could result in a Material Adverse Effect;
(b) The properties and all operations of IMS and the
Subsidiaries are in compliance, and in the last five years (or, with respect to
any such properties which have not been owned, leased or used by IMS, any
Subsidiary or any Affiliate of any thereof for five years, since the first date
on which such property was first acquired, leased or used by IMS, any such
Subsidiary or any such Affiliate) have been in compliance, with all
Environmental Laws, and all necessary Environmental Permits have been obtained
and are in effect, except to the extent that such non-compliance or failure to
obtain any necessary permits, in the aggregate, could not result in a Material
Adverse Effect;
(c) To the best knowledge of IMS and the Subsidiaries,
Hazardous Materials have not been transported, generated, treated, stored,
disposed of or released from, at, on or under any of the Properties in violation
of, or in any manner or to a location that could give rise to liability under,
any Environmental Law, except to the extent that such violation or liabilities,
in the aggregate, could not result in a Material Adverse Effect; and
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(d) None of IMS or any of the Subsidiaries has received any
notice of an Environmental Claim in connection with the Properties or the
operations of IMS or the Subsidiaries or with regard to any person whose
liabilities for environmental matters IMS or the Subsidiaries has retained or
assumed, in whole or in part, contractually, by operation of law or otherwise,
which, in the aggregate, could result in a Material Adverse Effect, nor do IMS
or the Subsidiaries have reason to believe that any such notice will be received
or is being threatened.
SECTION 3.18. Security Documents. (a) Each of the Pledge
Agreements is effective to create in favor of the Collateral Agent, for the
ratable benefit of the Secured Parties thereunder, a legal, valid and
enforceable security interest in the Collateral (as defined in such Pledge
Agreement) and, when the Pledged Stock (as defined in such Pledge Agreement) is
delivered to the Collateral Agent (or, as applicable in the case of any capital
stock or other equity interest that is uncertificated or in foreign
jurisdictions requiring filings or recordations, applicable registrations,
filings or recordations are made), such Pledge Agreement shall constitute a
fully perfected first priority Lien on, and security interest in, all right,
title and interest of the pledgors thereunder in such Collateral and the
proceeds thereof, in each case prior and superior in right to any other person.
(b) Each of the Security Agreements is effective to create in
favor of the Collateral Agent, for the ratable benefit of the Secured Parties
thereunder, a legal, valid and enforceable security interest in the Collateral
(as defined in such Security Agreement) and, when financing statements or other
appropriate documents in appropriate form are filed in the offices specified on
Schedule 3.18 with respect to each Security Agreement, such Security Agreement
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the grantors thereunder in such Collateral and the
proceeds thereof, in each case prior and superior in right to any other person,
other than with respect to Liens expressly permitted by Section 6.02.
(c) Each of the Mortgages, when executed, will be effective to
create in favor of the Collateral Agent, for the ratable benefit of the Secured
Parties thereunder, a legal, valid and enforceable Lien on all the right, title
and interest of the Loan Party that is party thereto in and to the Mortgaged
Property thereunder and the proceeds thereof, and when such Mortgage is filed in
the office specified on Schedule 3.18 with respect to such Mortgage, such
Mortgage shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of such Loan Party in such Mortgaged Property and
the proceeds thereof, in each case prior and superior in right to any other
person, other than with respect to the rights of persons pursuant to Liens
expressly permitted by Section 6.02.
SECTION 3.19. Location of Real Property and Leased Premises.
(a) As of the Closing Date, IMS and the Subsidiaries do not own in fee any real
property.
(b) Schedule 3.19 lists completely and correctly as of the
Closing Date all real property leased by IMS and the Subsidiaries and the
addresses thereof. As of the Closing Date, IMS and the Subsidiaries have valid
leases in all the real property set forth as being leased by them on Schedule
3.19.
SECTION 3.20. Solvency. (a) Immediately after the consummation
of the Recapitalization and the Credit Events to occur on the Closing Date, (i)
the fair value of the assets of each Loan Party will exceed the debts and
liabilities, subordinated, contingent or otherwise, of such Loan Party; (ii) the
present fair saleable value of the assets of each Loan Party will be greater
than the amount that will be required to pay the probable liability of such Loan
Party on its debts and other liabilities, subordinated, contingent or otherwise,
as such debts and other liabilities become absolute and matured; (iii) each Loan
Party will be able
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to pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (iv) each Loan Party will
not have unreasonably small capital with which to conduct the businesses in
which it is engaged as such businesses are now conducted and are proposed to be
conducted following the Closing Date.
(b) None of IMS or the Subsidiaries intends to, or to permit
any Subsidiary to, and each does not believe that it or any Subsidiary will,
incur debts beyond its ability to pay such debts as they mature, taking into
account the timing of and amounts of cash to be received by it and each
Subsidiary and the timing of the amounts of cash to be payable on or in respect
of its Indebtedness and the Indebtedness of each Subsidiary.
SECTION 3.21. Labor Matters. Except as set forth on Schedule
3.21, there are no strikes or other work stoppages or labor disturbances pending
or threatened against IMS or any Subsidiary.
SECTION 3.22. No Foreign Assets Control Regulation Violation.
None of the Transactions will result in a violation of any of the foreign assets
control regulations of the United States Treasury Department, 31 C.F.R.,
Subtitle B, Chapter V, as amended (including the Foreign Assets Control
Regulations, the Cuban Assets Control Regulations, the Iranian Transactions
Regulations, the Libyan Sanctions Regulations, the Iraqi Sanctions Regulations
and the Unita (Angola) Sanctions Regulations contained in said Chapter V), or
any ruling issued thereunder or any enabling legislation or Presidential
Executive Order granting authority therefor, nor will the proceeds of any Loan
be used in a manner that would violate any thereof.
ARTICLE IV. CONDITIONS OF LENDING
The obligations of the Lenders to make Loans and of the
Fronting Bank to issue Letters of Credit hereunder are subject to the
satisfaction of the following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing
and on the date of each issuance of a Letter of Credit (each such event being
called a "Credit Event"):
(a) The Administrative Agent shall have received a notice of
such Borrowing as required by Section 2.03 or, in the case of the
issuance of a Letter of Credit, the Fronting Bank and the
Administrative Agent shall have received a notice requesting the
issuance of such Letter of Credit as required by Section 2.20(b).
(b) The representations and warranties set forth in Article
III hereof shall be true and correct in all material respects on and as
of the date of and after giving effect to such Credit Event with the
same effect as though made on and as of such date, except to the extent
such representations and warranties expressly relate to an earlier
date.
(c) IMS and each Subsidiary shall be in compliance with all
the terms and provisions set forth herein and in each other Loan
Document on its part to be observed or performed, and at the time of
and immediately after such Credit Event, no Event of Default or Default
shall have occurred and be continuing.
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(d) After giving effect to such Credit Event, the aggregate
obligations of the applicable Borrower shall be in an amount, and shall
involve payments, that can reasonably be supported by such Borrower
taking into account the actual and reasonably expected cash flows of
such Borrower, the value of the assets of such Borrower included in the
Collateral and the other Indebtedness and obligations of such Borrower.
Each Credit Event shall be deemed to constitute a representation and warranty by
each Borrower to whom a Loan is made and IMS on the date of such Credit Event as
to the matters specified in paragraphs (b) (except as aforesaid), (c) and (d) of
this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of
itself, the Lenders and the Fronting Bank, (i) a favorable written
opinion of (A) Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, counsel for IMS, IMS
Foreign Holdings and the U.S. Borrower, substantially to the effect set
forth in Exhibit G-1 and (B) each local counsel listed on Schedule
4.02(a), substantially to the effect set forth in Exhibit X-0, X-0,
X-0, or G-5, as applicable, in each case (1) dated the Closing Date,
(2) addressed to the Fronting Bank, the Administrative Agent and the
Lenders, and (3) covering such other matters relating to the Loan
Documents and the Transactions as the Administrative Agent shall
reasonably request, and each of IMS and the Subsidiaries hereby
requests such counsel to deliver such opinions; and (ii) a copy of each
opinion of counsel required to be delivered by or on behalf of any
party to the Recapitalization Agreement or Redemption Agreement
pursuant to or under any such agreement, in form and substance
reasonably acceptable to the Administrative Agent and its counsel, and
accompanied by a letter from such counsel delivering such opinion
expressly granting the Administrative Agents, the Lenders and the
Fronting Bank the right to rely thereon.
(b) The Administrative Agent shall have received in the case
of IMS, IMS Foreign Holdings and the U.S. Borrower each of the items
referred to in clauses (i) (A), (B) and (C) below, and in the case of
each other Loan Party, the analogous documentation with respect to its
jurisdiction of organization (other than with respect to the Thai
Borrower, a certificate as to its good standing): (i) (A) a copy of the
certificate or articles of incorporation, articles of organization or
certificate of formation, as applicable, including all amendments
thereto, of IMS, IMS Foreign Holdings and the U.S. Borrower, certified
as of a recent date by the Secretary of State of the state of its
organization, and a certificate as to the good standing of each of them
as of a recent date, from such Secretary of State; (B) a certificate of
the Secretary or Assistant Secretary of each of them dated the Closing
Date and certifying (1) that attached thereto is a true and complete
copy of its by-laws as in effect on the Closing Date and at all times
since a date prior to the date of the resolutions described in clause
(2) below, (2) that attached thereto is a true and complete copy of
resolutions duly adopted by its Board of Directors authorizing the
execution, delivery and performance of the Loan Documents to which such
person is a party and, in the case of each Borrower, such Borrower's
Borrowings and any issuances of Letters of Credit for the account of
such Borrower hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, (3)
that its certificate or articles of incorporation, articles of
organization or certificate of formation or partnership agreement, as
applicable, have not been amended since the date of the last amendment
thereto shown on the certificate of good standing furnished pursuant to
clause (A) above, and (4) as to the incumbency and specimen signature
of each officer executing any Loan Document or any other document
delivered in connection herewith on behalf of such person; and (C) a
certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary
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executing the certificate pursuant to (B) above; and (ii) such other
documents as the Lenders, the Fronting Bank, Cravath, Swaine & Xxxxx,
counsel for the Administrative Agent, or counsel for the Administrative
Agent in any other jurisdiction may reasonably request.
(c) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Financial Officer
of IMS, IMS Foreign Holdings and each Borrower, confirming compliance
with the conditions precedent set forth in paragraphs (b), (c) and (d)
of Section 4.01.
(d) The Administrative Agent shall have received all Fees and
other amounts due and payable on or prior to the Closing Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by any Loan
Party hereunder or under any other Loan Document.
(e) Each of the Guarantee Agreements and the Indemnity,
Subrogation and Contribution Agreement shall have been duly executed by
the parties thereto and delivered to the Collateral Agent and shall be
in full force and effect.
(f) Each of the Pledge Agreements shall have been duly
executed by the parties thereto and delivered to the Collateral Agent
and shall be in full force and effect, and all the outstanding Capital
Stock of each of IMS and the Subsidiaries shall have been duly and
validly pledged thereunder to the Collateral Agent for the ratable
benefit of the Secured Parties and, in the case of certificated shares
or interests, certificates representing such shares, accompanied by
instruments of transfer and stock powers endorsed in blank, shall be in
the actual possession of the Collateral Agent, and, in the case of
uncertificated shares or interests or foreign jurisdictions requiring
filings or recordations, registration shall have been made in the books
and records of the persons whose shares or interests are being pledged
recording each such pledge and any requisite filings or recordations
shall have been delivered to the Collateral Agent, and any Indebtedness
of IMS or any Subsidiary owed to IMS or any other Subsidiary shall be
evidenced by one or more promissory notes which shall be pledged to the
Collateral Agent for the benefit of the Secured Parties pursuant to the
applicable Pledge Agreement if no material tax disadvantage to IMS or
any Subsidiary shall result therefrom.
(g) Each of the Security Agreements shall have been duly
executed by the Loan Parties party thereto and shall have been
delivered to the Collateral Agent and shall be in full force and effect
on such date and each document (including each Uniform Commercial Code
financing statement and a consent from the Continuing Shareholder as to
the assignment of the Production Agreement, the Recapitalization
Agreement and the Redemption Agreement) required by law or reasonably
requested by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the Collateral Agent for the
benefit of the Secured Parties a valid, legal and perfected
first-priority security interest in and lien on the Collateral
described in such agreements shall have been delivered to the
Collateral Agent.
(h) The Collateral Agent shall have received (i) the results
of a search of tax liens, judgments and the Uniform Commercial Code
filings (or equivalent filings) made with respect to the Domestic
Guarantors in the state in which the chief executive office of each
such person is located, any offices of such persons in which records
have been kept relating to Accounts and the other jurisdictions in
which Uniform Commercial Code filings (or equivalent filings) are to be
made pursuant to the preceding paragraph, together with copies of the
financing statements (or similar documents) disclosed by such search
and (ii) where applicable, the results of equivalent searches
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made in each other jurisdiction in which a Loan Party is located, in
each case accompanied by evidence satisfactory to the Collateral Agent
that the Liens indicated in any such financing statement (or similar
document) would be permitted under Section 6.02 or have been released.
(i) The Collateral Agent shall have received a Perfection
Certificate dated the Closing Date and duly executed by a Responsible
Officer of each Loan Party.
(j) The EBITDA of IMS and the Subsidiaries on a combined basis
for the fiscal year ended March 30, 1996, shall be not less than
$8,000,000.
(k) The Administrative Agent shall have received a copy of, or
a certificate as to coverage under, the insurance policies required by
Section 5.02 and the applicable provisions of the Security Documents,
each of which shall be endorsed or otherwise amended to include a
"standard" or "New York" lender's loss payable endorsement and to name
the Collateral Agent as additional insured, in form and substance
satisfactory to the Administrative Agent.
(l) All requisite Governmental Authorities and third parties
shall have approved or consented to the Recapitalization and the other
transactions contemplated hereby to the extent required, all applicable
appeal periods shall have expired and there shall be no governmental or
judicial action, actual or threatened, that has or could have a
reasonable likelihood of restraining, preventing or imposing burdensome
conditions on the Recapitalization and the other transactions
contemplated hereby.
(m) The Recapitalization shall have been consummated or shall
be consummated substantially simultaneously with the initial Credit
Event hereunder in accordance with applicable law and the
Recapitalization Agreement, the Redemption Agreement, the Production
Agreement and all other related documentation and on terms reasonably
satisfactory to the Lenders, and the Lenders shall be satisfied that
the aggregate level of Taxes, fees and expenses to be paid by IMS and
the Subsidiaries in connection with the Recapitalization and related
transactions shall not exceed $2,200,000. The conditions to the
Recapitalization set forth in the Recapitalization Agreement and the
Redemption Agreement shall have been satisfied without giving effect to
waivers or amendments not approved by the Lenders.
(n) The Recapitalization shall be satisfactory to the Lenders
in all respects; the organizational structure of IMS and the
Subsidiaries shall be as set forth on Schedule 4.02(n) and there shall
be no holders of capital stock of IMS other than (i) the persons listed
on Schedule 1.01(c), who shall hold the Common Stock of IMS, calculated
on a fully diluted basis, and Preferred Stock, in each case in the
percentages set forth on such Schedule 1.01(c).
(o) After giving effect to the Recapitalization, IMS and the
Subsidiaries shall have outstanding no Indebtedness for borrowed money
or preferred stock other than Indebtedness under the Loan Documents,
the Indebtedness set forth on Schedule 6.01, the Subordinated Notes,
the Preferred Stock and the Contingent Payment Notes; and the amounts,
terms and conditions of all such Indebtedness set forth on Schedule
6.01, the Subordinated Notes, the Preferred Stock and the Contingent
Payment Notes shall be satisfactory in all respects to the Lenders
(including but not limited to identity of the obligors, interest rates,
fees, maturity, amortization, preferences, subordination, covenants,
events of defaults and remedies).
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(p) The Lenders shall be reasonably satisfied in all respects
with (a) the tax position and the contingent tax and other liabilities
of IMS and the Subsidiaries, (b) the arrangements of IMS and the
Subsidiaries for the repatriation of revenues from foreign operations
to the United States and to the jurisdictions of the Borrowers and in
each case the plans of IMS and the Subsidiaries with respect thereto
and (c) the corporate and capital structure and equity ownership and
control of IMS and the Subsidiaries and with all legal, tax and
accounting matters relating to the Recapitalization, the financing
therefor and all other transactions related to the Recapitalization and
contemplated hereby, including, without limitation, matters relating to
guarantees and security interests under the laws of the jurisdictions
of organization of the Subsidiaries.
(q) The Lenders shall have received (i) the financial
statements referred to in Section 3.05, and (ii) satisfactory pro forma
consolidated and consolidating closing balance sheets of IMS as of
March 30, 1996, together with a certificate of IMS, dated the Closing
Date and signed by the chief financial officer of IMS, to the effect
that such statements fairly present the pro forma financial position of
IMS and the Subsidiaries in accordance with GAAP after giving effect to
the Recapitalization and the related Borrowings hereunder. The Lenders
shall be satisfied that such balance sheets and all aspects of the
transactions in connection with the Recapitalization are consistent in
all material respects with the Confidential Information Memorandum and
the information and projections, and the financial model, contained
therein. The Borrowers shall also have provided to the Lenders the
quarterly plans and forecasts of IMS and the Subsidiaries for fiscal
year 1997 and such other financial information as the Administrative
Agent may reasonably request in connection with the Recapitalization.
(r) The Lenders shall be satisfied with the sufficiency of
amounts available under the Revolving Credit Commitments to meet the
ongoing working capital requirements of IMS and the Subsidiaries after
giving effect to the Recapitalization and the transactions related
thereto and contemplated hereby.
(s) The Lenders shall be reasonably satisfied with the results
of their review of the customers, customer relationships and customer
documentation of IMS and the Subsidiaries.
(t) The Lenders shall have received an examination,
satisfactory in form and substance to the Lenders, of the receivables
and inventory of each of IMS and the Subsidiaries after giving effect
to the Recapitalization and the other transactions contemplated hereby,
and the Administrative Agent shall be satisfied with the billing and
payment arrangements in respect of accounts receivable of IMS and the
Subsidiaries to be in effect after the Recapitalization, including
lock-box and other collection and cash management arrangements, and the
Administrative Agent shall have received an agreement from CoreStates
Bank, N.A., satisfactory in all respects to the Administrative Agent,
with respect to the lockboxes existing on the Closing Date.
ARTICLE V. AFFIRMATIVE COVENANTS
Each of IMS, IMS Foreign Holdings, IMS Cayman, IMS PRC and the
Borrowers covenants and agrees with each Lender that so long as this Agreement
shall remain in effect and until the Revolving Credit Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document shall have been paid
in full and all Letters of Credit have been canceled or have expired and all
amounts drawn thereunder have been reimbursed in full,
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unless the Required Lenders shall otherwise consent in writing, each of IMS, IMS
Foreign Holdings, IMS Cayman and IMS PRC and the Borrowers will, and will cause
each of the Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its legal existence, except as otherwise expressly permitted under
Section 6.05.
(b) Do or cause to be done all things necessary to obtain,
preserve, renew, extend and keep in full force and effect the rights, licenses,
permits, franchises, authorizations, patents, copyrights, trademarks and trade
names material in the aggregate to the conduct of its business; maintain and
operate such business in substantially the manner in which it is presently
conducted and operated; comply in all material respects with all applicable
laws, rules, regulations and decrees and orders of any Governmental Authority,
whether now in effect or hereafter enacted; and at all times maintain and
preserve all property material to the conduct of such business and keep such
property in good repair, working order and condition (ordinary wear and tear
excepted) and from time to time make, or cause to be made, all needful and
proper repairs, renewals, addi tions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be
properly conducted at all times.
SECTION 5.02. Insurance. Keep its insurable properties
adequately insured at all times by financially sound and reputable insurers;
maintain such other insurance, to such extent and against such risks, including
fire and other risks insured against by extended coverage, as is customary with
companies in the same or similar businesses operating in the same or similar
locations, including public liability insurance against claims for personal
injury or death or property damage occurring upon, in, about or in connection
with the use of any properties owned, occupied or controlled by it; and maintain
such other insurance as may be required by law.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and
other obligations promptly and in accordance with their terms and pay and
discharge promptly when due all Taxes imposed upon it or upon its income or
profits or in respect of its property, before the same shall become delinquent
or in default, as well as all lawful claims for labor, materials and supplies or
otherwise that, if unpaid, might give rise to a Lien upon such properties or any
part thereof; provided, however, that such payment and discharge shall not be
required with respect to any such Tax or claim so long as the validity or amount
thereof shall be contested in good faith by appropriate proceedings and the
applicable Borrower or other Loan Party shall have set aside on its books
adequate reserves with respect thereto in accordance with GAAP (or in the case
of each Foreign Subsidiary, generally accepted accounting principles of its
jurisdiction of incorporation) and such contest operates to suspend collection
of the contested obligation or Tax, and enforcement of a Lien.
SECTION 5.04. Financial Statements, Reports, etc. In the case
of IMS, furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, (i) its
consolidated and consolidating balance sheets and related statements of
income and changes in financial condition showing the financial
condition of IMS and the Subsidiaries as of the close of such fiscal
year and the results of its operations and the operations of such
Subsidiaries during such year, all audited by Price Waterhouse LLP or
other independent public accountants of recognized standing reasonably
acceptable to the Required Lenders and accompanied by an opinion of
such accountants (which shall not be qualified in any material respect)
to the effect that such consolidated financial statements
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fairly present the financial condition and results of operations of IMS
and its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied and (ii) a comparison of such annual
results to the projections of IMS and the Subsidiaries for such fiscal
year delivered under paragraph (e) below;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, (i) its consolidated and
consolidating balance sheets and related consolidated and consolidating
statement of income and consolidated statement of changes in financial
condition showing the financial condition of IMS and the Subsidiaries
as of the close of such fiscal quarter and the results of its
operations and the operations of such Subsidiaries during such fiscal
quarter and the then elapsed portion of the fiscal year, all certified
by one of its Financial Officers as fairly presenting the financial
condition and results of operations of IMS and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and
(ii) a comparison of such quarterly results to the projections of IMS
and the Subsidiaries for such fiscal quarter delivered under paragraph
(e) below;
(c) concurrently with any delivery of financial statements
under paragraph (a) or (b) above, a certificate of the accounting firm
or Financial Officer opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to
accounting matters and disclaim responsibility for legal
interpretations) (i) certifying that no Event of Default or Default has
occurred or, if such an Event of Default or Default has occurred,
specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto and (ii) setting
forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the covenants
contained in Section 6.10, 6.11, 6.12. 6.13 and 6.14;
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by IMS or any Subsidiary with the Securities and Exchange
Commission, any Governmental Authority succeeding to any or all of the
functions of said Commission or any comparable Governmental Authority
in any other jurisdiction, or with any national securities exchange, or
distributed to its shareholders, as the case may be;
(e) not later than the last day of each fiscal year, (i)
quarterly financial projections of IMS and the Subsidiaries for the
next succeeding fiscal year and each subsequent fiscal year through the
Maturity Date, in form and detail satisfactory to the Administrative
Agent and prepared and presented on a basis consistent with the
projections included in the Confidential Information Memorandum, all
certified by the chief financial officer of IMS to have been prepared
in good faith based on assumptions believed to be reasonable, and (ii)
a copy of the annual budget of IMS and the Subsidiaries for the next
succeeding fiscal year;
(f) promptly after receipt thereof, a copy of any notice
delivered under the Production Agreement, Recapitalization Agreement or
Redemption Agreement that relates to any matter which is material to
the rights or interests of the Administrative Agent, the Lenders or the
Fronting Bank under this Agreement and the other Loan Documents;
(g) promptly after obtaining knowledge thereof, a notice
disclosing any inaccuracy in any representation or warranty or schedule
contained in or attached to the Recapitalization Agreement or the
Redemption Agreement; and
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(h) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
IMS, any Borrower or any Subsidiary, or compliance with the terms of
any Loan Document, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent, the Fronting Bank and each Lender prompt written notice of
the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) taken or proposed to
be taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against IMS or any Subsidiary or any Affiliate
thereof that could reasonably be expected to result in a Material
Adverse Effect; and
(c) any other development that has resulted in, or could
reasonably be expected to result in, a Material Adverse Effect.
SECTION 5.06. Employee Benefits. Each Borrower shall comply in
all material respects with the applicable provisions of ERISA and all other
applicable laws (including, with respect to any Foreign Plan, all applicable
foreign laws) and furnish to the Agent and each Lender (i) as soon as possible,
and in any event within 30 days after any Responsible Officer of such Borrower
or any ERISA Affiliate either knows or has reason to know that any ERISA Event
has occurred that alone or together with any other ERISA Event would reasonably
be expected to result in liability of such Borrower to the PBGC or other
Governmental Authority in an aggregate amount exceeding $2,000,000, a statement
of a Financial Officer setting forth details as to such ERISA Event and the
action proposed to be taken with respect thereto, together with a copy of the
notice, if any, of such ERISA Event given to the PBGC or other Governmental
Authority, (ii) promptly after receipt thereof, a copy of any notice such
Borrower or any ERISA Affiliate may receive from the PBGC or other Governmental
Authority relating to the intention of the PBGC or other Governmental Authority
to terminate any Plan or Plans (other than a Plan maintained by an ERISA
Affiliate which is considered an ERISA Affiliate only pursuant to subsection (m)
or (o) of Section 414 of the Code), or any Foreign Plan or Foreign Plans, or to
appoint a trustee to administer any Plan or Plans, or any Foreign Plan or
Foreign Plans, (iii) within 10 days after the due date for filing with the PBGC
pursuant to Section 412(n) of the Code of a notice of failure to make a required
installment or other payment with respect to a Plan, a statement of a Financial
Officer setting forth details as to such failure and the action proposed to be
taken with respect thereto, together with a copy of such notice given to the
PBGC and (iv) promptly and in any event within 30 days after receipt thereof by
such Borrower or any ERISA Affiliate from the sponsor of a Multiemployer Plan, a
copy of each notice received by such Borrower or ERISA Affiliate concerning (A)
the imposition of Withdrawal Liability in excess of $2,000,000 or (B) a
determination that a Multiemployer Plan is, or is expected to be, terminated or
in reorganization, in each case within the meaning of Title IV of ERISA, if such
termination or reorganization would reasonably be expected to result, alone or
with any other such termination or reorganization, in increases in excess of
$2,000,000 in the contributions required to be made to the relevant Plan or
Plans.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP (solely, in the case of Foreign
Subsidiaries, to the extent necessary to comply with the terms of this
Agreement) and all requirements of law, and, in the case of each Foreign
Subsidiary, generally accepted accounting principles
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of its jurisdiction of incorporation, are made of all dealings and transactions
in relation to its business and activities. Each Loan Party will, and will cause
each of its Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender to visit and inspect the financial records
and the properties of IMS, any Borrower or any Subsidiary upon reasonable notice
at reasonable times and as often as reasonably requested and to make extracts
from and copies of such financial records, and permit any representatives
designated by the Administrative Agent or any Lender to discuss the affairs,
finances and condition of IMS, any Borrower or any Subsidiary with the officers
thereof and independent accountants therefor.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans
and request the issuance of Letters of Credit only for the purposes set forth in
the preamble to this Agreement.
SECTION 5.09. Compliance with Environmental Laws. Comply, and
cause all lessees and other persons occupying its Properties to comply, in all
material respects with all Environmental Laws and Environmental Permits
applicable to its operations and Properties; obtain and renew all material
Environmental Permits reasonably necessary for its operations and Properties;
and conduct any Remedial Action in accordance with Environmental Laws.
SECTION 5.10. Lockbox and Cash Management Arrangements. As
soon as practicable and in any event within 90 days after the Closing Date,
enter into, and thereafter maintain in effect, lockbox and cash management
arrangements reasonably satisfactory in all respects to the Administrative Agent
and the Collateral Agent.
SECTION 5.11. Further Assurances. Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust) that may be required under applicable
law, or that the Required Lenders, the Administrative Agent or the Collateral
Agent may reasonably request, in order to effectuate the transactions
contemplated by the Loan Documents and in order to grant, preserve, protect and
perfect the validity and first priority of the security interests created or
intended to be created by the Security Documents. IMS, IMS Foreign Holdings, IMS
Cayman, IMS PRC and the Borrowers will, and will cause the other Subsidiaries
to, at their cost and expense, on or promptly (but in any event within 30
Business Days) (x) following the date of acquisition or formation of any new
Subsidiary pursuant to a Permitted Business Acquisition or (y) in the case of
any Subsidiary that has not entered into a Pledge Agreement, following the date
on which such Subsidiary first holds any debt or equity securities, promptly
secure the Obligations by causing the following to occur: (i) promptly upon
creating or acquiring such additional Subsidiary, all of the Capital Stock (and
any securities convertible into or exchangeable for Capital Stock) of such
Subsidiary will be pledged pursuant to the applicable Pledge Agreement, (ii) all
of such other debt or equity securities shall by pledged pursuant to the
applicable Pledge Agreement and if the Subsidiary holding such securities is not
a party to a Pledge Agreement, such Subsidiary shall enter into or become a
party to a Pledge Agreement, and (iii) such Subsidiary will become a party to or
enter into a Security Agreement and enter into the Subsidiary Guarantee
Agreement and the Indemnity, Subrogation and Contribution Agreement as
contemplated under such agreements, and will, if such Subsidiary owns any
Capital Stock (or any securities convertible into or exchangeable for Capital
Stock), become a party to or enter into a Pledge Agreement, and if such
Subsidiary owns any material real property, enter into and deliver to the
Collateral Agent a first mortgage in respect of such property in form reasonably
satisfactory to the Collateral Agent and pay all recording taxes, title
insurance costs, survey costs and other costs in connection with such mortgage.
In addition, from time to time, IMS and the other Loan Parties will, at their
cost and expense, promptly secure the Obligations by pledging or creating, or
causing to be pledged or created,
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perfected security interests with respect to such of its assets and properties
as the Administrative Agent or the Required Lenders shall designate (it being
understood that it is the intent of the parties that the Obligations shall,
except as expressly contemplated by this Agreement, be secured by substantially
all the assets of each Loan Party (including real and other properties acquired
subsequent to the Closing Date)). Such security interests and Liens will be
created under the Security Documents and other security agreements, mortgages,
deeds of trust and other instruments and documents in form and substance
satisfactory to the Collateral Agent, and each Subsidiary shall deliver or cause
to be delivered to the Lenders all such instruments and documents (including
legal opinions, title insurance policies and lien searches) as the Collateral
Agent shall reasonably request to evidence compliance with this Section. Each
Subsidiary agrees to provide such evidence as the Collateral Agent shall
reasonably request as to the perfection and priority status of each such
security interest and Lien. Notwithstanding any other provision of this Section
5.11, Obligations of Domestic Borrowers and Domestic Guarantors will not (A) be
guaranteed by, or secured by the assets or more than 65% of the capital stock
of, any Foreign Subsidiary the capital stock of which is owned by a Domestic
Subsidiary or (B) guaranteed by, or secured by the assets or the capital stock
of, any Foreign Subsidiary the capital stock of which is owned by a Foreign
Subsidiary.
IMS PRC shall use its best efforts to promptly obtain all
approvals, orders, consents and other authorizations from Governmental
Authorities in the People's Republic of China (and make any filings or
registrations relating thereto) necessary in order for IMS PRC to secure the
Obligations of the Foreign Loan Parties by pledging or creating legal and valid
and perfected security interests (including by way of mortgages, pledges, liens,
assignments or like interests), binding on and enforceable (subject with respect
to enforceability to qualifications reasonably acceptable to the Required
Lenders) as a matter of law against IMS PRC, in substantially all the assets and
properties of IMS PRC (except for such assets and properties in which security
interests, mortgages, pledges, liens, assignments or like interests may not be
created as a matter of law even after obtaining all such approvals, orders,
consents and other authorizations which could be granted by such Governmental
Authorities), and shall thereupon grant such valid and perfected security
interests to the Secured Parties to secure the Obligations of the Foreign Law
Parties (the "IMS PRC Security Grant Event").
IMS PRC shall use its best efforts to promptly obtain all
appraisals, orders, consents and other authorizations from Governmental
Authorities in the People's Republic of China (and make any filings or
registrations relating thereto) necessary in order for IMS PRC to become a party
to the Subsidiary Guarantee Agreement for its obligations thereunder to be
legal, valid and binding on and enforceable as (subject with respect to
enforceability to qualifications reasonably acceptable to the Required Lenders)
a matter of law against IMS PRC, and IMS PRC shall thereupon become a party to
the Subsidiary Guarantee Agreement in the manner set forth therein (the "IMS PRC
Guarantee Issuance Event").
SECTION 5.12. Audits. From time to time upon the request of
the Administrative Agent, permit the Administrative Agent or professionals
retained by the Administrative Agent to conduct evaluations and appraisals of
the assets included in the Collateral, and pay the reasonable fees and expenses
of such professionals in connection with no more than one such evaluation and
appraisal for each fiscal year of IMS.
SECTION 5.13. Fiscal Year; Accounting. Cause its respective
fiscal year to end on the last Saturday in March.
SECTION 5.14. Interest Rate Protection Agreements. At the
request of the Administrative Agent made to any Borrower, such Borrower shall
enter into and thereafter maintain in effect one or more
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Interest Rate Protection Agreements with any of the Lenders or other financial
institutions the effect of which shall be to limit for a specified period of
time the interest on a percentage of the Loans to such Borrower projected to be
outstanding during such period to a maximum rate, all as are reasonably
specified by the Administrative Agent and as are reasonably acceptable to such
Borrower, taking into account then current market conditions, and deliver
evidence of the execution and delivery thereof to the Administrative Agent.
ARTICLE VI. NEGATIVE COVENANTS
Each of IMS, IMS Foreign Holdings, IMS Cayman, IMS PRC and the
Borrowers covenants and agrees with each Lender that, so long as this Agreement
shall remain in effect and until the Revolving Credit Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document have been paid in full
and all Letters of Credit have been cancelled or have expired and all amounts
drawn thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, neither IMS, IMS Foreign Holdings, IMS Cayman, IMS
PRC nor any Borrower will, nor will they cause or permit any of the Subsidiaries
to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to
exist any Indebtedness, except:
(a) Indebtedness existing on the date hereof and set forth in
Schedule 6.01;
(b) Indebtedness created hereunder;
(c) in the case of the Guarantors, the guarantees under the
Guarantee Agreements and the guarantees under the Contingent Payment
Note Guarantees; provided that no payment shall be made by IMS or any
Subsidiary on or with respect to the Contingent Payment Note Guarantees
relating to any payment due under the terms of any Contingent Payment
Note at any time that such payment may not be made by the underlying
obligor under such Contingent Payment Note in accordance with the terms
of this Agreement;
(d) Indebtedness under Interest Rate Protection Agreements
entered into in accordance with Section 5.14;
(e) subject to Section 6.15, Indebtedness incurred pursuant to
a Permitted Intercompany Transfer, other than Permitted Intercompany
Transfers outside the ordinary course of business if (i) an Event of
Default or (ii) a Default under paragraph (b) or (c) of Article VII
shall have occurred and be continuing; provided that any such
Indebtedness shall be evidenced by a promissory note which shall be
pledged to the Collateral Agent for the benefit of the Lenders pursuant
to Section 5.11 if no material tax disadvantage to IMS or any
Subsidiary shall result therefrom;
(f) in the case of IMS, the Subordinated Notes in an aggregate
principal amount not in excess of $12,500,000, and in the case of IMS,
the HK Borrower and the Thai Borrower, Contingent Payment Notes in an
aggregate principal amount not in excess of $1,700,000, $16,300,000 and
$2,000,000, respectively, in each case issued on or prior to the
Closing Date;
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(g) in the case of IMS, Indebtedness in respect of any
Guarantee by IMS of (i) obligations of any Borrower under any contract
entered into by such Borrower in the ordinary course of business
consistent with past practice and (ii) Indebtedness of any Borrower
that is otherwise permitted to exist hereunder;
(h) in the case of Guarantors, Capital Lease Obligations,
mortgage financings and purchase money Indebtedness in an aggregate
principal amount outstanding at any time not in excess of $5,000,000
incurred by any Subsidiary prior to or within 270 days after a Capital
Expenditure in order to finance such Capital Expenditure and secured,
if at all, only by the assets that are the subject of such Capital
Expenditure, and extensions, renewals and refinancings thereof if the
interest rate with respect thereto and other terms thereof are no less
favorable to such Subsidiary than the Indebtedness being refinanced and
the average life to maturity thereof is greater than or equal to that
of the Indebtedness being refinanced; provided, however, that such
refinancing Indebtedness shall not be (i) Indebtedness of an obligor
that was not an obligor with respect to the Indebtedness being
extended, renewed or refinanced, (ii) in a principal amount that
exceeds the Indebtedness being renewed, extended or refinanced or (iii)
incurred, created or assumed if any Default or Event of Default has
occurred and is continuing or would result therefrom;
(i) Indebtedness of a Subsidiary which represents the
assumption by such Subsidiary of Indebtedness of any other Subsidiary
in connection with a merger of such other Subsidiary with or into the
first Subsidiary or the purchase of all or substantially all the assets
of such other Subsidiary by such first Subsidiary, in each case solely
if permitted under Section 6.04;
(j) Indebtedness of the Guarantors in respect of performance
bonds, bid bonds, appeal bonds, surety bonds and similar obligations
and trade-related letters of credit, in each case provided in the
ordinary course of business in an aggregate principal and face amount
at any time that taken together with the amount at such time of
deposits permitted under Section 6.02(g) shall not exceed $2,000,000,
and any extension, renewal or refinancing thereof to the extent not
provided to secure the repayment of other Indebtedness and to the
extent that the amount of refinancing Indebtedness is not greater than
the amount of Indebtedness being refinanced; and
(k) all premiums (if any), interest, fees, expenses,
indemnities, charges and additional or contingent interest on
obligations described clauses (a) through (j) above.
SECTION 6.02. Liens. Create, incur, assume or permit to exist
any Lien on any property or assets (including stock or other securities of any
person, including any Subsidiary) now owned or hereafter acquired by it or on
any income or revenues or rights in respect of any thereof, or assign or
transfer any income, revenues or receivables or rights in respect thereof,
except:
(a) Liens on property or assets of Guarantors existing on the
date hereof and set forth in Schedule 6.02; provided that such Liens
shall secure only those obligations which they secure on the date
hereof and shall not subsequently apply to any other property or assets
of IMS or any Subsidiary;
(b) any Lien created under the Loan Documents;
(c) in the case of Guarantors, any Lien existing on any
property or asset prior to the acquisition thereof by any Subsidiary;
provided that (i) such Lien is not created in contemplation of
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or in connection with such acquisition or (ii) such Lien does not apply
to any other property or assets of IMS or any Subsidiary;
(d) Liens for Taxes not yet due or which are being contested
in compliance with Section 5.03;
(e) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business and securing obligations that are not due and payable or which
are being contested in compliance with Section 5.03;
(f) pledges and deposits made in the ordinary course of
business in compliance with workmen's compensation, unemployment
insurance and other social security laws or regulations;
(g) in the case of Guarantors, deposits in an amount at any
time that taken together with the amount at such time of Indebtedness
permitted under Section 6.01(j) shall not exceed $2,000,000 to secure
the performance of bids, trade contracts (other than for Indebtedness),
leases (other than Capital Lease Obligations), statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business;
(h) in the case of Guarantors, Liens consisting of interests
of lessors under capital leases permitted by Section 6.01(h);
(i) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate,
are not substantial in amount and do not materially detract from the
value of the property subject thereto or interfere with the ordinary
conduct of the business of IMS or any Subsidiary; and
(j) in the case of Guarantors, purchase money security
interests in real property, improvements thereto or equipment hereafter
acquired (or, in the case of improvements, constructed) by any
Subsidiary; provided that (i) such security interests secure
Indebtedness permitted by Section 6.01, (ii) such security interests
are incurred, and the Indebtedness secured thereby is created, within
90 days after such acquisition (or construction), (iii) the
Indebtedness secured thereby does not exceed 75% of the lesser of the
cost or the fair market value of such real property, improvements or
equipment at the time of such acquisition (or construction) and (iv)
such security interests do not apply to any other property or assets of
IMS or any Subsidiary.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred (a "Sale and Lease-Back
Transaction"), other than any Sale and Lease-Back Transaction (a "Permitted Sale
and Lease-Back Transaction") which involves (i) a purchase by a Subsidiary of an
asset solely for cash consideration on terms not less favorable to such
Subsidiary than would prevail in an arm's- length transaction followed within
three months by (ii)(A) a sale of such asset by such Subsidiary to a person
solely for cash consideration approximately equal to the cash consideration paid
by such Subsidiary for such asset under clause (i) above and (B) the leasing of
such asset by such Subsidiary from such person on terms not less favorable to
such Subsidiary than would prevail in an arm's-length transaction under a lease
that is classified as an operating lease under GAAP.
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SECTION 6.04. Investments, Loans and Advances. Purchase, hold
or acquire any capital stock, evidences of indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) Investments (i) by IMS in the capital stock of the U.S.
Borrower existing on the date hereof, (ii) by the U.S. Borrower in the
capital stock of IMS Foreign Holdings existing on the date hereof,
(iii) by IMS Foreign Holdings in the capital stock of the HK Borrower
and IMS Cayman existing on the date hereof, (iv) by the HK Borrower in
the capital stock of IMS PRC existing on the date hereof, (v) by IMS
Cayman in the capital stock of the Thai Borrower existing on the date
hereof, and (vi) made as part of any Permitted Intercompany Transfer;
(b) Permitted Investments and investments that were Permitted
Investments when made;
(c) Interest Rate Protection Agreements entered into in
accordance with Section 5.16;
(d) intercompany loans permitted to be incurred as
Indebtedness under Section 6.01(e);
(e) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof from any financially
troubled Account Debtor to the extent reasonably determined to be
necessary in order to prevent or limit loss;
(f) investments or acquisitions of assets by a Subsidiary made
as part of a Permitted Business Acquisition, provided that the
aggregate amount of consideration (whether cash or property, as valued
at the time each such investment is made) for all investments and
acquisitions made as part of Permitted Business Acquisitions under this
paragraph (f) and all other acquisitions of assets by the Subsidiaries
(other than Permitted Intercompany Transfers permitted to be made under
Section 6.05(e)) shall not exceed $5,000,000 during the fiscal year;
(g)(i) loans and advances made to employees of IMS or wholly
owned Guarantors in the ordinary course of business not to exceed
$250,000 in the aggregate at any time outstanding and (ii) advances of
payroll payments and expenses to employees in the ordinary course of
business;
(h) prepayments and other credits to suppliers made in the
ordinary course of business consistent with past practice;
(i) investments (other than investments listed in paragraphs
(a) through (h) of this Section), existing on the Closing Date and set
forth on Schedule 6.04.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. Merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
any substantial part of its assets (whether now owned or hereafter acquired) or
any capital stock of or other equity interest in any Subsidiary, or purchase,
lease or otherwise acquire (in one transaction or a series of transactions) all
or any substantial part of the assets of any other person or any assets with an
aggregate fair market value in excess of $100,000, except that:
(a) Any Subsidiary may purchase and sell Customer Account
Equipment and inventory in the ordinary course of business;
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(b) if at the time thereof and after giving effect thereto no
Event of Default or Default shall have occurred and be continuing, (i)
any Domestic Subsidiary (other than IMS Foreign Holdings or any
Domestic Borrower) may merge with and into any wholly owned Domestic
Guarantor (other than IMS) or wholly owned Domestic Borrower, so long
as the wholly owned Domestic Guarantor or wholly owned Domestic
Borrower is the surviving person, (ii) any Foreign Subsidiary (other
than any Foreign Borrower) may merge with and into any Foreign
Guarantor or Foreign Borrower organized in the same jurisdiction, so
long as the Foreign Guarantor or Foreign Borrower is the surviving
person; provided, in the case of clause (ii), that all of the Capital
Stock (and warrants to purchase or rights to subscribe for, or
securities convertible into or exchangeable for, Capital Stock) of such
surviving person, other than directors' or similar qualifying shares
required by applicable law, after giving effect to the merger, is owned
directly by IMS Foreign Holdings, free and clear of all Liens; and
provided further, in the case of clauses (i) and (ii), that no person
other than a wholly owned Borrower or wholly owned Guarantor receives
any consideration in any such merger;
(c) IMS and the Subsidiaries may make any investment or
acquisition of assets expressly permitted pursuant to Sections 6.04(a)
through (i);
(d) subject to the provisions of any applicable Security
Document, the Subsidiaries may sell, transfer, lease or otherwise
dispose of assets for cash consideration equal to the fair market value
of the assets sold, leased or otherwise disposed of, provided that (i)
the Non-Equity Net Proceeds thereof are applied in accordance with
Section 2.09(d)(iii), (ii) the aggregate consideration received in
respect of all transactions under this clause (d) shall not exceed
$2,000,000 in any fiscal year and (iii) no sale may be made of any
Capital Stock (or any warrant to purchase or right to subscribe for or
security convertible into or exchangeable for Capital Stock) of any
Subsidiary;
(e) subject to Section 6.15, IMS and the Subsidiaries may
effect Permitted Intercompany Transfers, other than Permitted
Intercompany Transfers outside the ordinary course of business if (i)
an Event of Default or (ii) a Default under paragraph (b) or (c) of
Article VII shall have occurred and be continuing; and
(f) the Subsidiaries may engage in Permitted Sale and
Lease-Back Transactions.
SECTION 6.06. Dividends and Distributions; Restrictions on
Ability of Subsidiaries To Pay Dividends. (a) Declare or pay, directly or
indirectly, any dividend or make any other distribution (by reduction of capital
or otherwise), whether in cash, property, securities or a combination thereof,
with respect to any shares of its capital stock or directly or indirectly
redeem, purchase, retire or otherwise acquire for value (or permit any
Subsidiary to purchase or acquire) any shares of any class of its capital stock
or set aside any amount for any such purpose; provided, however, that (i) any
Subsidiary may declare and pay dividends or make other distributions to the U.S.
Borrower or any wholly owned subsidiary of the U.S. Borrower, and (ii) so long
as immediately after giving effect to such payment or distribution no Event of
Default or Default shall have occurred and be continuing and IMS and the
Borrowers shall be in compliance, on a pro forma basis, with the covenants
contained in Sections 6.11, 6.12, 6.13 and 6.14 recomputed as of the last day of
the most recently ended fiscal quarter of IMS as if such payment or distribution
had been made on the first day of each relevant period for testing compliance,
the U.S. Borrower may declare and pay dividends or make other distributions to
IMS (A) in an aggregate amount not in excess of $1,000,000 in any fiscal year,
to be used by IMS to pay dividends on the Preferred Stock (subject to the
subordination provisions applicable thereto), (B) to be used by IMS to fund the
payment by IMS of Tax liabilities, legal, accounting and other professional fees
and expenses, compensation of officers and employees, fees and expenses of
directors of
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IMS and other administrative expenses, in each case to the extent actually
incurred by IMS and (C) to be used by IMS to make scheduled interest payments
due and payable on the Subordinated Notes and the Contingent Payment Notes
issued by IMS (but in each case subject to the subordination provisions set
forth therein or applicable thereto).
(b) Permit any Subsidiary to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Subsidiary to (i) pay any dividends or
make any other distributions on its Capital Stock or any other equity interest
to the U.S. Borrower or any wholly owned subsidiary of the U.S. Borrower or (ii)
make or repay any loans or advances to any wholly owned subsidiary of the U.S.
Borrower.
SECTION 6.07. Transactions with Affiliates. Sell or transfer
any property or assets to, or purchase or acquire any property or assets from,
or otherwise engage in any other transactions with, any of its Affiliates,
except that (a) nothing in this Section 6.07 shall be deemed to restrict
Permitted Intercompany Transfers and (b) so long as no Default or Event of
Default shall have occurred and be continuing, any Subsidiary may engage in any
such transaction in the ordinary course of business at prices and on terms and
conditions not less favorable to such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties.
SECTION 6.08. Business of IMS and Subsidiaries. Engage at any
time in any business or business activity other than (a) in the case of IMS, the
ownership of all the outstanding capital stock of the U.S. Borrower and
administrative, sales, marketing and customer services performed on behalf of
the Subsidiaries and business activities reasonably related or incidental
thereto (which shall in no event include manufacturing or production activities
if the revenues of IMS and the Subsidiaries on a consolidated basis attributable
to such activities are in excess of $1,000,000), (b) in the case of IMS Foreign
Holdings, the ownership of all the outstanding capital stock of the HK Borrower,
IMS Cayman and any Foreign Subsidiary acquired or formed in connection with a
Permitted Business Acquisition permitted under this Agreement, and business
activities reasonably, related or incidental thereto, (c) in the case of IMS
Cayman, the ownership of all the outstanding capital stock of the Thai Borrower
and business activities reasonably related or incidental thereto and (d) in the
case of each of the U.S. Borrower, the HK Borrower, the Thai Borrower and IMS
PRC, the business currently conducted by it and business activities reasonably
related or incidental thereto.
SECTION 6.09. Other Indebtedness and Agreements. (a) Permit
any waiver, supplement, modification, amendment, termination or release of or
under (i) the Contingent Payment Notes, the Contingent Payment Notes Guarantees
or the Subordinated Notes or any instrument, agreement or document evidencing or
relating to the foregoing, (ii) the Recapitalization Agreement, the Redemption
Agreement or the Production Agreement or any instrument, agreement or document
relating thereto, (iii) the Charter and By-laws of IMS or any Subsidiary as
amended through the date hereof or (iv) the Certificate of Incorporation; in
each case other than waivers, supplements, modifications, amendments,
terminations and releases (other than with respect to the Production Agreement,
those that would not constitute, and could not reasonably be expected to result
in, a Material Adverse Effect ) that do not, individually or in the aggregate,
adversely affect the rights or interests of the Company and the Subsidiaries or
the Lenders.
(b) Directly or indirectly make any distribution or payment,
whether in cash, property, securities or a combination thereof or by exercise of
any offset or other right (other than scheduled payments of principal and
interest as and when due to the extent not prohibited by applicable
subordination provisions), in respect of, or offer to pay or commit to pay, or
directly or indirectly redeem, repurchase, retire or
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otherwise acquire for consideration (or set apart any sum for the aforesaid
purposes), or prepay or defease, any Indebtedness of IMS or any Subsidiary
(other than Indebtedness under the Loan Documents) prior to the scheduled
maturity date of such Indebtedness (or permit to occur any event that would
require IMS or any Subsidiary to do any of the foregoing) other than the GECC
Loan, which shall be prepaid by IMS within seven Business Days after the Closing
Date; except that (i) the cash proceeds received by IMS from any public offering
of common stock of IMS may be applied to prepay amounts in respect of the
Contingent Payment Notes as and to the extent set forth therein so long as (A)
the Quarterly Reduction scheduled to occur on the last Saturday in December,
2000 shall have occurred or shall have been reduced to $500,000 or less and (B)
each Quarterly Reduction scheduled to occur prior to the last Saturday in
December, 2000 shall have occurred or shall have been reduced to zero, and (ii)
up to an amount equal to 50% of Excess Cash Flow with respect to any fiscal year
of the Company (the amount of which Excess Cash Flow shall have been set forth
in a certificate delivered to the Administrative Agent prior to any application
of any amount in respect of such 50% of Excess Cash Flow pursuant to this
Section) may be applied to make scheduled annual repayments of principal of any
Contingent Payment Note in the immediately following fiscal year of IMS (each of
which annual repayments shall have been scheduled to occur on the third, fourth
and fifth anniversaries of the Closing Date), provided that in no event shall
any amount in respect of such 50% of Excess Cash Flow be applied to any such
scheduled annual repayment of principal of any Contingent Payment Note to repay
amounts in excess of (A) on the third anniversary of the Closing Date, the
amount that would result in more than one-third of the initial principal amount
of such Contingent Payment Note having been prepaid or repaid, and (B) on the
fourth anniversary of the Closing Date, the amount that, taken together with all
prior repayments of such Contingent Payment Note, would result in more than
two-thirds of the initial principal amount of such Contingent Payment Note
having been prepaid or repaid; provided, however, that (x) payments in respect
of the Contingent Payment Notes described in clauses (i) and (ii) above shall be
made only if no Event of Default or Default shall have occurred and be
continuing or would result from such payment and (y) payments in respect of the
Contingent Payment Notes described in clause (ii) above shall be made only if
IMS and the Subsidiaries shall have achieved an Interest Coverage Ratio of not
less than 5.5 to 1 and a Leverage Ratio of not more than 2.0 to 1, in each case
as of the end of and for the most recently ended four-fiscal-quarter period of
IMS; and provided further that any prepayment of Contingent Payment Notes in
accordance with clause (i) above shall be applied to reduce the remaining
scheduled annual contingent repayments under the Contingent Payment Notes as at
the end of and in the direct order of maturity thereof.
(c) Make any payment or prepayment of any Indebtedness of IMS
or any Subsidiary (other than under the Loan Documents) that would violate the
terms of any subordination agreement or provision applicable to such
Indebtedness or permit any prepayment obligation to arise under any such
Indebtedness except as expressly permitted under clauses (i) of Section 6.09(b).
SECTION 6.10. Capital Expenditures. Permit the aggregate
amount of Capital Expenditures made by IMS and the Subsidiaries, taken as a
whole, (i) to exceed $8,000,000 in the period commencing on the Closing Date and
ending on the last Saturday in March, 1997, and (ii) in any subsequent fiscal
year to exceed the amount set forth below opposite such fiscal year.
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Fiscal Year Capital Expenditures
----------- --------------------
Fiscal year ended on the last Saturday in March, 1998 $11,000,000
Fiscal year ended on the last Saturday in March, 1999 $12,000,000
Fiscal year ended on the last Saturday in March, 2000 $13,000,000
Each fiscal year thereafter $15,000,000;
provided, however, that to the extent the aggregate Capital Expenditures made
during the period specified in clause (i) or any subsequent fiscal year are less
than the maximum amount permitted to be made by IMS and the Subsidiaries for
such period or fiscal year (without giving effect to any amount carried forward
from a prior year pursuant to this proviso), up to $2,000,000 of such unused
amount may be carried forward to the next succeeding fiscal year; and provided
further that with respect to each full fiscal year of IMS after the Closing Date
in which EBITDA exceeds the Target EBITDA (such excess, the "Excess EBITDA" for
such fiscal year), the amount specified under Permitted Capital Expenditures for
such fiscal year shall be increased by an amount equal to 50% of such Excess
EBITDA for such fiscal year.
SECTION 6.11. Interest Coverage Ratio. Permit the ratio of (a)
EBITDA to (b) Consolidated Cash Interest Expense (the "Interest Coverage Ratio")
(i) for the fiscal-quarter period ending on the last Saturday in September,
1996, to be less than 3.10 to 1.00, (ii) for the two-fiscal quarter period
ending on the last Saturday in December, 1996, to be less than 3.20 to 1.00,
(iii) for the three-fiscal- quarter period ending on the last Saturday in March,
1997, to be less than 3.40 to 1.00 or (iv) for any four-fiscal-quarter period
ending on a date set forth below, to be less than the ratio set forth opposite
such date below:
Date Ratio
---- -----
The last Saturday in June, 1997 3.50 to 1
The last Saturday in September, 1997 3.75 to 1
The last Saturday in December, 1997 3.75 to 1
The last Saturday in March, 1998 3.75 to 1
The last Saturday in June, 1998 3.94 to 1
The last Saturday in September, 1998 4.13 to 1
The last Saturday in December, 1998 4.31 to 1
The last Saturday in March, 1999 4.50 to 1
The last Saturday in June, 1999 4.75 to 1
The last Saturday in September, 1999 5.00 to 1
The last Saturday in December, 1999 5.25 to 1
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Date Ratio
---- -----
The last day of each fiscal quarter of IMS 5.50 to 1
thereafter
SECTION 6.12. Coverage Ratio. Permit the ratio of (a) EBITDA
minus Capital Expenditures of IMS and the Subsidiaries to (b) Consolidated Cash
Interest Expense for any four-fiscal- quarter period ending on a date set forth
below to be less than the ratio set forth opposite such date below:
Date Ratio
---- -----
The last Saturday in June, 1997 1.75 to 1
The last Saturday in September, 1997 1.75 to 1
The last Saturday in December, 1997 2.00 to 1
The last Saturday in March, 1998 2.00 to 1
The last Saturday in June, 1998 2.19 to 1
The last Saturday in September, 1998 2.38 to 1
The last Saturday in December, 1998 2.56 to 1
The last Saturday in March, 1999 2.75 to 1
The last Saturday in June, 1999 3.00 to 1
The last Saturday in September, 1999 3.25 to 1
The last Saturday in December, 1999 3.50 to 1
The last day of each fiscal quarter of IMS
thereafter 3.75 to 1
SECTION 6.13. Leverage Ratio. Permit the ratio of (a) Total
Debt as of any date set forth below to (b) EBITDA for the four-fiscal-quarter
period ending on such date (the "Leverage Ratio") to be in excess of the ratio
set forth opposite such date below:
Date Ratio
---- -----
The last Saturday in June, 1997 3.50 to 1
The last Saturday in September, 1997 3.25 to 1
The last Saturday in December, 1997 3.25 to 1
The last Saturday in March, 1998 3.00 to 1
The last Saturday in June, 1998 2.88 to 1
The last Saturday in September, 1998 2.75 to 1
The last Saturday in December, 1998 2.63 to 1
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Date Ratio
---- -----
The last Saturday in March, 1999 2.50 to 1
The last Saturday in June, 1999 2.38 to 1
The last Saturday in September, 1999 2.25 to 1
The last Saturday in December, 1999 2.13 to 1
The last day of each fiscal quarter of IMS
thereafter 2.00 to 1
SECTION 6.14. Minimum EBITDA. Permit EBITDA (i) for the
fiscal-quarter-period ending on the last Saturday in September, 1996, to be less
than $3,000,000, (ii) for the two-fiscal-quarter- period ending on the last
Saturday in December, 1996, to be less than $7,200,000, (iii) for the
three-fiscal- quarter-period ending on the last Saturday in March, 1997, to be
less than $11,400,000, or (iv) for any four- fiscal-quarter period ending on a
date set forth below, to be less than the amount set forth opposite such date
below:
Date Ratio
---- -----
The last Saturday in June, 1997 $15,500,000
The last Saturday in September, 1997 $17,000,000
The last Saturday in December, 1997 $18,000,000
The last Saturday in March, 1998 $19,000,000
The last Saturday in June, 1998 $20,500,000
The last Saturday in September, 1998 $22,000,000
The last Saturday in December, 1998 $23,500,000
The last Saturday in March, 1999 $25,000,000
The last Saturday in June, 1999 $26,250,000
The last Saturday in September, 1999 $27,500,000
The last Saturday in December, 1999 $28,750,000
The last Saturday in March, 2000 $30,000,000
The last Saturday in June, 2000 $31,260,000
The last Saturday in September, 2000 $32,500,000
The last Saturday in December, 2000 $33,750,000
The last day of each fiscal quarter of IMS
thereafter $35,000,000
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SECTION 6.15. IMS PRC. Notwithstanding anything contained
herein to the contrary, until the first day (the "IMS PRC Borrower Date") on
which (i) both the IMS PRC Security Grant Event and the IMS PRC Guarantee
Issuance Event shall have occurred and (ii) the Lenders shall have received an
opinion of counsel reasonably acceptable to the Administrative Agent relating to
IMS PRC and stating that such events shall have occurred (and, if IMS PRC is to
become a Permitted Additional Borrower in accordance with the following
sentence, relating to its obligations with respect thereto), permit IMS PRC to
own or hold assets with an aggregate value determined in accordance with GAAP in
excess of $5,000,000 at any time. IMS PRC shall, if IMS so requests in a notice
delivered to the Administrative Agent, become a Permitted Additional Borrower
hereunder as of the IMS PRC Borrower Date; provided that in such event IMS PRC
shall in no event be permitted to make Borrowings hereunder in excess of the
aggregate amount of Borrowings (after taking into account any other applicable
Indebtedness) permitted by applicable law (which amount shall in the event of
each Borrowing be confirmed by a certificate of a Responsible Officer delivered
to the Administrative Agent together with the applicable Borrowing Request).
ARTICLE VII. EVENTS OF DEFAULT
In case of the happening of any of the following events ("Events of Default"):
(a) any representation or warranty made or deemed made in or in connection with
any Loan Document or the borrowings or issuances of Letters of Credit hereunder,
or any representation, warranty, statement or information contained in any
report, certificate, financial statement or other instrument furnished in
connection with or pursuant to any Loan Document, shall prove to have been false
or misleading in any material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any Loan or the
reimbursement of any L/C Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment
thereof or by acceleration thereof or otherwise and such default shall continue
for one Business Day;
(c) default shall be made in the payment of any interest on any Loan or any Fee
or L/C Disbursement or any other amount (other than an amount referred to in (b)
above) due under any Loan Document, when and as the same shall become due and
payable, and such default shall continue unremedied for a period of three
Business Days;
(d) default shall be made in the due observance or performance by IMS, any
Borrower or any other Subsidiary of any covenant, condition or agreement
contained in Section 5.01(a), 5.05 or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by IMS, any
Borrower or any other Subsidiary of any covenant, condition or agreement
contained in any Loan Document (other than those specified in (b), (c) or (d)
above) and such default shall continue unremedied for a period of 30 days after
notice thereof from the Administrative Agent or any Lender to IMS;
(f) IMS, any Borrower or any other Subsidiary shall fail to pay after any
applicable grace period any principal or interest, regardless of amount, due in
respect of any Indebtedness in a principal amount in excess of $2,000,000, when
and as the same shall become due and payable;
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(g) IMS, any Borrower or any other Subsidiary shall fail to observe or perform
any other term, covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any such Indebtedness, or any other event or
condition shall occur or exist, if the effect of any failure, event or condition
is to cause, or to permit the holder or holders of such Indebtedness or a
trustee on its or their behalf (with or without the giving of notice, the lapse
of time or both) to cause, such Indebtedness to become due or to be redeemed or
repurchased prior to its stated maturity;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of IMS, any Borrower or any
other Subsidiary, or of a substantial part of the property or assets of
IMS, any Borrower or any other Subsidiary, under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for IMS, any Borrower or
any other Subsidiary or for a substantial part of the property or
assets of IMS, any Borrower or any other Subsidiary or (iii) the
winding-up or liquidation of IMS or any Subsidiary; and such proceeding
or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall be entered;
(i) IMS, any Borrower or any other Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner,
any proceeding or the filing of any petition described in (g) above,
(iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for IMS, any
Borrower or any other Subsidiary or for a substantial part of the
property or assets of IMS, any Borrower or any other Subsidiary, (iv)
file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for
the benefit of creditors, (vi) become unable, admit in writing its
inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the
foregoing;
(j) one or more judgments for the payment of money in an
aggregate amount in excess of $2,000,000 shall be rendered against IMS,
any Borrower, any other Subsidiary or any combination thereof and the
same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to levy upon assets or
properties of IMS, any Borrower or any other Subsidiary to enforce any
such judgment;
(k) one or more ERISA Events or Foreign Benefit Events shall
have occurred with respect to any Plan or Plans, or any Foreign Plan or
Foreign Plans, that reasonably could be expected to result in liability
of IMS or any Subsidiary to the PBGC or any other Governmental
Authority or to a Plan or Foreign Plan in an aggregate amount exceeding
$2,000,000 and, within 30 days after the reporting of any such ERISA
Event or Foreign Benefit Event to the Administrative Agent or after the
receipt by the Administrative Agent of the statement required pursuant
to Section 5.06, the Administrative Agent shall have notified the IMS
in writing that (i) the Required Lenders have made a determination
that, on the basis of such ERISA Events or Foreign Benefit Events or
the failure to make a required payment, there are reasonable grounds
(A) for the termination of such Plan or Plans, or such Foreign Plan or
Foreign Plans, by the PBGC or other Governmental Authority, (B) for the
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appointment either by the appropriate United States District Court of a
trustee to administer such Plan or Plans or by an applicable court of
law outside the United States of a trustee to administer such Foreign
Plan or Foreign Plans or (C) for the imposition of a lien in favor of a
Plan or Foreign Plan and (ii) as a result thereof an Event of Default
exists hereunder; or a trustee shall be appointed by a United States
District Court to administer any such Plan or Plans or by an applicable
court of law outside the United States of a trustee to administer such
Foreign Plan or Foreign Plans; or the PBGC or other Governmental
Authority shall institute proceedings to terminate any Plan or Plans or
any Foreign Plan or Foreign Plans;
(l) any security interest purported to be created by any
Security Document shall cease to be, or shall be asserted by any
Borrower or any other Subsidiary not to be, a valid, perfected, first
priority (except as otherwise expressly provided in this Agreement or
such Security Document) security interest in the securities, assets or
properties covered thereby, except (i) to the extent that any such loss
of perfection or priority results from the failure of the Collateral
Agent to maintain possession of certificates representing securities
pledged under a Pledge Agreement or to file applicable UCC continuation
statements, (ii) with respect to mortgages on assets in Thailand
constituting Machinery (as defined in the Thailand Security Agreement),
during the period of seven months (x) after the Closing Date or (y)
with respect to any such asset, after such asset becomes Machinery, in
each case so long as the Thai Borrower is using its best efforts to
cause such Mortgage on such Machinery to be registered in accordance
with the laws of Thailand, (iii) solely with respect to perfection, for
rights under any IEAT Land Lease Agreement (as defined in the Thailand
Security Agreement) during the period commencing on the date hereof and
ending sixty days thereafter and (iv) except to the extent that such
loss is covered by a lender's title insurance policy and the related
insurer promptly after such loss shall have acknowledged in writing
that such loss is covered by such title insurance policy;
(m) any Loan Document shall not be for any reason or shall be
asserted by IMS, any Borrower or any Subsidiary not to be, in full
force and effect and enforceable in all material respects in accordance
with its terms;
(n) there shall have occurred a Change in Control; or
(o) Hyundai Electronics America or Hyundai Electronics
Industries shall cease to own beneficially and control at any time
shares representing at least 51% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the
Continuing Shareholder unless for any fiscal year of IMS commencing
after the Closing Date and ending prior to such time the contribution
to the gross profit of IMS and the Subsidiaries on a consolidated basis
for such fiscal year represented by transactions between the Continuing
Shareholder, on the one hand, and IMS and the Subsidiaries, taken
together, on the other hand, is (x) less than $5,000,000 and (y) less
than 15% of the total gross profit of IMS and the Subsidiaries on a
consolidated basis for such fiscal year.
then, and in every such event (other than an event described in paragraph (h) or
(i) above), and at any time thereafter during the continuance of such event, the
Administrative Agent, at the request of the Required Lenders, shall, by notice
to IMS and the Borrowers, take either or both of the following actions, at the
same or different times: (i) terminate forthwith the Revolving Credit
Commitments and (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Loan Parties accrued hereunder and
under any other Loan Document, shall become
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forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Loan
Parties, anything contained herein or in any other Loan Document to the contrary
notwithstanding; and in any event described in paragraph (h) or (i) above, the
Revolving Credit Commitments shall automatically terminate and the principal of
the Loans then outstanding, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Loan Parties accrued
hereunder and under any other Loan Document, shall automatically become due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Loan Parties, anything contained
herein or in any other Loan Document to the contrary notwithstanding.
ARTICLE VIII. THE AGENTS
In order to expedite the transactions contemplated by this
Agreement, Chemical Bank is hereby appointed to act as Administrative Agent and
Collateral Agent on behalf of the Lenders and the Fronting Bank (for purposes of
this Article VIII, the Administrative Agent and the Collateral Agent are
referred to collectively as the "Agents"). Each of the Lenders and each assignee
of any such Lender, hereby irrevocably authorizes the Agents to take such
actions on behalf of such Lender or assignee or the Fronting Bank and to
exercise such powers as are specifically delegated to the Agents by the terms
and provisions hereof and of the other Loan Documents, together with such
actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders and the Fronting Bank,
without hereby limiting any implied authority, (a) to receive on behalf of the
Lenders and the Fronting Bank (i) all payments of principal of and interest on
(A) the Revolving Loans, (B) the HK Offered Rate Facility Loans, (C) only after
a Thai Facility Participations Event, the Thai Facility Loans and (D) only after
a Thai Offered Rate Facility Participations Event, the Thai Offered Rate Loans,
(ii) all payments in respect of L/C Disbursements and (iii) all other amounts
due to the Lenders hereunder (other than Thai Facility Loans and Thai Offered
Rate Loans except pursuant to clauses (C) or (D) above), and promptly to
distribute to each Lender or the Fronting Bank its proper share of each payment
so received; (b) to give notice on behalf of each of the Lenders to IMS and the
Borrowers of any Event of Default specified in this Agreement of which the
Administrative Agent has actual knowledge acquired in connection with its agency
hereunder, provided that the Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Event of Default unless the
Administrative Agent has received notice from a Lender or a Loan Party referring
to this Agreement, describing such Event of Default and stating that such notice
is a "notice of an event of default"; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by any
Borrower or any other Loan Party pursuant to this Agreement or the other Loan
Documents as received by the Administrative Agent. Without limiting the
generality of the foregoing, the Agents are hereby expressly authorized to
execute any and all documents (including releases) with respect to the
Collateral and the rights of the Secured Parties with respect thereto, as
contemplated by and in accordance with the provisions of this Agreement and the
Security Documents.
Neither the Agents nor any of their respective directors,
officers, employees or agents shall be liable as such for any action taken or
omitted by any of them except for its or his own gross negligence or wilful
misconduct, or be responsible for, or be required to ascertain or to make any
inquiry concerning the accuracy or completeness of, any statement, warranty or
representation herein or the contents of any document delivered in connection
herewith, or be required to ascertain or to make any inquiry concerning the
performance or observance by IMS or any Subsidiary of any of the terms,
conditions, covenants or agreements contained in any Loan Document. The Agents
shall not be responsible to the Lenders for the due execution, genuineness,
validity, enforceability or effectiveness of this Agreement or any other Loan
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Documents, instruments or agreements. The Agents shall in all cases be fully
protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the
absence of knowledge to the contrary, be entitled to rely on any instrument or
document believed by it in good faith to be genuine and correct and to have been
signed or sent by the proper person or persons. Neither the Agents nor any of
their respective directors, officers, employees or agents shall have any
responsibility to IMS or any Subsidiary on account of the failure of or delay in
performance or breach by any Lender or the Fronting Bank of any of its
obligations hereunder or to any Lender or the Fronting Bank on account of the
failure of or delay in performance or breach by any other Lender or the Fronting
Bank or IMS or any Subsidiary of any of their respective obligations hereunder
or under any other Loan Document or in connection herewith or therewith. Each of
the Agents may execute any and all duties hereunder by or through agents or
employees and shall be entitled to rely upon the advice of legal counsel
selected by it with respect to all matters arising hereunder and shall not be
liable for any action taken or suffered in good faith by it in accordance with
the advice of such counsel. In no event any Agent be obligated to take any
action, or omit to take any action, in contravention of any applicable law or
regulation.
The Lenders hereby acknowledge that neither Agent shall be
under any duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement unless it shall be requested in
writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent
as provided below, either Agent may resign at any time by notifying the Lenders,
IMS and the Borrowers. Upon any such resignation, the Required Lenders shall
have the right to appoint a successor with the consent of IMS, which shall not
be unreasonably withheld. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Agent which shall be a bank with
an office in New York, New York, having a combined capital and surplus of at
least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as Agent hereunder by a successor bank, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent and the retiring Agent shall be discharged from its duties and
obligations hereunder. After the Agent's resignation hereunder, the provisions
of this Article and Section 9.05 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
With respect to the Loans made by it hereunder, each Agent in
its individual capacity and not as Agent shall have the same rights and powers
as any other Lender and may exercise the same as though it were not an Agent,
and the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with IMS, any Borrower or any other
Subsidiary or other Affiliate thereof as if it were not an Agent. Each Agent in
its capacity as Agent shall be deemed not to have received any notice,
information or document except for notices delivered, information contained in
notices delivered or documents under cover of notices delivered to such Agent in
accordance with Section 9.01, irregardless of any receipt of any notice,
information or document by any such Agent other than in its capacity as Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in
the amount of its pro rata share (based on its Revolving Credit Commitment
hereunder) of any expenses incurred for the benefit of the Lenders by the
Agents, including counsel fees and compensation of agents and employees paid for
services rendered on behalf of the Lenders, that shall not have been reimbursed
by IMS or the Borrowers and (b) to
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indemnify and hold harmless each Agent and any of its directors, officers,
employees or agents, on demand, in the amount of such pro rata share, from and
against any and all liabilities, taxes, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by or asserted against it in
its capacity as Agent or any of them in any way relating to or arising out of
this Agreement or any other Loan Document or any action taken or omitted by it
or any of them under this Agreement or any other Loan Document, to the extent
the same shall not have been reimbursed by the Borrowers or any other Loan
Party, provided that no Lender shall be liable to an Agent or any such other
indemnified person for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Agent or any of its directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and
without reliance upon the Agents or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
ARTICLE IX. MISCELLANEOUS
SECTION 9.01. Notices. Notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(a) if to IMS, IMS Foreign Holdings, IMS Cayman, IMS PRC or
any Borrower, to it at 000 Xxxxx Xxxx Xxxxxxx, Xxx Xxxx, XX 00000,
Attention of Xx. Xxxxxx X. Xxxxxxx (Telecopy No. 000 000-0000);
(b) if to the Administrative Agent, to Chemical Bank Agency
Services Corporation, Grand Central Tower, 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention of Xxxxxx Xxxxxx, (Telecopy No. (212)
622-0136), with a copy to Chase Securities Inc., at 000 Xxxx Xxxxxx,
Xxx Xxxx 00000, Attention of Xxxxxx XxXxxxxx (Telecopy No. (212)
270-6068); and to Chemical Bank, 00xx Xxxxx, Xxxxxxxxx Tower, 00
Xxxxx'x Xxxx, Xxxxxxx, Xxxx Xxxx, Xxxxxxxxx of Xxxxxxx Xxx, (Telecopy
No. (000) 0000-0000), with a copy to Chemical Securities Asia Limited,
00xx Xxxxx, Xxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxx, Xxxxxxxxx of
Xxxxxxxxx X. Xxxx (Telecopy No. (852) 2523- 7809);
(c) if to a Lender, to it at its address (or telecopy number)
set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant
to which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this
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Section 9.01 or in accordance with the latest unrevoked direction from such
party given in accordance with this Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants,
agreements, representations and warranties made by IMS or any other Loan Party
herein and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the Lenders and the Fronting Bank and
shall survive the making by the Lenders of the Loans and the issuance of Letters
of Credit by the Fronting Bank, regardless of any investigation made by the
Lenders or the Fronting Bank or on their behalf, and shall continue in full
force and effect as long as the principal of or any accrued interest on any Loan
or any Fee or any other amount payable under this Agreement or any other Loan
Document is outstanding and unpaid or any Letter of Credit is outstanding and so
long as the Revolving Credit Commitments have not been terminated. The
provisions of Sections 2.12, 2.14, 2.18 and 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Revolving Credit
Commitments, the expiration of any Letter of Credit, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Administrative Agent,
the Collateral Agent, any Lender or the Fronting Bank.
SECTION 9.03. Binding Effect. This Agreement shall become
effective when it shall have been executed by IMS, IMS Foreign Holdings, IMS
Cayman, IMS PRC and each Borrower and the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the permitted successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of the IMS, IMS Foreign
Holdings, IMS Cayman, IMS PRC, each Borrower, the Administrative Agent, the
Fronting Bank, the Thai Facilities Lender, the HK Facility Lender, the
Collateral Agent or the Lenders that are contained in this Agreement shall bind
and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Revolving Credit Commitment and the Loans at the time
owing to it); provided, however, that (i) except in the case of an assignment to
a Lender or an Affiliate of such Lender, (x) the Administrative Agent and IMS
(and, in the case of any assignment of a Revolving Credit Commitment, the
Fronting Bank, the Thai Facilities Lender and the HK Facility Lender) must give
their prior written consent to such assignment (which consent shall not be
unreasonably withheld) and (y) the amount of the Revolving Credit Commitment of
the assigning Lender subject to each such assignment (determined as of the date
the Assignment and Acceptance with respect to such assignment is delivered to
the Administrative Agent) shall not be less than $2,000,000 (or, if less, the
entire remaining amount of such Lender's Revolving Credit Commitment), (ii) the
parties to each such assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation
fee of $3,500 and (iii) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire. Upon acceptance and
recording pursuant to paragraph (e) of this Section 9.04, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and
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Acceptance, have the rights and obligations of a Lender under this Agreement and
(B) the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.12, 2.14, 2.18 and 9.05,
as well as to any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance,
the assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Revolving Credit Commitment, and the outstanding balance of its Loans, in
each case without giving effect to assignments thereof which have not become
effective, are as set forth in such Assignment and Acceptance, (ii) except as
set forth in (i) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto, or the financial condition of IMS or any
Subsidiary or the performance or observance by IMS or any Subsidiary of any of
its obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements referred
to in Section 3.05(a) or delivered pursuant to Section 5.04 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
the Collateral Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (vi) such assignee appoints and authorizes the Administrative
Agent and the Collateral Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Administrative
Agent and the Collateral Agent, respectively, by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all the obligations which by
the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an
agent of the Borrowers, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Revolving
Credit Commitment of, and principal amount of the Loans owing to, each Lender,
and each Borrower to whom each such Loan was made; pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive and IMS, IMS Foreign Holdings, IMS Cayman, IMS PRC, any Borrower, the
Administrative Agent, the Fronting Bank, the Collateral Agent and the Lenders
may treat each person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrowers, the Fronting Bank, the Collateral Agent and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in
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paragraph (b) above and, if required, the written consent of IMS, the Fronting
Bank and the Administrative Agent to such assignment, the Administrative Agent
shall (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Lenders and the Fronting Bank. No assignment shall be effective unless it has
been recorded in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of IMS, the Fronting
Bank, the Thai Facilities Lender, the HK Facility Lender or the Administrative
Agent sell participations to one or more banks or other entities in all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Revolving Credit Commitment and the Loans owing to it); provided,
however, that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the participating banks or
other entities shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.12, 2.14 and 2.18 to the same extent as if
they were Lenders; provided that no such participating bank or entity shall be
entitled to receive any greater amount pursuant to such Sections than a Lender
would have been entitled to receive in respect of the amount of the
participation sold by such Lender to such participating bank or entity had no
sale occurred, and (iv) IMS, IMS Foreign Holdings, IMS Cayman, IMS PRC, the
Borrowers, the Administrative Agent, the Fronting Bank, the Thai Facilities
Lender, the HK Facility Lender and the Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right to
enforce the obligations of the Borrowers relating to the Loans or L/C
Disbursements and to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments, modifications or waivers
decreasing any fees payable hereunder or the amount of principal of or the rate
at which interest is payable on the Loans, extending any scheduled principal
payment date or date fixed for the payment of interest on the Loans or
increasing or extending the Revolving Credit Commitments).
(g) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 9.04, disclose to the assignee or participant or proposed assignee
or participant any information relating to IMS or any Subsidiary furnished to
such Lender by or on behalf of IMS or any Subsidiary; provided that, prior to
any such disclosure of information designated by IMS or any Subsidiary as
confidential, each such assignee or participant or proposed assignee or
participant shall execute an agreement whereby such assignee or participant
shall agree (subject to customary exceptions) to preserve the confidentiality of
such confidential information on terms no less restrictive than those applicable
to the Lenders pursuant to Section 9.16.
(h) Any Lender may at any time assign all or any portion of
its rights under this Agreement to a Federal Reserve Bank to secure extensions
of credit by such Federal Reserve Bank to such Lender; provided that no such
assignment shall release a Lender from any of its obligations hereunder or
substitute any such Bank for such Lender as a party hereto. In order to
facilitate such an assignment to a Federal Reserve Bank, each Borrower shall, at
the request of the assigning Lender, duly execute and deliver to the assigning
Lender a promissory note or notes evidencing the Loans made to such Borrower by
the assigning Lender hereunder.
(i) Neither IMS, IMS Foreign Holdings, IMS Cayman, IMS PRC nor
any Borrower shall assign or delegate any of its rights or duties hereunder
without the prior written consent of the Administrative Agent, the Fronting Bank
and each Lender, and any attempted assignment without such consent shall be null
and void.
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(j) In the event that Standard & Poor's Ratings Group and
Xxxxx'x Investors Service, Inc. shall, after the date that any Lender becomes a
Lender, downgrade the long-term certificate deposit ratings of such Lender, and
the resulting ratings shall be below BBB+ and Baa1, then each of the Fronting
Bank, the Thai Facilities Lender and the HK Facility shall have the right, but
not the obligation, at its own expense, upon notice to such Lender and the
Administrative Agent, to replace (or to request each Borrower to use its
reasonable efforts to replace) such Lender with an assignee (in accordance with
and subject to the restrictions contained in paragraph (b) above), and such
Lender hereby agrees to transfer and assign without recourse (in accordance with
and subject to the restrictions contained in paragraph (b) above) all its
interests, rights and obligations in respect of its Revolving Credit Commitment
to such assignee; provided, however, that (i) no such assignment shall conflict
with any law, rule and regulation or order of any Governmental Authority and
(ii) the Fronting Bank, the Thai Facilities Lender, the HK Facility Lender or
such assignee, as the case may be, shall pay to such Lender in immediately
available funds on the date of such assignment the principal of and interest
accrued to the date of payment on the Loans made by such Lender hereunder and
all other amounts accrued for such Lender's account or owed to it hereunder.
SECTION 9.05. Expenses; Indemnity. (a) IMS and the Borrowers
agree, jointly and severally, to pay all reasonable out-of-pocket expenses
incurred by the Administrative Agent, the Collateral Agent and the Fronting Bank
in connection with the syndication of the credit facilities provided for herein
and the preparation and administration of this Agreement and the other Loan
Documents or in connection with any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions hereby or thereby
contemplated shall be consummated) or incurred by the Administrative Agent, the
Collateral Agent or any Lender in connection with the enforcement or protection
of its rights in connection with this Agreement and the other Loan Documents or
in connection with the Loans made or Letters of Credit issued hereunder,
including the fees, charges and disbursements of Cravath, Swaine & Xxxxx,
counsel for the Administrative Agent and the Collateral Agent, and, in
connection with any such enforcement or protection, the fees, charges and
disbursements of any other counsel for the Administrative Agent, the Collateral
Agent or any Lender.
(b) IMS and the Borrowers agree, jointly and severally, to
indemnify the Administrative Agent, the Collateral Agent, each Lender and the
Fronting Bank, each Affiliate of any of the foregoing persons and each of their
respective directors, officers, employees and agents (each such person being
called an "Indemnitee") against, and to hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses, including
reasonable counsel fees, charges and disbursements, incurred by or asserted
against any Indemnitee arising out of, in any way connected with, or as a result
of (i) the execution or delivery of this Agreement or any other Loan Document or
any agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the
Transactions and the other transactions contemplated thereby, (ii) the use of
the proceeds of the Loans or issuance of Letters of Credit, (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto, or (iv) any actual or alleged
presence or Release of Hazardous Materials on any property owned or operated by
IMS or any of the Subsidiaries, or any Environmental Claim related in any way to
IMS or the Subsidiaries; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative
and in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Revolving Credit
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Commitments, the expiration of any Letter of Credit, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Administrative Agent,
the Collateral Agent, any Lender or the Fronting Bank. All amounts due under
this Section 9.05 shall be payable on written demand therefor.
(d) The Borrowers hereby confirm that by execution hereof they
have assumed all liabilities and obligations of the Prudential Investor and the
Oak Investors for fees, expenses and indemnities contained in the Commitment
Letter and the Fee Letter, and hereby agree to pay and satisfy all such
liabilities and obligations as and when due.
SECTION 9.06. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of IMS or any Borrower against any of and
all the obligations of IMS or any Borrower now or hereafter existing under this
Agreement and other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such other
Loan Document and although such obligations may be unmatured. The rights of each
Lender under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER
LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF
COMMERCE, PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT
GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of
the Administrative Agent, the Collateral Agent, any Lender or the Fronting Bank
in exercising any power or right hereunder or under any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Collateral Agent, the Fronting Bank and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by IMS or any Subsidiary therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. No notice or demand on IMS or any Borrower in any case shall
entitle the IMS or any Borrower to any other or further notice or demand in
similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by IMS, IMS Foreign Holdings, IMS Cayman, IMS PRC, the
Borrowers, and the Required Lenders; provided, however, that no such agreement
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shall (i) decrease the principal amount of, or extend the maturity of or any
scheduled principal payment date or date for the payment of any interest on any
Loan or any date for reimbursement of an L/C Disbursement, or waive or excuse
any such payment or any part thereof, or decrease the rate of interest on any
Loan or L/C Disbursement, without the prior written consent of each Lender
affected thereby, (ii) change or extend the Revolving Credit Commitment or
decrease or extend the date for payment of the Commitment Fees of any Lender
without the prior written consent of such Lender, or (iii) amend or modify the
provisions of Section 2.15 or 9.04(i), the provisions of this Section, the
definition of the term "Required Lenders" or release any Guarantor or all or any
substantial part of the Collateral, without the prior written consent of each
Lender; provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Collateral Agent or
the Fronting Bank hereunder or under any other Loan Document without the prior
written consent of the Administrative Agent, the Collateral Agent or the
Fronting Bank.
SECTION 9.09. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan or participation in any L/C Disbursement, together with all fees,
charges and other amounts which are treated as interest on such Loan or
participation in such L/C Disbursement under applicable law (collectively the
"Charges"), shall exceed the maximum lawful rate (the "Maximum Rate") which may
be contracted for, charged, taken, received or reserved by the Lender holding
such Loan or participation in accordance with applicable law, the rate of
interest payable in respect of such Loan or participation hereunder, together
with all Charges payable in respect thereof, shall be limited to the Maximum
Rate and, to the extent lawful, the interest and Charges that would have been
payable in respect of such Loan or participation but were not payable as a
result of the operation of this Section 9.09 shall be cumulated and the interest
and Charges payable to such Lender in respect of other Loans or participations
or periods shall be increased (but not above the Maximum Rate therefor) until
such cumulated amount, together with interest thereon at the Federal Funds
Effective Rate to the date of repayment, shall have been received by such
Lender.
SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter
and the other Loan Documents constitute the entire contract between the parties
relative to the subject matter hereof. Any other previous agreement among the
parties with respect to the subject matter hereof is superseded by this
Agreement and the other Loan Documents. Nothing in this Agreement or in the
other Loan Documents, expressed or implied, is intended to confer upon any party
other than the parties hereto and thereto any rights, remedies, obligations or
liabilities under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREE MENT AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of
the provisions contained in this Agreement or in any other Loan Document should
be held invalid, illegal or unenforceable in any
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respect, the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby (it being understood that the invalidity of a particular provision in a
particular jurisdiction shall not in and of itself affect the validity of such
provision in any other jurisdiction). The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent To Service of Process. (a)
Each of IMS, IMS Foreign Holdings, IMS Cayman, IMS PRC and the Borrowers hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the other Loan Documents, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent,
the Collateral Agent, the Fronting Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or the other Loan
Documents against IMS, any Borrower, IMS Foreign Holdings, IMS Cayman, IMS PRC
or their respective properties in the courts of any jurisdiction.
(b) Each of IMS, IMS Foreign Holdings, IMS Cayman, IMS PRC and
the Borrowers hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or the other Loan Documents in any New York
State or Federal court. Each of the parties hereto hereby irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.16. Confidentiality. The Administrative Agent, the
Collateral Agent, the Fronting Bank and each of the Lenders agrees to keep
confidential (and to use its best efforts to cause its respective agents and
representatives to keep confidential) the Information (as defined below) and all
copies thereof, extracts therefrom and analyses or other materials based
thereon, except that the Administrative Agent, the Collateral Agent, the
Fronting Bank or any Lender shall be permitted to disclose Information
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(a) to such of its respective officers, directors, employees, agents, affiliates
and representatives as need to know such Information, (b) to the extent
requested by any regulatory authority, (c) to the extent otherwise required by
applicable laws and regulations or by any subpoena or similar legal process, (d)
in connection with any suit, action or proceeding relating to the enforcement of
its rights hereunder or under the other Loan Documents or (e) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section 9.16 or (ii) becomes available to the Administrative Agent, the
Fronting Bank, any Lender or the Collateral Agent on a nonconfidential basis
from a source other than IMS, IMS Foreign Holdings, IMS Cayman, IMS PRC or a
Borrower. For the purposes of this Section, "Information" shall mean all
financial statements, certificates, reports, agreements and information
(including all analyses, compilations and studies prepared by the Administrative
Agent, the Collateral Agent, the Fronting Bank or any Lender based on any of the
foregoing) that are received from IMS, IMS Foreign Holdings, IMS Cayman, IMS PRC
or a Borrower and related to IMS, IMS Foreign Holdings, IMS Cayman, IMS PRC or a
Borrower, any shareholder of IMS or any employee, customer or supplier of IMS,
IMS Foreign Holdings, IMS Cayman, IMS PRC or a Borrower, other than any of the
foregoing that were available to the Administrative Agent, the Collateral Agent,
the Fronting Bank or any Lender on a nonconfidential basis prior to its
disclosure thereto by IMS, IMS Foreign Holdings or a Borrower, and which are in
the case of Information provided after the date hereof, clearly identified at
the time of delivery as confidential. The provisions of this Section 9.16 shall
remain operative and in full force and effect regardless of the expiration and
term of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
INTERNATIONAL MANUFACTURING
SERVICES, INC.,
by
-------------------------
Name:
Title:
IMS BORROWER, INC.,
by
-------------------------
Name:
Title:
87
87
IMS HOLDCO, INC.,
by
-------------------------
Name:
Title:
MAXTOR (HONG KONG) LIMITED,
by
-------------------------
Name:
Title:
IMS INTERNATIONAL MANUFACTURING
SERVICES (THAILAND) LIMITED,
by
-------------------------
Name:
Title:
DONGGUAN IMS ELECTRONICS LTD.,
by
-------------------------
Name:
Title:
IMS INTERNATIONAL MANUFACTURING
SERVICES, LIMITED.,
by
-------------------------
Name:
Title:
88
88
CHEMICAL BANK, individually and as
Administrative Agent, Collateral Agent
and Fronting Bank,
by
-------------------------
Name:
Title:
