<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM 8-K/A
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): AUGUST 5, 1999
VIASYSTEMS, INC.
(Exact name of Registrant as specified in charter)
DELAWARE 333-29727 43-1777252
(State or other jurisdiction (Commission file (I.R.S. employer
of incorporation) number) identification no.)
101 SOUTH HANLEY ROAD
ST. LOUIS, MISSOURI 63105
(Address of principal executive offices)
Registrant's telephone number, including area code: (314) 727-2087
---------------
<PAGE> 2
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) Financial Statements of Businesses Acquired Independent
Auditors' Report (PricewaterhouseCoopers). Combined Statement
of Income for the Year Ended March 31, 1999 Combined Balance
Sheet as of March 31, 1999 Combined Statement of Changes in
Divisional Equity for the Year Ended March 31, 1999 Combined
Statement of Cash Flows for the Year Ended March 31, 1999 Notes
to the Combined Financial Statements.
(b) Pro Forma Financial Information
1. Unaudited Pro Forma Balance Sheet as of June 30, 1999,
and related notes hereto
2. Unaudited Pro Forma Statement of Operations for the
Year Ended December 31, 1998, and related notes thereto
3. Unaudited Pro Forma Statement of Operations for the Six
Months Ended June 30, 1999, and related notes thereto.
<PAGE> 3
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS)
LIMITED - THE PCB DIVISION
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Report of PricewaterhouseCoopers............................................................. F-2
Combined Statement of Income for the Year Ended March 31, 1999............................... F-3
Combined Balance Sheet as of March 31, 1999.................................................. F-4
Combined Statement of Changes in Divisional Equity for the Year Ended March 31, 1999......... F-5
Combined Statement of Cash Flows for the Year Ended March 31, 1999........................... F-6
Notes to Combined Financial Statements....................................................... F-8
</TABLE>
F-1
<PAGE> 4
INDEPENDENT AUDITORS' REPORT
TO THE BOARD OF DIRECTORS OF TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS)
LIMITED.
We have audited the accompanying combined balance sheet of the Printed Circuit
Board Division of Termbray Industries International (Holdings) Limited (The "PCB
Division") as of 31st March 1999 and the related combined statements of income,
of cash flows and of changes in divisional equity for the year ended 31st March
1999, all expressed in Hong Kong Dollars. These combined financial statements
are the responsibility of the management of the PCB Division. Our responsibility
is to express an opinion on these financial statements based on our audit.
We conducted our audit in accordance with auditing standards generally accepted
in Hong Kong, which are similar to those generally accepted in the United
States. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free from
material misstatement. An audit substantially includes examining, on a test
basis, evidence supporting amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the combined financial statements audited by us present fairly,
in all material respects, the financial position of the PCB Division at 31st
March 1999, and the results of its operations and cash flows for the year ended
31st March 1999, in conformity with accounting principles generally accepted in
Hong Kong.
Accounting principles generally accepted in Hong Kong vary in certain
significant respects from accounting principles generally accepted in the United
States. The application of the latter would have affected the determination of
the combined net income expressed in Hong Kong Dollars for the year ended 31st
March 1999 and the determination of combined divisional equity also expressed in
Hong Kong Dollars at 31st March 1999 to the extent summarised in note 18 to the
combined financial statements.
PRICEWATERHOUSECOOPERS
Certified Public Accountants
Hong Kong, 24th September 1999
F-2
<PAGE> 5
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
COMBINED STATEMENT OF INCOME
(AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
Year ended
31st March
1999
Note HK$
---- ----------
<S> <C> <C>
Net sales 3 1,341,199
Cost of inventories sold (934,387)
-----------
Gross profit 406,812
Operating expenses
Salaries and related costs (35,278)
Sales and marketing expenses (31,259)
General and administrative expenses (65,731)
------------
Income from operations 274,544
Bank interest income 4,607
Interest expense (28,577)
Other non-operating income 19,592
-----------
Income before taxation 4 270,166
Provision for income taxes 5 (23,616)
-----------
Net income 246,550
===========
</TABLE>
The accompanying notes are an integral part of these
combined financial statements.
F-3
<PAGE> 6
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
COMBINED BALANCE SHEET
(AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
31st March
1999
Note HK$
---- ----------
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents 65,808
Trade accounts receivable, net 206,085
Inventories, net 7 185,759
Prepaid expenses and other assets 58,546
Due from former related companies 8 174,099
-----------
TOTAL CURRENT ASSETS 690,297
FIXED ASSETS, net 9 799,032
-----------
TOTAL ASSETS 1,489,329
===========
LIABILITIES AND DIVISIONAL EQUITY
CURRENT LIABILITIES
Trade accounts payable 133,780
Bills payable 24,528
Other liabilities and accrued charges 44,059
Current portion of long-term liabilities 10 103,787
Bank loans and overdrafts 42,024
Income taxes payable 5,943
-----------
TOTAL CURRENT LIABILITIES 354,121
LONG-TERM LIABILITIES
Long-term loans, net of current portion 10 34,899
Deferred taxation 11 22,503
-----------
TOTAL LIABILITIES 411,523
SHAREHOLDERS' EQUITY
Divisional capital 12 15,020
Retained profits 13 1,062,786
-----------
TOTAL DIVISIONAL EQUITY 1,077,806
-----------
TOTAL LIABILITIES AND DIVISIONAL EQUITY 1,489,329
===========
</TABLE>
The accompanying notes are an integral part of these
combined financial statements.
F-4
<PAGE> 7
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
COMBINED STATEMENT OF CHANGES IN DIVISIONAL EQUITY
(AMOUNTS IN THOUSANDS, EXCEPT NUMBER OF SHARES)
<TABLE>
<CAPTION>
Ordinary shares Non-voting deferred shares
--------------------------- ---------------------------------------------------------
Number of Number of Total
shares Amount shares Amount Retained divisional
outstanding outstanding outstanding outstanding profits equity
----------- ----------- ----------- ----------- --------- ----------
HK$ HK$ HK$ HK$
<S> <C> <C> <C> <C> <C> <C>
Balance at 1st April 1998 1,020,007 10,020 50,002 5,000 816,236 831,256
Net income -- -- -- -- 246,550 246,550
--------- ------ ------ ----- --------- ---------
Balance at 31st March 1999 1,020,007 10,020 50,002 5,000 1,062,786 1,077,806
========= ====== ====== ===== ========= =========
</TABLE>
The accompanying notes are an integral part of these
combined financial statements.
F-5
<PAGE> 8
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
COMBINED STATEMENT OF CASH FLOWS
(AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
Year ended
31st March
1999
HK$
----------
<S> <C>
Cash flows from operating activities
Income before taxation 270,166
Depreciation of owned fixed assets 66,473
Depreciation of leased fixed assets 14,008
Interest expense 20,588
Interest element of finance lease rental payments 7,990
Interest income (4,607)
Amortisation of pre-operating expenses 1,194
Loss on disposal of fixed assets 194
Decrease in inventories 56,042
Decrease in trade receivables, prepaid expenses and other assets 32,853
Decrease in trade accounts and bills payable, other liabilities and
accrued charges (54,740)
----------
Net cash inflow from operating activities 410,161
----------
Returns on investments and servicing of finance
Interest received 4,607
Interest paid (20,588)
Interest element of finance lease rental payments (7,990)
----------
Net cash outflow from returns on investments and servicing of finance (23,971)
Taxation
Hong Kong profits tax paid (18,186)
----------
Taxation paid (18,186)
----------
Investing activities
Purchase of fixed assets (46,236)
Proceeds from sale of fixed assets 1,974
----------
Net cash outflow from investing activities (44,262)
----------
Net cash inflow before financing 323,742
----------
Financing
Repayment of bank loans (211,662)
Capital element of finance lease rental payments (51,919)
Advances to former related companies (56,415)
----------
Net cash outflow from financing (319,996)
----------
</TABLE>
The accompanying notes are an integral part of these combined financial
statements.
F-6
<PAGE> 9
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
COMBINED STATEMENT OF CASH FLOWS (CONTINUED)
(AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
Year ended
31st March
1999
----------
<S> <C>
Net cash outflow from financing (319,996)
----------
Increase in cash and cash equivalents 3,746
Cash and cash equivalents at beginning of the year 20,038
----------
Cash and cash equivalents at end of the year 23,784
==========
Analysis of the balances of cash and cash equivalents
Cash on hand and demand deposits with banks 65,808
Bank loans and overdrafts (42,024)
----------
23,784
==========
</TABLE>
Supplemental cash flows information:
Analysis of changes in financing during the year
<TABLE>
<CAPTION>
Obligations under
Long term loans finance leases
HK$'000 HK$'000
--------------- -----------------
<S> <C> <C>
Balance as at 1st April 1998 283,448 118,819
Repayment during the year (211,662) (51,919)
---------- ----------
Balance as at 31st March 1999 71,786 66,900
========== ==========
</TABLE>
The statement of cash flows is prepared in accordance with Hong Kong Statement
of Standard Accounting Practice 15 "Cash Flow Statements" which differs in
certain respects from U.S. Statement of Financial Accounting Standard 95 ("SFAS
95") "Statement of Cash Flows." The principal differences are explained in note
18.
The accompanying notes are an integral part of these
combined financial statements.
F-7
<PAGE> 10
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, unless otherwise stated)
1 DESCRIPTION OF BUSINESS AND BASIS OF PRESENTATION
The Printed Circuit Board Division of Termbray Industries International
(Holdings) Limited (the "PCB Division") manufactures and sells
laminates, prepreg products and printed circuit boards. The combined
financial statements of the PCB Division for the year ended 31st March
1999 include the following former subsidiaries (the "PCB subsidiaries")
of Termbray Industries International (Holdings) Limited ("Termbray"),
all of which are private companies (or, if incorporated outside Hong
Kong, have substantially the same characteristics as a private
company):
<TABLE>
<CAPTION>
Particulars of
Place of registered
incorporation/ capital/issued
Name of company operation share capital Principal activities
--------------- -------------- -------------- --------------------
<S> <C> <C> <C>
Guangzhou Kalex Hong Kong 2 ordinary shares of Dormant
Laminate Company HK$1 each
Limited (iii)
Guangzhou Termbray The People's Registered capital Manufacture and sales
Electronics Technology Republic of China of US$28,500,000 of mass lamination
Company Limited (ii) and prepreg products
Guangzhou Termbray The People's Registered capital Manufacture and sales
Circuit Board Company Republic of China of US$28,500,000 of printed circuit
Limited (iv) boards
Kalex Circuit Board Hong Kong 1,000,000 ordinary Dormant
(Hong Kong) Limited shares of HK$10 each
Kalex Circuit Board Hong Kong/ 2 ordinary shares of Manufacture and sales
(China) Limited The People's HK$100 each and of printed circuit
Republic of China 50,000 non-voting boards and investment
deferred shares of holding
HK$100 each
Kalex Circuit Board Hong Kong/ 600,000 ordinary Manufacture and sales
(Guangzhou) Limited (i) The People's shares of US$1 of printed circuit boards
Republic of China each and investment holding
Kalex Multi-Layer Hong Kong 2 ordinary shares of Dormant
Printed Circuit Board HK$1 each
Company Limited (ii)
Kalex Printed Circuit Hong Kong 10,000 ordinary shares Marketing and sales of
Board Limited of HK$1 each printed circuit boards
Lee Lap & Sons Limited Hong Kong/ 2 ordinary shares of Manufacture and sales
The People's HK$1 each and 2 of printed circuit
Republic of China non-voting deferred boards
shares of HK$1 each
</TABLE>
F-8
<PAGE> 11
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, unless otherwise stated)
1 DESCRIPTION OF BUSINESS AND BASIS OF PRESENTATION (CONTINUED)
<TABLE>
<CAPTION>
Particulars of
Place of registered
incorporation/ capital/issued
Name of company operation share capital Principal activities
--------------- -------------- -------------- --------------------
<S> <C> <C> <C>
Termbray Circuit Board Hong Kong 2 ordinary shares of Investment holding
Company Limited HK$1 each
Termbray Laminate Hong Kong/ 10,000 ordinary Manufacture and sales
Company Limited The People's shares of HK$1 of mass lamination and
Republic of China each prepreg products
Termbray Property The British Virgin 1 ordinary share of Property investment
(B.V.I.) Limited Islands US$1
</TABLE>
(i) Directly held by Termbray Circuit Board Company Limited
(ii) Directly held by Kalex Circuit Board (China) Limited
(iii) Directly held by Termbray Laminate Company Limited
(iv) Indirectly held by Termbray Circuit Board Company Limited
through Kalex Circuit Board (Guangzhou) Limited
100% of the equity interest, direct or indirect, of the above companies
is attributable to the PCB Division.
The combined financial statements have been prepared for the purpose of
complying with the rules and regulations of the Securities and Exchange
Commission of the United States (the "SEC") for inclusion in a
registration statement of public filing in the United States by
Viasystems, Inc. They have been prepared on a historical cost basis
from the books and records of these subsidiaries on the basis of
established accounting methods, practices, procedures and policies (see
Note 2) and the accounting judgments and estimation methodologies used
by the management of the PCB Division.
The combined financial statements do not represent the combination of
Hong Kong statutory financial statements of the PCB subsidiaries as
certain reclassifications and changes in presentation have been made to
the financial statements in order to conform more closely to
presentations customary in filings with the SEC.
The combined financial statements have been prepared in accordance with
generally accepted accounting principles in Hong Kong and with
accounting standards issued by the Hong Kong Society of Accountants
("HKGAAP"). These principles differ in certain significant respects
from generally accepted accounting principles in the United States of
America ("USGAAP"). The effect of these differences on net income and
divisional equity is summarised in Note 18.
The combined statement of income includes all items of revenue and
income generated by the PCB Division, all items of expense directly
incurred by it and certain corporate expenses allocated from a
subsidiary of Termbray outside the PCB Division in the normal course of
business. For additional information concerning expenses allocated by
the subsidiary of Termbray to the PCB Division, see Note 16.
F-9
<PAGE> 12
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, unless otherwise stated)
1 DESCRIPTION OF BUSINESS AND BASIS OF PRESENTATION (CONTINUED)
The debt of the PCB Division consists of obligations that are
specifically identifiable with associated capital expenditures of the
PCB Division. No other debt of Termbray (or related interest expense)
has been allocated to the Division. Because of the special purpose of
the PCB Division's combined financial statements and the significant
related party transactions (as described in Note 16), these combined
financial statements may not necessarily be indicative of the combined
financial position, results of its operations or cash flows that would
have resulted if the Division had been operated as a separate entity.
Management believes that the accounting judgments, estimations and
allocations made in preparing these combined financial statements were
reasonable.
All amounts are expressed in Hong Kong Dollars. Unless indicated
otherwise, amounts in Hong Kong Dollars have been rounded to the
nearest thousand.
2 PRINCIPAL ACCOUNTING POLICIES
(a) Basis of combination
(i) The combined financial statements of the PCB Division include
the financial statements of the PCB subsidiaries as mentioned
in Note 1 for the year ended 31st March 1999. All material
intercompany accounts and transactions among the companies
included in the PCB Division have been eliminated on
combination.
(ii) Goodwill on consolidation or acquisition of a business, which
represents the excess of the cost of investment over the fair
value ascribed to the net underlying assets acquired, is
charged against reserves to the extent that such reserves are
available and any excess is charged against the statement of
income in the year of acquisition.
(b) Fixed assets and depreciation
The cost of an asset comprises its purchase price and any directly
attributable costs of bringing the asset to its present working
condition and location for its intended use. Expenditure incurred after
the assets have been put into operation, such as repairs and
maintenance and overhaul costs, is normally charged to the statement of
income in the period in which it is incurred. In situations where it
can be clearly demonstrated that the expenditure has resulted in an
increase in the future economic benefits expected to be obtained from
the use of the assets, the expenditure is capitalised as an additional
cost of the assets.
(i) Leasehold land, buildings and improvements
Leasehold land, buildings and improvements are stated at cost
less accumulated amortization or depreciation and any
provisions required to reflect recoverable amount.
(ii) Amortization of leasehold land
Amortization of leasehold land is calculated to write off its
cost on the straight line basis over the unexpired period of
the lease. Leasehold land is not amortised until such land has
been put into operation.
F-10
<PAGE> 13
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, unless otherwise stated)
2 PRINCIPAL ACCOUNTING POLICIES (CONTINUED)
(iii) Depreciation of leasehold buildings and improvements
Depreciation of leasehold buildings and improvements is
calculated to write off their costs on the straight line basis
over the unexpired periods of the leases or their expected
useful lives, whichever is shorter. The principal annual rates
used for this purpose are:
Leasehold buildings 4% or over the unexpired term of the
land leases, whichever is shorter
Leasehold improvements 10 - 25%
(iv) Other tangible fixed assets
Other tangible fixed assets are stated at cost less
accumulated depreciation except machinery and equipment
acquired before 31st March 1987 which are stated at valuation
less accumulated depreciation. No depreciation is provided on
fixed assets under construction until the assets are put into
operation. Depreciation on other tangible fixed assets is
calculated to write off their costs on the straight line basis
over their expected useful lives. The principal annual rates
used for this purpose are:
Plant and machinery 10-25%
Furniture, fixtures and office equipment 10-25%
Moulds, tools, equipment and motor vehicles 10-25%
Advantage has been taken of the transitional relief provided
by paragraph 72 of Statement of Standard Accounting Practice
17 "Property, plant and equipment" issued by the Hong Kong
Society of Accountants from the requirement to make regular
revaluations of the PCB Division's machinery and equipment,
which had been carried at revalued amounts prior to 30th
September, 1995, and accordingly no further revaluation of
such machinery and equipment is carried out.
A decrease in net carrying amount of an asset arising on
revaluation is charged to the statement of income to the
extent that it exceeds the surplus, if any, held in
revaluation reserve relating to previous revaluation of that
particular asset.
(v) Impairment of fixed assets and other long lived assets
The carrying amounts of fixed assets are reviewed regularly to
assess whether their recoverable amounts have declined below
their carrying amounts, based on non-discounted future cash
flows. When such a decline has occurred, their carrying
amounts are reduced to their recoverable amounts. Recoverable
amount is the amount which management expects to recover from
the future use of the asset, including its residual value on
disposal. The amount of any reduction to recoverable amount is
charged to the statement of income.
For purposes of the reconciliation of the PCB Division's
financial statements to US GAAP, where the recoverable amount
of fixed and other long lived assets is less than carrying
value, an impairment loss is recognized to write the assets
down to their fair value. No such impairment losses were
required in the year ended 31st March 1999.
(vi) Costs of restoring and improving fixed assets
Major costs incurred in restoring fixed assets to their normal
working conditions are charged to the statement of income.
Improvements are capitalized and depreciated over their
expected useful lives.
F-11
<PAGE> 14
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, unless otherwise stated)
2 PRINCIPAL ACCOUNTING POLICIES (CONTINUED)
(vii) Gain or loss on disposal of fixed assets
The gain or loss arising on disposal or retirement of an asset
is determined as the difference between the sale proceeds and
the carrying amount of the asset and is recognised in the
statement of income. On disposal of a revalued asset, the
attributable revaluation surplus not dealt with in retained
profits in prior years is transferred directly to retained
profits.
(viii) Leased assets
Where assets are acquired through finance leases or hire
purchase contracts under which substantially all the risks and
rewards of ownership, other than legal title, are transferred
to the company, the assets are treated as if they had been
purchased. An amount equivalent to the cost is recorded as a
fixed asset. The corresponding lease commitments are shown as
obligations under finance leases and hire purchase contracts.
Payments to the lessor are treated as consisting of capital
and interest elements. The interest element is charged to the
statement of income using the straight line method over the
period of the lease. Assets held under finance leases or hire
purchase contracts are depreciated over the shorter of lease
periods or their estimated useful lives as in (iv) above.
US GAAP requires interest on finance leases to be recognized
so as to ensure a constant periodic rate of interest on the
remaining balance of the obligation (the "interest method").
The difference between the straight line method used by the
company and the interest method is not material.
All other leases are accounted for as operating leases (see
note (h) below).
(c) Inventories
Inventories are stated at the lower of cost and net realisable value.
Cost, which comprises all costs of purchase and, where applicable,
costs of conversion and other costs that have been incurred in bringing
the raw material and work in progress to their present location and
condition, is calculated using the first-in, first-out method. Net
realisable value of finished goods represents the estimated selling
price in the ordinary course of business less the estimated costs of
completion and the estimated costs necessary to make the sale.
Consumable stores are stated at purchase cost less amount allocated to
production costs when such assets are consumed.
(d) Foreign currencies
Transactions in foreign currencies are translated into Hong Kong
dollars at the rates of exchange ruling at the transaction dates.
Monetary assets and liabilities denominated in currencies other than
Hong Kong dollars are re-translated into Hong Kong dollars at the rates
of exchange ruling at the balance sheet date. Exchange difference
arising are dealt with in the statement of income.
F-12
<PAGE> 15
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, unless otherwise stated)
2 PRINCIPAL ACCOUNTING POLICIES (CONTINUED)
(e) Deferred taxation
Deferred taxation is accounted for at the current taxation rate in
respect of timing differences between profit as computed for taxation
purposes and profit as stated in the accounts to the extent that a
liability or an asset is expected to be payable or receivable in the
foreseeable future. In determining whether a liability is expected to
be payable in the foreseeable future the company assesses the effect of
its capital expenditure and other plans. If these plans indicate that
sufficient accelerated tax allowances will be available to offset the
effect of the reversal of timing differences a deferred tax liability
is not established for such timing differences, in accordance with the
requirements of HKGAAP.
(f) Capitalisation of borrowing costs
Borrowing costs directly attributable to the acquisition, construction
or production of qualifying assets, i.e. assets that necessarily take a
substantial period of time to get ready for their intended use or sale,
are capitalised as part of the cost of those assets. Capitalisation of
such borrowing costs ceases when the assets are substantially ready for
their intended use or sale.
(g) Use of estimates
The preparation of combined financial statements in conformity with
HKGAAP requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses reported
during the period. Actual results could differ from these estimates.
(h) Operating leases
Rentals payable under operating leases, where substantially all the
risks and rewards of ownership of the assets remain with the lessors,
are charged to the statement of income on a straight line basis over
the term of the relevant lease.
(i) Cash and cash equivalents
Cash and cash equivalents represent short term highly liquid
investments which are readily convertible into known amount of cash
were within three months of maturity when acquired; less advances from
banks repayable within three months from the date of the advance.
(j) Revenue recognition
Income from processing services is recognised when the relevant
services are rendered.
Sales of goods are recognised when the goods are delivered and title
has passed.
Interest income from bank deposits is accrued on a time proportion
basis, by reference to the principal outstanding and at the interest
rate applicable.
F-13
<PAGE> 16
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, unless otherwise stated)
3 NET SALES
Net sales represents invoiced value of inventories sold less returns.
4 INCOME BEFORE TAXATION
<TABLE>
<CAPTION>
1999
HK$
--------
<S> <C>
Income before taxation is stated after crediting and charging the
following :
Crediting
Exchange gain 6,321
Interest income from bank deposits 4,607
========
Charging
Cost of inventories sold 934,387
Depreciation:
Owned fixed assets 66,473
Leased fixed assets 14,008
Operating leases
Land and buildings 932
Hire of plant & machinery 65
Interest expense comprises:
Interest expense on bank loans and overdrafts 20,588
Interest element of finance lease rental payments 7,990
========
</TABLE>
5 PROVISION FOR INCOME TAXES
<TABLE>
<CAPTION>
1999
HK$
--------
<S> <C>
Hong Kong profits tax 17,310
Overseas taxation 2,375
--------
19,685
--------
Deferred tax (note 11) 3,931
--------
23,616
========
</TABLE>
F-14
<PAGE> 17
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, unless otherwise stated)
Hong Kong profits tax has been provided at the rate of 16.0% (1998:
16.5%) on the estimated assessable profit for the year. Taxation on
overseas profits has been calculated on the estimated assessable profit
for the year at the rates of taxation prevailing in the countries in
which the PCB Division operates.
6 TRADE ACCOUNTS RECEIVABLE, NET
<TABLE>
<CAPTION>
1999
HK$
--------
<S> <C>
Trade accounts receivable 213,985
Less: provision for doubtful debts (7,900)
-------
206,085
=======
</TABLE>
7 INVENTORIES, NET
<TABLE>
<CAPTION>
1999
HK$
-------
<S> <C>
Inventories, net at 31st March 1999 consisted
of the following:
Raw materials and supplies 71,999
Work in progress and finished goods 80,844
Consumable stores 32,916
-------
185,759
=======
</TABLE>
Included in inventories, net at 31st March 1999 was an amount of
HK$1,520 carried at net realisable value after making a provision for
obsolete inventories of HK$3,256.
8 DUE FROM FORMER RELATED COMPANIES
The amounts due from former related companies represent advances made
to certain subsidiaries of Termbray Industries International (Holdings)
Limited outside the PCB Division in order to finance the daily
operations of these companies. The amounts due from these former
related companies are unsecured, interest free and have no fixed terms
of repayment.
F-15
<PAGE> 18
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, unless otherwise stated)
9 FIXED ASSETS
<TABLE>
<CAPTION>
Land and
Land and buildings Factories,
buildings held under staff quarters
held under medium term and
medium term leases machinery
leases in outside under Leasehold
Hong Kong Hong Kong construction improvements
HK$ HK$ HK$ HK$
----------- ----------- ------------- ------------
<S> <C> <C> <C> <C>
Cost or valuation
At 1st April 1998 37,413 229,568 61,417 101,379
Additions -- 3,821 11,354 263
Reclassification -- -- (17,545) 4,452
Disposals -- -- -- (340)
--------- ---------- ---------- ----------
At 31st March 1999 37,413 233,389 55,226 105,754
--------- ---------- ---------- ----------
Accumulated depreciation
At 1st April 1998 3,061 10,648 -- 42,777
Charge for the year 935 3,673 -- 8,059
Disposals -- -- -- --
--------- ---------- ---------- ----------
At 31st March 1999 3,996 14,321 -- 50,836
--------- ---------- ---------- ----------
Net book value
At 31st March 1999 33,417 219,068 55,226 54,918
========= ========== ========== ==========
<CAPTION>
Moulds,
Furniture, tools,
fixtures equipment
Plant and and office and motor
machinery equipment vehicles Total
HK$ HK$ HK$ HK$
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Cost or valuation
At 1st April 1998 624,294 23,230 12,737 1,090,038
Additions 26,598 3,090 1,110 46,236
Reclassification 12,803 290 -- --
Disposals (1,662) -- (688) (2,690)
---------- ---------- ---------- ----------
At 31st March 1999 662,033 26,610 13,159 1,133,584
---------- ---------- ---------- ----------
Accumulated depreciation
At 1st April 1998 182,388 11,379 4,340 254,593
Charge for the year 62,824 3,378 1,612 80,481
Disposals (40) -- (482) (522)
---------- ---------- ---------- ----------
At 31st March 1999 245,172 14,757 5,470 334,552
---------- ---------- ---------- ----------
Net book value
At 31st March 1999 416,861 11,853 7,689 799,032
========== ========== ========== ==========
</TABLE>
(a) Machinery and equipment with an aggregate carrying book value of
approximately HK$93,175 (1998: HK$140,430) as at the balance sheet date
were held under finance lease and hire purchase contracts.
(b) Included in the PCB Division's machinery and equipment were an amount
of HK$3,508 carried at valuation in 1987 with an aggregate depreciation
of HK$3,508 as at 31st March 1999 which would also have had no net
carrying value (1998: HK$ nil) had these assets been carried in the
financial statements at cost less aggregate depreciation.
All other fixed assets were stated at cost less aggregate depreciation.
F-16
<PAGE> 19
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, unless otherwise stated)
9 FIXED ASSETS (CONTINUED)
(c) Included in the PCB Division's factories, staff quarters and machinery
under construction is net interest capitalised of approximately HK$6.2
million. No interest was capitalised during the year.
10 LONG-TERM LIABILITIES
<TABLE>
<CAPTION>
1999
HK$
-------
<S> <C>
Unsecured bank loans repayable:
Within one year 69,393
Within two to five years 2,393
-------
71,786
-------
Obligations under finance leases and hire purchase
contracts payable
Within one year 34,394
Within two to five years 32,506
-------
66,900
-------
138,686
Less: Current portion of long-term liabilities 103,787
-------
34,899
=======
</TABLE>
F-17
<PAGE> 20
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, unless otherwise stated)
11 DEFERRED TAXATION
<TABLE>
<CAPTION>
1999
HK$
-------
<S> <C>
At 1st April 1998 18,572
Transfer from statement of income (note 5) 3,931
-------
At 31st March 1999 22,503
=======
Provided in the financial statements in respect of:
Accelerated depreciation allowances 26,648
Tax losses (4,145)
-------
22,503
=======
</TABLE>
The potential deferred taxation not provided for in the financial
statements amounts to:
<TABLE>
<CAPTION>
1999
HK$
-------
<S> <C>
Accelerated depreciation allowances 2,469
Tax losses (1,574)
-------
895
=======
</TABLE>
F-18
<PAGE> 21
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, unless otherwise stated)
12 DIVISIONAL CAPITAL
Divisional capital represents the combination of the share capital of
the following former subsidiaries of Termbray.
<TABLE>
<CAPTION>
Name of company Authorised capital 1999 HK$ Issued capital 1999 HK$
---------------------------- ------------------ ---------- -------------- ----------
<S> <C> <C> <C> <C>
Kalex Circuit Board (China) 10 ordinary shares 2 ordinary shares
Limited of HK$100 each 1,000 of HK$100 each 200
and 50,000 and 50,000
non-voting deferred non-voting
shares of HK$100 deferred shares of
each 5,000,000 HK$100 each 5,000,000
Kalex Circuit Board (Hong 1,000,000 ordinary 1,000,000 ordinary
Kong) Limited shares of HK$10 each shares of HK$10
10,000,000 each 10,000,000
Kalex Printed Circuit Board 10,000 ordinary 10,000 ordinary
Limited shares of HK$1 each shares of HK$1 each
10,000 10,000
Lee Lap & Sons Limited 9,998 ordinary
shares of HK$1 each 2 ordinary shares
9,998 of HK$1 each 2
and 2 non-voting and 2 non-voting
deferred shares of deferred shares of
HK$1 each 2 HK$1 each 2
Termbray Circuit Board 10,000 ordinary
Company Limited shares of HK$1 2 ordinary shares
each 10,000 of HK$1 each 2
Termbray Laminate Company 10,000 ordinary 10,000 ordinary
Limited shares of HK$1 each shares of HK$1 each
10,000 10,000
Termbray Property (B.V.I.) 50,000 ordinary 1 ordinary share
Limited shares of US$1 400,000 of US$1 8
------------- -------------
HK$15,441,000 HK$15,020,214
============= =============
</TABLE>
F-19
<PAGE> 22
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, unless otherwise stated)
13 RETAINED PROFITS
Retained profits of the PCB Division represents the combination of the
post-acquisition profits/(losses) of the following former subsidiaries
of Termbray attributable to the PCB Division:
<TABLE>
<CAPTION>
1999
HK$
---------
<S> <C>
Guangzhou Kalex
Laminate Company Limited (139)
Guangzhou Termbray
Electronics Technology (11,978)
Company Limited
Guangzhou Termbray
Circuit Board Company Limited (32,395)
Kalex Circuit Board
(Hong Kong) Limited 21,090
Kalex Circuit Board
(China) Limited 532,423
Kalex Circuit Board
(Guangzhou) Limited 47,753
Kalex Multi-Layer
Printed Circuit Board
Company Limited (1,112)
Kalex Printed Circuit
Board Limited 2,212
Lee Lap & Sons Limited 418,726
Termbray Circuit Board
Company Limited 1,020
Termbray Laminate
Company Limited 81,869
Termbray Property
(B.V.I.) Limited 10,547
---------
1,070,016
Less: Goodwill previously written off against statement of income (7,230)
---------
1,062,786
=========
</TABLE>
F-20
<PAGE> 23
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, unless otherwise stated)
14 COMMITMENTS
(a) CAPITAL COMMITMENTS
<TABLE>
<CAPTION>
1999
HK$
--------
<S> <C>
Contracted but not provided for
- purchase of fixed assets 16,607
========
</TABLE>
(b) OPERATING LEASE COMMITMENTS
At 31st March 1999 the PCB Division had commitments to make payments in
the next twelve months under operating leases which expire as follows:
<TABLE>
<CAPTION>
1999
HK$
--------
<S> <C>
Land and buildings
- Within one year 367
- In the second to fifth years inclusive 114
--------
481
========
</TABLE>
F-21
<PAGE> 24
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, unless otherwise stated)
15 CONTINGENT LIABILITIES
During the year, certain PCB subsidiaries within the PCB Division
purchased production materials amounting to approximately HK$12 million
from an outside supplier. Such production materials acquired were
subsequently found to be defective and settlement of the purchases was
therefore withheld by the Division. Legal actions for settlement of the
purchases together with interest were taken by the supplier against
these PCB subsidiaries. The Division also instituted a legal action
against such supplier claiming damages which may arise from the
materials delivered by the supplier. While the outcome of these
proceedings cannot at present be estimated with certainty, based on
independent legal advice, management is of the opinion that the outcome
of these cases would not have a material adverse impact on the
financial position of the PCB Division, and that adequate disclosure
having been made, no provision has been made in the financial
statements accordingly.
16 RELATED PARTY TRANSACTIONS
During the year, the PCB Division paid a management fee to a subsidiary
of Termbray Industries International (Holdings) Limited amounting to
HK$24,802 based on terms agreed by the relevant parties. The management
fee was charged by the subsidiary of Termbray for the PCB Division's
share of salaries and office expenses and comprised:
- 95% of total office salaries based on human resources utilised
- 89% of total management salaries based on estimated management hours,
and
- a pre-fixed percentage of 85% of the total office rental and
communications expenses.
17 APPROVAL OF FINANCIAL STATEMENTS
The financial statements of the PCB Division were approved by the board
of directors of Termbray Industries International (Holdings) Limited on
24th September 1999.
F-22
<PAGE> 25
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, unless otherwise stated)
18 SUMMARY OF DIFFERENCES BETWEEN HKGAAP AND USGAAP
The combined financial statements of the PCB Division are prepared in
accordance with accounting principles generally accepted in Hong Kong
("HKGAAP"), which differ in certain significant respects from
accounting principles generally accepted in the United States of
America ("USGAAP"). Differences between HKGAAP and USGAAP which have an
effect on the net income, total divisional equity and statement of cash
flows of the Division are summarized as follows:
(a) NET INCOME AND TOTAL DIVISIONAL EQUITY
<TABLE>
<CAPTION>
Year ended
31st March
1999
Note HK$
----- ----------
<S> <C> <C>
NET INCOME
As stated under HKGAAP 246,550
USGAAP adjustments:
Amortisation of goodwill (i) (537)
Deferred tax liabilities (ii) (7,169)
Capitalisation of interest costs (iii) 5,769
----------
Net income under USGAAP 244,613
==========
TOTAL DIVISIONAL EQUITY
As stated under HKGAAP 1,077,806
USGAAP adjustments:
Goodwill 10,738
Accumulated amortisation of goodwill (i) (3,982)
Deferred tax liabilities (ii) (2,505)
Capitalisation of interest costs on assets under
construction (iii) 5,769
----------
Total divisional equity under USGAAP 1,087,826
==========
</TABLE>
F-23
<PAGE> 26
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, unless otherwise stated)
18 SUMMARY OF DIFFERENCES BETWEEN HKGAAP AND USGAAP
(a) NET INCOME AND TOTAL DIVISIONAL EQUITY
(i) Amortisation of goodwill
Under HKGAAP, the PCB Division offsets goodwill on acquisition
of a business, which represents the excess of the cost of
investment over the fair value ascribed to the net underlying
assets acquired, against reserves to the extent that such
reserves are available and any excess is charged against the
statement of income in the year of acquisition.
Under USGAAP, goodwill on acquisition of a business should be
capitalised and amortised. For such purpose, the goodwill is
amortised on a straight-line basis over 20 years.
(ii) Deferred tax liabilities
Under HKGAAP, deferred taxation is accounted for at the
current taxation rate in respect of timing differences between
profit as computed for taxation purposes and profit as stated
in the accounts to the extent that a liability or an asset is
expected to be payable or receivable in the foreseeable
future.
Under USGAAP, the PCB Division is required to recognise
deferred tax assets and liabilities for the expected future
tax consequences of all events that have been included in the
financial statements or tax returns. Under this method,
deferred tax assets and liabilities are determined based on
the temporary differences between the financial reporting
basis and tax basis of assets and liabilities using enacted
tax rates in effect for the year in which the differences are
expected to reverse. Future tax benefits in respect of tax
loss carry forwards are also required to be recognized in
full. A valuation allowance is required to be established in
respect of deferred tax assets to the extent that realisation
of such benefits is less likely than not.
Details of deferred income taxes under USGAAP are disclosed in
Note (b) below.
(iii) Under HKGAAP, borrowing costs directly attributable to the
acquisition, construction or production of qualifying assets,
i.e. assets that necessarily take a substantial period of time
to get ready for their intended use or sale, are capitalised
as part of the cost of those assets. Interest on borrowings
not directly attributable to the acquisition, construction or
production of qualifying assets is not capitalizable.
Under USGAAP, the PCB Division is required to include interest
costs as a component of the historical cost of any facilities
constructed for the division's own use. Capitalizable interest
cost is interest cost incurred that theoretically could have
been avoided during the period required to bring a qualifying
asset to the condition and location necessary for its intended
use if expenditures for qualifying assets had not been made.
F-24
<PAGE> 27
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, unless otherwise stated)
18 SUMMARY OF DIFFERENCES BETWEEN HKGAAP AND USGAAP (CONTINUED)
(b) DEFERRED TAX
Under USGAAP, deferred tax liabilities and assets comprise the
following:
<TABLE>
<CAPTION>
Year ended
31st March
1999
HK$
----------
<S> <C>
Deferred tax liabilities
Accelerated depreciation 29,117
Deferred tax assets
Tax loss carry forward (5,719)
Valuation allowance 1,610
------
25,008
======
</TABLE>
As of 31st March 1999, the PCB Division had accumulated tax losses
amounting to $35,741 (the tax effect thereon is $5,719) which may be
carried forward and applied to reduce future taxable income which is
earned in or derived from Hong Kong. The tax losses have no expiry
date. Realization of deferred tax assets associated with tax loss carry
forwards is dependent upon generating sufficient taxable income. A
valuation allowance has been established against part of such tax
losses since management believes it is more likely than not that
insufficient taxable income will be generated in the foreseeable future
to utilise part of the tax loss carry forwards.
Certain losses incurred by certain subsidiaries of the PCB Division
located in the People's Republic of China ("PRC") are not included on
the basis that their losses are considered likely to be utilised in the
years in which the profits of these subsidiaries are tax exempt,
pursuant to the PRC tax law. Accordingly, the PCB Division will derive
no benefit in respect of these losses.
Changes in the valuation allowance consist of:
<TABLE>
<CAPTION>
Year ended
31st March
1999
HK$
----------
<S> <C>
Balance at beginning of the year --
------
Additions to income tax expense 1,610
------
Balance at end of the year 1,610
======
</TABLE>
F-25
<PAGE> 28
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED
THE PCB DIVISION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
(Amounts in thousands, except number of shares and unless otherwise
stated)
18 SUMMARY OF DIFFERENCES BETWEEN HKGAAP AND USGAAP (CONTINUED)
(c) STATEMENT OF CHANGES IN DIVISIONAL EQUITY UNDER USGAAP
<TABLE>
<CAPTION>
Ordinary shares Non-voting deferred shares
--------------------------- --------------------------------------------------------
Number of Number of
shares Amount shares Amount Total
outstanding outstanding outstanding outstanding Retained divisional
(note 12) (note 12) (note 12) (note 12) profits equity
----------- ----------- ----------- ----------- --------- ----------
HK$ HK$ HK$ HK$
<S> <C> <C> <C> <C> <C> <C>
Balance at 1st
April 1998 1,020,007 10,020 50,002 5,000 828,193 843,213
Net income -- -- -- -- 244,613 244,613
---------- ------- ------- ------ --------- ---------
Balance at 31st
March 1999 1,020,007 10,020 50,002 5,000 1,072,806 1,087,826
========== ======= ======= ====== ========= =========
</TABLE>
(d) STATEMENT OF CASH FLOWS
Under HKGAAP, cash flows are presented separately for operating
activities; returns on investments and servicing of finance; taxation;
investing activities and financing activities. Under USGAAP, however,
only three categories of activities are reported, being operating
activities; investing activities and financing activities. Cash flows
from taxation, returns on investments and servicing of finance would,
with the exception of servicing of divisional financing, be included as
operating activities under USGAAP. The servicing of divisional
financing would be included as financing activities under USGAAP.
In addition, under USGAAP, cash and cash equivalents do not include
bank loans overdrafts repayable within three months from the date of
the advance as is the case under HKGAAP. For USGAAP purposes, the
Division's cash and cash equivalents would be adjusted as follows:
Under USGAAP, the following amounts would be reported:
<TABLE>
<CAPTION>
Year ended
31st March
1999
----------
HK$
<S> <C>
Net cash provided from operating activities 368,004
Net cash used in investing activities (44,262)
Net cash used in financing activities (325,122)
--------
Decrease in cash and cash equivalents (1,380)
Cash and cash equivalents at the beginning of year 67,188
--------
Cash and cash equivalents at the end of year 65,808
========
</TABLE>
F-26
<PAGE> 29
UNAUDITED PRO FORMA FINANCIAL INFORMATION
On August 5, 1999, an indirect wholly-owned subsidiary of Viasystems, Inc.
(the "Company") acquired the printed circuit board manufacturing division
("Kalex") of Termbray Industries International (Holdings) Limited ("Termbray
Holdings"), a manufacturer of rigid printed circuit boards located in China, for
a net cash purchase of approximately $301 million plus acquisition costs of
approximately $8.5 million (the "Kalex Acquisition"). The Kalex Acquisition was
funded with (i) $200 million from a capital contribution to the Company from the
issuance of 163,934,427 shares of the common stock of Viasystems Group, Inc.,
the Company's parent, and (ii) borrowings under a new tranche C term loan under
the Company's senior secured credit facility, as amended and restated (the
"Third Amended and Restated Credit Agreement"), from a syndicate of commercial
banks and institutional lenders set forth on the signature pages thereto. The
Third Amended and Restated Credit Agreement is filed as Exhibit 4.11 to this
Current Report on Form 8-K/A. The purchase price for the Kalex Acquisition was
determined as a result of arms-length negotiation between the Company and
Termbray Holdings, which are unrelated parties. The Kalex Acquisition was
consummated as a stock purchase of certain indirect subsidiaries of Termbray
Holdings that conduct the printed circuit board manufacturing business of Kalex,
and such entities will continue to conduct that business as subsidiaries of the
Company. The Kalex Acquisition has been accounted for using the purchase method
of accounting whereby the total purchase price has been preliminarily allocated
to the assets and liabilities based on their respective fair values.
The following unaudited pro forma financial information (the "Pro Forma
Financial Information") of the Company is based on the audited consolidated
financial statements for the year ended December 31, 1998 and the unaudited
interim consolidated financial statements for the six months ended June 30, 1999
of Viasystems, Inc. and the audited combined financial statements for the year
ended March 31, 1999 and the unaudited interim combined financial statements for
the six months ended March 31, 1999 and as of June 30, 1999 of Kalex (see Note 1
to the Pro Forma Financial Information). The unaudited Pro Forma Balance Sheet
as of June 30, 1999, gives effect to the Kalex Acquisition as though the
transaction had occurred at such date. The Unaudited Pro Forma Statement of
Operations for the Year Ended December 31, 1998, and for the six months ended
June 30, 1999, gives effect to the Kalex Acquisition as though such transaction
had occurred at the beginning of each respective period. In order to present the
Pro Forma Financial Information, certain financial information for Kalex was
translated from the local currency to United States dollars based upon exchange
rates published in The Wall Street Journal. The Unaudited Pro Forma Balance
Sheet as of June 30, 1999, was translated at the exchange rate in effect as of
the date of the financial information (HK $7.7591 = US $1.00). The Unaudited Pro
Forma Statements of Operations for the Year Ended December 31, 1998, and for the
Six Months Ended June 30, 1999, was translated at the average rate in effect for
the respective period (HK $7.7479 = US $1.00 for the year ended March 31, 1999,
and HK $7.7475 = US $1.00, for the six months ended March 31, 1999). The Company
does not represent that the Hong Kong dollar amounts shown herein could have
been converted to United States dollars at the quoted exchange rates. The Pro
Forma Financial Information gives effect to pro forma adjustments that are
based upon available information and certain assumptions that the Company
believes are reasonable. The financial data for Kalex used in the preparation of
the Pro Forma Financial Information has been adjusted for the differences
between H.K. GAAP and U.S. GAAP (see notes to the consolidated financial
statements of Kalex, included elsewhere herein).
The Pro Forma Financial Information does not purport to be indicative of the
results that would have been obtained had such transactions been completed as of
the assumed dates and for the periods presented or that may be obtained in the
future. The Pro Forma Financial Information should be read in conjunction with
the historical financial statements of Viasystems, Inc. and Kalex, and the
related notes thereto.
<PAGE> 30
VIASYSTEMS, INC. & SUBSIDIARIES
UNAUDITED PRO FORMA BALANCE SHEET
AS OF JUNE 30, 1999
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
Viasystems, Historical
Inc. Kalex Combined(1) Adjustments Pro Forma
----------- --------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents ........ $ 2,042 $ 18,283 $ 20,325 $ (14,008)(2) $ 6,317
Accounts receivable .............. 199,912 35,186 235,098 -- 235,098
Inventories ...................... 106,209 20,924 127,133 -- 127,133
Prepaid expenses and other ....... 39,476 2,539 42,015 -- 42,015
----------- --------- ----------- --------- -----------
Total current assets ........ 347,639 76,932 424,571 (14,008) 410,563
Property, plant and equipment, net ... 561,894 102,061 663,955 -- 663,955
Deferred financing costs, net ........ 67,597 -- 67,597 9,300(3) 76,897
Intangible assets, net ............... 357,028 854 357,882 162,792(4) 520,674
Other assets ......................... 21,515 -- 21,515 -- 21,515
----------- --------- ----------- --------- -----------
Total assets ................ $ 1,355,673 $ 179,847 $ 1,535,520 $ 158,084 $ 1,693,604
=========== ========= =========== ========= ===========
LIABILITIES AND STOCKHOLDER'S EQUITY
Current liabilities:
Current maturities of long-term
obligations .................... $ 67,486 $ 16,461 $ 83,947 $ (26,586)(5) $ 57,361
Accounts payable ................. 147,295 17,917 165,212 -- 165,212
Accrued and other liabilities .... 112,203 14,217 126,420 -- 126,420
Income taxes payable ............. -- 916 916 -- 916
----------- --------- ----------- --------- -----------
Total current liabilities ... 326,984 49,511 376,495 (26,586) 349,909
Deferred taxes ....................... 70,283 3,381 73,664 -- 73,664
Long-term obligations, less current
maturities ....................... 1,086,958 3,242 1,090,200 127,883(5) 1,218,083
Other noncurrent liabilities ......... 66,680 -- 66,680 -- 66,680
Intercompany ......................... -- (23,749) (23,749) 23,749(6) --
Stockholder's equity ................. (195,232) 147,462 (47,770) 33,038(7) (14,732)
----------- --------- ----------- --------- -----------
Total liabilities and
stockholder's equity ...... $ 1,355,673 $ 179,847 $ 1,535,520 $ 158,084 $ 1,693,604
=========== ========= =========== ========= ===========
</TABLE>
See accompanying notes to Unaudited Pro Forma Balance Sheet.
<PAGE> 31
VIASYSTEMS, INC. & SUBSIDIARIES
UNAUDITED PRO FORMA BALANCE SHEET
AS OF JUNE 30, 1999
(DOLLARS IN THOUSANDS)
(1) The historical combined Balance Sheet of Viasystems, Inc. as of June
30, 1999 was derived from the unaudited interim consolidated balance
sheets of Viasystems, Inc. and Kalex as of June 30, 1999.
(2) Adjustment reflects purchase accounting adjustment to record stated
Kalex cash balance acquired.
(3) Adjustment reflects the deferred financing costs incurred in connection
with the financing of the Kalex Acquisition amortized over the term of
the related debt.
(4) Adjustment reflects the purchase price of Kalex in excess of the net
book value of net assets acquired less the write-off of acquired
in-process research and development. The purchase price has been
preliminarily allocated based on an appraisal of the acquired
intangibles as follows:
<TABLE>
<S> <C>
Customer list.............................................................. $ 66,000
Developed technologies..................................................... 20,400
Assembled workforce........................................................ 3,000
Goodwill................................................................... 73,392
---------
162,792
Acquired in-process R&D.................................................... 17,600
Net book value of assets acquired (at June 30, 1999)....................... 129,132
---------
$ 309,524
=========
</TABLE>
(5) Adjustments reflect the impact on debt as a result of financing related
to the acquisition of Kalex:
<TABLE>
<S> <C>
New Tranche C Loan......................................................... $ 291,000
Less:
Repayment of US Revolving Loan............................................. (70,000)
Repayment of Kalex debt - long-term portion................................ (3,242)
Chips Term Loan - cash collateral.......................................... (89,875)
---------
$ 127,883
=========
Repayment of Chips Term Loans.............................................. $ (10,125)
Repayment of Kalex debt - current portion.................................. (16,461)
---------
$ (26,586)
=========
</TABLE>
(6) Adjustment reflects the purchase accounting adjustment to eliminate
intercompany balances with non-Kalex entities.
(7) Adjustment reflects:
<TABLE>
<S> <C>
Capital contribution related to the acquisition of Kalex................... $ 200,000
Transaction costs related to capital contributions......................... (1,900)
---------
Net equity contribution.................................................... 198,100
Less:
Purchase accounting adjustment to eliminate the historical stockholders'
equity of Kalex....................................................... (147,462)
Record write-off of in-process research and development.................... (17,600)
---------
Net adjustment to stockholders' equity................................ $ 33,038
=========
</TABLE>
<PAGE> 32
VIASYSTEMS, INC. & SUBSIDIARIES
UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1998
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
Viasystems, Historical
Inc. Kalex Combined(1) Adjustments Pro Forma
----------- --------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Net sales ............................. $ 1,031,928 $ 173,104 $ 1,205,032 $ -- $ 1,205,032
Cost of goods sold .................... 723,741 110,562 834,303 -- 834,303
Selling, general and administrative
expenses ........................... 106,749 16,721 123,470 -- 123,470
Depreciation and amortization ......... 166,606 10,457 177,063 31,477 (2) 208,540
Write-off of acquired in-process
research and development .............. 20,100 -- 20,100 -- (3) 20,100
----------- --------- ----------- -------- -----------
Operating income ...................... 14,732 35,364 50,096 (31,477) 18,619
Interest expense, net ................. 92,535 2,349 94,884 13,728 (4) 108,612
Amortization of deferred
financing costs .................... 9,354 -- 9,354 2,068 (5) 11,422
Other expense (income) ................ 4,960 (2,529) 2,431 -- 2,431
----------- --------- ----------- -------- -----------
Income (loss) before income taxes ..... (92,117) 35,544 (56,573) (47,273) (103,846)
Provision (benefit) for income taxes... (7,334) 3,973 (3,361) (5,220)(6) (8,581)
----------- --------- ----------- -------- -----------
Net loss ......................... $ (84,783) $ 31,571 $ (53,212) $(42,053) $ (95,265)
=========== ========= =========== ======== ===========
</TABLE>
See accompanying notes to Unaudited Pro Forma Statement of Operations.
<PAGE> 33
VIASYSTEMS, INC. & SUBSIDIARIES
NOTES TO UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1998
(DOLLARS IN THOUSANDS)
(1) The historical combined Statement of Operations of Viasystems, Inc. for
the year ended December 31, 1998 has been derived from the audited
historical Statement of Operations of Viasystems, Inc. for the year
ended December 31, 1998 as filed on Form 10-K on March 30, 1999, and
the audited historical Statement of Operations of Kalex for the year
ended March 31, 1999, included elsewhere herein.
(2) Adjustment reflects the full year effect of the amortization of the
acquired intangibles and goodwill related to the Kalex Acquisition.
Amortization is computed using systematic methods over the estimated
useful lives ranging from 1 - 20 years.
(3) The Unaudited Pro Forma Statement of Operations does not reflect the
non-recurring charge of $17,600 for the write-off of acquired
in-process research and development related to the acquisition of
Kalex.
(4) Adjustment reflects the net impact to interest expense of the following
borrowings as if the Kalex Acquisition had been consummated as of the
beginning of the period.
<TABLE>
<S> <C>
New Tranche C Loan - $291,000 at 9.2%........................................... $ 26,771
Interest income of cash collateral account -- $89,900 at 4.5%................... (4,044)
US Revolver - paydown $70,000 at 8.3%........................................... (5,810)
Chips Term Loan - paydown $10,125 at 8.3%....................................... (840)
---------
16,077
Elimination of Kalex historical interest....................................... (2,349)
---------
$ 13,728
=========
</TABLE>
(5) Adjustment reflects the amortization of deferred financing costs
associated with the Kalex Acquisition as if the acquisition had been
consummated at the beginning of the period. These costs are amortized
over the term of the related debt using the straight-line method, which
approximates the effective interest method.
(6) Adjustments reflect the pro forma tax effect of the adjustments
described above.
<PAGE> 34
VIASYSTEMS, INC. & SUBSIDIARIES
UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
FOR THE SIX MONTHS ENDED JUNE 30, 1999
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
Viasystems, Historical
Inc. Kalex Combined(1) Adjustments Pro Forma
----------- --------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Net sales .............................. $ 520,385 $ 86,036 $ 606,421 $ -- $ 606,421
Cost of goods sold ..................... 382,412 54,571 436,983 -- 436,983
Selling, general and administrative
expenses ............................ 49,037 8,127 57,164 -- 57,164
Depreciation and amortization .......... 72,367 5,165 77,532 15,738 (2) 93,270
Write-off of acquired in-process
research and development ............ -- -- -- -- (3) --
----------- --------- ----------- -------- -----------
Operating income (loss) ................ 16,569 18,173 34,742 (15,738) 19,004
Interest expense, net .................. 49,255 866 50,121 7,173 (4) 57,294
Amortization of deferred
financing costs ..................... 4,915 -- 4,915 1,034 (5) 5,949
Other expense (income) ................. 1,566 (2,315) (749) -- (749)
----------- --------- ----------- -------- -----------
Income (loss) before income taxes
and cumulative effect of a change
in accounting principle ............. (39,167) 19,622 (19,545) (23,945) (43,490)
Provision (benefit) for income
taxes ............................... (11,028) 1,672 (9,356) (2,709)(6) (12,065)
----------- --------- ----------- -------- -----------
Income (loss) before cumulative
effect of a change in accounting
principle ........................... $ (28,139) $ 17,950 $ (10,189) $(21,236) $ (31,425)
=========== ========= =========== ======== ===========
</TABLE>
See accompanying notes to Unaudited Pro Forma Statement of Operations.
<PAGE> 35
VIASYSTEMS, INC. & SUBSIDIARIES
NOTES TO UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
FOR THE SIX MONTHS ENDED JUNE 30, 1999
(DOLLARS IN THOUSANDS)
(1) The historical combined Statement of Operations of Viasystems, Inc. for
the six months ended June 30, 1999, was derived from the unaudited
interim consolidated Statement of Operations of Viasystems, Inc. for
the six months ended June 30, 1999, and Kalex for the six months ended
March 31, 1999.
(2) Adjustment reflects the full year effect of the amortization of the
acquired intangibles and goodwill related to the Kalex Acquisition.
Amortization is computed using systematic methods over the estimated
useful lives ranging from 1 - 20 years.
(3) The Unaudited Pro Forma Statement of Operations does not reflect the
non-recurring charge of $17,600 for the write-off of acquired
in-process research and development related to the acquisition of
Kalex.
(4) Adjustment reflects the net impact to interest expense of the following
borrowings as if the Kalex Acquisition had been consummated as of the
beginning of the period.
<TABLE>
<S> <C>
New Tranche C Loan - $291,000 at 9.2%.......................................... $ 13,386
Interest income of cash collateral account -- $89,900 at 4.5%.................. (2,022)
US Revolver - paydown $70,000 at 8.3%.......................................... (2,905)
Chips Term Loan - paydown $10,125 at 8.3%...................................... (420)
---------
8,039
Elimination of Kalex historical interest....................................... (866)
---------
$ 7,173
=========
</TABLE>
(5) Adjustment reflects the amortization of deferred financing costs
associated with the Kalex Acquisition as if the acquisition had been
consummated at the beginning of the period. These costs are amortized
over the term of the related debt using the straight-line method, which
approximates the effective interest method.
(6) Adjustments reflect the pro forma tax effect of the adjustments
described above.
<PAGE> 36
(c) Exhibits.
Exhibit Number Description
2.8 - Share Purchase Agreement, dated as of August 1, 1999, among
Termbray Electronics (B.V.I.) Limited, Termbray Industries
International (Holdings) Limited, Viasystems Canada, Inc.,
and Viasystems Group, Inc.*
4.11 - Third Amended and Restated Credit Agreement, dated as of
August 5, 1999, among Viasystems Group, Inc., Viasystems,
Inc., Viasystems Canada, Inc. (f/k/a Circo Craft Co. Inc.),
PCB Investments Plc, Viasystems Holdings Limited (f/k/a
Forward Group Plc), Chips Acquisition Limited, Print
Service Holding N.V., Viasystems II Limited (f/k/a
Interconnection Systems (Holdings) Limited); and The Chase
Manhattan Bank of Canada, Chase Manhattan International
Limited and The Chase Manhattan Bank.*
99.1 - Press Release, dated as of August 3, 1999. (Incorporated by
reference to exhibit 99.1 to the Form 8-K filed by the
Company on August 19, 1999.)
- ------------
* Filed herewith.
<PAGE> 37
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
VIASYSTEMS, INC.
Dated: October 14, 1999 By: /s/ DAVID M. SINDELAR
-------------------------------
David M. Sindelar
Senior Vice President and Chief
Financial Officer
By: /s/ JOSEPH S. CATANZARO
-------------------------------
Joseph S. Catanzaro
Chief Accounting Officer
<PAGE> 38
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
<S> <C>
2.8 - Share Purchase Agreement, dated as of August 1, 1999, among
Termbray Electronics (B.V.I.) Limited, Termbray Industries
International (Holdings) Limited, Viasystems Canada, Inc.,
and Viasystems Group, Inc.*
4.11 - Third Amended and Restated Credit Agreement, dated as of
August 5, 1999, among Viasystems Group, Inc., Viasystems,
Inc., Viasystems Canada, Inc. (f/k/a Circo Craft Co. Inc.),
PCB Investments Plc, Viasystems Holdings Limited (f/k/a
Forward Group Plc), Chips Acquisition Limited, Print
Service Holding N.V., Viasystems II Limited (f/k/a
Interconnection Systems (Holdings) Limited); and The Chase
Manhattan Bank of Canada, Chase Manhattan International
Limited and The Chase Manhattan Bank.*
99.1 - Press Release, dated as of August 3, 1999. (Incorporated by
reference to exhibit 99.1 to the Form 8-K filed by the
Company on August 19, 1999.)
</TABLE>
- ------------
* Filed herewith.
<PAGE> 1
EXHIBIT 2.8
Dated 1 August 1999
TERMBRAY ELECTRONICS (B.V.I.) LIMITED
and
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS)
LIMITED
and
VIASYSTEMS CANADA, INC.
and
VIASYSTEMS GROUP, INC.
SHARE PURCHASE AGREEMENT
relating to the sale and purchase
of the whole of the issued share capital of
KALEX PRINTED CIRCUIT BOARD LIMITED
LEE LAP & SONS LIMITED
KALEX CIRCUIT BOARD (CHINA) LIMITED
TERMBRAY LAMINATE COMPANY LIMITED
TERMBRAY PROPERTY (B.V.I.) LIMITED
KALEX CIRCUIT BOARD (HONG KONG) LIMITED
KALEX PRINTED CIRCUIT BOARD (S) PTE LTD
- and -
TERMBRAY CIRCUIT BOARD COMPANY LIMITED
LINKLATERS
10th Floor, Alexandra House
16-20 Chater Road
Hong Kong
Tel: (852) 2842 4888
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
CONTENTS PAGE
<S> <C>
1 Interpretation.......................................................................................1
2 Agreement to Sell the Shares.........................................................................5
3 Consideration........................................................................................6
4 Completion...........................................................................................7
5 Warranties...........................................................................................8
6 Vendor's Financial Standing..........................................................................9
7 Restrictions on the Guarantor and the Vendor........................................................10
8 Other Provisions....................................................................................11
Schedule 1...................................................................................................20
Schedule 2 Completion Obligations............................................................................34
Schedule 3 Warranties given by the Vendor and the Guarantor under Clause 5...................................36
Schedule 4 Properties........................................................................................51
Schedule 5 Consultancy Services Agreement....................................................................53
Appendix 1 Certificate of Approval...........................................................................56
Appendix 2 Net Intra-Group Indebtedness......................................................................57
</TABLE>
<PAGE> 3
THIS AGREEMENT is made on 1 August 1999
BETWEEN:
(1) TERMBRAY ELECTRONICS (B.V.I.) LIMITED, a company incorporated in the
British Virgin Islands and having its registered office at PO Box 71,
Craigmuir Chambers, Road Town, Tortola, British Virgin Islands (the
"VENDOR");
(2) TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED, a company
incorporated in Bermuda and having its registered office at Clarendon
House, Church Street, Hamilton HM11, Bermuda (the "GUARANTOR");
(3) VIASYSTEMS CANADA, INC. whose principal office is at 205 Brunswick
Boulevard, Point-Claire, Quebec, H9R 1A5, Canada (the "PURCHASER"); and
(4) VIASYSTEMS GROUP, INC. whose principal office is at 101 South Hanley Road,
St. Louis, Missouri, MO 63105, USA (the "PURCHASER'S GUARANTOR").
IT IS AGREED as follows:
1 INTERPRETATION
In this Agreement the headings shall not affect its interpretation and,
unless the context otherwise requires, the provisions in this Clause 1
apply:
1.1 DEFINITIONS
"AGREED TERMS" means, in relation to a document, such document in the
terms agreed between the parties and signed for identification by the
Purchaser's Solicitors and the Vendor's Solicitors;
"ACCOUNTS" means (a) the audited accounts of each of the Group Companies
and Subsidiaries (except the PRC Subsidiaries and KPCB(S)), (b) the
unaudited accounts of the PRC Subsidiaries, (c) the audited accounts of
KCB(China) and LL&S (in each case, incorporating the revenue and
expenditure, assets and liabilities relating to the operations conducted at
Zhongshan) and (d) the unaudited combined group accounts of the Group, in
each case for the three financial periods ended on the Balance Sheet Date
and including balance sheets, profit and loss statements, retained earnings
statements and, where applicable, cash flow statements for each Group
Company;
"AUDITORS" means up to 30 March 1997, Kwan Wong Tang & Fong and thereafter,
Deloitte Touche Tohmatsu;
"BALANCE SHEET DATE" means 31 March 1999;
"BORROWED MONEY" comprises (without duplication) any Indebtedness (a) for
or in respect of money borrowed or raised (whether or not for cash), by
whatever means (including acceptances, deposits, discounting, factoring,
finance leases, hire purchase, sale-and-lease back, sale-and-repurchase and
any form of off-balance sheet financing), or evidenced by a note, bond,
debenture, bill of exchange, trust receipt or similar instrument, (b) for
or in respect of interest rate, commodity or currency futures, interest
rate options, interest rate caps or other interest rate, commodity or
currency hedge arrangements, and (c) for the deferred purchase price of
assets or services (other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices and accrued expenses incurred in the ordinary course of
business);
<PAGE> 4
"BORROWINGS" means, on any particular date, the aggregate outstanding principal,
capital or nominal amount of the Indebtedness (including any fixed or minimum
premium payable on redemption or repayment on that date) of members of the Group
for or in respect of Borrowed Money;
"BUSINESS DAY" means a day on which banks are open for business in Hong Kong
(excluding Saturdays, Sundays and public holidays);
"CASH" means the book cash balance as reflected in the accounting records for
cash in hand, savings accounts, current accounts, time deposits, margin deposits
and other deposits with any bank or financial institution less US$4 million;
"COMPLETION" means the completion of the sale and purchase of the Shares
pursuant to Clause 4;
"CONSULTANCY SERVICES AGREEMENT" means the consultancy services agreement
substantially in the form set out in Schedule 5 to be entered into at
Completion;
"DEFERRED SHARES" means the LL&S Deferred Shares and the KCB(China) Deferred
Shares;
"DISCLOSURE LETTER" means the letter of even date with this Agreement from the
Vendor to the Purchaser disclosing:
(i) information constituting exceptions and qualifications to the
Warranties; and
(ii) details of other matters referred to in this Agreement;
"ENCUMBRANCE" means any claim, charge, mortgage, security, lien, option, equity,
power of sale or hypothecation or other third party rights, retention of title,
right of pre-emption, right of first refusal or security interest of any kind;
"EQUIPMENT" means the equipment located at Guangzhou detailed in the schedule of
equipment in the agreed terms;
"GROUP" or "GROUP COMPANIES" means KPCB, LL&S, KCB(China), TLC, TP(BVI),
KCB(HK), KPCB(S), TCBC and their Subsidiaries and "GROUP COMPANY" means any one
of them;
"GUARANTEE" also includes an indemnity, and any other obligation (whatever
called) of any Group Company to pay, purchase, provide funds (whether by the
advance of money, the purchase of or subscription for shares or other
securities, the purchase of assets or services, or otherwise) for the payment
of, indemnify against the consequences of default in the payment of, or
otherwise be responsible for, any liability or obligation of any other person;
"HK$" means Hong Kong dollars, the lawful currency of Hong Kong;
"HONG KONG" means the Hong Kong Special Administrative Region of the PRC;
"INDEBTEDNESS" includes, with respect to any Group Company (the "RELEVANT GROUP
COMPANY"), any obligation (whether present or future, actual or contingent,
secured or unsecured, as principal, surety or otherwise) (a) of the Relevant
Group Company for the payment or repayment of money or (b) of any other person
for the payment or repayment of money secured by Security on assets of the
Relevant Group Company, whether or not the Relevant Group Company is liable in
respect of any obligation so secured but excludes any obligations owed to any
other Group Company and also excludes any Shareholder Loans;
"INFORMATION TECHNOLOGY" means all computer systems, communications systems,
software and hardware owned, used or licensed by or to any Group Company;
-2-
<PAGE> 5
"INTELLECTUAL PROPERTY" means trade marks, service marks, trade names, logos,
get-up, patents, inventions, registered and unregistered design rights,
copyrights, semi-conductor topography rights, database rights and all similar
proprietary rights which may subsist in any part of the world (including
know-how) including, where such rights are obtained or enhanced by registration,
any registration of such rights and applications and rights to apply for such
registrations;
"INTRA-GROUP INDEBTEDNESS" means any liability or obligation (whether present or
future, actual or contingent, secured or unsecured, as principal, surety or
otherwise) of the Vendor, the Guarantor or any of their respective subsidiaries
or any other entity controlled directly or indirectly by Lee Lap (other than of
a Group Company) owed or owing to any Group Company;
"KCB(CHINA)" means Kalex Circuit Board (China) Limited, a wholly-owned
subsidiary of the Vendor, incorporated in Hong Kong;
"KCB(CHINA) DEFERRED SHARES" means the 50,000 non-voting deferred shares of
HK$100.00 each in the share capital of KCB(China);
"KCB(CHINA) SHARES" means the two ordinary shares of HK$100.00 each comprising
the entire issued ordinary share capital of KCB(China);
"KCB(HK)" means Kalex Circuit Board (Hong Kong) Limited, a wholly-owned
subsidiary of the Vendor, incorporated in Hong Kong;
"KCB(HK) SHARES" means the 1,000,000 ordinary shares of HK$10.00 each,
comprising the entire issued ordinary share capital of KCB(HK);
"KPCB" means Kalex Printed Circuit Board Limited, a wholly-owned subsidiary of
the Vendor, incorporated in Hong Kong;
"KPCB SHARES" means the 10,000 ordinary shares of HK$1.00 each, comprising the
entire issued share capital of KPCB;
"KPCB(S)" means Kalex Printed Circuit Board (S) Pte Ltd, a wholly owned
subsidiary of the Vendor, incorporated in Singapore;
"KPCB(S) SHARES" means the 2 ordinary shares of S$1.00 each , comprising the
entire issued share capital of the KPCB(S);
"LL&S" means Lee Lap & Sons Limited, a wholly-owned subsidiary of the Vendor,
incorporated in Hong Kong;
"LL&S DEFERRED SHARES" means the 2 non-voting deferred shares of HK$1.00 each in
the share capital of LL&S;
"LL&S SHARES" means the two ordinary shares of HK$1.00 each, comprising the
entire issued ordinary share capital of LL&S;
"LOSSES" means all losses, liabilities, costs (including, without limitation,
legal costs), charges, expenses, actions, proceedings, claims and demands;
"MATERIAL CONTRACTS" means those contracts listed in the Disclosure Letter;
"PRC" means the People's Republic of China;
"PRC SUBSIDIARIES" means Guangzhou Termbray Electronics Technology Co. Ltd.,
Guangzhou Termbray Circuit Board Company Limited and Guangzhou Kalex Laminate
Company Limited, details of which are contained in Part 3 of Schedule 1;
-3-
<PAGE> 6
"PROPERTIES" means the properties brief details of which are set out in Parts 1
and 2 of Schedule 4 and includes each and every part of them and "PROPERTY"
means any one of them;
"PROVIDENT FUND" means Termbray's Electronics Co. Ltd. provident fund, forming
part of the National Mutual Central Provident Fund, as in force at the date of
this Agreement details of which are set out in the Disclosure Letter;
"PURCHASER'S SOLICITORS" means Linklaters of 10th Floor, Alexandra House, Chater
Road, Central, Hong Kong;
"SALE SHARES" means the KPCB Shares, the LL&S Shares, the KCB(China) Shares, the
TLC Shares, the TP(BVI) Shares, the KCB(HK) Shares, the KPCB(S) Shares and the
TCBC Shares;
"SECURITY" includes any mortgage, pledge, lien, hypothecation, security interest
or other charge or encumbrance and any other agreement or arrangement having
substantially the same economic effect (and "SECURED" shall be construed
accordingly);
"SHAREHOLDER LOANS" means any liability or obligation (whether present or
future, actual or contingent, secured or unsecured, as principal, surety or
otherwise) of any Group Company owed or owing to the Vendor, the Guarantor or
any of their respective subsidiaries or any other entity controlled directly or
indirectly by Lee Lap (other than to a Group Company);
"SINGAPORE" means the Republic of Singapore;
"SUBSIDIARIES" means the subsidiaries of the Group Companies details of which
are contained in Part 3 of Schedule 1;
"TAXATION CLAIM" bears the meaning given to it in the Tax Deed of Indemnity;
"TAX DEED OF INDEMNITY" means the deed of indemnity against Taxation in the
agreed terms to be entered into at Completion;
"TAXATION" and "TRANSACTION" bear the meanings respectively given to them in the
Tax Deed of Indemnity;
"TCBC" means Termbray Circuit Board Company Limited, a wholly-owned subsidiary
of the Vendor, incorporated in Hong Kong;
"TCBC SHARES" means the two ordinary shares of HK$1.00 each, comprising the
entire issued share capital of TCBC;
"TLC" means Termbray Laminate Company Limited, a wholly-owned subsidiary of the
Vendor, incorporated in Hong Kong;
"TLC SHARES" means the 10,000 ordinary shares of HK$1.00 each, comprising the
entire issued share capital of TLC;
"TP(BVI)" means Termbray Property (B.V.I.) Limited, a wholly-owned subsidiary of
the Vendor, incorporated in the British Virgin Islands;
"TP(BVI) SHARES" means the one ordinary share of US$1.00, comprising the entire
issued share capital of TP(BVI);
"VENDOR'S SOLICITORS" means Woo, Kwan, Lee & Lo of 27th Floor, Jardine House, 1
Connaught Place, Hong Kong;
-4-
<PAGE> 7
"WARRANTIES" means the warranties and representations set out in Schedule 3
and "WARRANTY" means any one of them;
1.2 SUBORDINATE LEGISLATION
References to a statutory provision include any subordinate legislation
made from time to time under that provision;
1.3 MODIFICATION ETC. OF STATUTES
References to a statute or statutory provision include that statute or
provision as from time to time modified or re-enacted or consolidated
whether before or after the date of this Agreement so far as such
modification or re-enactment or consolidation applies or is capable of
applying to any transactions entered into in accordance with this
Agreement prior to Completion and (so far as liability thereunder may
exist or can arise) shall include also any past statutory provision (as
from time to time modified or re-enacted or consolidated) which such
provision has directly or indirectly replaced;
1.4 ACCOUNTS
Any reference to "AUDITED ACCOUNTS" shall include the directors' and
auditors' reports, relevant balance sheets and profit and loss accounts
and related notes together with all documents which are or would be
required by law to be annexed to the accounts of the company concerned to
be laid before that company in general meeting in respect of the
accounting reference period in question;
1.5 COMPANIES ORDINANCE, CHAPTER 32
The words "HOLDING COMPANY" and "SUBSIDIARY" shall have the same meanings
in this Agreement as their respective definitions in the Companies
Ordinance (Chapter 32 of the Laws of Hong Kong) (as amended from time to
time);
1.6 CLAUSES, SCHEDULES ETC.
References to this Agreement include any Schedules to it and references to
Clauses and Schedules are to Clauses of and Schedules to this Agreement;
1.7 INFORMATION
Any reference to books, records or other information means books, records
or other information in any form including paper, electronically stored
data, magnetic media, film and microfilm; and
1.8 HEADINGS
Headings shall be ignored in construing this Agreement.
2 AGREEMENT TO SELL THE SHARES
2.1 SALE OF SHARES
The Vendor shall sell or procure to be sold and the Purchaser, relying on
(amongst other things) the several representations, warranties and
undertakings contained in this Agreement, shall purchase the Sale Shares
and the Deferred Shares, in each case free from all Encumbrances and
together with all rights and advantages now and hereafter attaching
thereto.
-5-
<PAGE> 8
2.2 RIGHTS OF PRE-EMPTION
The Vendor hereby waives irrevocably, or shall procure the irrevocable
waiver of, any and all rights of pre-emption over the Sale Shares and the
Deferred Shares conferred either by the Articles of Association or other
equivalent document of the relevant Group Company or in any other way.
3 CONSIDERATION
3.1 AMOUNT The total aggregate amount of consideration for the purchase of the
Sale Shares, the Deferred Shares and the Equipment shall be the sum of
US$325 million plus all Cash of the Group Companies as at Completion less
the amount of any Borrowings as at Completion.
3.2 DETERMINATION OF NET INTRA-GROUP INDEBTEDNESS
Appendix 2 sets out the net intra-group indebtedness of the Group
(representing total Intra-Group Indebtedness minus Shareholder Loans) to
the best of the knowledge and belief of the Vendor and the Guarantor. The
Vendor and the Guarantor shall procure that all Shareholder Loans and
Intra-Group Indebtedness are discharged at Completion.
3.3 DETERMINATION OF BORROWINGS AND CASH
3.3.1 The Vendor's estimate of Borrowings and Cash to be used for the
purpose of the determination of the purchase price under Clause
3.1 is detailed in the schedule of net Indebtedness in the
agreed terms.
3.3.2 The Vendor and the Guarantor shall use all reasonable
endeavours to deliver to the Purchaser by 5 p.m. (Hong Kong
time) on the day prior to Completion pay-off letters from each
of the banks and financial institutions to which Borrowings are
owed or owing. Such pay-off letters shall set out the relevant
bank's best estimate of the total Borrowings owed or owing at
Completion. For the purposes of the determination of the
purchase price under Clause 3.1, the estimate of Borrowings
detailed in the schedule of net Indebtedness in the agreed terms
shall be adjusted to reflect the totals set out in the pay-off
letters.
3.3.3 The Vendor and the Guarantor shall use all reasonable endeavours
to deliver to the Purchaser by 5 p.m. (Hong Kong time) on the
day prior to Completion account balance letters from each of the
banks and financial institutions with which the Group holds
Cash. Such account balance letters shall set out the total Cash
of the Group with that bank or financial institution and shall
separately identify the amount of any deposits which are not
repayable on demand. For the purposes of the determination of
the purchase price under Clause 3.1, the estimate of Cash
detailed in the schedule of net Indebtedness in the agreed terms
shall be adjusted to reflect the totals set out in the account
balance letters.
3.3.4 The parties shall within 60 days after Completion jointly
determine the amount of net Indebtedness (representing
Borrowings minus Cash) as at Completion. If such amount is
higher than such amounts as reflected in the schedule of net
Indebtedness in the agreed terms (as adjusted by the pay-off
letters referred to in Clause 3.3.2 and the account balance
letters referred to in Clause 3.3.3), the Vendor, failing whom
the Guarantor, shall within five Business Days of the joint
determination, pay the amount of such difference in US dollars
to such account as may be specified in the notice served by the
Purchaser. If such amount is lower than such amount as reflected
in the
-6-
<PAGE> 9
schedule of net Indebtedness in the agreed terms (as adjusted by
the pay-off letters referred to in Clause 3.3.2 and the account
balance letters referred to in Clause 3.3.3), the Purchaser,
failing whom the Purchaser's Guarantor, shall within five
Business Days of the joint determination, pay the amount of such
difference in US dollars to the account specified in Clause 3.4
below.
3.4 METHOD OF PAYMENT
The Purchaser, failing whom the Purchaser's Guarantor, shall pay the total
aggregate amount of consideration in US dollars on Completion, which shall
take place in accordance with Clause 4 below in immediately cleared funds,
by telegraphic transfer to the following account (such payment
constituting good discharge) or by such other method as the parties may
agree.
Bank : The Hongkong and Shanghai Banking
Corporation Limited
Bank address : Texaco Road Office, 60
Texaco Road, Tsuen Wan, New
Territories, Hong Kong
Beneficiary : Termbray Electronics Company
Limited
Beneficiary Address : Termbray Industrial
Building 18-22 Lam Tin Street, Kwai
Chung New Territories, Hong Kong
Account No. : 004-195-0-800951
Account type : USD saving
The parties agree that the Purchaser shall deduct from its payment of
the total aggregate amount of consideration an amount equal to the net
intra-group indebtedness of the Group referred to in Clause 3.2. The
Purchaser agrees, and shall procure that the relevant Group Companies
agree, that such deduction shall constitute good discharge of the
Intra-Group Indebtedness owed or owing as at Completion. The Vendor
and the Guarantor each agree, and shall procure that their respective
subsidiaries and any other entity controlled directly or indirectly by
Lee Lap agree, that the netting-off against the Intra-Group
Indebtedness through such deduction shall constitute good discharge of
the Shareholder Loans owed or owing as at Completion.
4 COMPLETION
4.1 DATE AND PLACE
Completion shall take place at the offices of the Purchaser's Solicitors as
soon as practicable after the date of this Agreement on a date to be agreed
between the parties (and, in any event, no later than 6 August 1999) or at
such other place or at such other time as may be agreed between the
Purchaser and the Vendor.
4.2 OBLIGATIONS ON COMPLETION
4.2.1 On Completion the Guarantor and the Vendor shall jointly and
severally procure that the obligations specified in Part A of
Schedule 2 are fulfilled.
4.2.2 On Completion, in addition to its obligation under Clause 4.3,
the Purchaser shall procure that the obligations specified in
Part B of Schedule 2 are fulfilled.
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4.3 PAYMENT OF PRICE
Against compliance with the foregoing provisions the Purchaser shall
satisfy the purchase consideration in the manner specified in Clause 3.4.
4.4 RIGHT TO TERMINATE
If the foregoing provisions of this Clause are not fully complied with by
the Guarantor and the Vendor by or on the date set for Completion (other
than due to the default of the Purchaser), the Purchaser shall be entitled
(in addition to and without prejudice to all other rights or remedies
available to it including the right to claim damages) by written notice to
the Vendor served on such date:
4.4.1 to elect to terminate this Agreement without liability on the
part of the Purchaser; or
4.4.2 to effect Completion so far as practicable having regard to the
defaults which have occurred; or
4.4.3 to fix a new date for Completion (not being more than 20
Business Days after the agreed date for Completion) in which
case the foregoing provisions of this Clause 4.4 shall apply to
Completion as so deferred but provided such deferral may only
occur once.
5 WARRANTIES
5.1 INCORPORATION OF SCHEDULE 3
5.1.1 The Guarantor and the Vendor jointly and severally warrant and
represent to the Purchaser and its successors in title in the
terms set out in Schedule 3 subject only to:
(i) any matter which is fairly disclosed in the Disclosure
Letter and any matter expressly provided for under the
terms of this Agreement;
(ii) any matter or thing hereafter done or omitted to be done
pursuant to this Agreement or otherwise at the request in
writing or with the approval in writing of the Purchaser;
and
(iii) any circumstance whereby any of the Group Companies,
Yongning Termbray Circuit Boards Factory or Zhongshan Kalex
Circuit Boards Factory is liable or sought to be made
liable for any social security payments (statutory pension
insurance, statutory medical insurance, statutory
unemployment insurance, housing contributions and other
applicable statutory benefits) or individual income tax
levied in the PRC in consequence of any event occurring on
or before Completion.
5.1.2 The Guarantor and the Vendor each acknowledge that the Purchaser
has entered into this Agreement in reliance upon, amongst other
things, the Warranties and on the undertakings contained in
Clauses 6, 7 and 8. Save as expressly otherwise provided, the
Warranties shall be separate and independent.
5.2 UPDATING TO COMPLETION
The Guarantor and the Vendor each further jointly and severally warrant to
the Purchaser and its successors in title that in the event Completion is
for any reason delayed:
5.2.1 subject to Clause 5.1, the Warranties will be fulfilled down to
and will be true and accurate in all respects and not misleading
in any respect at Completion as if they had been given again at
Completion; and
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5.2.2 if after the signing of this Agreement and before Completion any
event shall occur or matter arises which results or may result
in any of the Warranties being unfulfilled, untrue, misleading
or incorrect in any respect at Completion the Vendor shall
immediately notify the Purchaser in writing fully thereof prior
to Completion and the Vendor (at its own cost) shall make any
investigation concerning the event or matter which the Purchaser
may require.
5.3 EFFECT OF COMPLETION
The Warranties and all other provisions of this Agreement and the Tax Deed
of Indemnity insofar as the same shall not have been performed at
Completion shall not be extinguished or affected by Completion, or by any
other event or matter whatsoever, except as expressly provided in this
Agreement or in the Tax Deed of Indemnity or by a specific and duly
authorised written waiver or release by the Purchaser.
5.4 RIGHT OF TERMINATION
In the event Completion is for any reason delayed and if prior to
Completion it shall be found that any of the Warranties was, when given, or
will be or would be, at Completion (as if they had been given again at
Completion) not complied with or otherwise untrue or misleading the
Purchaser shall be entitled (in addition to and without prejudice to all
other rights or remedies available to it and its successors in title
including the right to claim damages) by notice in writing to the Vendor to
terminate this Agreement but failure to exercise this right shall not
constitute a waiver of any other rights of the Purchaser or its successors
in title arising out of any breach of Warranty.
5.5 INFORMATION FROM GROUP COMPANIES
Each of the Guarantor and the Vendor agrees with the Purchaser (for itself
and as trustee for each Group Company and their respective officers,
employees and agents) to assign to the Purchaser any rights, remedies or
claims which they may have in respect of any misrepresentation, inaccuracy
or omission in or from any information or advice supplied or given by any
Group Company or its respective officers, employees or agents in connection
with assisting the Vendor in the making of any representation and the
giving of the Warranties or the preparation of the Disclosure Letter and
the Tax Deed of Indemnity.
5.6 LIMITATIONS
Notwithstanding anything contained in this Agreement or in the Tax Deed of
Indemnity:
5.6.1 Any claims in respect of the Warranties made by the Purchaser
(the "Warranty Claims") shall be brought or notified to the
Vendor and the Guarantor within a period of 18 months following
Completion.
5.6.2 The provisions of Clause 3 of the Tax Deed of Indemnity shall
apply to any Warranty Claims.
6 VENDOR'S FINANCIAL STANDING
6.1 NET ASSET VALUE UNDERTAKING
The Guarantor undertakes to the Purchaser that it will maintain a
consolidated net asset value (the "GUARANTOR'S NAV") of not less than
US$100 million for a period of 18 months after Completion.
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6.2 RESTRICTIONS ON THE GUARANTOR
The Guarantor covenants to the Purchaser that it will not make any capital
or income distributions or enter into any intra-group transactions or other
transactions other than in the ordinary course of business if and to the
extent that as a result of such distributions or transactions, the
Guarantor would be in breach of Clause 6.1.
6.3 CONSEQUENCES OF BREACH
If the Guarantor breaches the provisions of Clause 6.1, the Guarantor shall
notify the Purchaser of such breach shall pay or procure payment into an
interest bearing escrow account, operated by a stakeholder acting jointly
for the Purchaser and the Guarantor, of an amount equal to the shortfall in
the Guarantor's NAV. To the extent that any such shortfall shall increase,
an amount equal to the increased amount of such shortfall shall be paid
into such escrow account in accordance with this Clause 6.3.
6.4 ESCROW ACCOUNT
Any amounts paid into an escrow account in accordance with Clause 6.3 shall
remain in the escrow account until the satisfaction of any Warranty Claim
or Tax Claim brought within the period of 18 months following Completion or
the date falling 18 months from the date of Completion, whichever is later,
after which date, any amount paid into such escrow account (subject to any
reduction to satisfy any Warranty Claim or Tax Claim) shall be returned to
the Guarantor.
7 RESTRICTIONS ON THE GUARANTOR AND THE VENDOR
7.1 NOTIFICATIONS
The Guarantor and the Vendor agree to provide the Purchaser with details of
any dividends or other distributions to be made by either the Guarantor or
the Vendor at any time during the period of 18 months following Completion.
The Guarantor shall ensure timely preparation of its audited annual
accounts and unaudited interim accounts during the period of 18 months
following Completion and shall, immediately following preparation (or,
while the Guarantor remains listed on The Stock Exchange of Hong Kong Ltd.,
publication), provide copies thereof to the Purchaser.
7.2 RESTRICTIONS
Each of the Guarantor and the Vendor undertakes with the Purchaser and its
successors in title as trustee for itself and the Group Companies that it
will not and will procure that all entities controlled by it will not
during the Restricted Period:
7.2.1 directly or indirectly, either in Hong Kong or PRC or elsewhere,
engage in any business which competes, directly or indirectly
with the business as now carried on by any Group Company (or as
part of the Zhongshan operations) and which is or is likely to
be in competition with the business of any Group Company as now
carried on; or
7.2.2 knowingly employ any person (other than Lee Lap, a member of Lee
Lap's family, Li Wai Kwong or Angela Chen) who is at the date of
this Agreement an officer or employee of any Group Company (or
is otherwise employed in the Zhongshan operations) as employee,
consultant or otherwise with any of the Guarantor, the Vendor or
any of their subsidiaries or fellow subsidiaries or holding
companies, or induce or seek to induce any such person to serve
as employee, consultant or otherwise with any other company or
business, whether or not such person would thereby commit any
breach of his current contract of service.
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7.3 EXCEPTIONS
7.3.1 The restrictions in Clause 7.2.2 shall not prevent:
(i) the provision by Mr Lee Lap or Li Wai Kwong to the
Purchaser of any consultancy services pursuant to the
Consultancy Services Agreement; or
(ii) the employment in whatever capacity of an officer or
employee of any Group Company who is after Completion
dismissed by that Group Company (other than for cause).
7.3.2 The restrictions in Clause 7.2 shall not restrict each of Mr
Wayne Lee and/or Mr Vincent Lee from directly or indirectly
holding or controlling 5% or less interests (which interests
shall not carry with them any voting rights or economic
interests which are not proportionate to his percentage
shareholding in the relevant company) of a company or entity
engaged in the printed circuit board industry and provided
further that nothing in Clause 7.2 shall restrict the leasing or
licensing of premises to a tenant or licensee engaged in the
printed circuit board industry where such leasing or licensing
is on usual commercial terms.
7.3.3 The restrictions in Clause 7.2.1 shall not restrict the
Guarantor, the Vendor, Lee Lap, Wayne Lee or Vincent Lee from
carrying on any laminate or prepreg manufacturing and sales
business or the manufacture and sale of machinery used in
printed circuit board manufacturing.
7.3.4 The restrictions in Clause 7.2.2 shall not restrict the
Guarantor, the Vendor, Lee Lap, Wayne Lee or Vincent Lee from
employing in aggregate up to 20 persons who are currently
employees of any Group Company, provided such persons are
unskilled operators and provided further that there has been no
solicitation of their employment.
7.4 REASONABLENESS OF RESTRICTIONS
The Guarantor and the Vendor each agree that they consider that the
restrictions contained in this Clause are no greater than is reasonable and
necessary for the protection of the interest of the Purchaser but if any
such restriction shall be held to be void but would be valid if deleted in
part or reduced in application, such restriction shall apply with such
deletion or modification as may be necessary to make it valid and
enforceable.
7.5 RESTRICTED PERIOD
For the purposes of this Clause 7, "Restricted Period" means the period of
two years commencing on Completion.
8 OTHER PROVISIONS
8.1 ANNOUNCEMENTS
No announcement or circular in connection with the existence or the subject
matter of this Agreement shall be made or issued by or on behalf of the
Guarantor, the Vendor (or any of their respective directors) or the
Purchaser without the prior written approval of the other parties hereto.
This shall not affect any announcement or circular required by law or any
regulatory body or the rules of any recognised stock exchange but the party
with an obligation to make an announcement or issue a circular shall
consult with the other parties insofar as is reasonably practicable before
complying with such an obligation.
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8.2 SUCCESSORS AND ASSIGNS
The Guarantor and the Vendor each agree that the benefit of every provision
in this Agreement is given to the Purchaser for itself and its successors
in title and assigns. Accordingly, the Purchaser (and its successors and
assigns) may, without the consent of the other parties, assign the benefit
of all or any of the other parties' obligations under this Agreement,
and/or any benefit arising under or out of this Agreement.
8.3 VARIATION
No variation of this Agreement shall be effective unless in writing and
signed by or on behalf of each of the parties to this Agreement.
8.4 TIME OF THE ESSENCE
Time shall be of the essence of this Agreement both as regards any dates
and periods mentioned and as regards any dates and periods which may be
substituted for them in accordance with this Agreement or by agreement in
writing between the parties.
8.5 FURTHER ASSURANCE
At any time after the date of this Agreement the Guarantor and the Vendor
shall each, and shall use their best endeavours to procure that any
necessary third party shall, execute such documents and do such acts and
things as the Purchaser may reasonably require for the purpose of giving to
the Purchaser the full benefit of all the provisions of this Agreement.
8.6 COSTS
The Guarantor and the Vendor shall together bear all costs incurred by them
and the Group in connection with the preparation, negotiation and entry
into of this Agreement (which for the avoidance of doubt shall exclude the
annual audit fees payable by the Group to the Auditors), the Tax Deed of
Indemnity and the sale of the Sale Shares. The Purchaser shall bear all
such costs incurred by it. The Vendor and the Purchaser shall each bear one
half of any Hong Kong stamp duty payable in respect of the sale and
purchase of the Sale Shares.
8.7 INDEMNITY
8.7.1 The Vendor and the Guarantor jointly and severally covenant,
agree and undertake to indemnify and keep indemnified the
Purchaser, for itself and as trustee for the Group Companies,
against any loss, claim, damage, liability, cost or expense
whatsoever suffered by the Group Companies (subject, in the case
of costs and expenses incurred after Completion, to such costs
and expenses being reasonable) resulting from or in connection
with:
(i) the litigation commenced in the High Court of Hong Kong
(action numbers: 99S03111, 99S03112 and 99S03113) in which
Kingboard Laminates Limited is named as plaintiff; and
(ii) the following proceedings in which various Group Companies
have been involved since 1980:
(a) Kalex Circuit Board Company Limited (now known as
Kalex Circuit Board (China) Limited) -v- Orient Finzel
Limited (commenced 3 August 1983);
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(b) Kalex Circuit Board Company Limited (now known as
Kalex Circuit Board (China) Limited) -v- Tai Ling
Weaving and Dyeing Factory Ltd (commenced 2 September
1983);
(c) Dielektra (Hongkong) Ltd -v- Kalex Circuit Board
Company Limited (now known as Kalex Circuit Board
(China) Limited) (commenced 17 April 1984);
(d) Kalex Circuit Board Company Limited (now known as
Kalex Circuit Board (China) Limited) -v- RTA
Electronics Limited (commenced 23 August 1984);
(e) Kalex Circuit Board Company Limited (now known as
Kalex Circuit Board (China) Limited) -v Goodwell
Industries Limited (commenced 24 March 1994);
(f) Lau Yiu Keung -v- Kalex Circuit Board (Hong Kong)
Limited (commenced 25 June 1999);
(g) Tat Shing Paper Products Factory -v- Kalex Circuit
Board (Hong Kong) Limited (commenced 14 November
1997);
(h) Lam Kam Cheuk -v- Astec Circuit Boards Limited (now
known as Kalex Circuit Board (Hong Kong) Limited)
(commenced 18 January 1989); and
(i) Meidik Electrical Family Limited -v- Ma Chan Wing and
Astec Circuit Boards Limited (now known as Kalex
Circuit Board (Hong Kong) Limited) (commenced 7
February 1996).
8.7.2 The Vendor and the Guarantor shall be entitled at their own
expense in their absolute discretion to take such action as they
shall deem necessary to avoid, dispute, deny, defend, resist,
appeal, compromise or contest such claim or liability
(including, without limitation, making counterclaims or other
claims against third parties) in the name of and on behalf of
the relevant Group Companies and to have the conduct of any
related proceedings, negotiations or appeals.
8.7.3 The Purchaser will give, subject to being paid all reasonable
costs and expenses, all such information and assistance,
including access to premises and personnel, and the right to
examine and copy or photograph any assets, accounts, documents
and records, for the purpose of avoiding, disputing, denying,
defending, resisting, appealing, compromising or contesting any
such claim or liability as the Vendor, the Guarantor or their
professional advisers reasonably request. The Vendor and the
Guarantor agree to keep all such information confidential and
only to use it for such purpose.
8.7.4 The Vendor and the Guarantor jointly and severally covenant,
agree and undertake to indemnify and keep indemnified the
Purchaser, for itself and as trustee for the Group Companies,
against any loss, claim, damage, liability, cost or expense
whatsoever suffered by the Group Companies resulting from any
Guarantee in respect of any Borrowed Money of any other person
(except for any other Group Company).
8.8 CANCELLATION OF GUARANTEES
8.8.1 The Purchaser shall (subject to all reasonable assistance being
provided by the Vendor and the Guarantor) use all reasonable
endeavours to procure, on Completion,
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the release or discharge of such guarantees (the "FACILITY
GUARANTEES") given in favour of any third party by the
Guarantor, the Vendor or any of their respective subsidiaries
(other than the Group Companies) in respect of obligations owing
by the Group Companies details of which have been notified to
the Purchaser by 5.00 p.m. (Hong Kong time) on the day prior to
Completion as referred to in paragraph 1 of Part B of Schedule
2.
8.8.2 The Purchaser hereby expressly acknowledges that the release of
the Facility Guarantees may involve the cancellation of banking
facilities available to the Group and thus affect the operations
and conditions of the Group and the Purchaser hereby confirms to
the Vendor and the Guarantor that it has made alternative
arrangements to finance the Group on Completion.
8.8.3 Each of the Purchaser and the Purchaser's Guarantor shall
indemnify and keep indemnified the Vendor and the Guarantor (for
itself and as trustee for any of its subsidiaries other than the
Group Companies) in full against any loss, claim, damage,
liability or expense whatsoever suffered by the Vendor or the
Guarantor or any subsidiaries of the Guarantor (other than the
Group Companies) attributable to any claim made under any of the
Facility Guarantees which have not been released or discharged
on or before Completion pursuant to Clause 8.8.1.
8.9 LICENCES
8.9.1 GUANGZHOU STORAGE
The Purchaser hereby agrees with the Vendor to procure the grant
to the Vendor of a licence in the agreed terms permitting
specified items of equipment to remain in the factory in
Guangzhou for a period of up to 12 months following Completion.
8.9.2 HONG KONG OFFICES
In consideration of the licence provided to the Vendor pursuant
to Clause 8.9.1, the Vendor hereby agrees to procure the grant
of a licence to the Purchaser in the agreed terms of the ground
floor, one lorry-parking space, the third and fourth floors of
Termbray Industrial Building, 18-22 Lam Tin Street, Kwai Chung,
New Territories, Hong Kong, for a period of 3 months following
Completion.
8.10 PROVIDENT FUND
The Guarantor and the Vendor shall use all reasonable endeavours (with the
cooperation of the Purchaser) to procure that the following actions shall
be taken in relation to the Provident Fund as soon as reasonably
practicable after Completion:-
8.10.1 Lee Plastics Manufacturing Co. Ltd. and Termbray Electronics Co.
Ltd. shall cease to be participating companies in the Provident
Fund;
8.10.2 Termbray Electronics Co. Ltd. shall be substituted by KCB(China)
as the "representative employer" in relation to the Provident
Fund for the purposes of the Occupational Retirement Schemes
Ordinance.
The Purchaser shall give all notifications required in relation to the
matters set out in Clauses 8.10.1 to 8.10.2 to the Registrar of
Occupational Retirement Schemes and the trustee or administrator of the
Provident Fund, and the Guarantor and the Vendor shall each co-operate
fully with the Purchaser to enable it to meet its obligations in this
respect.
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8.11 GUARANTEE OF PURCHASER'S OBLIGATION
8.11.1 In consideration of the Vendor and the Guarantor entering into
this Agreement at the request of the Purchaser's Guarantor, the
Purchaser's Guarantor hereby guarantees, unconditionally and
irrevocably as primary obligor, the due observance and
performance by the Purchaser of all the agreements,
stipulations, terms and conditions contained in this Agreement
on the part of the Purchaser to be observed and performed, and
all the obligations and liabilities of the Purchaser under this
Agreement, and that in the event the Purchaser shall fail to
observe and perform any of its obligations at the time and in
the manner provided in this Agreement, the Purchaser's Guarantor
shall on demand by the Vendor and/or the Guarantor indemnify and
keep indemnified fully the Vendor and/or the Guarantor against
any loss or damage the Vendor and/or the Guarantor may have
suffered or incurred as a result of such failure on the part of
the Purchaser.
8.11.2 The guarantee provided by the Purchaser's Guarantor in this
Clause 8.11 shall be a continuing guarantee and shall cover all
obligations, covenants and liabilities of the Purchaser under
this Agreement notwithstanding the liquidation, bankruptcy,
incapacity or any change in the constitution or status of the
Purchaser or the Purchaser's Guarantor or any settlement of
account or variation or modification of this Agreement or any
indulgence or waiver given by any parties hereto or other
matters whatsoever until the last claim whatsoever by the Vendor
and/or the Guarantor against each of the Purchaser and the
Purchaser's Guarantor has been satisfied in full.
8.11.3 Should any purported obligation of the Purchaser, which if valid
or enforceable would be the subject of the guarantee under this
Clause 8.11, be or become wholly or in part invalid or
unenforceable against the Purchaser by reason of any defect in
or insufficiency or want of powers of the Purchaser or irregular
or improper purported exercise thereof or breach or want of
authority by any person purporting to act on behalf of the
Purchaser or because the Vendor's or the Guarantor's rights have
become barred by reason of any legal limitation, disability,
incapacity or any other fact or circumstances whether or not
known to the Vendor and/or the Guarantor, the Purchaser's
Guarantor shall nevertheless be liable to the Vendor and/or the
Guarantor (notwithstanding the avoidance or invalidity of any
term or condition of this Agreement whatsoever including
(without limitation) avoidance under any enactment relating to
liquidation) in respect of that purported obligation or
liability as if the same were wholly valid and enforceable. The
Purchaser's Guarantor hereby agrees to keep the Vendor and/or
the Guarantor fully indemnified against all damages, losses,
costs and expenses arising from any failure of the Purchaser to
carry out any obligation, covenant or undertaking under this
Agreement.
8.11.4 The guarantee provided by the Purchaser's Guarantor in this
Clause 8.11 may be enforced against the Purchaser's Guarantor
without the Vendor and/or the Guarantor first instituting legal
proceedings against the Purchaser in the first instance or
joining in the Purchaser as a party in the same proceedings
against the Purchaser's Guarantor.
8.12 ORBOTECH NOVATION
The Guarantor agrees that, as soon as reasonably practicable after
Completion, it will use all reasonable endeavours to procure the novation
of its agreement with Orbotech Pacific Limited (the "ORBOTECH AGREEMENT")
with respect to the provision of service and maintenance of equipment for
the period between 1 April 1999 and 31 May 2000. Such novation shall be
made in favour of such Group Companies that own or operate the equipment
covered by the
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Orbotech Agreement unless otherwise directed by the Purchaser. Pending
novation of the Orbotech Agreement, the Guarantor agrees to hold the
benefit of the Orbotech Agreement on trust for the relevant Group
Companies.
8.13 STAMP DUTY FILING
The Purchaser undertakes to submit the transfers referred to in paragraph
1.5 of Part A of Schedule 2 to the relevant authorities for stamping within
thirty days after Completion and agrees to indemnify the Vendor for any
penalties attributable to its failure to comply with such undertaking.
8.14 ZHONGSHAN ASSETS
The Vendor and the Guarantor shall each undertake to:
8.14.1 procure that KCB(China) shall remain the investor in Kalex
Multi-layer Circuit Board (Zhongshan) Co. Ltd. (in the process
of incorporation) in the period up to Completion;
8.14.2 procure that as soon as reasonably practicable after Completion,
Zhongshan Xiaolan Yongning Termbray Circuit Board Factory,
Zhongshan Kalex Circuit Board Factory and Zhongshan Xiaolan
Township Yongning Industrial Corporation (the "ZHONGSHAN
VENDORS") shall enter into an agreement for the transfer to
Kalex Multi-layer Circuit Board (Zhongshan) Company Limited (or
such other entity as the Purchaser may direct) of all property,
assets and transferable rights of the Zhongshan Vendors used in
connection with, or held by the Zhongshan Vendors for the
purposes of, the business of processing, manufacturing and
selling printed circuit board products in Zhongshan (the
"ZHONGSHAN BUSINESS");
8.14.3 assist Kalex Multi-layer Circuit Board (Zhongshan) Company
Limited in offering new employment, on such date as the
Purchaser may direct but in any event before 31 October 1999, to
each of the employees of the Zhongshan Vendors who are at the
date of this Agreement employed in the Zhongshan Business, and
procure that such employees' employment with the Zhongshan
Vendors is terminated on terms acceptable to the Purchaser;
8.14.4 provide all reasonable assistance to the Group Companies in
ensuring that, pending the transfer of the assets and employees
referred to in Clauses 8.14.2 and 8.14.3 above, the Zhongshan
Business is carried on in all respects in the ordinary course,
in continuation of the manner of the conduct of the Zhongshan
Business prior to the date of this Agreement and that the assets
referred to in Clause 8.14.2 continue to be utilised and that
the employees referred to in Clause 8.14.3 continue to work for
the purposes of the Zhongshan Business; and
8.14.5 provide all reasonable assistance to the Group Companies in
ensuring that, pending the transfer of the assets referred to in
Clause 8.14.2 above, the processing contract with respect to the
Zhongshan Business continues to be duly performed.
To the extent that the costs of procuring and effecting the transfer of the
assets and employees referred to in Clauses 8.14.2 and 8.14.3 above exceed
HK$7.75 million, such excess costs shall be borne by the Vendor or the
Guarantor.
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8.15 GUANGZHOU DORMITORY LAND AND BUILDINGS
The Vendor and the Guarantor shall each undertake to procure (at their own
cost) the due issue to Guangzhou Termbray Electronics Technology Co. Ltd.
of a land and building title certificate with respect to the approximately
31,000 square metres of land and four dormitory buildings located adjacent
to 888 Jiufo Road (West), Jiufo Town, Baiyun, Guangzhou as soon as
reasonably practicable after Completion.
8.16 ZHONGSHAN PCB FACTORY BUILDING OWNERSHIP CERTIFICATE
The Vendor and the Guarantor shall each undertake to procure (at their own
cost) the due issue to KCB(China) of a building ownership certificate with
respect to all the factory buildings located at Luosha Village, Yongning,
Xiaolan, Zhongshan as soon as reasonably practicable after Completion.
8.17 NOTICES
8.17.1 Any notice, claim or demand in connection with this Agreement
shall be in writing in English (a "Notice") and shall be
sufficiently given or served if delivered or sent:
In the case of either the Guarantor or the Vendor to Termbray
Industries International (Holdings) Limited:
Address: Termbray Industrial Building
18-22 Lam Tin Street
Kwai Chung, New Territories
Hong Kong
Fax: (852) 2480 4214
Attention: Mr Lee Lap
In the case of the Purchaser to Viasystems Group, Inc.:
Address: 101 South Hanley Road
St Louis
Missouri 63105
USA
Fax: (1) 314 746 2299
Attention: Mr David Sindelar
8.17.2 Any Notice may be delivered by hand or, sent by messenger,
telegram, telex, fax or post. Without prejudice to the
foregoing, any Notice shall conclusively be deemed to have been
received on the next working day in the place to which it is
sent, if sent by messenger, telegram, telex or fax, or 60 hours
from the time of posting, if sent by post, or at the time of
delivery, if delivered by hand.
8.18 INVALIDITY
If any provision in this Agreement shall be held to be illegal, invalid or
unenforceable, in whole or in part, under any enactment or rule of law,
such provision or part shall to that extent be
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<PAGE> 20
deemed not to form part of this Agreement but the legality, validity or
enforceability of the remainder of this Agreement shall not be affected.
8.19 COUNTERPARTS
This Agreement may be entered into in any number of counterparts, all of
which taken together shall constitute one and the same instrument. Any
party may enter into this Agreement by executing any such counterpart.
8.20 GOVERNING LAW AND SUBMISSION TO JURISDICTION
8.20.1 This Agreement and the documents to be entered into pursuant to
it, save as expressly referred to therein, shall be governed by
and construed in accordance with Hong Kong law.
8.20.2 All the parties irrevocably agree that the courts of Hong Kong
are to have exclusive jurisdiction to settle any dispute which
may arise out of or in connection with this Agreement and the
documents to be entered into pursuant to it. All the parties
irrevocably submit to the jurisdiction of such courts and waive
any objection to proceedings in any such court on the ground of
venue or on the ground that proceedings have been brought in an
inconvenient forum.
8.21 APPOINTMENT OF PROCESS AGENTS
8.21.1 The Vendor irrevocably appoints the Guarantor as its agent for
the service of process in Hong Kong in relation to any matter
arising out of this Agreement, service upon whom shall be deemed
completed whether or not forwarded to or received by the
Guarantor.
8.21.2 The Vendor shall inform the Purchaser, in writing, of any change
in the address of its process agents within 28 days.
8.21.3 If such process agents cease to have an address in Hong Kong,
the Vendor irrevocably agrees to appoint new process agents
acceptable to Purchaser and to deliver to Purchaser within 14
days a copy of a written acceptance of appointment by its new
process agents.
8.21.4 Each of the Purchaser and the Purchaser's Guarantor irrevocably
appoints United Chain Consultants Limited of Third Floor,
Termbray Industrial Building, 18-22 Lam Tin Street, Kwai Chung,
New Territories, Hong Kong as its agent for the service of
process in Hong Kong in relation to any matter arising out of
this Agreement, service upon whom shall be deemed completed
whether or not forwarded to or received by the Purchaser or the
Purchaser's Guarantor (as the case may be).
8.21.5 Each of the Purchaser and the Purchaser's Guarantor shall inform
the Guarantor, in writing, of any change in the address of its
process agents within 28 days.
8.21.6 If such process agents cease to have an address in Hong Kong,
the Purchaser and the Purchaser's Guarantor each irrevocably
agree to appoint new process agents acceptable to Guarantor and
to deliver to Guarantor within 14 days a copy of a written
acceptance of appointment by its new process agents.
8.21.7 Nothing contained in this Agreement shall affect the right to
serve process in any other manner permitted by law or the right
to bring proceedings in any other jurisdiction for the purposes
of the enforcement or execution of any judgement or other
settlement in any other courts.
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<PAGE> 21
IN WITNESS whereof this Agreement has been duly executed.
<TABLE>
<S> <C>
SIGNED by LEE LAP
on behalf of TERMBRAY ELECTRONICS Lee Lap (Sd.)
(B.V.I.) LIMITED
in the presence of:
BRIAN LEUNG CHONG SHUN
Solicitor
Woo Kwan Lee & Lo
27th Floor Jardine House Brian Leung Chong Shun (Sd.)
1 Connaught Place
Hong Kong
SIGNED by LEE LAP
on behalf of TERMBRAY INDUSTRIES
INTERNATIONAL (HOLDINGS) LIMITED.
in the presence of: Lee Lap (Sd.)
BRIAN LEUNG CHONG SHUN
Solicitor
Woo Kwan Lee & Lo
27th Floor Jardine House Brian Leung Chong Shun (Sd.)
1 Connaught Place
Hong Kong
SIGNED by JIM MILLS on behalf of
VIASYSTEMS CANADA, INC. in the Jim Mills (Sd.)
presence of:
DAVID WEBSTER
Viasystems Group, Inc. David Webster (Sd.)
101 South Hanley Road
St. Louis, Missouri
MO 63105, USA
SIGNED by JIM MILLS on behalf of
VIASYSTEMS GROUP, INC. in the Jim Mills (Sd.)
presence of:
DAVID WEBSTER
Viasystems Group, Inc. David Webster (Sd.)
101 South Hanley Road
St. Louis, Missouri
MO 63105, USA
</TABLE>
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<PAGE> 22
SCHEDULE 1
PART 1
PARTICULARS OF SHARES SOLD ETC.
<TABLE>
<CAPTION>
(1) (2)
NAMES AND ADDRESSES OF VENDOR OR SHARES SOLD
NOMINEE
<S> <C>
Lee Lap 1 KPCB Share
1 LL&S Share
1 KCB(China) Share
1 TP(BVI) Share
1 KCB(HK) Share
1 TCBC Share
1 LL&S Deferred Share
44,500 KCB(China) Deferred Shares
1 TLC Share
Termbray Electronics (B.V.I.) Limited 9,999 KPCB Shares
1 LL&S Share
1 KCB(China) Share
9,999 TLC Shares
1 TP(BVI) Shares
999,999 KCB(HK) Shares
1 TCBC Share
Leung Lai Ping 1 LL&S Deferred Share
5,500 KCB(China) Deferred Shares
Wong Wai Min William 1 KCBC(S) Share
Thamarai D/O Krishnan 1 KCBC(S) Share
</TABLE>
-20-
<PAGE> 23
PART 2
PARTICULARS OF THE PRINCIPAL GROUP COMPANIES
KALEX PRINTED CIRCUIT BOARD LIMITED
<TABLE>
<S> <C>
REGISTERED NUMBER: 506562
REGISTERED OFFICE: 3/F., Termbray Industrial Building,
18-22 Lam Tin Street,
Kwai Chung, New Territories,
Hong Kong
DATE AND PLACE OF INCORPORATION: 28 February 1995 , Hong Kong
DIRECTORS: Lee Lap
Leung Lai Ping
SECRETARY: Li Wai Kwong
ACCOUNTING REFERENCE DATE: 31 March
AUTHORISED SHARE CAPITAL: HK$10,000 divided into
10,000 Ordinary Shares of HK$1.00 each
ISSUED AND FULLY PAID-UP SHARE CAPITAL: 10,000 Ordinary Shares of HK$1.00 each
</TABLE>
<TABLE>
<CAPTION>
SHAREHOLDERS BENEFICIAL OWNERS NO. OF SHARES
<S> <C> <C>
Lee Lap Termbray Electronics (BVI) 1
Limited
Termbray Electronics (BVI) -- 9,999
Limited ------
10,000
</TABLE>
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<PAGE> 24
LEE LAP & SONS LIMITED
<TABLE>
<S> <C>
REGISTERED NUMBER: 138970
REGISTERED OFFICE: 3/F., Termbray Industrial Building,
18-22 Lam Tin Street,
Kwai Chung, New Territories,
Hong Kong
DATE AND PLACE OF INCORPORATION: 10 July 1984, Hong Kong
DIRECTORS: Lee Lap
Leung Lai Ping
SECRETARY: Li Wai Kwong
ACCOUNTING REFERENCE DATE: 31 March
AUTHORISED SHARE CAPITAL: HK$10,000 divided into
9,998 Ordinary Shares of HK$1.00 each
2 Non-voting Deferred Shares of HK$1.00 each
ISSUED AND FULLY PAID-UP SHARE CAPITAL: 2 Ordinary Shares of HK$1.00 each
2 Non-voting Deferred shares of HK$1.00 each
</TABLE>
<TABLE>
<CAPTION>
SHAREHOLDERS BENEFICIAL OWNERS NO. OF SHARES
<S> <C> <C>
Termbray Electronics (BVI) Limited -- 1 Ordinary
Lee Lap Termbray Electronics (BVI) 1 Ordinary
Limited
Leung Lai Ping -- 1 Non-voting Deferred
Lee Lap -- 1 Non-voting Deferred
---------------------
4
</TABLE>
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<PAGE> 25
KALEX CIRCUIT BOARD (CHINA) LIMITED
<TABLE>
<S> <C>
REGISTERED NUMBER: 98891
REGISTERED OFFICE: 3/F., Termbray Industrial Building,
18-22 Lam Tin Street,
Kwai Chung, New Territories,
Hong Kong
DATE AND PLACE OF INCORPORATION: 9 June 1981, Hong Kong
DIRECTORS: Lee Lap
Leung Lai Ping
SECRETARY: Li Wai Kwong
ACCOUNTING REFERENCE DATE: 31 March
AUTHORISED SHARE CAPITAL: HK$5,001,000 divided into
10 Ordinary Shares of HK$100.00 each
50,000 Non-voting Deferred Shares of
HK$100 each
ISSUED AND FULLY PAID-UP SHARE CAPITAL: 2 Ordinary Shares of HK$100.00 each
50,000 Non-voting Deferred Shares of
HK$100 each
</TABLE>
<TABLE>
<CAPTION>
SHAREHOLDERS BENEFICIAL OWNERS NO. OF SHARES
<S> <C> <C>
Lee Lap -- 44,500 Non-voting Deferred
Leung Lai Ping -- 5,500 Non-voting Deferred
Termbray Electronics (BVI) Limited -- 1 Ordinary
Lee Lap Termbray Electronics 1 Ordinary
(BVI) Limited
--------------------------
50,002
</TABLE>
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<PAGE> 26
TERMBRAY LAMINATE COMPANY LIMITED
<TABLE>
<S> <C>
REGISTERED NUMBER: 494361
REGISTERED OFFICE: 3/F., Termbray Industrial Building,
18-22 Lam Tin Street,
Kwai Chung, New Territories,
Hong Kong
DATE AND PLACE OF INCORPORATION: 18 October 1994, Hong Kong
DIRECTORS: Lee Lap
Leung Lai Ping
SECRETARY: Li Wai Kwong
AUTHORISED SHARE CAPITAL: HK$10,000 divided into
10,000 Ordinary Shares of HK$1.00 each
ISSUED AND FULLY PAID-UP SHARE CAPITAL: 10,000 Ordinary Shares of HK$1.00 each
</TABLE>
<TABLE>
<CAPTION>
SHAREHOLDERS BENEFICIAL OWNERS NO. OF SHARES
<S> <C> <C>
Lee Lap Termbray Electronics (BVI) 1
Limited
Termbray Electronics (BVI) -- 9,999
Limited
------
10,000
</TABLE>
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<PAGE> 27
TERMBRAY PROPERTY (B.V.I.) LIMITED
<TABLE>
<S> <C>
REGISTERED NUMBER: 62296
REGISTERED OFFICE: PO Box 71, Craigmuir Chambers, Road Town,
Tortola, British Virgin Islands
DATE AND PLACE OF INCORPORATION: 14 May 1992, British Virgin Islands
DIRECTORS: Lee Lap
Leung Lai Ping
SECRETARY: Torman Limited
AUTHORISED SHARE CAPITAL: US$50,000 divided into
50,000 Ordinary Shares of US$1.00 each
ISSUED AND FULLY PAID-UP SHARE CAPITAL: 1 Ordinary Share of US$1.00
</TABLE>
<TABLE>
<CAPTION>
SHAREHOLDERS BENEFICIAL OWNERS NO. OF SHARES
<S> <C> <C>
Termbray Electronics (B.V.I.) -- 1
Limited
-------------
1
</TABLE>
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<PAGE> 28
KALEX CIRCUIT BOARD (HONG KONG) LIMITED
<TABLE>
<S> <C>
REGISTERED NUMBER: 106134
REGISTERED OFFICE: 3/F., Termbray Industrial Building,
18-22 Lam Tin Street,
Kwai Chung, New Territories,
Hong Kong
DATE AND PLACE OF INCORPORATION: 1 December 1981, Hong Kong
DIRECTORS: Lee Lap
Leung Lai Ping
Lee Hon Kai
SECRETARY: Li Wai Kwong
ACCOUNTING REFERENCE DATE: 31 March
AUTHORISED SHARE CAPITAL: HK$10,000,000 divided into
1,000,000 Ordinary Shares of HK$10.00 each
ISSUED AND FULLY PAID-UP SHARE CAPITAL: 1,000,000 Ordinary Shares of HK$10.00 each
</TABLE>
<TABLE>
<CAPTION>
SHAREHOLDERS BENEFICIAL OWNERS NO. OF SHARES
<S> <C> <C>
Lee Lap Termbray Electronics (BVI) 1
Limited
Termbray Electronics (BVI) -- 999,999
Limited ---------
1,000,000
</TABLE>
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<PAGE> 29
KALEX PRINTED CIRCUIT BOARD (S) PTE LTD
<TABLE>
<S> <C>
REGISTERED NUMBER: 199901002N
REGISTERED OFFICE: 128 Tanjong Pagar Road, Singapore 088535
DATE AND PLACE OF INCORPORATION: 2 March 1999, Singapore
DIRECTORS: Wong Wai Min, William
Thamarai D/O Krishnan
SECRETARY: Not yet appointed
AUTHORISED SHARE CAPITAL: S$100,000 divided into 100,000 Ordinary
Shares of S$1.00 each
ISSUED AND FULLY PAID-UP SHARE CAPITAL: 2 Ordinary Shares of S$1.00 each
</TABLE>
<TABLE>
<CAPTION>
SHAREHOLDERS BENEFICIAL OWNERS NO. OF SHARES
<S> <C> <C>
Wong Wai Min William Termbray Electronics (BVI) 1
Limited
Thamarai D/O Krishnan Termbray Electronics (BVI) 1
Limited
</TABLE>
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<PAGE> 30
TERMBRAY CIRCUIT BOARD COMPANY LIMITED
<TABLE>
<S> <C>
REGISTERED NUMBER: 390002
REGISTERED OFFICE: 3/F., Termbray Industrial Building,
18-22 Lam Tin Street,
Kwai Chung, New Territories,
Hong Kong
DATE AND PLACE OF INCORPORATION: 17 November 1992, Hong Kong
DIRECTORS: Lee Lap
Leung Lai Ping
SECRETARY: Li Wai Kwong
ACCOUNTING REFERENCE DATE: 31 March
AUTHORISED SHARE CAPITAL: HK$10,000 divided into
10,000 Ordinary Shares of HK$1.00 each
ISSUED AND FULLY PAID-UP SHARE CAPITAL: 2 Ordinary Shares of HK$1.00 each
</TABLE>
<TABLE>
<CAPTION>
SHAREHOLDERS BENEFICIAL OWNERS NO. OF SHARES
<S> <C> <C>
Lee Lap Termbray Electronics (BVI) 1
Limited
Termbray Electronics (BVI) -- 1
Limited -------------
2
</TABLE>
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<PAGE> 31
PART 3
PARTICULARS OF THE SUBSIDIARIES
KALEX CIRCUIT BOARD (GUANGZHOU) LIMITED
<TABLE>
<S> <C>
REGISTERED NUMBER: 451638
REGISTERED OFFICE: 3/F Termbray Industrial Building, 18-22 Lam
Tin Street, Kwai Chung, New Territories
DATE AND PLACE OF INCORPORATION: 14 October 1993, Hong Kong
DIRECTORS: Lee Lap
Leung Lai Ping
SECRETARY: Li Wai Kwong
AUTHORISED SHARE CAPITAL: US$600,000 divided into 600,000 Ordinary Shares
of US$1.00 each
ISSUED AND FULLY PAID-UP SHARE CAPITAL: 600,000 Ordinary Shares of US$1.00 each
</TABLE>
<TABLE>
<CAPTION>
SHAREHOLDERS BENEFICIAL OWNERS NO. OF SHARES
<S> <C> <C>
Lee Lap TCBC 1
TCBC -- 599,999
-------
600,000
</TABLE>
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<PAGE> 32
KALEX MULTI-LAYER PRINTED CIRCUIT BOARD COMPANY LIMITED
<TABLE>
<S> <C>
REGISTERED NUMBER: 136201
REGISTERED OFFICE: 3/F Termbray Industrial Building, 18-22 Lam
Tin Street, Kwai Chung, New Territories, Hong
Kong
DATE AND PLACE OF INCORPORATION: 1 May 1984, Hong Kong
DIRECTORS: Lee Lap
Leung Lai Ping
SECRETARY: Li Wai Kwong
AUTHORISED SHARE CAPITAL: HK$10,000 divided into 10,000 Ordinary
Shares of HK$1.00 each
ISSUED AND FULLY PAID-UP SHARE CAPITAL: 2 Ordinary Shares of HK$1.00 each
</TABLE>
<TABLE>
<CAPTION>
SHAREHOLDERS BENEFICIAL OWNERS NO. OF SHARES
<S> <C> <C>
Lee Lap KCB (China) 1
KCB(China) -- 1
</TABLE>
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<PAGE> 33
GUANGZHOU TERMBRAY ELECTRONICS TECHNOLOGY COMPANY LIMITED
<TABLE>
<S> <C>
APPROVAL CERTIFICATE NUMBER: Wai-jing-mao-sui-he-zuo-zheng [1993] No. 85
REGISTERED OFFICE: Gaopu Jiufo Town, Baiyun District,
Guangzhou, PRC
DATE OF ESTABLISHMENT: 10 April 1993
GENERAL MANAGER: Huang Rong Guang
REGISTERED CAPITAL: US$28.5 million
PRC CJV PARTNER: Guangzhou Jiufo Economic Development
Corporation
FOREIGN CJV PARTNER: KCB(China)
</TABLE>
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<PAGE> 34
GUANGZHOU KALEX LAMINATE CO LTD
<TABLE>
<S> <C>
APPROVAL CERTIFICATE NUMBER: Wai-jing-mao-sui-he-zuo-zheng [1995] No. 0242
REGISTERED OFFICE: Gaopu Jiufo Town, Baiyun District,
Guangzhou, PRC
DATE OF ESTABLISHMENT: 28 December 1995
GENERAL MANAGER: Huang Rong Guang
REGISTERED CAPITAL: US$28.5 million
PRC CJV PARTNER: Guangzhou Jiufo Economic Development
Corporation
FOREIGN CJV PARTNER: TLC
</TABLE>
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<PAGE> 35
GUANGZHOU TERMBRAY CIRCUIT BOARD COMPANY LIMITED
<TABLE>
<S> <C>
APPROVAL CERTIFICATE: Wai-jing-mao-sui-he-zuo-zheng [1993]
No. 1170
REGISTERED OFFICE: Gaopu Jiufo Town, Baiyun District,
Guangzhou, PRC
DATE OF ESTABLISHMENT: 25 December 1993
GENERAL MANAGER: Huang Rong Guang
REGISTERED CAPITAL: US$28.5 million
PRC CJV PARTNER: Guangzhou Jiufo Economic Development
Corporation
FOREIGN CJV PARTNER: KCB (Guangzhou)
</TABLE>
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<PAGE> 36
SCHEDULE 2
COMPLETION OBLIGATIONS
PART A
1 GENERAL
On Completion the Vendor shall deliver or make available to the Purchaser:
1.1 duly certified copy of a written certificate (or, provided acceptable to
The Stock Exchange of Hong Kong Limited, two separate written certificates)
of approval of the transaction by shareholders holding more than 50% of the
issued share capital of the Guarantor in the form of Appendix 1;
1.2 consent of the PRC Partners in the agreed terms;
1.3 duly certified copy of a resolution of the shareholders of the Vendor
approving the transaction contemplated hereby, in the agreed terms;
1.4 duly certified copy of Board resolutions of the Guarantor and the Vendor,
in the agreed terms, approving and authorising the execution of this
Agreement and (where relevant) the other documents referred to herein;
1.5 transfers of the Sale Shares and the Deferred Shares duly executed by the
registered holders in favour of the Purchaser or as it may direct
accompanied by the relative share certificates (or an express indemnity in
a form satisfactory to the Purchaser in the case of any certificate found
to be missing);
1.6 the written resignation of each of the directors and the company secretary
of each Group Company (except the directors of the PRC Subsidiaries and the
company secretary of TP(BVI)) from his office as a director or company
secretary to take effect on the date of Completion with acknowledgements
signed by each of them in a form satisfactory to the Purchaser and executed
as a deed to the effect that he has no claim against any Group Company for
compensation for loss of office (whether contractual, statutory or
otherwise), unfair dismissal, redundancy or otherwise and agreeing to take
such action as may be requested by the Purchaser to preclude him from
making a complaint to or bringing proceedings before an industrial tribunal
in respect of the termination of his contract of employment together with
all credit cards in the name of each Group Company issued to any of the
persons so resigning;
1.7 such waivers or consents as the Purchaser may require signed by members of
each Group Company to enable the Purchaser or its nominees to be registered
as holders of the Sale Shares;
1.8 the certificates of incorporation, corporate seals, company chops, cheque
books, statutory and other books of each Group Company (duly written
up-to-date), the share certificates in respect of each of the Subsidiaries
and transfers of all shares in the Subsidiaries held by nominees in favour
of the Purchaser or as it may direct and the Business licence, company
chop;
1.9 the Tax Deed of Indemnity duly executed by the covenantors named in it;
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<PAGE> 37
1.10 the licence with respect to part of the Termbray Industrial Building, as
referred to in Clause 8.9.2, in the agreed terms duly executed by or on
behalf of Termbray Electronics Company Limited;
1.11 the licence with respect to part of the factory in Guangzhou, as referred
to in Clause 8.9.1, in the agreed terms duly executed by or on behalf of
Lee Plastic Manufacturing Co Ltd;
1.12 all the financial and accounting books and records of each Group Company
and all title deeds and other documentation relating to the Properties;
1.13 irrevocable powers of attorney (in such form as the Purchaser may
reasonably require) executed by each of the holders of the Sale Shares in
favour of the Purchaser to enable the Purchaser (pending registration of
the relevant transfers) to exercise all voting and other rights attaching
to the Sale Shares and to appoint proxies for this purpose;
1.14 Consultancy Services Agreement duly executed by the Guarantor;
1.15 Deeds of Covenant in the agreed terms duly executed by Lee Lap, Leung Lai
Ping, Vincent Lee and Wayne Lee in favour of the Purchaser and its
successors in title as trustee for itself and the Group Companies to the
same effect as the provisions of Clause 7.2; and
1.16 the Equipment at 888 Jiufo Road (West), Jiufo Town, Baiyun, Guangzhou.
2 BOARD RESOLUTIONS OF THE GROUP COMPANIES
On Completion the Vendor shall procure the passing of board resolutions of
each Group Company inter alia:
2.1 (if so required by the Purchaser) revoking all existing authorities to
bankers in respect of the operation of its bank accounts and giving
authority in favour of such persons as the Purchaser may nominate to
operate such accounts;
2.2 accepting the resignations referred to in paragraph 1.6 of this Schedule
and appointing such persons (within the maximum number permitted by the
Articles of Association or other constitutional documents) as the Purchaser
may nominate as directors and secretary;
2.3 approving the registration of the share transfers referred to in paragraph
1.5 of this Schedule subject (where relevant) only to their being duly
stamped; and shall hand to the Purchaser duly certified copies of such
resolutions.
PART B
On Completion, the Purchaser shall deliver or make available to the Vendor:
3 evidence of the transfers made to effect the repayment of the Borrowings
owed to banks and financial institutions detailed in the pay-off letters
referred to in Clause 3.3.2;
4 copies of the written resolution of the directors of the Purchaser and the
Purchaser's Guarantor approving the execution of this Agreement and (where
relevant) the other documents and agreements referred to herein; and
5 an indemnity from Viasystems, Inc. in favour of the Vendor and the
Guarantor in the terms set out in Clause 8.8.3.
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<PAGE> 38
SCHEDULE 3
WARRANTIES GIVEN BY THE VENDOR AND THE GUARANTOR UNDER CLAUSE 5
1 CAPACITY AND TITLE OF THE VENDOR
1.1 DUE INCORPORATION, AUTHORITY AND CAPACITY OF THE VENDOR AND GUARANTOR
1.1.1 The Vendor, the Guarantor and the Group Companies are companies
duly incorporated and validly existing under their respective
laws of incorporation.
1.1.2 Each of the Vendor and the Guarantor has full power and
authority to enter into and perform this Agreement and the Deed
of Indemnity and this Agreement and the Deed of Indemnity
constitute valid and binding obligations on the Vendor and the
Guarantor enforceable in accordance with their respective terms.
1.1.3 The execution and delivery of, and the performance by each of
the Vendor and the Guarantor of its obligations under this
Agreement and the Deed of Indemnity do not and will not:-
(i) result in a breach of any provision of the memorandum or
articles of association or equivalent constitutive
documents of the Vendor or the Guarantor;
(ii) result in a breach of the laws or regulations of any
jurisdiction to which the Vendor or the Guarantor is
subject; or
(iii) result in a breach of any order, judgement or decree of
any court or governmental agency to which the Vendor or the
Guarantor is a party or by which the Vendor or the
Guarantor is bound.
1.1.4 No shareholders' agreements have been executed between the
shareholders of any of the Group Companies which would in any
way frustrate or restrict the execution and delivery of, and the
performance by either the Vendor or the Guarantor of its
obligations under, this Agreement.
1.2 OWNERSHIP OF THE SHARES AND SHARE CAPITAL
1.2.1 The Vendor is the legal and beneficial owner of the Sale Shares
and is entitled to sell and transfer to the Purchaser the full
legal and beneficial ownership of the Sale Shares on the terms
of this Agreement without the consent of any third party (save
for the approval of its shareholders).
1.2.2 No person, other than a member of the Group Companies, has the
right (whether exercisable now or in the future and whether
contingent or not) to call for the allotment, issue, sale or
transfer of any share or loan capital of any Group Company under
any option or other agreement (including conversion rights and
rights of pre-emption) which are outstanding and there are no
claims, charges, liens, equities or Encumbrances on the shares
or assets of any Group Company.
1.2.3 The Sale Shares represent 100 per cent. of the issued ordinary
share capital of each Group Company and are fully paid up.
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<PAGE> 39
2 SUPPLY OF INFORMATION
2.1 ACCURACY AND ADEQUACY OF INFORMATION DISCLOSED TO THE PURCHASER
2.1.1 All information contained in this Agreement (insofar as it
relates to the Vendor, the Guarantor and the Group Companies)
and all other information contained in the Disclosure Letter is
true and accurate in all material respects and after making due
and careful enquiries neither the Vendor nor the Guarantor is
aware of any fact or matter or circumstances not disclosed in
writing to the Purchaser which renders any such information
untrue, inaccurate or misleading.
2.1.2 The copies of all documents annexed to the Disclosure Letter are
authentic and complete copies of the original documents.
2.2 COPIES OF ACCOUNTS, MEMORANDA AND ARTICLES OF ASSOCIATION ETC.
The copies of the Accounts and of the Memorandum and Articles of
Association or equivalent constitutive documents of the Group Companies
delivered to the Purchaser are complete and accurate in all material
respects and in the case of the Memorandum and Articles of Association or
equivalent constitutive documents contain full details of the rights and
restrictions attached to the share capital of the Group Companies and have
attached to them copies of all such resolutions and agreements as are
required by law to be delivered to the Hong Kong Registrar of Companies or
equivalent authority in the jurisdiction of incorporation of the Group
Companies for registration and all other resolutions passed by the Group
Companies or any class of members, other than resolutions relating to
ordinary business at any Annual General Meeting.
3 ACCOUNTS AND RECORDS
3.1 LATEST ACCOUNTS
The Accounts have each been prepared in accordance with applicable law and
in accordance with accounting principles, standards and practices generally
accepted at the date on which the relevant Accounts were approved by the
relevant company in Hong Kong (or in the case of the PRC Subsidiaries,
according to principles, statements and practices generally accepted at the
date on which the relevant Accounts were approved by the relevant company
in the PRC) and fairly presents the financial position, results of
operation and, where applicable, cash flow of each Group Company as at the
dates of the Accounts and of the profits or losses for the periods
concerned and as at the dates of the Accounts make:-
3.1.1 adequate provision for all actual liabilities;
3.1.2 adequate disclosure for all contingent liabilities; and
3.1.3 provision reasonably regarded as adequate for all bad and
doubtful debts.
3.2 VALUATION OF STOCK AND WORK-IN-PROGRESS
The stock and work-in-progress were included in the Accounts at figures
which:-
3.2.1 were based on the `first in first out' method of valuation with
value given only to items of a quantity and quality useful or
saleable in the normal course of carrying on the businesses of
the Group Companies; and
3.2.2 were stated at the lower of (i) costs, and (ii) the amounts
which could in the circumstances existing at the Balance Sheet
Date reasonably be expected to be
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realised in the normal course of carrying on the businesses of
the Group Companies (net of selling and distribution costs and
estimated costs of completion).
3.3 TAXATION
Proper provision or reserve has been made in the Accounts for all Taxation
liable to be assessed on the relevant Company or for which it is or may
become accountable in respect of:-
3.3.1 profits, gains or income (as computed for Taxation purposes)
arising or accruing or deemed to arise or accrue on or before
the Balance Sheet Date;
3.3.2 any transactions effected or deemed to be effected on or before
the Balance Sheet Date or provided for in the Accounts; and
3.3.3 distributions made or deemed to be made on or before the Balance
Sheet Date or provided for in the Accounts.
3.4 EXCEPTIONAL ITEMS
The profits of the Group Companies for the three financial years ended on
the Balance Sheet Date as shown by the Accounts and the trend of profits
thereby shown have not (except (i) as fairly disclosed in such accounts; or
(ii) in the case of transactions between members of the Group, as fairly
reflected in such accounts) been materially affected by changes or
inconsistencies in accounting practices, by the inclusion of non-recurring
items of income or expenditure, by transactions of an abnormal or unusual
nature or entered into otherwise than on normal commercial terms.
3.5 DEBTS
None of the debts receivable or due to any Group Company which are included
in the Accounts (for the fiscal year ended 31 March 1999) or which have
subsequently arisen has been outstanding for more than nine months from its
due date for payment or has been released on terms that the debtor has paid
less than the full value of his debt and all such debts have realised or
will realise in the normal course of collection their full value as
included in the Accounts or in the books of the relevant Group Company
after taking into account the provision for bad and doubtful debts made in
the Accounts. For the avoidance of doubt, a debt shall not be regarded as
realising its full value to the extent that it is paid, received or
otherwise recovered in circumstances in which such payment, receipt or
recovery is or may be void, voidable or otherwise liable to be reclaimed or
set aside.
3.6 ACCOUNTING AND OTHER RECORDS
The statutory books, books of account and other records of whatsoever kind
of each Group Company are reasonably up-to-date and maintained in
accordance with all applicable legal requirements on a proper and
consistent basis and contain, in all material respects, complete and
accurate records of all matters required to be dealt with in such books and
all such books and records and all other documents (including documents of
title and copies of all subsisting agreements to which the relevant Group
Company is a party) which are the property of the relevant Group Company or
ought to be in its possession are in its possession or under its control
and no notice or allegation that any is incorrect or should be rectified
has been received. All accounts, documents and returns required by law to
be delivered or made to the Registrar of Companies or to the equivalent
authority in the jurisdiction of incorporation of the relevant Group
Company or any other authority have been duly and correctly delivered or
made.
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3.7 CHANGES SINCE BALANCE SHEET DATE
Since the Balance Sheet Date, as regards the Group Companies or each Group
Company, as appropriate:-
3.7.1 there has been no material adverse change in the financial
condition of the business of all the Group Companies (taken as a
whole) or their earnings, turnover, profits, assets and
liabilities or cashflow (taken as a whole) and (to the best of
the knowledge, information and belief of the Vendor and the
Guarantor) no event, fact or matter has occurred which will or
is likely to give rise to any such change;
3.7.2 each Group Company's business has been carried on in the
ordinary course, without any material interruption or alteration
in its nature, scope or manner, and so as to maintain the same
as a going concern and the level of its stock has been
maintained at a level which is consistent with past practice;
3.7.3 no Group Company has satisfied or otherwise discharged any
obligation or liability (including contingent liabilities) other
than in the ordinary course of its business;
3.7.4 no Group Company has (i) sold, transferred, leased, mortgaged,
pledged, or otherwise granted any rights in respect of any of
its assets or properties, other than in the ordinary course of
its business; or (ii) cancelled, waived, released or discounted
in whole or in part any debts or claims, other than in the
ordinary course of its business;
3.7.5 the Group Companies have not entered into any commitments or
contracts relating to capital expenditures which, in the
aggregate (in respect of all such commitments and contracts),
involve consideration, expenditure or liabilities in excess of
US$1,000,000;
3.7.6 no Group Company has suffered any actual loss of any important
customer;
3.7.7 no key personnel have resigned from any Group Company and there
has not been any increases in the compensation paid or payable
to any to any employees, other than in the ordinary course of
its business;
3.7.8 no trade discounts or other special terms (in both cases, not
being in the ordinary course of its business) have been
incorporated into any contract entered into by any Group
Company;
3.7.9 the Group Companies have not suffered any damage, destruction or
loss to any of its assets (other than (i) any normal wear and
tear of such assets in the ordinary course of the Group
Companies' business; (ii) normal wastage of raw materials and
stock in the ordinary course of the Group Companies' business;
and (iii) to the extent that such damage, loss or destruction is
recoverable pursuant to a valid insurance claim) in excess of
US$1,000,000 in the aggregate;
3.7.10 no dividend or other distribution has been declared, made or
paid to its members except to another member of the Group or as
provided for in the Accounts (for the fiscal year ended 31 March
1999), and no further dividend or distribution shall be
declared, made or paid in respect of any period the record date
for which is a date which falls either at or after the Balance
Sheet Date; 3.7.11 no share or loan capital has been allotted or
issued or agreed to be issued, except to another member of the
Group;
3.7.12 there has been no changes to the accounting policies or method
of presentation adopted by the Group Company in the preparation
of its financial records; and
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3.8 ACCOUNTS PAYABLE
No more than US$8.2 million of accounts payable of the Group Companies has
been outstanding for more than 90 days.
4 FINANCE
4.1 BORROWINGS
4.1.1 Except as disclosed in this Agreement or the Disclosure Letter,
there are no outstanding material borrowings by any Group
Company.
4.1.2 The Group Companies have no outstanding loan capital, nor has
any Group Company factored any of its debts, or engaged in
financing of a type which would not require to be shown or
reflected in the Accounts.
4.1.3 There has been no default, breach of covenant or other
undertaking by any Group Company under its loan agreements or
other banking facility documentation which is capable of giving
rise to a right on the part of the lender to require early
repayment.
4.2 LIABILITIES
As at the Balance Sheet Date, there are no liabilities (including
contingent liabilities) which are outstanding on the part of any Group
Company, other than those liabilities provided for or disclosed in the
Accounts.
4.3 INSURANCE
Each Group Company has in effect all the insurance policies, the details of
which are set out in the Disclosure Letter. In respect of all such
insurances:-
4.3.1 all premiums have been duly paid to date;
4.3.2 all the policies are in force and are not voidable on account of
any act, omission or non-disclosure on the part of the insured
party; and
4.3.3 no material claim is outstanding and no circumstances exist
which are likely to give rise to any claim.
5 TRADING AND CONTRACTUAL ARRANGEMENTS
5.1 CAPITAL COMMITMENTS
As at the Balance Sheet Date, save as disclosed in the Accounts, no Group
Company has any material capital commitments.
5.2 CONTRACTS
In respect of the Material Contracts:-
5.2.1 in the reasonable opinion of the Vendor and the Guarantor, the
Material Contracts constitute all the material contracts in
respect of the businesses of the Group Companies.
5.2.2 other than the Material Contracts, none of the Group Companies
is a party to or bound by:-
(i) any material agreement or commitment relating to the
borrowing of money;
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(ii) any material agreement or commitment relating to capital
expenditures involving an amount of US$500,000 or more;
(iii) any bonds, debentures, mortgages, notes or other similar
indebtedness or liabilities whatsoever, or any agreement
to create or issue any bonds, debentures, mortgages, notes
or other similar indebtedness;
(iv) any loan or advance to, or investment in, any other person
(except another member of the Group) or any agreement or
commitment relating to the making of any such loan,
advance or investment;
(v) any guarantee or other contingent liability (excluding any
product liability in relation to the Group Companies'
products) in respect of any material (in the context of
the Group Companies taken as a whole) indebtedness or
obligation of any other person (except another member of
the Group), other than the endorsement of negotiable
instruments for collection in the ordinary course of
business;
(vi) any material agreement relating to the supply of materials
or products involving an amount of US$500,000 or more;
(vii) any management, consulting or any other similar agreement
or commitment which is not terminable within six months or
involves an amount of US$250,000 or more; or
(viii) any agreement or commitment limiting the freedom of any
of the Group Companies to engage in any line of business
or to compete with any other person;
5.2.3 each of the Material Contracts is a valid and subsisting
agreement and is in full force and effect without amendment
thereto; and
5.2.4 to the best of the Vendor's and the Guarantor's knowledge, after
due enquiry, there exists no default or event of default or
event, occurrence, condition or act which, with the giving of
notice, the lapse of time or the happening of any other event or
condition, would become a default or event of default
thereunder, and all the covenants to be performed by any party
thereto, including the Group Companies, have been fully
performed in all material respects.
5.3 GUARANTEES ETC.
As at the Balance Sheet Date, save as disclosed in the Accounts, there is
not outstanding in respect of any Group Company, any guarantee, indemnity
or suretyship given by such Group Company.
5.4 DEBTS, CONTRACTS AND ARRANGEMENTS WITH CONNECTED PERSONS ETC.
5.4.1 Except for transactions involving only members of the Group,
there are:-
(i) no loans made by any Group Company to any of the Vendor,
the Guarantor and/or any director of any Group Company
and/or any person connected with any of them in each case
as described in Section 157H(9) of the Companies Ordinance
to which any of the provisions of Section 157H of the
Companies Ordinance apply;
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(ii) no debts owing by any Group Company to any of the Vendor,
the Guarantor and/or any director of any Group Company
and/or any such persons as aforesaid; and
(iii) no securities for any such loans or debts as aforesaid.
5.4.2 Except as disclosed in this Agreement or the Disclosure Letter
there are no existing contracts or arrangements to which any
Group Company is a party and in which any of the Vendor, the
Guarantor and/or any director of any Group Company and/or any
person connected with any of them are interested whether
directly or indirectly.
5.4.3 Except as disclosed in this Agreement or the Disclosure Letter,
as at Completion, there are not outstanding, any arrangements
between any Group Company and any company controlled by the
Vendor or the Guarantor, relating to the management of any Group
Company's business, or the appointment or removal of directors
of any Group Company, or the ownership or transfer of ownership
or the letting of any of the assets of the Group Company or,
supply or purchase of finance, goods, services or other
facilities to, by or from any Group Company.
5.4.4 Neither the Vendor nor the Guarantor has any right or interest,
direct or indirect, in any business other than those now carried
on by Group Companies which are, or which, so far as each of the
Vendor and the Guarantor is aware is, are likely to become,
competitive with the business of the Group Companies.
5.5 EFFECT OF SALE OF THE SHARES
5.5.1 Compliance with this Agreement or the Tax Deed of Indemnity does
not and will not conflict with or result in the breach of or
constitute a default under any agreement or instrument to which
any Group Company is now a party or any loan to or mortgage
created by any Group Company or relieve any other party to a
contract with any Group Company of its obligations under such
contract or entitle such party to terminate such contract,
whether summarily or by notice.
5.5.2 So far as each of the Vendor and the Guarantor is aware, neither
entering into nor completing this Agreement or the Tax Deed of
Indemnity, nor completing this Agreement will infringe or cause
any necessary amendment to any constitutive documents, licences
or consents or approvals under which any Group Company is
currently carrying out its business in Hong Kong, the PRC or
elsewhere, nor will require the prior consent or approval of any
government authorities or other third parties (other than in
relation to any changes in the chairman or the general manager
of the PRC Subsidiaries).
5.6 JOINT VENTURES, PARTNERSHIPS, OTHER INTERESTS ETC.
5.6.1 Except as set forth in this Agreement or the Disclosure Letter,
there is no other company or undertaking in respect of which any
Group Company owns or controls any shares or other interest.
5.6.2 None of the Vendor, the Guarantor nor any of their subsidiaries,
other than the Group Companies, owns or otherwise has an
interest in any company or undertaking which competes or is
likely to compete, either directly or indirectly, with the
business of any Group Company.
5.6.3 No Group Company is or has agreed to become, a member of any
joint venture, consortium, partnership or other unincorporated
association in any case which is
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material to the business of such Group Company; and no Group
Company is or has agreed to become, a party to any agreement
(other than with a member of the Group) relating to the sharing
of commissions or other income which is material to the business
of such Group Company.
5.7 SUPPLIERS
The Disclosure Letter sets forth the names of the 10 largest suppliers of
each of the Group Companies during the three fiscal years covered by the
Accounts, as well as the amounts of their respective sales to such Group
Company during such three year period.
5.8 CUSTOMERS
The Disclosure Letter sets forth the names of the 10 largest customers of
each of the Group Companies during the three year period covered by the
Accounts, as well as the amounts of their respective purchases from such
Group Company during such three year period. Since the Balance Sheet Date,
there has not been any material adverse change in the business relationship
of any Group Company with any of its 10 largest customers of the fiscal
year ended 31 March 1999.
5.9 SUFFICIENCY OF ASSETS
The assets owned or leased by each Group Company and the facilities and
services to which each Group Company has a contractual right comprise all
the assets, facilities and services used by it for the purpose of carrying
on its business in the manner in which it is presently conducted.
6 LEGAL MATTERS
6.1 COMPLIANCE WITH LAWS
The Group Companies carry on their respective businesses in accordance with
applicable laws, regulations and byelaws in Hong Kong, the PRC and in any
other relevant jurisdiction in all material respects and, so far as each of
the Vendor and the Guarantor is aware, there is no investigation or enquiry
by, or order, decree or judgement of, any court or any governmental agency
or regulatory body outstanding or anticipated against any Group Company.
6.2 LICENCES AND CONSENTS
All statutory, regulatory and municipal and other licences, concessions,
consents, permits and authorities necessary for the transfer of the Group
Companies, or the carrying on of the business of the Group Companies as now
carried on in Hong Kong, the PRC or elsewhere, have been obtained and are
valid and subsisting and all conditions applicable to any such licence,
consent (including any planning consent) permit or authority have been
complied with in all material respects and none of such licences, consents,
permits or authorities has been breached or is likely to be suspended,
cancelled, refused or revoked.
6.3 LITIGATION
6.3.1 No Group Company (or any person for whose acts or defaults any
Group Company may be vicariously liable) is involved whether as
plaintiff or defendant or other party in any claim, legal
action, proceeding, suit, litigation, prosecution,
investigation, enquiry or arbitration of material importance
before any tribunal (other than as plaintiff in the collection
of debts arising in the ordinary course of its business) and, no
such claim, legal action, proceeding, suit, litigation,
prosecution, investigation, enquiry or
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arbitration is pending or threatened by or against any Group
Company (or any person for whose acts or defaults the Group
Company may be vicariously liable).
6.3.2 So far as each of the Vendor and the Guarantor is aware, there
are no investigations, disciplinary proceedings or other
circumstances likely to lead to any such claim or legal action,
proceeding, suit, litigation, prosecution, investigation,
enquiry or arbitration.
6.3.3 Save as disclosed in the Disclosure Letter, no government or
governmental, supranational or state agency or regulatory body
or trade union or other person or organisation has requested any
information in connection with, or so far as each of the Vendor
and the Guarantor is aware, instituted or threatened, any action
or investigation to restrain, prohibit or otherwise challenge
the operation of any Group Company or any of its employees and
there are no facts which are likely to give rise to such action
or investigation.
6.3.4 Since the Balance Sheet Date no claim for damages or otherwise
has been made against any Group Company.
6.4 INSOLVENCY ETC.
6.4.1 No order has been made, petition presented, resolution passed or
meeting convened for the winding up of any Group Company.
6.4.2 No receiver (including an administrator) has been appointed of
the whole or any part of any of the property, assets and/or
undertaking of any Group Company.
6.4.3 No composition in satisfaction of the debts of any Group Company
or scheme of arrangement of its affairs, or compromise or
arrangement between it and its creditors and/or members or any
class of its creditors and/or members, has been proposed,
sanctioned or approved.
6.4.4 No distress, distraint, charging order, garnishee order,
execution or other process has been levied or applied for in
respect of the whole or any part of any of the property, assets
and/or undertaking of any Group Company.
6.4.5 No event has occurred causing, or which upon intervention or
notice by any third party may cause, any floating charge created
by any Group Company to crystallise or any charge created by it
to become enforceable, nor has any such crystallisation occurred
or is such enforcement in process.
6.4.6 Each of the Group Companies has been able to meet its
obligations as they become due.
6.5 POWERS OF ATTORNEY
No Group Company has given a power of attorney which is still outstanding
or effective to any person to enter into any contract or commitment or do
anything on its behalf, other than any authority to employees or officers
to enter into routine contracts in the normal course of their duties.
6.6 WARRANTIES AND INDEMNITIES
No Group Company has, in respect of transactions which are material to the
business of the Company, have sold or otherwise disposed of any shares or
assets in circumstances such that it is, or may be, still subject to any
outstanding liability (other than (i) product liability in respect of the
sale of goods; or (ii) products sold in the ordinary course of its
business) (whether
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contingent or otherwise) under any representation, warranty or indemnity
given or agreed to be given on or in connection with such sale or disposal.
6.7 NO QUESTIONABLE PAYMENTS
No Group Company has been a party to the making of any direct or indirect
unlawful payment to government officials, employees or political parties;
to the establishment or maintenance of any unlawful funds, monies or other
assets; or to the making of any false or fictitious entries on the books or
records of such Group Company.
6.8 ENVIRONMENTAL LIABILITY
6.8.1 The Disclosure Letter sets forth all environmental reports
relating to the facilities and operations of the Group Companies
and to the best of the knowledge of each of the Vendor and the
Guarantor, there are no other environmental reports relating to
the Group Companies or their facilities and operations.
6.8.2 Each Group Company has complied with all Environmental Laws
relating to it and, in particular, has obtained and complied
with the terms and conditions of all permits, licences and other
authorisations, and has complied with and filed all
notifications, that are required under such Environmental Laws.
6.8.3 There is no civil, criminal or administrative action, claim,
investigation or other proceeding or suit pending or threatened
against any Group Company arising from or relating to
Environmental Laws and there are no circumstances existing which
may lead to any such action, claim, investigation, proceeding or
suit.
6.8.4 No Group Company has manufactured, sold or supplied products
which do not comply with any Environmental Laws.
6.8.5 For the purposes of this Warranty:
ENVIRONMENTAL LAWS means all the laws of any relevant
jurisdiction relating to pollution or protection of the
environment, or to health and safety matters (including, without
limitation, laws relating to workers and public or consumer
health and safety, hygiene, emissions, discharges or threatened
releases of Hazardous Substances into the environment or the
production, processing, distribution, management, use,
treatment, storage, burial, disposal, transport or handling of
any Hazardous Substances) and all byelaws, codes, regulations,
decrees, demands or demand letters, injunctions, judgements,
notices or notice demands, orders or plans issued, promulgated
or approved thereunder or in connection therewith; and
HAZARDOUS SUBSTANCES means wastes, pollutants, contaminants or
other substances (including without limitation liquids, solids,
gases, ions, living organisms, and noise) that may be harmful to
human health or other life or the environment or a nuisance to
any person or that may make the use or ownership of any affected
land or property more costly.
7 EMPLOYEES ETC.
7.1 EMPLOYEES AND TERMS OF EMPLOYMENT
7.1.1 Full particulars of all existing contracts of service with
directors or employees of each Group Company carrying
remuneration at a rate in excess of HK$1,000,000 per annum have
been provided to the Purchaser and there are no consultancy
agreements with any Group Company.
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7.1.2 There are not in existence any contracts of service with
directors or employees of any Group Company, nor any consultancy
agreements with any Group Company, which cannot be terminated by
three months' notice or less or (where not reduced to writing)
by reasonable notice without giving rise to any claim for
damages or compensation (other than a statutory redundancy
payment).
7.2 LIABILITIES TO AND FOR EMPLOYEES
7.2.1 There are no amounts owing to any present or former directors or
employees of any Group Company other than remuneration accrued
due or for reimbursement of business expenses and no directors
or senior employees of any Group Company have given or been
given notice terminating their contracts of employment.
7.2.2 Save as disclosed in the Disclosure Letter, no Group Company has
a scheme or arrangement for the payment of bonuses to employees
of such Group Company.
7.2.3 Save to the extent (if any) to which provision or allowance has
been made in the Accounts:-
(i) no claim has been made by any employee of any Group Company
against such Group Company for breach of any contract of
service or for services, for statutory redundancy payments
or for compensation for wrongful dismissal; and
(ii) no gratuitous payment has been made or promised by any
Group Company in connection with the actual or proposed
termination or suspension of employment or variation of any
contract of employment of any present or former director or
employee.
7.2.4 To the best of the knowledge of each of the Vendor and the
Guarantor, there are no claims against any Group Company:-
(i) by an employee or workman, in respect of an accident or
injury which is not fully covered by insurance; or
(ii) by an employee or director in relation to his terms and
conditions of employment or appointment.
7.3 COMPLIANCE WITH STATUTES
Each Group Company has in relation to each of its employees (and so far as
relevant to each of its former employees) complied in all material respects
with all obligations imposed on it by all ordinances, regulations and codes
of conduct relevant to the relations between it and its employees and has
maintained in all material respects current adequate and suitable records
regarding the service of each of its employees.
7.4 SHARE INCENTIVE, BONUS SCHEMES ETC.
No Group Company has in existence, nor is it committed to introduce, any
share incentive scheme, share option scheme or profit sharing scheme for
all or any part of its directors or employees.
7.5 PROVIDENT FUND
All information disclosed to the Purchaser in respect of the Provident Fund
is true and accurate in all material respects.
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8 TAXATION MATTERS
8.1 RETURNS AND INFORMATION
8.1.1 All returns, computations and notices which are or have been
required to be made or given by each Group Company for any
Taxation purpose (i) have been made or given within the
requisite periods and on a proper basis and are up-to-date and
correct in all material respects; (ii) so far as the Vendor is
aware, none of them is, or is likely to be, the subject of any
dispute with the Inland Revenue Department or other Taxation
authorities; and (iii) will continue to be made or given until
Completion in respect of any period prior to Completion.
8.1.2 All information required to be provided to the Inland Revenue
Department or any Taxation authority has been provided within
the requisite period and is accurate in all material respects.
8.2 TAXATION CLAIMS AND LIABILITIES
8.2.1 Except as disclosed in the Disclosure Letter without prejudice
to any liability which may arise under the Tax Deed of Indemnity
there is no liability to Taxation in respect of which a claim
could be made under the Tax Deed of Indemnity and so far as the
Vendor is aware there are no circumstances likely to give rise
to such a liability.
8.2.2 All profits tax, interest tax, salaries tax and property tax,
stamp duties, and other charges and levies assessed or imposed
by any government or governmental or statutory body which have
been assessed upon each Group Company and which are due have
been paid.
9 ASSETS
9.1 SUBSIDIARIES AND ASSOCIATES
No Group Company is the holder or beneficial owner of, or has agreed to
acquire, any share or loan capital of any other company (whether
incorporated in Hong Kong or elsewhere), other than a member of the Group.
9.2 TITLE TO ASSETS
All assets of each Group Company and all debts due which are included in
the Accounts or which have been represented as being the property of or due
to such Group Company or at the Balance Sheet Date used or held for the
purposes of its business were at the Balance Sheet Date the absolute
property of the relevant Group Company and (save for those subsequently
disposed of or realised in the ordinary course of business) all such assets
and all assets and debts which have subsequently been acquired or arisen
are now the absolute property of the relevant Group Company and none is the
subject of any assignment or Encumbrance whatsoever (excepting only liens
arising by operation of law in the normal course of business) or the
subject of any factoring arrangement, hire-purchase, conditional sale or
credit sale agreement.
9.3 PLANT AND MACHINERY
The plant, machinery, vehicles and all other equipment used in connection
with the business of the Group (taken as a whole) are in working order and
have been properly maintained.
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9.4 INTELLECTUAL PROPERTY
9.4.1 No Group Company uses any processes or products and no Group
Company is engaged in any activities which infringe any patents,
copyrights, trade marks, designs and business names or other
registrable or unregistrable intellectual property rights of any
third party.
9.4.2 No Group Company has any right, title and interest in any trade
marks or service marks in relation to the business and affairs
of such Group Company nor has any Group Company made or filed
any registrations or applications to register any trade marks or
service marks.
9.4.3 The Software is in working order in all material respects. For
purposes of this paragraph 9.4.3, "SOFTWARE" includes all
computer programs and software used by any Company or supplied
in or in connection with the business of any Group Company
(whether owned by such Group Company, licensed to such Group
Company by a third party or sub-licensed by a Group Company
pursuant to a licence agreement from a third party).
10 Y2K
The Information Technology is either fully Millennium Compliant and will
not cease to be so prior to, during or after the year 2000 or each Group
Company has implemented a millennium compliance programme which will ensure
that the Information Technology will be Millennium Compliant by no later
than 30 September 1999 and neither the Vendor nor the Guarantor has any
reason to believe that, if such steps are taken, the Information Technology
and each part of it will not be fully Millennium Compliant in all material
respects.
For the purposes of this warranty:-
"MILLENNIUM COMPLIANT" means that neither performance nor functionality is
or will be affected by dates prior to, during or after the year 2000 and in
particular (but without limitation) that the Information Technology does
and will have the ability to provide all of the following functions:-
(i) handle date information before, during and after 1 January
2000, including, but not limited to, accepting date input,
providing date output and performing calculations on dates
or portions of dates;
(ii) function accurately and without interruption before, during
and after 1 January 2000, without any change in operations
associated with the advent of the year 2000 and the new
century;
(iii) respond to two-digit year input in a way that resolves the
ambiguity as to century in a disclosed, defined and
predetermined manner;
(iv) process two-digit year date information in ways that are
similarly unambiguous as to century;
(v) store and provide output of date information in ways that
are similarly unambiguous as to century; and
(vi) to recognise the year 2000 as a leap year.
"INFORMATION TECHNOLOGY" means all computer systems, communication systems,
software and hardware owned, used or licensed by or to any Group Company.
-48-
<PAGE> 51
11 REAL PROPERTY
11.1 The lands and the buildings, details of which are set out in the Disclosure
Letter, comprise all of the lands and buildings owned by the Group.
11.2 In respect of the lands and buildings which comprise the Properties in the
PRC:-
11.2.1 land use rights certificates in respect of each of such lands
and building ownership certificates in respect of each of such
buildings have been duly issued to the relevant member of the
Group as the sole holder or owner, and are current, valid and
subsisting. All legal formalities in relation to the obtaining
of such land use rights certificates and building ownership
certificates (including contracts for the grant or transfer of
the land use rights and titles to the buildings) have been duly
concluded, and all consents, permits, certificates and approvals
of whatsoever nature in connection therewith have been duly
obtained and are valid and subsisting;
11.2.2 good and unencumbered land use rights in respect of each of such
Lands and good and unencumbered title to each of such buildings
have been and are duly and fully vested in the relevant member
of the Group shown in the Disclosure Letter as the property
owner (except to the extent such rights and titles are subject
to mortgages or pledges, details of which are set forth in the
Disclosure Letter), and that member of the Group is entitled to
use such lands and own such buildings for the term set out in
the Disclosure Letter;
11.2.3 all fees, premiums, charges, acquisition considerations, taxes,
duties and other expenses of whatsoever nature in relation to
the acquisition of the land use rights in respect of such lands
and titles to such buildings have been fully paid within the
relevant time limits without default to the relevant government
or regulatory authorities or entities which transferred or sold
to the Group such buildings and/or the land use rights in
respect of such lands. The Group is not required to pay any fee,
premium, charge, tax, duty or other expense in connection with
preserving the legal status of the land use rights in respect of
such lands and the titles to the buildings or to otherwise
ensure that such rights and titles will remain in full force and
effect for their respective terms;
11.2.4 the current use of such Lands and such buildings by the Group is
strictly in accordance with the purpose of land or building use
as approved or permitted by the relevant authorities; and
11.2.5 subject to the rights of mortgagees and pledgees of the
mortgages and pledges set forth in the Disclosure Letter, the
Group is free to transfer the land use rights in respect of such
lands and the titles to such buildings by way of sale, exchange,
gift or otherwise to any PRC and/or foreign entities, and to
encumber such rights and titles by way of lease, license, or the
creation of mortgage or other security interest or otherwise,
without any additional payment, approval or consent.
11.3 In respect of the Property in Hong Kong:-
11.3.1 the relevant member of the Group named in the Disclosure Letter
as the owner of the Hong Kong property has a good marketable
title to such property free and clear from all Encumbrances
(other than mortgages, details of which are set forth in the
Disclosure Letter);
-49-
<PAGE> 52
11.3.2 the Government Leases under which the Hong Kong property are
held by the relevant member of the Group are valid and
subsisting and the relevant member of the Group has paid all
Government Rents or the proportion thereof payable by it and all
other outgoings which as at the date hereof have become due and
payable by it and has observed and performed all the terms and
conditions contained, mentioned or referred to in the said
Government Leases and imposed on the tenant(s) of the Hong Kong
property and the relevant member of the Group is not aware of
any modification by the Hong Kong Government of the terms and
conditions contained, mentioned or referred to in the said
Government Leases;
11.3.3 the Hong Kong property complies (as to construction and use)
with the Town Planning and the Building Ordinances and with all
applicable statutory and bye-law requirements, as to use, fire
precautions, public health and the health and safety of those
who work in or about them;
11.3.4 the Occupation Permits issued by the Building Authority in
respect of the Hong Kong property have been duly issued and the
present use of such property for the purposes of such permit
complies with the terms of such permit and the Crown Lease; and
11.3.5 neither the Hong Kong property nor the relevant member of the
Group is affected by any of the following matters:-
(i) any closing order, demolition order or clearance order;
(ii) any planning application;
(iii) any enforcement notice which has not been complied with;
(iv) any compensation received consequent upon a refusal of any
planning consent or the imposition of restrictions on any
planning consent or the modification or withdrawal of any
such consent; or
(v) any order or proposal publicly advertised or of which
written notice has been received for the compulsory
acquisition or requisition of the whole or any part thereof
or the modification of any planning permission or the
discontinuance of any use or the removal of any building.
-50-
<PAGE> 53
SCHEDULE 4
PROPERTIES
PART 1
PARTICULARS OF THE HONG KONG PROPERTIES
<TABLE>
<CAPTION>
PROPERTY ADDRESS REGISTERED OWNER
<S> <C> <C>
1 12th Floor of Block B of Kong Nam Industrial Building, Termbray Property (B.V.I.) Limited
Nos.603-609 Castle Peak Road, Tsuen Wan, New
Territories
2 13th Floor of Block B of Kong Nam Industrial Building, Termbray Property (B.V.I.) Limited
Nos.603-609 Castle Peak Road, Tsuen Wan, New
Territories
3 14th Floor of Block B of Kong Nam Industrial Building, Termbray Property (B.V.I.) Limited
Nos.603-609 Castle Peak Road, Tsuen Wan, New
Territories
4 Main Roof B13 of Block B of Kong Nam Industrial Building, Termbray Property (B.V.I.) Limited
Nos.603-609 Castle Peak Road, Tsuen Wan, New
Territories
5 Main Roof B14 of Block B of Kong Nam Industrial Building, Termbray Property (B.V.I.) Limited
Nos.603-609 Castle Peak Road, Tsuen Wan, New
Territories
6 Main Roof B15 of Block B of Kong Nam Industrial Building, Termbray Property (B.V.I.) Limited
Nos.603-609 Castle Peak Road, Tsuen Wan, New
Territories
7 Main Roof B16 of Block B of Kong Nam Industrial Building, Termbray Property (B.V.I.) Limited
Nos.603-609 Castle Peak Road, Tsuen Wan, New
Territories
8 Main Roof B17 of Block B of Kong Nam Industrial Building, Termbray Property (B.V.I.) Limited
Nos.603-609 Castle Peak Road, Tsuen Wan, New
Territories
9 Main Roof B18 of Block B of Kong Nam Industrial Building, Termbray Property (B.V.I.) Limited
Nos.603-609 Castle Peak Road, Tsuen Wan, New
Territories
10 Main Roof B19 of Block B of Kong Nam Industrial Building, Termbray Property (B.V.I.) Limited
Nos.603-609 Castle Peak Road, Tsuen Wan, New
Territories
</TABLE>
-51-
<PAGE> 54
PART 2
PARTICULARS OF THE PRC PROPERTIES
<TABLE>
<CAPTION>
ADDRESS OF PROPERTY LAND USE RIGHT
<S> <C>
Luosha Village, Yongning, 1 Number of Land Use Certificate: Zhong-fu-guo-yong
- ------------------------- (1999) zi, No. 050250
Xiaolan, Zhongshan
- ------------------
2 Issuing Date and Authority:
(1) 26/07/1999,
(2) Zhongshan Municipal People's Government
3 Land use right owner: Kalex Circuit Board (China)
Limited
4 Site Area: 61,519.06 m2
5 Nature of land use right: granted
6 Purpose of use: industrial
7 Term: 50 years (26/07/1999 - 22/07/2049)
8 Payment of land grant fees: RMB(Y)298,983 real
property tax remain to be paid
9 All buildings located on the land
888 Jiufo Road (West), 1 Number of Building and Land Title Certificate: Sui-
- ---------------------- fang-di-zheng-zi No. 0453768
Jiufo Town, Baiyun,
- -------------------
Guangzhou 2 Issuing Date and Authority:
- ---------
(1) 28/07/1999,
(2) Guangzhou Municipal People's Government
3 Owner: Guangzhou Termbray Electronic Technology
Company Limited
4 Site Area: 102,439.19 m2
5 Nature of land use right: granted
6 Purpose of use: industrial
7 Term of land use right: 50 years (from 15/07/1997)
8 Payment of land grant fees: fully paid
9 Building details:
(1) 11 buildings (including factory buildings and
warehouses)
(2) building area: 32,149,87 m(2)
(3) floor area: 104,568,32 m(2)
</TABLE>
-52-
<PAGE> 55
SCHEDULE 5
CONSULTANCY SERVICES AGREEMENT
This Agreement is made on between
(1) VIASYSTEMS CANADA, INC. of 205 Brunswick Boulevard, Point-Claire, Quebec,
H9R 1A5, Canada (the "Company"); and
(2) TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LIMITED, a company
incorporated in Bermuda, and having its principal place of business at
18-22 Lam Tin Street, Kwai Chung, N.T., Hong Kong (the "VENDOR").
1 INTERPRETATION
In this agreement:
"GROUP COMPANY" bears the same definition as that term bears in the Share
Purchase Agreement of o July 1999 entered into between the parties hereto
and others.
2 TERM OF CONSULTANCY
This Agreement will continue for a period of six months from the date of
this Agreement.
3 THE CONSULTANT'S SERVICES
3.1 The Vendor agrees to provide the consultancy services of Mr Lee Lap (the
"FIRST CONSULTANT") and Li Wai Kwong (the "SECOND CONSULTANT" and, together
with the First Consultant, the "CONSULTANTS") to the Company and the
Company agrees to accept such services.
3.2 The Vendor, through the First Consultant, agrees to provide the following
services (the "FIRST CONSULTANT'S SERVICES"):
3.2.1 to advise and assist the Company in remedying the ownership and
compliance issues relating to the operations of the Group
Companies (including the operations to be carried out after
Completion by Kalex Multi-layer Circuit Board (Zhongshan) Co.
Ltd.);
3.2.2 to advise and assist the Company in the ongoing relationship of
the Group Companies with customers, joint venture partners and
governmental authorities; and
3.2.3 to carry out any tasks the Company determines and the Vendor
agrees from time to time.
3.3 The Vendor, through the Second Consultant, agrees to provide the following
services (the "SECOND CONSULTANT'S SERVICES" and, together with the First
Consultant's Services, the "SERVICES"):
3.3.1 to advise and assist on all aspects of the business, finances
and affairs of the Group Companies to the extent that the Second
Consultant fulfils such functions prior to the date of this
Agreement; and
3.3.2 to carry out any tasks the Company determines and the Vendor
agrees from time to time.
for so long as the Second Consultant remains employed by the Vendor.
3.4 The Vendor shall procure that the Consultants shall provide the Services
personally.
-53-
<PAGE> 56
4 THE CONSULTANTS' RESPONSIBILITIES
The Vendor shall procure that:
4.1 the First Consultant shall devote whatever time, attention and skill is
required properly to perform the First Consultant's Services. The Company
shall from time to time agree with the Vendor what is necessary to achieve
this but it is understood that the First Consultant shall not be required
to devote more than 48 hours (inclusive of travelling time) at mutually
convenient times in any calendar month to the First Consultant's Services;
4.2 the Second Consultant shall devote such time, attention and skill is
required properly to perform the Second Consultant's Services. The Company
shall from time to time agree with the Vendor what is necessary to achieve
this but it is understood that, for the first three months after the date
of this Agreement, the Second Consultant shall not be required to devote
more time than he devoted to the relevant functions prior to this Agreement
and that thereafter the Second Consultant shall not be required to devote
more than 50 per cent. of his total working hours.
5 FEES AND CHARGES
5.1 The Company shall pay the Vendor on the date hereof an aggregate fee of
US$100,000 for the provision of the First Consultant's Services.
5.2 The Company shall pay the Vendor monthly in arrear an aggregate fee in US
dollars equivalent to the direct employment costs of the Vendor in making
available the services of the Second Consultant for the provision of the
Second Consultant's Services (such direct employment costs not to exceed
the level of such costs at the date of this Agreement). For this purpose,
the Company shall bear such proportion of the Second Consultant's salary
and other employment costs as equates to the proportion of his time the
Second Consultant devotes to the provision of the Second Consultant's
Services.
5.3 The Company shall also reimburse the Vendor for all reasonable travel,
accommodation and entertainment expenses incurred by the Consultants in the
course of providing the Services.
6 INDEPENDENT CONTRACTOR STATUS
6.1 Nothing in this Agreement will make either Consultant an employee, agent or
partner of the Company or its subsidiaries or any other Group Company and
neither Consultant will hold himself out as such.
6.2 Nothing in this Agreement will make the Vendor an agent or partner of the
Company or any Group Company.
7 DISCLAIMER OF LIABILITY
The Company agrees that neither the Vendor nor the Consultants shall have
any liability in connection with the provision of the Services.
8 GOVERNING LAW
This Agreement will be governed by and interpreted in accordance with the
laws of Hong Kong. Each of the parties submits to the exclusive
jurisdiction of the Hong Kong courts as regards any claim or matter arising
under this agreement.
-54-
<PAGE> 57
SIGNED by )
for and on behalf of )
VIASYSTEMS CANADA, INC. )
SIGNED by )
for and on behalf of TERMBRAY )
INDUSTRIES INTERNATIONAL )
(HOLDINGS) LIMITED )
-55-
<PAGE> 58
APPENDIX 1
CERTIFICATE OF APPROVAL
LEE & LEUNG (B.V.I.) LIMITED
(Incorporated in British Virgin Islands)
To: Termbray Industries International (Holdings) Limited
RE: DISPOSAL OF PRINTED CIRCUIT BOARD BUSINESS OF TERMBRAY ("DISPOSAL")
We refer to the share purchase agreement proposed to be entered into between
Termbray Electronics (B.V.I.) Limited (the "VENDOR"), Termbray Industries
International (Holdings) Limited ("TERMBRAY"), Viasystems Canada Inc. (the
"PURCHASER"), and Viasystems Group, Inc. (the "AGREEMENT"). Pursuant to the
Agreement, Termbray will dispose of its printed circuit board business to the
Purchaser at a total consideration of US$325 million less the Borrowings (as
defined in the Agreement) plus all Cash (as defined in the Agreement) of the
printed circuit board business.
We understand that the entering into of the Agreement by Termbray and the Vendor
constitutes a major transaction for Termbray within the meaning of the Rules
Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited
and is subject to the approval of the shareholders of Termbray.
We, the undersigned being the holders together of 79,234,039 shares of HK$0.10
each in Termbray (representing approximately 52.31% of the total issued share
capital of Termbray) hereby unconditionally and irrevocably approve the entering
into of the Agreement by Termbray and the Vendor and all the transactions
contemplated by the Agreement.
Date:
For and on behalf of For and on behalf of
LEE & LEUNG (B.V.I.) LIMITED HONGKONG & SHANGHAI BANKING
CORPORATION (NOMINEES) LIMITED
- ------------------------ ------------------------
Authorised Signature Authorised Signature
-56-
<PAGE> 59
APPENDIX 2
NET INTRA-GROUP INDEBTEDNESS
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LTD
- -----------------------------------------------------------------------------------------------------------------------------------
PCB GROUP Amount due
from/
- -----------------------------------------------------------------------------------------------------------------------------------
AS AT 30 JUNE, 1999 INTER-COMPANY BALANCES (Amount due to) Amount due from (Amount due to)
- -----------------------------------------------------------------------------------------------------------------------------------
(Expressed in Hongkong Dollars) within PCB group non PCB companies non PCB companies
- -----------------------------------------------------------------------------------------------------------------------------------
NAMES OF PCB SUBSIDIARIES
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
0748 Kalex Printed Circuit Board Ltd (399,635,655.11) 43,739,624.96 0.00
-------------- -------------- --------------
0705 Lee Lap & Sons Ltd 139,511,885.60 237,350,972.78 (23,827,267.82)
-------------- -------------- --------------
0704 Kalex Circuit Board (China) Ltd 314,366,668.83 139,647,881.53 (68,983,987.41)
-------------- -------------- --------------
0747 Termbray Laminte Co Ltd 123,124,905.46 35,497.23 (24,399,826.07)
-------------- -------------- --------------
0719 Termbray Property (BVI) Ltd (13,330,497.50) 25,588,824.50 (35,220,529.50)
-------------- -------------- --------------
0723 Kalex Circuit Board (HK) Ltd (Astec Circuit Boards Ltd) 81,482,190.31 11,104,000.00 (88,406,710.47)
-------------- -------------- --------------
0744 Termbray Circuit Board Co Ltd (1,204,716.02) 2.00 (4,176,277.00)
-------------- -------------- --------------
0745 Kalex Circuit Board (Guangzhou) Ltd 3,647,101.76 0.00 (15,718,728.83)
-------------- -------------- --------------
0746 Guangzhou Termbray Circuit Board Co Ltd (129,322,114.04) 300,000.00 (2,661,493.91)
-------------- -------------- --------------
0714 Kalex Multi-Layer Printed Circuit Board Co Ltd 2,489,928.20 0.00 (3,608,218.54)
-------------- -------------- --------------
0742 Guangzhou Termbray Electronics Technology Co Ltd (120,959,177.97) 19,087,934.77 (25,524,417.68)
-------------- -------------- --------------
0754 Guangzhou Kalex Laminate Co Ltd (170,515.44) 10,234.00 0.00
-------------- -------------- --------------
4.08 476,864,971.77 (292,527,457.23)
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
TERMBRAY INDUSTRIES INTERNATIONAL (HOLDINGS) LTD
- -----------------------------------------------------------------------------------------------------------
PCB GROUP
- -----------------------------------------------------------------------------------------------------------
AS AT 30 JUNE, 1999 INTER-COMPANY BALANCES Guarantee given for
- -----------------------------------------------------------------------------------------------------------
(Expressed in Hongkong Dollars) Total non PCB companies
- -----------------------------------------------------------------------------------------------------------
NAMES OF PCB SUBSIDIARIES
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C>
0748 Kalex Printed Circuit Board Ltd (355,896,030.15) --
-------------- --------------
0705 Lee Lap & Sons Ltd 353,035,590.56 --
-------------- --------------
0704 Kalex Circuit Board (China) Ltd 385,030,562.95 --
-------------- --------------
0747 Termbray Laminte Co Ltd 98,760,576.62 --
-------------- --------------
0719 Termbray Property (BVI) Ltd (22,962,202.50) --
-------------- --------------
0723 Kalex Circuit Board (HK) Ltd (Astec Circuit Boards Ltd) 4,179,479.84 --
-------------- --------------
0744 Termbray Circuit Board Co Ltd (5,380,991.02) --
-------------- --------------
0745 Kalex Circuit Board (Guangzhou) Ltd (12,071,627.07) --
-------------- --------------
0746 Guangzhou Termbray Circuit Board Co Ltd (131,683,607.95) --
-------------- --------------
0714 Kalex Multi-Layer Printed Circuit Board Co Ltd (1,118,290.34) --
-------------- --------------
0742 Guangzhou Termbray Electronics Technology Co Ltd (127,395,660.88) --
-------------- --------------
0754 Guangzhou Kalex Laminate Co Ltd (160,281.44) --
-------------- --------------
184,337,518.62 0.00
- -----------------------------------------------------------------------------------------------------------
</TABLE>
-57-
<PAGE> 1
EXHIBIT 4.11
$1,044,417,657.50
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of August 5, 1999
Among
VIASYSTEMS GROUP, INC.,
as Guarantor,
VIASYSTEMS, INC.,
as US Borrower,
VIASYSTEMS CANADA, INC. (f/k/a CIRCO CRAFT CO. INC.),
PCB INVESTMENTS PLC,
VIASYSTEMS HOLDINGS LIMITED (f/k/a FORWARD GROUP PLC),
CHIPS ACQUISITION LIMITED,
PRINT SERVICE HOLDING N.V.,
VIASYSTEMS II LIMITED (f/k/a INTERCONNECTION SYSTEMS (HOLDINGS)
LIMITED),
and the other Foreign Subsidiary Borrowers
from time to time parties hereto,
The Several Banks and other Financial Institutions
from time to time parties hereto
THE CHASE MANHATTAN BANK OF CANADA,
CHASE MANHATTAN INTERNATIONAL LIMITED
and the other Foreign Agents
from time to time appointed hereunder
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
CHASE SECURITIES INC.,
as Book Manager and Lead Arranger
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. DEFINITIONS ......................................................1
1.1 Defined Terms..................................................1
1.2 Other Definitional Provisions ................................38
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS ................................38
2.1 Revolving Credit Commitments .................................38
2.2 Procedure for Revolving Credit Borrowing .....................39
2.3 Commitment Fee; Facility Fee; Administrative Agent Fees.......40
2.4 Termination or Reduction of Revolving Credit Commitments......41
2.5 US Term Loans ................................................41
2.6 Foreign Subsidiary Term Loans ................................46
2.7 Procedure for Future Foreign Subsidiary Term Loan Borrowing...47
2.8 Repayment of Loans ...........................................47
2.9 Optional Prepayments .........................................49
2.10 Mandatory Prepayments ........................................49
2.11 Conversion and Continuation Options ..........................52
2.12 Bankers' Acceptances .........................................53
2.13 Existing Canadian B/As .......................................55
2.14 Minimum Amounts of Tranches ..................................55
2.15 Swing Line Commitment ........................................55
SECTION 3. ACCOMMODATIONS ..................................................57
3.1 The Accommodation Commitments ................................57
3.2 Procedure for Issuance of Specified Accommodations ...........58
3.3 Fees, Commissions and Other Charges ..........................59
3.4 Accommodation Participations .................................59
3.5 Reimbursement Obligation of the Specified Borrower ...........61
3.6 Obligations Absolute .........................................61
3.7 Accommodation Payments .......................................62
3.8 Letter of Credit Applications ................................62
3.9 Cash Collateralization of Accommodations .....................62
SECTION 4. GENERAL PROVISIONS ..............................................62
4.1 Interest Rates and Payment Dates .............................62
4.2 Computation of Interest and Fees .............................63
4.3 Inability to Determine Interest Rate .........................64
4.4 Pro Rata Treatment and Payments ..............................64
4.5 Illegality ...................................................67
4.6 Requirements of Law ..........................................68
4.7 Taxes ........................................................69
4.8 Indemnity ....................................................72
4.9 Replacement of Specified Lender ..............................73
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 5. REPRESENTATIONS AND WARRANTIES ..................................74
5.1 Financial Condition ..........................................74
5.2 No Change ....................................................75
5.3 Corporate Existence; Compliance with Law .....................75
5.4 Corporate Power; Authorization; Enforceable Obligations ......75
5.5 No Legal Bar .................................................76
5.6 No Material Litigation .......................................76
5.7 No Default ...................................................76
5.8 Ownership of Property; Liens .................................76
5.9 Intellectual Property ........................................76
5.10 Taxes ........................................................77
5.11 US Federal Regulations .......................................77
5.12 ERISA ........................................................77
5.13 Non-US Benefit and Pension Plans .............................78
5.14 Investment Company Act; Other Regulations ....................78
5.15 Subsidiaries, Etc ............................................78
5.16 Environmental Matters ........................................79
5.17 Delivery of Hong Kong Acquisition Document ...................80
5.18 Representations and Warranties Contained in the
Hong Kong Acquisition Document ...............................80
5.19 Disclosure ...................................................80
5.20 Guarantee and Collateral Agreement; Mortgages ................81
5.21 Solvency .....................................................81
5.22 No Fees ......................................................82
5.23 Insurance ....................................................82
SECTION 6. CONDITIONS PRECEDENT ............................................82
6.1 Conditions to Third Amendment and Restatement Closing Date ...82
6.2 Conditions to Each Specified Loan ............................84
SECTION 7. AFFIRMATIVE COVENANTS ...........................................85
7.1 Financial Statements .........................................85
7.2 Certificates; Other Information ..............................86
7.3 Payment of Obligations .......................................87
7.4 Conduct of Business and Maintenance of Existence .............87
7.5 Maintenance of Property; Insurance ...........................87
7.6 Inspection of Property; Books and Records; Discussions .......88
7.7 Notices ......................................................88
7.8 Benefit and Pension Plans ....................................89
7.9 Environmental Laws ...........................................89
7.10 Pledge of After Acquired Property ............................90
7.11 Pledge During Event of Default ...............................90
7.12 Additional Subsidiaries ......................................91
7.13 Intellectual Property ........................................91
7.14 Use of Proceeds ..............................................91
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 8. NEGATIVE COVENANTS ..............................................92
8.1 Financial Condition Covenants ................................92
8.2 Limitation on Indebtedness ...................................94
8.3 Limitation on Liens ..........................................96
8.4 Limitation on Guarantee Obligations ..........................98
8.5 Limitation on Fundamental Changes ............................99
8.6 Limitation on Sale of Assets .................................99
8.7 Limitation on Dividends .....................................100
8.8 Limitation on Capital Expenditures ..........................101
8.9 Limitation on Investments, Loans and Advances ...............102
8.10 Limitation on Optional Payments and Modifications of
Subordinated Debt Instruments ...............................104
8.11 Limitation on Transactions with Affiliates ..................105
8.12 Limitation on Sales and Leasebacks ..........................105
8.13 Limitation on Changes in Fiscal Year ........................106
8.14 Restrictions Affecting Subsidiaries .........................106
8.15 Limitation on Lines of Business .............................106
8.16 Amendments to Corporate Documents; Acquisition
Agreement; Licenses .........................................106
8.17 Passive Status of International Holdings ....................106
SECTION 9. EVENTS OF DEFAULT ..............................................106
SECTION 10. THE AGENTS ....................................................110
10.1 Appointment .................................................110
10.2 Delegation of Duties ........................................110
10.3 Exculpatory Provisions ......................................110
10.4 Reliance by the Specified Agents ............................111
10.5 Notice of Default ...........................................111
10.6 Non-Reliance on Agent and Lenders ...........................111
10.7 Indemnification .............................................112
10.8 Agents in Their Individual Capacity .........................112
10.9 Successor Agents ............................................112
10.10 Additional Ministerial Powers of the Specified Agents .......113
10.11 Specified Issuing Lender and Collateral Agent ...............113
10.12 English Agent as Trustee ....................................113
SECTION 11. GUARANTEE .....................................................113
11.1 Guarantee ...................................................113
11.2 Waiver of Subrogation .......................................114
11.3 Modification of Obligations .................................114
11.4 Waiver by Holdings ..........................................115
11.5 Reinstatement ...............................................115
11.6 Negative Covenants ..........................................115
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 12. MISCELLANEOUS .................................................116
12.1 Amendments and Waivers ......................................116
12.2 Notices .....................................................118
12.3 No Waiver; Cumulative Remedies ..............................119
12.4 Survival of Representations and Warranties ..................120
12.5 Payment of Expenses and Taxes ...............................120
12.6 Successors and Assigns; Participations and Assignments ......120
12.7 Adjustments; Set-off ........................................123
12.8 Counterparts ................................................124
12.9 Severability ................................................124
12.10 Integration .................................................124
12.11 Judgment Currency ...........................................124
12.12 Risks of Superior Force .....................................125
12.13 Language ....................................................125
12.14 GOVERNING LAW ...............................................125
12.15 Submission To Jurisdiction; Waivers .........................126
12.16 Acknowledgements ............................................126
12.17 WAIVERS OF JURY TRIAL .......................................127
12.18 Confidentiality .............................................127
12.19 Sharing Agreement ...........................................127
12.20 No Guarantee of Domestic Obligations by Foreign
Subsidiaries of US Borrower .................................128
12.21 Application of Indentures ...................................128
12.22 Chips Prepayment ............................................128
12.23 Consent of Additional Tranche C Term Loan Lenders ...........128
</TABLE>
-iv-
<PAGE> 6
EXHIBITS
A-1 Form of Revolving Credit Note
A-2 Form of Term Note
A-3 Form of Swing Line Note
B Participation Certificate
C Swing Line Loan Participation Certificate
D Assignment and Acceptance
E Closing Certificate
F Perfection Certificate
G Acknowledgment and Consent
H Form of Cash Collateral Agreement
I Form of Joinder Agreement
SCHEDULES
Administrative Schedule
1.1 Commitments
1.1(B) Eurocurrency Rate Formula
2.5 Chips Letter of Credit and Related Reimbursement Obligations and Cash
Collateralization
2.12 Form of Canadian B/As
3.1(a) Existing Accommodations
5.1(a) Financial Condition
5.4 Required Consents
5.6 Litigation
5.9 Intellectual Property
5.10 Taxes
5.13 Canadian Pension Plans
5.15 Subsidiaries, Joint Ventures, etc.
5.20 Filing Locations and Properties
5.22 Fees
8.2 Existing Indebtedness
8.3 Existing Liens
8.4 Existing Guarantee Obligations
8.9 Existing Investments
9(e) Certain Defaults
-v-
<PAGE> 7
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 5,
1999, among VIASYSTEMS GROUP, INC., a Delaware corporation ("Holdings"),
VIASYSTEMS, INC., a Delaware corporation (the "US Borrower"), VIASYSTEMS
CANADA, INC. (f/k/a CIRCO CRAFT CO. INC.), a Quebec corporation (the "Canadian
Borrower"), PCB INVESTMENTS PLC, a corporation organized under the laws of
England and Wales ("English Bidco"), VIASYSTEMS HOLDINGS LIMITED (f/k/a FORWARD
GROUP PLC), a corporation organized under the laws of England and Wales (the
"English Borrower"), CHIPS ACQUISITION LIMITED, a private limited company
organized under the laws of England and Wales ("Chips Limited"), PRINT SERVICE
HOLDING N.V., a company organized under the laws of the Netherlands ("Print
Service"), VIASYSTEMS II LIMITED (f/k/a INTERCONNECTION SYSTEMS (HOLDINGS)
LIMITED), a private limited company organized under the laws of England and
Wales ("ISL" and together with the Canadian Borrower, English Bidco, the
English Borrower, Chips Limited, Print Service and any Future Foreign
Subsidiary Borrower, the "Foreign Subsidiary Borrowers"), the several banks and
other financial institutions from time to time parties to this agreement (the
"Lenders"), THE CHASE MANHATTAN BANK OF CANADA ("Chase Canada"), as
administrative agent for the Canadian Lenders (in such capacity, the "Canadian
Agent"), CHASE MANHATTAN INTERNATIONAL LIMITED, as administrative agent for the
English Lenders (in such capacity, the "English Agent"), any Future Foreign
Agent which may from time to time be appointed hereunder and THE CHASE
MANHATTAN BANK ("Chase"), as administrative agent for the Lenders (in such
capacity, the "Administrative Agent").
WHEREAS, the US Borrower has requested that the Existing Credit
Agreement (as hereinafter defined) be amended and restated in the manner
provided for herein, including to provide for the New Tranche C Term Loans
contemplated herein; and
WHEREAS, this Third Amended and Restated Credit Agreement shall
become effective on the Third Amendment and Restatement Closing Date (as
hereinafter defined) in accordance with the provisions of subsection 6.1;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree that, effective on
the Third Amendment and Restatement Closing Date, the Existing Credit Agreement
shall be and hereby is amended and restated in its entirety to read as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Acceptance Fee": a fee payable in C$ by the Canadian Borrower to a
Canadian Lender with respect to the acceptance of a B/A, calculated on the
face amount of the
<PAGE> 8
2
Canadian B/A at the rate per annum equal to the Applicable Margin on the
basis of the number of days in the applicable Canadian Contract Period
and a year of 365 days.
"Accommodations": the collective reference to the Letters of Credit
and bankers acceptances (other than Canadian B/As) issued or created for
the accounts of the Specified Borrowers by the Specified Agents in
accordance with the terms hereof pursuant to the Accommodation Commitments
(including for all purposes hereof the portion of the Chips Letter of
Credit for which the US Borrower is responsible, which shall be deemed an
Accommodation issued on the Third Amendment and Restatement Closing Date).
"Accommodation Commitment": (a) as to any Specified Issuing Lender,
its obligation to issue or accept Accommodations for the account of the
Specified Borrower as identified in the Administrative Schedule or the
applicable Joinder Agreement and (b) as to any Specified Revolving Credit
Lender, its unconditional obligation to participate in Accommodations of
such Specified Borrower.
"Accommodation Outstandings": as to any Specified Borrower, at any
date, the sum of (a) the aggregate amount then available to be drawn or
the amount issued under all outstanding Specified Accommodations and (b)
the aggregate amount of drawings or payments under Specified
Accommodations which have not then been reimbursed pursuant to subsection
3.5.
"Additional US Term Loan": as to any Additional US Term Loan Lender,
its term loan to the US Borrower described in subsection 2.5(f), which
shall be a US Term Loan for all purposes of this Agreement and the other
Loan Documents.
"Additional US Term Loan Commitment": as to any Additional US Term
Loan Lender, its obligation to make Additional US Term Loans pursuant to
subsection 2.5(f) in an aggregate amount not to exceed the amount opposite
such Additional US Term Loan Lender's name in Schedule 1.1 under the
heading 'Additional US Term Loan Commitment'; collectively, as to all
Additional US Term Loan Lenders, the "Additional US Term Loan
Commitments."
"Additional US Term Loan Lenders": the Lenders listed in Schedule 1.1
which shall be US Term Loan Lenders for all purposes of this Agreement and
the other Loan Documents.
"Administrative Agent": as defined in the preamble hereto.
"Administrative Schedule": the Administrative Schedule attached
hereto, as amended, supplemented or otherwise modified from time to time.
"Affected Eurocurrency Loans": as defined in subsection 2.10(h).
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power,
<PAGE> 9
3
directly or indirectly, either to (i) vote 51% or more of the securities
having ordinary voting power for the election of directors of such Person
or (ii) direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise.
"Agents": the collective reference to the Administrative Agent, the
Collateral Agent and the Foreign Agents.
"Agreement": this Third Amended and Restated Credit Agreement, as
amended, amended and restated, supplemented or otherwise modified from
time to time.
"Applicable Margin": for each Type of Loan and for purposes of
subsection 2.3, the rate per annum set forth under the relevant column
heading below:
<TABLE>
<CAPTION>
Base Rate Loans
---------------
Type Applicable Margin
---- -----------------
<S> <C>
Tranche B Term Loans 2.25%
Additional US Term Loans 2.25%
Tranche C Term Loans 2.75%
New Tranche C Term Loans 2.75%
Chips Acquisition Term Loans 1.75%
Chips Limited Term Loans 1.75%
Revolving Credit Loans 1.75%
(including Swing Line Loans)
</TABLE>
<TABLE>
<CAPTION>
Eurocurrency Loans and B/As
---------------------------
Type Applicable Margin
---- -----------------
<S> <C>
Tranche B Term Loans 3.25%
Additional US Term Loans 3.25%
Tranche C Term Loans 3.75%
New Tranche C Term Loans 3.75%
Chips Acquisition Term Loans 2.75%
Chips Limited Term Loans 2.75%
Revolving Credit Loans 2.75%
(including Swing Line Loans)
</TABLE>
<TABLE>
<CAPTION>
Facility Fee
------------
Applicable Margin
-----------------
<S> <C>
0.75%
</TABLE>
<TABLE>
<CAPTION>
Commitment Fee
--------------
Applicable Margin
-----------------
<S> <C>
0.75%
</TABLE>
<PAGE> 10
4
; provided that (i) the Applicable Margin with respect to the extensions
of credit under the Canadian Revolving Credit Commitments shall be reduced
by the amount of the corresponding Applicable Margin for the Facility Fee
thereunder and (ii) in the event that the ratio of Consolidated Total Debt
of US Borrower and its Subsidiaries to Consolidated EBITDA of US Borrower
and its Subsidiaries, as most recently determined in accordance with
subsection 8.1(c), is as set forth in the relevant column heading below
for any quarterly period, any such Applicable Margin with respect to Chips
Acquisition Term Loans, Chips Limited Term Loans and Revolving Credit
Loans (including Swing Line Loans) and the Facility Fee and Commitment Fee
shall be as provided in the relevant column heading below, (subject to
reductions in Applicable Margins for the Canadian Revolving Credit
Commitments as specified in (i) above) but in no event shall any such
adjustment be effective prior to receipt of the financial statements of
the US Borrower pursuant to subsection 7.1(a) for the fiscal quarter ended
September 30, 1999:
<TABLE>
<CAPTION>
Relevant Ratio Applicable Applicable
of Consolidated Total Margin For Applicable Margin for
Debt to Consolidated Eurocurrency Margin for Facility Fee and
EBITDA Loans and B/As Base Rate Loans Commitment Fee
--------------------- -------------- --------------- ----------------
<S> <C> <C> <C>
4.50x and above 2.75% 1.75% 0.750%
4.00x to but excluding
4.50x 2.50% 1.50% 0.500%
3.25x to but excluding
4.00x 2.00% 1.00% 0.500%
3.00x to but excluding
3.25x 1.75% 0.75% 0.375%
Below 3.00x 1.50% 0.50% 0.375%
</TABLE>
if and in the event the financial statements required to be delivered
pursuant to subsection 7.1(a) or 7.1(b), as applicable, and the related
compliance certificate required to be delivered pursuant to subsection
7.2(b), are delivered on or prior to the date when due (or, in the case of
the fourth quarterly period of each fiscal year of the US Borrower, if
financial statements which satisfy the requirements of, and are delivered
within the time period specified in, subsection 7.l(b) and a related
compliance certificate which satisfies the requirements of, and is
delivered within the time period specified in, subsection 7.2(b), with
respect to any such quarterly period are so delivered within such time
periods), then the Applicable Margin in respect of the Chips Acquisition
Term Loans, Chips Limited Term Loans and Revolving Credit Loans (including
Swing Line Loans) and the Facility Fee and Commitment Fee during the
period from the date upon which such financial statements were delivered
shall be the Applicable Margin as set forth in the relevant column heading
above; provided, however, that in the event that the financial statements
delivered pursuant to subsection 7.1(a) or 7.1(b), as applicable, and the
related compliance
<PAGE> 11
5
certificate required to be delivered pursuant to subsection 7.2(b), are
not delivered when due, then:
(a) if such financial statements and certificate are delivered
after the date such financial statements and certificate were
required to be delivered (without giving effect to any applicable
cure period) and the Applicable Margin increases from that previously
in effect as a result of the delivery of such financial statements,
then the Applicable Margin in respect of Revolving Credit Loans
(including in the case of Base Rate Loans, Swing Line Loans), Chips
Acquisition Term Loans and Chips Limited Term Loans and the
Commitment Fee and Facility Fee during the period from the date upon
which such financial statements were required to be delivered
(without giving effect to any applicable cure period) until the date
upon which they actually are delivered shall, except as otherwise
provided in clause (c) below, be the Applicable Margin as so
increased;
(b) if such financial statements and certificate are delivered
after the date such financial statements and certificate were
required to be delivered and the Applicable Margin decreases from
that previously in effect as a result of the delivery of such
financial statements, then such decrease in the Applicable Margin
shall not become applicable until the date upon which the financial
statements and certificate actually are delivered; and
(c) if such financial statements and certificate are not
delivered prior to the expiration of the applicable cure period,
then, effective upon such expiration, for the period from the date
upon which such financial statements and certificate were required to
be delivered (after the expiration of the applicable cure period)
until two (2) Business Days following the date upon which they
actually are delivered, the Applicable Margin in respect of Revolving
Credit Loans (including in the case of Base Rate Loans, Swing Line
Loans), Chips Acquisition Term Loans and Chips Limited Term Loans
shall be 2-3/4%, in the case of Eurocurrency Loans and Canadian B/As,
and 1-3/4%, in the case of Base Rate Loans, and 3/4%, in the case of
Facility Fees and Commitment Fees payable under subsection 2.3 (it
being understood that the foregoing shall not limit the rights of
each of the Agents and the Lenders set forth in Section 9).
"Approved Fund": with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
affiliate of such investment advisor.
"Asset Sale": any sale, transfer or other disposition (including any
sale and leaseback of assets and any sale of accounts receivable in
connection with a receivable financing transaction) by Holdings, or any of
its Subsidiaries of any property of Holdings or any such Subsidiary
(including property subject to any Lien under any Loan Document), other
than as permitted pursuant to subsection 8.6(a), (b), (c) (provided that,
except with respect to the loss or condemnation of all or substantially
all of the assets of Holdings and its Subsidiaries, the proceeds from such
casualty or condemnation (including
<PAGE> 12
6
insurance) are used to replace or rebuild the lost or condemned assets
within the time period specified in subsection 2.10(f)) and (d) through
(h) and (j).
"Assignment": the Assignment dated as of November 30, 1996 made by
VTC in favor of the Collateral Agent for the ratable benefit of the
Secured Parties, as the same may be amended, supplemented or otherwise
modified from time to time.
"Assignee": as defined in subsection 12.6(c).
"Assignment and Acceptance": an assignment and acceptance entered
into by a Lender and an assignee, substantially in the form of Exhibit D.
"Available Revolving Credit Commitment ": as to any Specified
Revolving Credit Lender, with respect to any Specified Borrower at any
time, an amount equal to the excess, if any, of (a) the amount of such
Specified Revolving Credit Lender's Specified Revolving Credit Commitment
over (b) the aggregate of (i) the aggregate unpaid principal amount at
such time of all Specified Revolving Credit Loans made by such Specified
Revolving Credit Lender, (ii) an amount equal to such Specified Revolving
Credit Lender's Specified Revolving Credit Commitment Percentage of the
aggregate unpaid principal amount at such time of all Specified Swing Line
Loans of the Specified Borrower, (iii) an amount equal to such Specified
Revolving Credit Lender's Specified Revolving Credit Commitment Percentage
of the Specified Accommodation Outstandings of the Specified Lender at
such time and (iv) if such Specified Revolving Credit Lender is a
Multicurrency Lender and such Specified Borrower is ISL, its aggregate
Multicurrency Exposures in respect of all Multicurrency Borrowers;
collectively, as to all the Specified Revolving Credit Lenders, the
"Available Revolving Credit Commitments."
"Base Rate": as to any Specified Borrower in any Specified currency,
the interest rate identified as the Base Rate therefor in the
Administrative Schedule or, in the case of any Future Foreign Subsidiary
Borrower, the Joinder Agreement with respect thereto.
"Base Rate Loan": any Loan bearing interest by reference to the
applicable Base Rate.
"Base Rate Payment Date": as to any Specified Borrower, the Specified
Interest Payment Date for the Specified Base Rate Loans set forth in the
Administrative Schedule or the applicable Joinder Agreement.
"benefitted Specified Lender": as defined in subsection 12.7.
"Board": the Board of Governors of the Federal Reserve System (or any
successor thereto).
"Borrowers": the collective reference to the US Borrower and the
Foreign Subsidiary Borrowers.
<PAGE> 13
7
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.2, 2.5(e), 2.5(f), 2.6(c) or 2.15 as a date on which the
Specified Borrower requests the Specified Lenders to make Specified Loans
hereunder."
"Business Day": as to any Borrower, a day other than a Saturday,
Sunday or other day on which commercial banks in the city in which the
principal office of the Specified Agent is located are authorized or
required by law to close, provided that when used in connection with a
Eurocurrency Loan, the term "Business Day" shall also exclude any day on
which commercial banks are not open for dealing in deposits in the London
interbank market in the applicable currency, provided further, that with
respect to any day on which any payments are to be made under this
Agreement in a particular currency, the term Business Day shall also
exclude a day on which commercial banks in the principal financial center
of the country of the applicable currency are located are authorized or
required by law to close.
"Canadian Agent": as defined in the preamble hereto.
"Canadian Bankers' Acceptance" and "Canadian B/A" and "B/A": a bill
of exchange denominated in C$, drawn by the Canadian Borrower and accepted
by a Canadian Lender or a Specified Participant in accordance with this
Agreement.
"Canadian Benefit Plans": all material employee benefit plans
maintained or contributed to by a Credit Party that are not pension plans
accepted for registration under the ITA or SPPAQ or other applicable
pension benefits or tax laws of Canada or a province or territory thereof
including, without limitation, all profit sharing, savings, supplemental
retirement, retiring allowance, severance, deferred compensation, welfare,
bonus, supplementary unemployment benefit plans or arrangements and all
life, health, dental and disability plans and arrangements in which the
employees or former employees of the Credit Party employed in Canada
participate or are eligible to participate but excluding all stock option
or stock purchase plans.
"Canadian Borrower": as defined in the preamble hereto.
"Canadian Contract Period": the term of a Canadian B/A selected by
the Canadian Borrower in accordance with subsection 2.12 commencing on the
Borrowing Date, rollover date, or conversion date, as applicable, of such
Canadian B/A and expiring on a Business Day which shall be either thirty
(30) days, sixty (60) days, ninety (90) days, one hundred twenty (120)
days, or one hundred eighty (180) days thereafter, in all cases subject to
availability, provided that no Canadian Contract Period shall extend
beyond the Specified Revolving Credit Commitment Termination Date, or such
earlier date, if any, upon which the Canadian Revolving Credit Commitments
shall be terminated hereunder.
"Canadian Dollars" and "C$": lawful currency of Canada.
"Canadian Issuing Lender": Chase Canada or any other Canadian Lender,
as designated by Chase Canada as reasonably consented to by the Canadian
Borrower.
<PAGE> 14
8
"Canadian Lenders": Lenders holding Canadian Loans or Canadian
Revolving Credit Commitments.
"Canadian Letter of Credit": any Letter of Credit issued for the
account of the Canadian Borrower by the Canadian Issuing Lender.
"Canadian Loans": any loan made to the Canadian Borrower by, or any
Canadian B/A accepted by, any Canadian Lender pursuant to this Agreement.
"Canadian Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Canadian Loans and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the Canadian Borrower, whether or not a claim
for post-filing or post-petition interest is allowed in such proceeding)
the Canadian Loans and all other obligations and liabilities of the
Canadian Borrower to the Canadian Agent or to the Canadian Lenders,
whether direct or indirect, absolute or contingent, due or to become due,
or now existing or hereafter incurred, which may arise under, out of, or
in connection with, this Agreement, any Notes hereunder or the other Loan
Documents or any Interest Rate Agreement entered into with a Canadian
Lender and any other document made, delivered or given in connection
therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without
limitation, all fees and disbursements of counsel to the Canadian Agent or
to the Canadian Lenders that are required to be paid by the Canadian
Borrower pursuant to the terms of this Agreement) or otherwise.
"Canadian Pension Plan": any plan, program, arrangement, or
understanding that is a pension plan for the purposes of any applicable
pension benefits or tax laws of Canada or a province or territory thereof
(whether or not registered under any such laws) which is maintained,
administered, or contributed to by (or to which there is or may be an
obligation to contribute by) a Credit Party in respect to any person's
employment in Canada or a province or territory thereof with the Credit
Party and all related funding agreements.
"Canadian Reference Lenders": Chase Canada and any other Canadian
Lender appointed as such by the Canadian Agent and acceptable to the
Canadian Borrower.
"Canadian Revolving Credit Commitment": as to any Canadian Revolving
Credit Lender, its obligation to maintain any Existing Canadian Revolving
Credit Loan and to make additional Canadian Revolving Credit Loans to the
Canadian Borrower pursuant to subsection 2.1 and to participate in Swing
Line Loans and Canadian Letters of Credit in an aggregate amount not to
exceed at any one time outstanding the amount set forth opposite such
Canadian Revolving Credit Lender's name in Schedule 1.1 under the heading
"Canadian Revolving Credit Commitment", as such amount may be reduced from
time to time as provided herein; collectively, as to all the Canadian
Revolving Credit Lenders, the "Canadian Revolving Credit Commitments."
<PAGE> 15
9
"Canadian Revolving Credit Lender": any Canadian Lender having a
Canadian Revolving Credit Commitment or that holds outstanding Canadian
Revolving Credit Loans or Specified Accommodation Participating Interests
hereunder.
"Canadian Revolving Credit Loans": Canadian Loans made by any
Canadian Revolving Credit Lender to the Canadian Borrower pursuant to
subsection 2.1.
"Canadian Swing Line Lender": any Canadian Lender having a Swing Line
Commitment or that holds outstanding Swing Line Loans.
"Capital Expenditures": expenditures (including, without limitation,
obligations created under Financing Leases and purchase money Indebtedness
in the year in which created but excluding payments made thereon) of US
Borrower and its Subsidiaries in respect of the purchase or other
acquisition of fixed or capital assets (excluding any such asset acquired
(w) in connection with normal replacement and maintenance programs
properly expensed in accordance with GAAP, (x) with the proceeds of any
casualty insurance or condemnation award (with such expenditures to be
made, to the extent subsection 2.10(f) is applicable, in accordance with
subsection 2.10(f)), (y) with the cash proceeds of any asset sale made
pursuant to subsections 8.6(c) or (d), applied or contractually committed
to be applied within 180 days from receipt of such proceeds and (z) in any
Permitted Acquisition).
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Caribe": Circo Caribe Corporation, a corporation formed under the
laws of Puerto Rico and a Subsidiary of the Canadian Borrower.
"Cash Collateral Agreement": the Cash Collateral Agreement to be
entered into on or prior to the Third Amendment and Restatement Date by
the US Borrower in respect of the Chips Letter of Credit substantially in
the form of Exhibit H.
"Cash Equivalents": as to any currency, the investments set forth on
the Administrative Schedule for such currency or in any Joinder Agreement.
"Change in Control": the earlier to occur of (A) Hicks, Muse, Tate &
Furst Incorporated, Mills, their principals and their Affiliates and
management ("HMTFI") shall cease to have the power, directly or
indirectly, to vote or direct the voting of securities having a majority
of the ordinary voting power for the election of directors of Holdings,
provided that the occurrence of the foregoing event shall not be deemed a
Change of Control if (a) at any time prior to the consummation of an
Initial Public Offering, and for any reason whatever, (i) HMTFI otherwise
has the right to designate (and does so designate) a majority of the board
of directors of Holdings or (ii) HMTFI and their employees, directors and
officers (the "HMTFI Group") own of record and beneficially an amount of
common stock of Holdings equal to at least 50% of the amount of common
<PAGE> 16
10
stock of Holdings owned by the HMTFI Group of record and beneficially as
of the Closing Date and such ownership by the HMTFI Group represents the
largest single block of voting securities of Holdings held by any Person
or related group for purposes of Section 13(d) of the Securities Exchange
Act of 1934, as amended, or (b) at any time after the consummation of an
Initial Public Offering, and for any reason whatever, (i) no "Person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), excluding the HMTFI Group,
shall become the "beneficial owner" (as defined in Rules 13(d)-3 and
13(d)-5 under such Act), directly or indirectly, of more than the greater
of (x) 15% of the shares outstanding or (y) the percentage of the then
outstanding voting stock of Holdings owned by the HMTFI Group and (ii) the
board of directors of Holdings shall consist of a majority of Continuing
Directors, and (B) of a Change of Control as defined in any document
pertaining to the Senior Subordinated Indebtedness.
"Chase": as defined in the preamble hereto.
"Chase Canada": as defined in the preamble hereto.
"Chase Delaware": Chase Manhattan Bank Delaware together with its
successors and assigns.
"Chips Acquisition Term Loan Commitment": as to any US Lender, its
obligation to make Chips Acquisition Term Loans pursuant to subsection
2.5(d) in an aggregate amount not to exceed the amount set forth opposite
such Chips Acquisition Term Loan Lender's name in Schedule 1.1 under the
heading "Chips Acquisition Term Loan Commitment"; collectively, as to all
Chips Acquisition Term Loan Lenders, the "Chips Acquisition Term Loan
Commitments."
"Chips Acquisition Term Loan Lender": any US Lender that holds (a) a
Specified Accommodation Participating Interest in the Chips Letter of
Credit to be converted to Chips Acquisition Term Loans or (b) outstanding
Chips Acquisition Term Loans, which collectively for purposes of
subsection 12.1 shall be deemed to be a class of Specified Foreign
Subsidiary Term Loan Lenders.
"Chips Acquisition Term Loans": term loans made by US Lenders to US
Borrower pursuant to subsection 2.5(d)(i).
"Chips Intercompany Note": as defined in subsection 2.6(c).
"Chips Letter of Credit": the irrevocable direct pay letter of credit
issued by Chase Manhattan Bank Delaware to support the payment of
principal of and up to 6.22% interest on the Chips Loan Notes.
"Chips Limited": as defined in the preamble hereto.
"Chips Limited Term Loan Commitment": as to any US Lender, its
obligation to (a) make Chips Limited Term Loans to the US Borrower
pursuant to subsection 2.5(c)
<PAGE> 17
11
and (b) refinance such loans with Chips Limited Term Loans to Chips
Limited pursuant to subsection 2.6(c) and (c) acquire Specified
Accommodation Participating Interests in the interest portion of the Chips
Letter of Credit in an aggregate amount not to exceed such Chips Limited
Term Loan Lender's name in Schedule 1.1 under the heading "Chips Limited
Term Loan Commitment"; collectively, as to all Chips Limited Term Loan
Lenders, the "Chips Limited Term Loan Commitments."
"Chips Limited Term Loan Lender": any US Lender or English Lender, as
the case may be, that holds (a) a Specified Accommodation Participating
Interest in the Chips Letter of Credit to be converted to Chips Limited
Term Loans or in respect of the interest portion of the Chips Letter of
Credit or (b) outstanding Chips Limited Term Loans, which collectively for
purposes of subsection 12.1 shall be deemed to be a class of Specified
Foreign Subsidiary Term Loan Lenders.
"Chips Limited Term Loans": term loans made by US Lenders or English
Lenders, as the case may be, to the US Borrower or Chips Limited, as the
case may be, pursuant to subsection 2.5(c) or 2.6(c), as the case may be.
"Chips Loan Notes": the unsecured Loan Notes due March 31, 2003
issued by Holdings (as successor to Chips Holdings) (as amended,
supplemented or otherwise modified from time to time).
"Chips Loans": any loan made to Chips Limited or ISL, as the case may
be, by any English Lender pursuant to this Agreement.
"Chips Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Chips Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to Chips Limited or ISL, as the case may be, whether
or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Chips Loans and all other obligations and liabilities
of Chips Limited or ISL, as the case may be, to the English Agent or to
the English Lenders, whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may
arise under, out of, or in connection with, this Agreement, any notes
thereunder or the other Specified Loan Documents, any Interest Rate
Agreement entered into with a Lender, and any other document made,
delivered or given in connection therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees and disbursements of
counsel to the English Agent or to the English Lenders that are required
to be paid by Chips Limited or ISL, as the case may be, or pursuant to the
terms of this Agreement) or otherwise.
"Chips Revolving Credit Commitment": as to any English Revolving
Credit Lender, its obligation to make Chips Revolving Credit Loans to ISL
pursuant to subsection 2.1 and to participate in Specified Accommodations
in an aggregate Equivalent Amount (together with, if such Lender is also a
Multicurrency Lender, its Specified Multicurrency Exposure) not to exceed
at any one time outstanding the amount set forth
<PAGE> 18
12
opposite such English Revolving Credit Lender's name in Schedule 1.1 under
the heading "Chips Revolving Credit Commitment", as such amount may be
reduced from time to time as provided herein; collectively, as to all the
English Revolving Credit Lenders, the "Chips Revolving Credit
Commitments."
"Chips Revolving Credit Loans": Chips Loans made by any English
Revolving Credit Lender to ISL pursuant to subsection 2.1.
"Civil Code Notice": as defined in subsection 9(m).
"Closing Date": November 30, 1996.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral Agent": Chase in its capacity as collateral agent for the
Secured Parties under the Loan Documents and the Sharing Agreement.
"Commitments": the collective reference to the Revolving Credit
Commitments, Chips Acquisition Term Loan Commitments, Chips Limited Term
Loan Commitments, the Swing Line Commitments, and the Accommodation
Commitments; individually, a "Commitment."
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of
Section 4001 of ERISA or is part of a group which includes the Borrower
and which is treated as a single employer under Section 414 of the Code.
"Consolidated Current Assets": at any date, the amount which, in
conformity with GAAP, would be set forth opposite the caption "Total
Current Assets" (or any like caption) on a consolidated balance sheet of
US Borrower and its Subsidiaries at such date, except that there shall be
excluded therefrom cash and Cash Equivalents and equipment and other fixed
assets held for sale.
"Consolidated Current Liabilities": at any date, the amount which, in
conformity with GAAP, would be set forth opposite the caption "Total
Current Liabilities" (or any like caption) on a consolidated balance sheet
of US Borrower and its Subsidiaries at such date, except that there shall
be excluded therefrom the current portion of (a) all Loans and, (b) all
long-term Indebtedness for borrowed money (including Financing Leases) in
each case, to the extent included therein.
"Consolidated EBITDA": for any period, with respect to any Person,
Consolidated Net Income of such Person for such period (A) plus, without
duplication and to the extent reflected as a charge in the statement of
such Net Income for such period, the sum of (i) total income and franchise
tax expense, (ii) interest expense, amortization or writeoff of debt
discount and debt issuance costs and commissions and discounts and other
fees and charges associated with Indebtedness, (iii) depreciation and
amortization expense, (iv) amortization of intangibles (including, but not
limited to, goodwill and
<PAGE> 19
13
organization costs (including, with respect to the US Borrower, costs
associated with the Acquisition)), (v) other noncash charges (including
any writeoffs of purchased technology), (vi) cash charges incurred due to
the integration and consolidation of activities associated with combining
the US Borrower or its Subsidiaries with the Hong Kong Company not
exceeding $40,000,000 in the aggregate over time and (vii) any
extraordinary and unusual losses (including losses on sales of assets
other than inventory sold in the ordinary course of business) other than
any loss from any discontinued operation and (B) minus, without
duplication, (i) any extraordinary and unusual gains (including gains on
the sales of assets, other than inventory sold in the ordinary course of
business) other than any income from discontinued operations and (ii) non
cash gains included in Consolidated Net Income; provided that for purposes
of calculating Consolidated EBITDA for any period (each a "Reference
Period") in connection with the determination of compliance with the
covenants set forth in subsections 8.1(b) and 8.1(c) for such period, if
during such Reference Period (or in the case of pro forma calculations,
during the period from the last day of such Reference Period to and
including the date as of which such calculation is made), the US Borrower
or any of its Subsidiaries shall have made a disposition of property or a
Permitted Acquisition, Consolidated EBITDA for such Reference Period shall
be calculated after giving pro forma effect thereto as if such disposition
or Permitted Acquisition occurred on the first day of such Reference
Period (with the Reference Period for the purposes of pro forma
calculations being the most recent period of four consecutive fiscal
quarters for which the relevant financial information is available).
Notwithstanding the foregoing, calculations of Consolidated EBITDA after
the Third Amendment and Restatement Closing Date shall be done on a basis
that assumes that the contribution to Consolidated EBITDA by the Hong Kong
Company is $12,800,000 for each fiscal quarter of the US Borrower to and
including the fiscal quarter ending September 30, 1999.
"Consolidated Net Income": for any period, with respect to any
Person, the amount which, in conformity with GAAP, would be set forth
opposite the caption "Net Income/(Loss)" (or any like caption) on a
consolidated statement of operations of such Person and its Subsidiaries
for such period.
"Consolidated Total Debt": at a particular date, with respect to US
Borrower, the aggregate principal amount of Indebtedness under this
Agreement, Financing Leases, purchase money Indebtedness, the Senior
Subordinated Indebtedness, and any other Indebtedness for borrowed money
of the US Borrower and its Subsidiaries at such date in conformity with
GAAP, provided, that any cash collateral applied to secure the
reimbursement obligations of the US Borrower under the Chips Letter of
Credit, pursuant to subsections 2.5(c) or (d) or 2.10(d) shall be
subtracted from the calculation of Consolidated Total Debt; and provided
further, that, for covenant calculation purposes only, any cash collateral
securing Domestic Obligations of the US Borrower as required by subsection
8.2(p) and any cash or Cash Equivalents held by Credit Parties, in each
case at such date shall be subtracted from the calculation of Consolidated
Total Debt.
"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets at such date over Consolidated Current
Liabilities at such date.
<PAGE> 20
14
"Continuing Directors": the directors of Holdings on the Closing Date
and each other director, if, in each case, such other director's
nomination for election to the board of directors of Holdings is
recommended by a majority of the then Continuing Directors or such other
director receives the vote of HMTFI in his or her election by the
shareholders.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Contribution": as defined in subsection 6.1(c).
"Credit Parties": the collective reference to Holdings, each of the
Borrowers and each of their respective Subsidiaries which from time to
time is a party to any Loan Document.
"CSI": Chase Securities Inc.
"Default": any of the events specified in Section 9, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Denominated Currency": as defined in subsection 12.11.
"Discount Proceeds": for any Canadian B/A, an amount (rounded to the
nearest whole cent, and with one-half of one cent being rounded up)
calculated on the applicable Borrowing Date, rollover date or conversion
date by multiplying:
(i) the face amount of the Canadian B/A; by
(ii) the quotient of one divided by the sum of one plus the
product of:
1. the Discount Rate (expressed as a decimal) applicable to such
Canadian B/A, and
2. a fraction, the numerator of which is the Canadian Contract
Period of the Canadian B/A and the denominator of which is 365,
being the number of days in the applicable year,
with such quotient being rounded up or down to the fifth decimal place and
.000005 being rounded up.
"Discount Rate": with respect to any Canadian Lender, as applicable
to a Canadian B/A being purchased by such Canadian Lender on any day, the
average (as determined by the Canadian Agent) of the respective percentage
discount rates (expressed to two decimal places and rounded upward, if
necessary, to the nearest 0.01%) quoted to the Canadian Agent and by each
Canadian Reference Lender as the percentage discount rate at which such
Canadian Reference Lender would, in accordance with its normal
<PAGE> 21
15
practices, at or about 10:00 a.m., Toronto time, on such day, be prepared
to purchase Bankers' Acceptances accepted by such Canadian Reference
Lender having a face amount and term comparable to the face amount and
term of such Canadian B/A.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Domestic Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to any Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the
Loans and all other obligations and liabilities of the US Borrower to the
Secured Parties, whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, this Agreement, any Notes, the
Guarantee and Collateral Agreement, or the other Loan Documents, any
Interest Rate Agreement entered into with a Lender or in respect of
overdrafts and related liabilities owed to the Administrative Agent or any
of its Affiliates or any treasury, depositary and cash management services
in connection with any automated clearing house transfers of funds for the
US Borrower or in respect of guarantees by the US Borrower of any such
obligations or liabilities of any of its Subsidiaries for any such
services, or any other document made, delivered or given in connection
therewith or herewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses (including,
without limitation, all fees and disbursements of counsel to the Secured
Parties that are required to be paid by the US Borrower pursuant to the
terms of this Agreement) or otherwise.
"Domestic Subsidiary": as to any Person, any Subsidiary of such
Person other than a Foreign Subsidiary of such Person.
"English Accommodations": the collective reference to Accommodations
issued by the English Issuing Lender for the account of the English
Borrower.
"English Agent": as defined in the preamble hereto.
"English Bidco": as defined in the preamble hereto.
"English Borrower": as defined in the preamble hereto.
"English Holding Company": Viasystems Group Limited, a private
limited company organized under the laws of England and Wales.
"English Issuing Lender": Chase, acting through its London Branch.
"English Lenders": the collective reference to Lenders holding Chips
Limited Term Loans made to Chips Limited, Chips Revolving Credit
Commitments, English Loans or English Revolving Credit Commitments.
<PAGE> 22
16
"English Loans": any loan made to English Borrower by any English
Lender pursuant to this Agreement.
"English Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the English Loans and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the English Borrower or English Bidco,
whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) the English Loans and all other obligations
and liabilities of the English Borrower or English Bidco to Chase, the
English Agent or to the English Lenders, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this
Agreement, any notes thereunder or the other Specified Loan Documents, any
Interest Rate Agreement entered into with a English Lender and any other
document made, delivered or given in connection therewith, whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all fees and
disbursements of counsel to the English Agent or to the English Lenders
that are required to be paid by the English Borrower or the English Bidco
pursuant to the terms of this Agreement) or otherwise.
"English Revolving Credit Commitment": as to any English Lender, its
obligation to maintain any existing English Revolving Credit Loans and to
make any additional English Revolving Credit Loans to the English Borrower
pursuant to subsection 2.1 and to participate in English Accommodations in
an aggregate amount not to exceed at any one time outstanding the amount
set forth opposite such English Lender's name in Schedule 1.1 under the
heading "English Revolving Credit Commitment", as such amount may be
reduced from time to time as provided herein; collectively, as to all the
English Lenders, the "English Revolving Credit Commitments."
"English Revolving Credit Lender": any English Lender having an
English Revolving Credit Commitment or a Chips Revolving Credit Commitment
or that holds outstanding English Revolving Credit Loans, Chips Revolving
Credit Loans or Specified Accommodation Participating Interests hereunder.
"English Revolving Credit Loans": English Loans made by any English
Revolving Credit Lender to the English Borrower pursuant to subsection
2.1.
"English Shares": all issued and outstanding ordinary shares of the
English Borrower.
"Environmental Laws": any applicable foreign, federal, state,
provincial, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, legally binding requirements of any
Governmental Authority or other Requirements of Law (including common law)
regulating, relating to or imposing liability or standards of conduct
concerning protection of human health or the environment, as now or may at
any time hereafter be in effect.
<PAGE> 23
17
"Equivalent Amount": at any time of determination, with respect to
any amount in any currency denominated in a different currency, the amount
at which such amount of different currency could be converted into the
determination currency at such time as reasonably determined by the
Specified Agent.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Base Rate": as to any Specified Borrower in any
Specified currency, the interest rate identified as the Eurocurrency Base
Rate therefor in the Administrative Schedule or, in the case of any Future
Foreign Subsidiary Borrower, the Joinder Agreement with respect thereto.
"Eurocurrency Rate": with respect to each day during each Interest
Period pertaining to a Eurocurrency Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurocurrency Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurocurrency Loan": any Loan bearing interest by reference to the
applicable Eurocurrency Rate.
"Eurocurrency Reserve Requirements": for any day as applied to any
Eurocurrency Loan, the aggregate (without duplication) of the maximum
rates (expressed as a decimal fraction) of reserve requirements in effect
on such day (including, without limitation, basic, supplemental, marginal
and emergency reserves) under any regulations of any applicable
Governmental Authority for the Specified Borrower dealing with reserve
requirements prescribed for eurocurrency funding (in the case of the US
Borrower, currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board).
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Excess Cash Flow": for any fiscal year of US Borrower, the excess of
(a) the sum, without duplication, of (i) Consolidated EBITDA for such
fiscal year, (ii) the amount of returned surplus assets of any Plan during
such fiscal year to the extent not included in Consolidated Net Income to
determine Consolidated EBITDA for such fiscal year, (iii) decreases in
Consolidated Working Capital of the US Borrower and its Subsidiaries for
such fiscal year, (iv) the amount of any refund received by Holdings and
its Subsidiaries on taxes paid by US Borrower and its Subsidiaries, (v)
cash dividends, cash interest and other similar cash payments received by
Holdings in respect of investments to the extent not included in
Consolidated Net Income to determine Consolidated EBITDA for such fiscal
year and (vi) extraordinary cash gains to the extent subtracted or
otherwise not included in Consolidated Net Income to determine
Consolidated EBITDA for such fiscal year over (b) the sum, without
duplication, of (i) the aggregate amount of cash Capital Expenditures
<PAGE> 24
18
made by US Borrower and its Subsidiaries during such fiscal year and
permitted hereunder (other than Capital Expenditures permitted under
subsection 8.8(c)), (ii) the aggregate amount of all reductions of the
Revolving Credit Commitments or payments or prepayments of the Term Loans
during such fiscal year other than pursuant to subsection 2.10(a), (b) or
(c), (iii) the aggregate amount of payments of principal in respect of any
Indebtedness permitted hereunder during such fiscal year (other than under
this Agreement), (iv) increases in Consolidated Working Capital of US
Borrower and its Subsidiaries for such fiscal year, (v) cash interest
expense of US Borrower and its Subsidiaries for such fiscal year, (vi)
taxes actually paid in such fiscal year or to be paid in the subsequent
fiscal year on account of such fiscal year to the extent added to
Consolidated Net Income to determine Consolidated EBITDA for such fiscal
year, (vii) extraordinary cash losses to the extent added to Consolidated
Net Income to determine Consolidated EBITDA for such fiscal year and
(viii) the amount of all Investments made in such fiscal year as permitted
by clauses (d), (h) and (j) of subsection 8.9, provided that (x) increases
or decreases in Consolidated Working Capital resulting from any
acquisition shall be excluded from the calculation of Excess Cash Flow and
(y) net income of any Foreign Subsidiary of the US Borrower which is not a
Credit Party will only be included to the extent distributed to a Credit
Party. Notwithstanding the foregoing, all payments made and received in
connection with any Permitted Acquisition, any additional Senior
Subordinated Indebtedness, or any permitted refinancing of the Senior
Subordinated Indebtedness shall be excluded from the calculation of Excess
Cash Flow.
"Excluded Leased Properties": the collective reference to the real
properties leased by Holdings or any of its Subsidiaries described on Part
III of Schedule 5.20, including all buildings, improvements, structures
and fixtures now or subsequently located thereon.
"Existing Accommodations": as defined in subsection 3.1(a).
"Existing Borrowers": Holdings, the US Borrower, the Canadian
Borrower, English Bidco and the English Borrower, as parties to the
Existing Credit Agreement.
"Existing Canadian Lenders": the several Canadian banks and other
financial institutions parties to the Existing Credit Agreement, as
Canadian Lenders on the Third Amendment and Restatement Closing Date.
"Existing Canadian Revolving Credit Loans": as defined in subsection
2.1(b).
"Existing Credit Agreement": the Second Amended and Restated Credit
Agreement, dated as of June 5, 1997, as amended, among the Existing
Borrowers, the Existing Lenders, The Chase Manhattan Bank of Canada, Chase
Manhattan International Limited and The Chase Manhattan Bank, as
administrative agent.
"Existing English Lenders": the several banks and other financial
institutions parties to the Existing Credit Agreement, as English Lenders
on the Third Amendment and Restatement Closing Date.
<PAGE> 25
19
"Existing English Revolving Credit Loans": as defined in subsection
2.1.
"Existing Lenders": the Existing English Lenders, the Existing
Canadian Lenders and the Existing US Lenders.
"Existing Revolving Credit Loans": as defined in subsection 2.1(c).
"Existing US Lenders": the several banks and other financial
institutions parties to the Existing Credit Agreement, as US Lenders on
the Third Amendment and Restatement Closing Date.
"Existing US Revolving Credit Loans": as defined in subsection
2.1(a).
"Existing US Term Loans": as defined in subsection 2.5(a).
"Facility Fee": as defined in subsection 2.3(b).
"Fee Properties": the collective reference to the real properties
owned in fee by Holdings and its Subsidiaries described on Part I of
Schedule 5.20, including all buildings, improvements, structures and
fixtures now or subsequently located thereon.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Foreign Accommodations": any Accommodation issued for the account of
any Foreign Subsidiary Borrower by the Specified Issuing Lender.
"Foreign Agents": the collective reference to the Canadian Agent, the
English Agent, and any Future Foreign Agent.
"Foreign Issuing Lenders": the collective reference to the Canadian
Issuing Lender, the English Issuing Lender, and the Future Foreign Issuing
Lender.
"Foreign Lenders": the collective reference to the Canadian Lenders,
the English Lenders, and any Future Foreign Subsidiary Lenders.
"Foreign Loans": the collective reference to the Canadian Loans, the
Chips Loans, the English Loans, and any Future Foreign Subsidiary Loans.
"Foreign Obligations": the collective reference to the Canadian
Obligations, the Chips Obligations, the English Obligations, and any
Future Foreign Subsidiary Obligations.
"Foreign Revolving Credit Commitments": the collective reference to
the Canadian Revolving Credit Commitments, the Chips Revolving Credit
Commitments, the
<PAGE> 26
20
English Revolving Credit Commitments and any Future Foreign Subsidiary
Revolving Credit Commitments."
"Foreign Revolving Credit Lenders": the collective reference to the
Canadian Revolving Credit Lenders, the English Revolving Credit Lenders,
and any Future Foreign Subsidiary Revolving Credit Lenders."
"Foreign Revolving Credit Loans": the collective reference to the
Canadian Revolving Credit Loans, the Chips Revolving Credit Loans, the
English Revolving Credit Loans, and any Future Foreign Subsidiary
Revolving Credit Loans.
"Foreign Subsidiary": as to any Person any Subsidiary of such Person
which is organized under the laws of any jurisdiction outside of the
country in which such Person is organized.
"Foreign Subsidiary Borrowers": the collective reference to the
Canadian Borrower, the English Borrower, English Bidco, Chips Limited,
Print Service, ISL and any Future Foreign Subsidiary Borrower.
"Foreign Subsidiary Term Loans": the collective reference to the
Chips Limited Term Loans (to the extent converted to Loans of Chips
Limited as provided in subsection 2.6(c)) and any Future Foreign
Subsidiary Term Loans.
"Foreign Subsidiary Term Loan Lenders": the collective reference to
the Chips Limited Term Loan Lenders (to the extent made to Chips Limited)
and any Future Foreign Subsidiary Term Loan Lender.
"Foreign Swing Line Lenders": the collective reference to the
Canadian Swing Line Lender and any Future Foreign Subsidiary Swing Line
Lenders.
"Future Acquisition Documents": any documents evidencing a Permitted
Acquisition that are required to be furnished to the Administration Agent
pursuant to subsection 8.9(k) or any other acquisition permitted in any
amendment hereto.
"Future Foreign Agent": any administrative agent appointed for any
Future Foreign Subsidiary Lenders .
"Future Foreign Issuing Lender": any issuing lender for
Accommodations for the account of a Future Foreign Subsidiary Borrower
appointed pursuant to any Joinder Agreement.
"Future Foreign Subsidiary Borrower": any Subsidiary of International
Holdings that becomes a borrower hereunder pursuant to any Joinder
Agreement.
"Future Foreign Subsidiary Lenders": as to any Future Foreign
Subsidiary Borrower, the Lenders to such Future Foreign Subsidiary
Borrower.
<PAGE> 27
21
"Future Foreign Subsidiary Loans": as to any Future Foreign
Subsidiary Borrower, the Loans made by the Future Foreign Subsidiary
Lenders to such Future Foreign Subsidiary Borrower.
"Future Foreign Subsidiary Obligations": with respect to any Future
Foreign Subsidiary Borrower, the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Specified Loans of such Future Foreign Subsidiary Borrower and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding,
relating to the such Future Foreign Subsidiary Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such
proceeding) the Specified Loans of such Future Foreign Subsidiary Borrower
and all other obligations and liabilities of such Future Foreign
Subsidiary Borrower to the Specified Agent or to the Specified Lenders,
whether direct or indirect, absolute or contingent, due or to become due,
or now existing or hereafter incurred, which may arise under, out of, or
in connection with, this Agreement, any notes thereunder or the other
Specified Loan Documents or any Interest Rate Agreement entered into with
a Specified Lender of such Foreign Subsidiary Borrower and any other
document made, delivered or given in connection therewith, whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all fees and
disbursements of counsel to the Specified Agent or to such Specified
Lenders that are required to be paid by such Future Foreign Subsidiary
Borrower pursuant to the terms of this Agreement) or otherwise.
"Future Foreign Subsidiary Revolving Credit Commitments": as to any
Future Foreign Subsidiary Borrower, the obligation of each Specified
Revolving Credit Lender with respect thereto to make Specified Revolving
Credit Loans to such Future Foreign Subsidiary Borrower pursuant to the
applicable Joinder Agreement and, to the extent applicable, to participate
in Specified Swing Line Loans and Specified Accommodations in an aggregate
amount not to exceed at any one time outstanding the amount set forth
opposite such Specified Lender's name in the amount set forth in the
applicable Joinder Agreement, as such amount may be reduced from time to
time as provided herein.
"Future Foreign Subsidiary Revolving Credit Lenders": as to any
Future Foreign Subsidiary Borrower, any Lenders holding Specified Future
Foreign Subsidiary Revolving Credit Commitments.
"Future Foreign Subsidiary Revolving Credit Loans": as to any Future
Foreign Subsidiary Borrower, any revolving credit loans made to such
Future Foreign Subsidiary Borrower by the Future Foreign Subsidiary
Revolving Credit Lenders.
"Future Foreign Subsidiary Swing Line Lender": as to any Future
Foreign Subsidiary Borrower, any Lender having a Specified Swing Line
Commitment or that holds outstanding Specified Swing Line Loans.
"Future Foreign Subsidiary Term Loans": as to any Future Foreign
Subsidiary Borrower, any term loans made to such Future Foreign Subsidiary
Borrower by the Specified Lenders.
<PAGE> 28
22
"Future Foreign Subsidiary Term Loan Lender": any Future Foreign
Subsidiary Lender that holds outstanding Future Foreign Subsidiary Term
Loans.
"GAAP": the generally accepted accounting principles in the United
States of America (or, in the case of financial statements or the like
with respect to any Foreign Subsidiary for any period prior to the date it
became a Foreign Subsidiary, in the country of organization of such
Foreign Subsidiary) as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board and the rules
and regulations of the Securities and Exchange Commission (or in the case
of financial statements or the like with respect to any Foreign Subsidiary
for any period prior to the date it became a Foreign Subsidiary, the
applicable authority in such country of organization of such Foreign
Subsidiary), or in such other statements by such other entity as may be in
general use by significant segments of the accounting profession, which
are applicable to the circumstances of Holdings as of the date of
determination except that for purposes of subsection 8.1, GAAP shall be
determined on the basis of such principles used in the preparation of the
financial statements referred to in subsection 5.1(a). In the event that
any "Accounting Change" (as defined below) shall occur and such change
results in a change in the method of calculation of financial covenants,
standards or terms in this Agreement, then Holdings, the Borrowers and the
Administrative Agent agree to enter into negotiations in order to amend
such provisions of this Agreement so as to equitably reflect such
Accounting Changes with the desired result that the criteria for
evaluating Holdings' financial condition shall be the same after such
Accounting Changes as if such Accounting Changes had not been made. Until
such time as such an amendment shall have been executed and delivered by
Holdings, the Borrowers, the Administrative Agent and the Required
Lenders, all financial covenants, standards and terms in this Agreement
shall continue to be calculated or construed as if such Accounting Changes
had not occurred. "Accounting Changes" means: changes in accounting
principles required by the promulgation of any rule, regulation,
pronouncement or opinion by the Financial Accounting Standards Board of
the American Institute of Certified Public Accountants or, if applicable,
the Securities and Exchange Commission (or successors thereto or agencies
with similar functions).
"Governmental Authority": any nation or government, any state,
province, municipality, or other political subdivision thereof and any
entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantee and Collateral Agreement": the Amended and Restated
Guarantee and Collateral Agreement dated as of April 11, 1997 made by
Holdings, the US Borrower and its Domestic Subsidiaries in favor of the
Collateral Agent for the ratable benefit of the Secured Parties, as the
same may be amended, supplemented or otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in
<PAGE> 29
23
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of any
other third Person (the "primary obligor") in any manner, whether directly
or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall not
include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal
to the stated or determinable amount of the primary obligation in respect
of which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as determined by the
board of directors of such Person in good faith.
"HMTFI" and "HMTFI Group": as defined in the definition of "Change of
Control".
"Holdings": as defined in the preamble hereto.
"Hong Kong Acquisition": the acquisition by the US Borrower of all
the assets of the Hong Kong Company.
"Hong Kong Acquisition Document": as defined in subsection 6.1(d).
"Hong Kong Company": the collective reference to certain Subsidiaries
of Termbray Industries International (Holdings) Limited, a public company
in Hong Kong.
"Hong Kong Pro Forma Balance Sheet": as defined in subsection 5.1(d).
"Hong Kong Restructuring" shall mean the following transactions: (a)
the formation of, and investment in, a British Virgin Islands company
("BVI Newco") by the Canadian Borrower, (b) the contribution by the
Canadian Borrower of the Capital Stock of certain companies comprising the
Hong Kong Company to BVI Newco and (c) intercompany transfers of the
Capital Stock of certain of the companies comprising the Hong Kong Company
by the Canadian Borrower or BVI Newco, as applicable, to certain other
Subsidiaries ultimately resulting in the ownership by Viasystems Cayman of
such companies.
<PAGE> 30
24
"Indebtedness": of any Person at any date, without duplication (a)
all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices and accrued expenses incurred in the
ordinary course of business) or which is evidenced by a note, bond,
debenture or similar instrument, (b) all obligations of such Person under
Financing Leases, (c) all obligations of such Person in respect of
bankers' acceptances or similar instruments issued or created for the
account of such Person, (d) all liabilities secured by any Lien on any
property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof; provided however, that
the amount of such Indebtedness of any Person described in this clause (d)
shall, for purposes of this Agreement, be deemed to be equal to the lesser
of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair
market value of the property or asset encumbered, as determined by such
Person in good faith; and (e) the Accommodation Obligations of the US
Borrower with respect to the principal portion of the Chips Letter of
Credit.
"Initial Public Offering": means an underwritten public offering of
common stock of Holdings pursuant to a registration statement filed with
the Securities and Exchange Commission in accordance with the Securities
Act of 1933, as amended.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": as defined in subsection 5.9.
"Interest Coverage Ratio": for any period, with respect to US
Borrower, the ratio of (a) Consolidated EBITDA to (b) consolidated cash
interest expense (including any such cash interest expense in respect of
Indebtedness under Financing Leases and purchase money Indebtedness
permitted under subsection 8.2(e)) of US Borrower and its Subsidiaries net
of cash interest income (such consolidated cash interest expense to
include fees payable on account of letters of credit and banker's
acceptances but to exclude amortization of debt discount (including
discount of liabilities and reserves established under Accounting
Principles Board Opinion No. 16 as in effect on the date hereof) and costs
of debt issuance).
"Interest Payment Date": (a) as to any Base Rate Loan, the Base Rate
Payment Date set forth on the Administrative Schedule or the applicable
Joinder Agreement, (b) as to any Eurocurrency Loan having an Interest
Period of three months or less, the last day of such Interest Period and
(c) as to any Eurocurrency Loan having an Interest Period longer than
three months, each day which is three months or a whole multiple thereof,
after the first day of such Interest Period as well as the last day of
such Interest Period.
"Interest Period": with respect to any Eurocurrency Loan:
<PAGE> 31
25
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
Eurocurrency Loan and ending at the end of any Permitted Interest
Period, as selected by the Specified Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with
respect thereto; and
(b) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such Eurocurrency
Loan and ending at the end of any Permitted Interest Period, as
selected by the Specified Borrower by irrevocable notice to the
Specified Agent not less than three Business Days prior to the last
day of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a Eurocurrency Loan
would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest
Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(2) no Interest Period shall extend beyond the Scheduled
Revolving Credit Commitment Termination Date in the case of Revolving
Credit Loans or the scheduled date final payment is due on any
tranche or class of Term Loans in the case of such tranche or class
of Term Loans;
(3) no Interest Period with respect to any tranche or class of
the Term Loans shall extend beyond any date upon which repayment of
principal thereof is required to be made if, after giving effect to
the selection of such Interest Period, the aggregate principal amount
of such tranche or class of Term Loans with Interest Periods ending
after such date would exceed the aggregate principal amount of such
tranche or class of Term Loans permitted to be outstanding after such
scheduled repayment; and
(4) any Interest Period pertaining to a Eurocurrency Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business
Day of a calendar month.
"Interest Rate Agreement": any interest rate protection agreement,
interest rate, commodity or currency future, interest rate option,
interest rate cap or other interest rate, commodity or currency hedge
arrangement, to or under which Holdings or its Subsidiaries is a party or
a beneficiary on the date hereof or becomes a party or a beneficiary after
the date hereof.
"International Holdings": Viasystems International, Inc., a Delaware
corporation.
<PAGE> 32
26
"Investments": as defined in subsection 8.9.
"ISL": as defined the preamble hereto.
"Issuing Lenders": the collective reference to the US Issuing Lender
and the Foreign Issuing Lenders.
"ITA": the Income Tax Act (Canada) and the regulations promulgated
thereunder, as amended or re-enacted from time to time.
"Joinder Agreement": a Joinder Agreement duly completed and executed
by (i) the US Borrower, Holdings and a Subsidiary of International
Holdings, (ii) the Administrative Agent, (iii) the Specified Agent and
(iv) each Specified Lender, and consented to by the Required Lenders (such
consent to be given or withheld in the reasonable discretion of each
Lender) and the Domestic Subsidiaries of the US Borrower, pursuant to
which (a) such Subsidiary agrees to become a Foreign Subsidiary Borrower
hereunder, (b) the Specified Agent agrees to act on behalf of the
Specified Lenders and, to the extent not already an Agent, agrees to
become an Agent hereunder, (c) each Specified Lender agrees to make
extensions of credit to or for the account of the Specified Foreign
Subsidiary Borrower to the extent set forth in such Joinder Agreement and,
to the extent not already a Lender, agrees to become a Lender hereunder
and (d) Holdings, the US Borrower and its Domestic Subsidiaries confirm
their guarantees in respect of the Specified Obligations and which sets
forth (x) the information for the Specified Borrower, the Specified Loans
and Specified Accommodations required by the Administrative Schedule and
any other administrative provisions (including amortization schedules, and
Applicable Margins) not inconsistent with this Agreement and (y) the legal
opinions, closing certificates, guarantees and collateral security
documents to be delivered in connection therewith. Any Joinder Agreement
which provides solely for a Multicurrency Borrower in the form of Exhibit
I to this Agreement need not be executed by the Required Lenders or any
existing Specified Agent other than the Administrative Agent.
"Judgment Conversion Date": as defined in subsection 12.11(a).
"Judgment Currency": as defined in subsection 12.11(a).
"Leased Properties": the collective reference to the real properties
leased by Holdings and its Subsidiaries described on Part II of Schedule
5.20 (other than the Excluded Leased Properties) including all buildings,
improvements, structures and fixtures now or subsequently located thereon
and owned or leased by the Borrower.
"Lenders": the collective reference to the US Lenders and the Foreign
Lenders.
"Letter of Credit": any Standby L/C or Trade L/C, collectively, the
"Letters of Credit."
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27
"Letter of Credit Application": with respect to (a) a Standby L/C, a
Standby L/C Application and (b) a Trade L/C, a Trade L/C Application;
collectively, the "Letter of Credit Applications".
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
agreement and any Financing Lease having substantially the same economic
effect as any of the foregoing).
"Loan Documents": the collective reference to this Agreement, the
Notes, the Letter of Credit Applications, the Assignment, the Guarantee
and Collateral Agreement, the Cash Collateral Agreement, any other
document, instrument or agreement guaranteeing, or granting a Lien to
secure any Obligations and, as it relates to the Secured Parties only, the
Sharing Agreement.
"Loans": the collective reference to the US Loans, Canadian Loans,
Chips Loans, English Loans, and any Future Foreign Subsidiary Loans.
"Majority Class Lenders": as defined in subsection 12.1.
"Material Adverse Change": any event, development, or circumstance
that has had or could reasonably be expected to have a Material Adverse
Effect.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of Holdings and its Subsidiaries, taken as a whole, (b) the
ability of Holdings and its Subsidiaries, taken as a whole, to perform
their respective obligations under this Agreement or any of the other Loan
Documents or (c) the validity or enforceability of this Agreement or any
of the other Loan Documents or the rights or remedies of the Secured
Parties hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated
as such in or under any Environmental Law, including, without limitation,
friable asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Mills": Mills & Partners, Inc.
"Mortgaged Properties": the collective reference to the Fee
Properties owned by the Borrower and its Subsidiaries listed on Part IV of
Schedule 5.20.
"Mortgages": the collective reference to the mortgages and deeds of
trust encumbering each of the Mortgaged Properties executed and delivered
by the US Borrower or its Domestic Subsidiaries, with such modifications
as are determined by the Administrative Agent as necessary or desirable to
create a valid and enforceable first
<PAGE> 34
28
mortgage Lien securing the obligations and liabilities of any Borrower or
any guarantor under any Loan Document, as the same may be amended,
supplemented, replaced, restated, or otherwise modified from time to time.
"Multicurrency Borrower": any Future Foreign Subsidiary Borrower
which is party to a Joinder Agreement, substantially in the form of
Exhibit I expressly providing that such Future Foreign Subsidiary Borrower
shall be a Multicurrency Borrower.
"Multicurrency Exposure": as to any Multicurrency Lender with respect
to any Multicurrency Borrower, the sum of (i) the aggregate unpaid
principal Equivalent Amount at such time of all Specified Revolving Credit
Loans made by such Multicurrency Lender (or its Affiliate or branch) to
such Multicurrency Borrower, (ii) an amount equal to the Equivalent Amount
of such Multicurrency Lender's (or its Affiliate or branch's) Specified
Revolving Credit Commitment Percentage of the aggregate unpaid principal
amount at such time of all Specified Swing Line Loans of such
Multicurrency Borrower and (iii) an amount equal to the Equivalent Amount
of such Specified Multicurrency Lender's (or its Affiliate or branch's)
Specified Revolving Credit Commitment Percentage of the Specified
Accommodation Outstandings of such Multicurrency Lender in respect of such
Multicurrency Borrower at such time.
"Multicurrency Lender": as to any Multicurrency Borrower, any English
Revolving Credit Lender having a Chips Revolving Credit Commitment and
which has (or has an Affiliate or branch which has) a Specified Future
Foreign Subsidiary Revolving Credit Commitment.
"Multicurrency Percentage": as to any English Revolving Credit Lender
with respect to any borrowing of Chips Revolving Credit Loans, a
percentage equal to the percentage which such English Revolving Credit
Lender's Specified Available Revolving Credit Commitment constitutes of
the aggregate Available Revolving Credit Commitments under the Chips
Revolving Credit Commitments after giving effect to the application of the
proceeds of such Chips Revolving Credit Loans.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale (including
any sale and leaseback of assets and any sale of accounts receivable in
connection with a receivables financing transaction) the cash proceeds
(including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such
Asset Sale net of all reasonable legal fees, notarial fees, accountants'
fees, investment banking fees, survey costs, title insurance premiums,
debt payments (other than pursuant hereto) and other customary fees
actually incurred and satisfactorily documented in connection therewith
and net of taxes paid or reasonably expected to be payable as a result
thereof and net of purchase price adjustments reasonably expected to be
payable in connection therewith and (b) in connection with any issuance by
Holdings or any of its Subsidiaries of equity or debt securities or
instruments or any Permitted Issuance or the
<PAGE> 35
29
incurrence of loans other than Indebtedness permitted by subsection 8.2,
the cash proceeds received from such issuance, net of all reasonable
investment banking fees, legal fees, notarial fees, accountants fees,
underwriting discounts and commissions and other customary fees and
expenses, actually incurred and satisfactorily documented in connection
therewith; provided however that, with respect to any issuance of debt
instruments or securities as described in clause (b) above, only in the
event that such net cash proceeds are used to refinance any Indebtedness
permitted by this Agreement, then such net cash proceeds shall not
constitute "Net Cash Proceeds" for the purpose of this Agreement.
"New Tranche C Term Loans": as to any New Tranche C Term Loan Lender,
its term loan to the US Borrower described in subsection 2.5(g).
"New Tranche C Term Loan Commitment": as to any New Tranche C Term
Loan Lender, its obligation to make New Tranche C Term Loans pursuant to
subsection 2.5(g) in an aggregate amount not to exceed the amount opposite
such New Tranche C Term Loan Lender's name in Schedule 1.1 under the
heading 'New Tranche C Term Loan Commitment'; collectively, as to all New
Tranche C Term Loan Lenders, the 'New Tranche C Term Loan Commitments.'
"New Tranche C Term Loan Lender": the Lenders listed in Schedule 1.1
which shall be US Term Loan Lenders for all purposes of this Agreement and
the other Loan Documents.
"New Tranche C Term Loan Percentage": as to any New Tranche C Term
Loan Lender, the percentage of the aggregate outstanding New Tranche C
Term Loans constituted by its New Tranche C Term Loan.
"Non-Credit Parties": Subsidiaries of Holdings which are not party to
any Loan Document.
"Non-Excluded Taxes": as defined in subsection 4.7.
"Non-Funding Lender": as defined in subsection 4.4(c).
"Nonconsenting Lender": as defined in subsection 4.9.
"Notes": the collective reference to the Revolving Credit Notes, the
Swing Line Notes, and the Term Notes.
"Obligations": the collective reference to the Domestic Obligations,
Canadian Obligations, Chips Obligations, English Obligations, and any
Future Foreign Subsidiary Obligations.
"Offer": as defined in the Existing Credit Agreement.
"Participation Certificate": a certificate in substantially the form
of Exhibit B.
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30
"Paying Agent": Chase, as party to the Paying Agency Agreement, dated
as of April 21, 1997, among Holdings (as successor to Chips Holdings), the
holders (together with any subsequent registered holder of the Chips Loan
Notes) and Chase, as Paying Agent."
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Permitted Acquisition": the acquisition by a Subsidiary of Holdings
of a business related to Holdings' and its Subsidiaries' business as
approved by the board of directors of Holdings.
"Permitted Interest Period": as to any Eurocurrency Loan, the
permitted interest period lengths set forth in the Administrative
Schedule, or, in the case of a Future Foreign Subsidiary Borrower, set
forth in the applicable Joinder Agreement.
"Permitted Issuance": (a) the issuance by Holdings of shares of
Capital Stock as dividends on issued and outstanding Capital Stock of the
same class of Holdings or pursuant to any dividend reinvestment plan, (b)
the issuance by Holdings of options or other equity securities of Holdings
to outside directors, members of management or employees of Holdings or
any Subsidiary of Holdings, (c) the issuance of securities as interest or
dividends on pay-in-kind debt or preferred equity securities permitted
hereunder and under the other Loan Documents, (d) the issuance to Holdings
or any Subsidiary (or any director, with respect to directors' qualifying
shares) by any of its Subsidiaries of any of their respective Capital
Stock, in each case with respect to this clause (d) to the extent such
Capital Stock is pledged to the Collateral Agent or the Specified Foreign
Agent, as the case may be, pursuant to the applicable Loan Document
(provided that (i) only 65% of the voting Capital Stock of any direct
Foreign Subsidiary of the US Borrower is required to be so pledged and
(ii) no voting Capital Stock of any indirect Foreign Subsidiary of the US
Borrower is required to be so pledged unless such Foreign Subsidiary is
also a Subsidiary of a Foreign Subsidiary Borrower, in which case
subsection 7.12 shall be complied with), (e) the issuance by Holdings of
shares of its common stock in connection with a Permitted Acquisition, (f)
cash payments made in lieu of issuing fractional shares of Holdings
Capital Stock in an aggregate amount not to exceed $100,000 and (g) the
issuance by Holdings of shares of Capital Stock of Holdings to infuse
additional capital into Holdings in an aggregate amount not to exceed
$25,000,000.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
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31
"Pledged Securities": as defined in the Guarantee and Collateral
Agreement.
"Print Service": as defined in the preamble.
"Pounds Sterling": legal currency of the United Kingdom.
"PRC Subsidiaries": Guangzhou Termbray Electronics Technology Co.
Ltd., Guangzhou Termbray Circuit Board Company Limited and Guangzhou Kalex
Laminate Company Limited.
"Process Agent": as defined in subsection 12.15(f).
"Properties": as defined in subsection 5.16.
"Qualified Issuer": as defined in Section VI of the Administrative
Schedule.
"Ratable Portion": for each Specified Lender, the amount of such
Lender's pro rata portion of any applicable Specified Loan.
"Regulation T, U or X": Regulation T, U or X of the Board as in
effect from time to time.
"Related Business" means any business which is the same as or
related, ancillary or complementary to any of the businesses of the US
Borrower and its Subsidiaries on the Third Amendment and Restatement
Closing Date, as reasonably determined by the US Borrower's Board of
Directors.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA and the regulations thereunder, other than those events as to which
the thirty day notice period is waived under subsections .13, .14, .16,
.18, .19 or .20 of PBGC Reg. Section 2615.
"Required Lenders": at any time, Lenders the Total Credit Percentages
of which aggregate at least a majority.
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents
of such Person, and any present or future law, treaty, statute, rule,
regulation, common law or determination of an arbitrator or a court or
other Governmental Authority and all official directives, consents,
approvals, authorizations, guidelines, restrictions and policies of any
Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its
property is subject.
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32
"Responsible Officer": as to any Person, the chief executive officer,
the president, the chief financial officer, managing or other director,
any vice president, secretary, any assistant secretary, treasurer or any
assistant treasurer of such Person.
"Restricted Payments": as defined in subsection 8.7.
"Revolving Credit Commitments": the collective reference to the US
Revolving Credit Commitments and the Foreign Revolving Credit Commitments.
"Revolving Credit Commitment Percentage": as to any Specified
Revolving Credit Lender, the percentage of the aggregate Specified
Revolving Credit Commitments constituted by its Specified Revolving Credit
Commitment.
"Revolving Credit Lenders": the collective reference to the US
Revolving Credit Lenders and the Foreign Revolving Credit Lenders.
"Revolving Credit Loans": the collective reference to the US
Revolving Credit Loans and the Foreign Revolving Credit Loans.
"Revolving Credit Note" and "Revolving Credit Notes": as defined in
subsection 2.8(e).
"Scheduled Revolving Credit Commitment Termination Date": November
30, 2002 or, if such date is not a Business Day, the Business Day next
preceding such date.
"Secured Parties": the collective reference to the Collateral Agent,
the Administrative Agent, the Foreign Agents, and the Lenders.
"Senior Subordinated Indebtedness": the $500,000,000 in aggregate
principal amount of the 9 3/4% Senior Subordinated Notes of the US
Borrower due 2007 and any other unsecured senior subordinated Indebtedness
of the US Borrower; provided such other indebtedness has (i) no maturity,
amortization, mandatory redemption or purchase option (other than with
asset sale proceeds, subject to the provisions of this Agreement, or
following a change of control) or sinking fund payment prior to April 1,
2007, (ii) no financial maintenance covenants and (iii) such other terms
and conditions (including without limitation, interest rate, events of
default, subordination and covenants) as shall be reasonably satisfactory
to the Administrative Agent.
"Sharing Agreement": the Amended and Restated Sharing Agreement dated
as of April 11, 1997 among the Collateral Agent, the Administrative Agent
and the Foreign Agents, as the same may be amended, supplemented or
otherwise modified from time to time.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
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33
"Solvent" and "Solvency": with respect to any Person on a particular
date, that on such date, (a) the fair value of the property of such Person
is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair
saleable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond
such Person's ability to pay as such debts and liabilities mature, and (d)
such Person is not engaged in business or a transaction, and is not about
to engage in business or a transaction, for which such Person's property
would constitute an unreasonably small capital; provided for purposes of
any Person organized under the laws of England and Wales, the term
"Solvent" shall mean that with respect to such Person on a particular
date, that on such date, such Person has the ability to pay its debts as
and when they fall due and could not be deemed to be insolvent for
purposes of the Insolvency Act of 1986.
"Specified": when used in relation to any Borrower, any Loans (or
portion, type or class thereof), Accommodations, Assignee, Commitment,
Agent, Issuing Lender, Lenders (or subclass thereof), Obligations (or
portion thereof), Accommodation Outstandings and/or any other defined term
herein, the applicable Borrower and/or the Loans to, Accommodations for
the benefit of, Commitments to, Agent in respect of, Issuing Lender in
respect of, Lenders to, Obligations owing by, and other terms relating to
such Borrower or defined term, as the context may require.
"Specified Accommodation Obligation": in respect of any Specified
Borrower the obligation of such Specified Borrower to reimburse the
Specified Issuing Lender in accordance with the terms of this Agreement
and any related Letter of Credit Application for any payment made or
honored by the Specified Issuing Lender under any Accommodation.
"Specified Accommodation Participating Interest": with respect to any
Accommodation, (a) in the case of the Specified Issuing Lender with
respect thereto, its interest in such Accommodation after giving effect to
the granting of participating interests therein, if any, pursuant hereto
and (b) in the case of each Specified Participating Lender, its undivided
participating interest in such Accommodation relating thereto.
"Specified Borrower Percentage": with respect to any Specified
Borrower, at any date of determination, the percentage of the Term Loans
at such date constituted by the Specified Term Loans of such Specified
Borrower at such time.
"Specified Notice Time": as to any notice of borrowing, prepayment,
conversion or rollover by any Specified Borrower, the Specified Notice
Time set forth in the Administrative Schedule, or in the case of any
Future Foreign Subsidiary Borrower, the applicable Joinder Agreement.
"Specified Participant": as defined in subsection 12.6(b).
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"Specified Participating Lender": with respect to any Accommodation,
any Specified Revolving Credit Lender (other than the Specified Issuing
Lender) any Chips Acquisition Term Loan Lender or any Chips Limited Term
Loan Lender with respect to its Specified Accommodation Participating
Interest in such Accommodation.
"Specified Refunded Swing Line Loans": as defined in subsection
2.15(b).
"Specified Register": as defined in subsection 12.6(d).
"Specified Revolving Credit Commitment Period": with respect to any
Specified Borrower, the Specified Revolving Credit Commitment Period set
forth in the Administrative Schedule, or in the case of any Future Foreign
Subsidiary Borrower, the applicable Joinder Agreement.
"Specified Revolving Credit Commitment Termination Date": with
respect to any Specified Borrower, the Specified Revolving Credit
Commitment Termination Date set forth in the Administrative Schedule, or
in the case of any Future Foreign Subsidiary Borrower, the applicable
Joinder Agreement.
"SPPAQ": the Supplemental Pensions Plan Act (Quebec), as amended, and
any successor thereto, and any regulations promulgated thereunder.
"Standby L/C": an irrevocable letter of credit issued by a Specified
Issuing Lender pursuant to this Agreement for the account of the related
Specified Borrower in respect of obligations of such Specified Borrower
incurred pursuant to contracts made or performances undertaken or to be
undertaken or like matters relating to contracts to which such Specified
Borrower is or proposes to become a party, including, without limiting the
foregoing, for insurance purposes.
"Standby L/C Application": as defined in subsection 3.2.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such Person, including, as
to any Person incorporated in England or Wales, (A) a subsidiary within
the meaning of Section 736 of the Companies Act 1985, and (B) unless the
context otherwise requires, a subsidiary undertaking within the meaning of
Section 258 of the Companies Act 1985. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall
refer to a Subsidiary or Subsidiaries of US Borrower.
"Supply Agreement": the Supply Agreement dated November 26, 1996
between Lucent Technologies Inc. and VTC, as amended, supplemented or
otherwise modified from time to time.
<PAGE> 41
35
"Swing Line Commitment": any Specified Swing Line Lender's obligation
to make Specified Swing Line Loans pursuant to subsection 2.15 as set
forth in the Administrative Schedule or, in the case of a Future Foreign
Subsidiary Borrower, the applicable Joinder Agreement.
"Swing Line Lenders": the collective reference to the US Swing Line
Lenders and the Foreign Swing Line Lenders.
"Swing Line Loan Participation Certificate": a certificate in
substantially the form of Exhibit C.
"Swing Line Loans": as to any Specified Swing Line Lender, the
Specified Swing Line Loans of such Specified Swing Line Lender.
"Swing Line Note": as defined in subsection 2.8(e).
"Term Loans": the collective reference to the US Term Loans, the
Chips Acquisition Term Loans, the Foreign Subsidiary Term Loans and to the
extent not included therein, the Chips Limited Term Loans; provided all
references to the Term Loans (except in subsection 2.9) shall include any
portion of the reimbursement obligations of the US Borrower under the
Chips Letter of Credit to be converted to Chips Acquisition Term Loans or
Chips Limited Term Loans.
"Term Loan Lenders": the collective reference to the US Term Loan
Lenders, the Chips Acquisition Term Loan Lenders, the Chips Limited Term
Loan Lenders and the Foreign Subsidiary Term Loan Lenders.
"Term Note" and "Term Notes": as defined in subsection 2.8(e).
"Third Amendment and Restatement Closing Date": the date on which
this Agreement becomes effective in accordance with its terms.
"Total Credit Percentage": as to any Lender at any time, the
percentage of the aggregate Revolving Credit Commitments and outstanding
Term Loans then constituted by its Revolving Credit Commitments and its
outstanding Term Loans (or, if the Revolving Credit Commitments have
terminated or expired, the percentage of the aggregate outstanding Loans
and risk interests in the aggregate Accommodation Outstandings and Swing
Line Loans then constituted by its outstanding Loans, and risk interests
in Accommodation Outstandings and Swing Line Loans).
"Trade L/C": a commercial documentary letter of credit issued by a
Specified Issuing Lender pursuant to subsection 3.1 for the account of a
Specified Borrower for the purchase of goods in the ordinary course of
business.
"Trade L/C Application": as defined in subsection 3.2.
<PAGE> 42
36
"Tranche": the reference to Eurocurrency Loans or Canadian B/As, as
applicable, of a Specified Borrower the Interest Periods or Canadian
Contract Periods, as applicable, with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans shall
originally have been made on the same day); Tranches may be identified as
"Eurocurrency Tranches" or "Canadian B/A Tranches", as applicable.
"Tranche B Term Loan": as to any Tranche B Term Loan Lender, its term
loan to the US Borrower described in subsection 2.5(b)(i).
"Tranche B Term Loan Lender": any US Lender that holds outstanding
Tranche B Term Loans.
"Tranche B Term Loan Percentage": as to any Tranche B Term Loan
Lender, the percentage of the aggregate outstanding Tranche B Term Loans
constituted by its Tranche B Term Loan.
"Tranche C Term Loan": as to any Tranche C Term Loan Lender, its term
loan to the US Borrower described in subsection 2.5(b)(ii).
"Tranche C Term Loan Lender": any US Lender that holds outstanding
Tranche C Term Loans.
"Tranche C Term Loan Percentage": as to any Tranche C Term Loan
Lender, the percentage of the aggregate outstanding Tranche C Term Loans
constituted by its Tranche C Term Loan.
"Transferee": as defined in subsection 12.6(f).
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurocurrency Loan, or as Canadian B/A in the case of a Canadian Loan.
"Underlying Lease": as defined in subsection 5.8.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, and any revisions thereof.
"US Borrower": as defined in the preamble hereto.
"US Issuing Lender": Chase or Chase Delaware with respect to the
Chips Letter of Credit or any future Letters of Credit issued by Chase
Delaware for the account of the US Borrower.
"US Lenders": Lenders holding US Term Loans or US Revolving Credit
Commitments.
<PAGE> 43
37
"US Letters of Credit": any Letter of Credit issued for the account
of the US Borrower by the US Issuing Lender.
"US Loan": any loan made by a US Lender to US Borrower pursuant to
this Agreement.
"US Revolving Credit Commitment": as to any US Revolving Credit
Lender, its obligation to maintain any Existing US Revolving Credit Loan
and to make additional US Revolving Credit Loans to the US Borrower
pursuant to subsection 2.1 and to participate in Swing Line Loans and US
Letters of Credit in an aggregate amount not to exceed at any one time
outstanding the amount set forth opposite such Revolving Credit Lender's
name in Schedule 1.1 under the heading "Revolving Credit Commitment", as
such amount may be reduced from time to time as provided herein;
collectively, as to all the US Revolving Credit Lenders, the "US Revolving
Credit Commitments."
"US Revolving Credit Lender": any US Lender having a US Revolving
Credit Commitment or that holds outstanding US Revolving Credit Loans or
Specified Accommodation Participating Interests hereunder.
"US Revolving Credit Loans": US Loans made by any US Revolving Credit
Lender to the US Borrower pursuant to subsection 2.1.
"US Swing Line Lender": any US Lender having a Swing Line Commitment
or that holds outstanding Swing Line Loans.
"U.S. Tax Compliance Certificate": as defined in subsection
4.7(b)(ii)
"US Term Loans": as to any US Term Loan Lender, its term loans to the
US Borrower described in subsection 2.5.
"US Term Loan Lenders": the collective reference to the Tranche B
Term Loan Lenders, the Tranche C Term Loan Lenders, the New Tranche C Term
Loan Lenders and the Additional US Term Loan Lenders.
"Viasystems Cayman": Viasystems International (Cayman Islands), Ltd.,
a Cayman Islands corporation.
"Viasystems Luxembourg": Viasystems Luxembourg S.a.r.l., a Luxembourg
company.
"VTC": Viasystems Technologies Corp., L.L.C. (formerly known as
Viasystems Technologies Corp.), a Delaware limited liability company.
"VTC Nevada": Viasystems Technologies Corp., a Nevada corporation.
<PAGE> 44
38
"Wholly Owned Subsidiary": as to any Person, any Subsidiary of which
such Person owns, directly or indirectly, all of the Capital Stock of such
Subsidiary other than directors' qualifying shares or any shares held by
nominees.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Note or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any Note, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to
Holdings and its Subsidiaries not defined in subsection 1.1 and accounting
terms partly defined in subsection 1.1, to the extent not defined, shall have
the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) US Borrower's Confirmation. The
US Borrower acknowledges and confirms that the Existing US Lenders have made
revolving credit loans to it under the Existing Credit Agreement (such
revolving credit loans, the "Existing US Revolving Credit Loans"). The US
Borrower hereby represents, warrants, agrees, covenants and reaffirms that: (i)
it has no (and it permanently and irrevocably waives, and releases the
Administrative Agent and the Existing US Lenders from, any, to the extent
arising on or prior to the Third Amendment and Restatement Closing Date)
defense, setoff, claim or counterclaim against the Administrative Agent or any
Existing US Lender in regard to its Domestic Obligations in respect of such
Existing US Revolving Credit Loans and (ii) reaffirms its obligation to pay
such Existing US Revolving Credit Loans in accordance with the terms and
provisions of this Agreement and the other Loan Documents.
(b) Canadian Borrower's Confirmation. The Canadian Borrower
acknowledges and confirms that the Existing Canadian Lenders have made
revolving credit loans to it under the Existing Credit Agreement (such
revolving credit loans, the "Existing Canadian Revolving Credit Loans"). The
Canadian Borrower hereby represents, warrants, agrees, covenants and reaffirms
that: (i) it has no (and it permanently and irrevocably waives, and releases
the Canadian Agent and the Existing Canadian Lenders from, any, to the extent
arising on or prior to the Third Amendment and Restatement Closing Date)
defense, setoff, claim or counterclaim against the Canadian Agent or any
Existing Canadian Lender in regard to its Canadian Obligations in respect of
such Existing Canadian Revolving Credit Loans and (ii) reaffirms its obligation
to pay such Existing Canadian Revolving Credit Loans in accordance with the
terms and provisions of this Agreement and the other Loan Documents.
<PAGE> 45
39
(c) English Borrower's Confirmation. The English Borrower
acknowledges and confirms that the Existing English Lenders have made revolving
credit loans to it under the Existing Credit Agreement (such revolving credit
loans, the "Existing English Revolving Credit Loans" and, together with the
Existing US Revolving Credit Loans and the Existing Canadian Revolving Credit
Loans, the "Existing Revolving Credit Loans"). The English Borrower hereby
represents, warrants, agrees, covenants and reaffirms that: (i) it has no (and
it permanently and irrevocably waives, and releases the English Agent and the
Existing English Lenders from, any, to the extent arising on or prior to the
Third Amendment and Restatement Closing Date) defense, setoff, claim or
counterclaim against the English Agent or any Existing English Lender in regard
to its English Obligations in respect of such Existing English Revolving Credit
Loans and (ii) reaffirms its obligation to pay such Existing English Revolving
Credit Loans in accordance with the terms and provisions of this Agreement and
the other Loan Documents.
(d) The Lenders' Commitments. Subject to the terms and conditions
hereof, each Specified Revolving Credit Lender severally agrees to maintain its
Existing Revolving Credit Loans and to make additional Revolving Credit Loans
to the related Specified Borrower from time to time during the Specified
Revolving Credit Commitment Period in an aggregate principal amount or
Equivalent Amount thereof in the relevant currency, if applicable, at any one
time outstanding, when added to (i) such Specified Lender's Specified Revolving
Credit Commitment Percentage of all Specified Accommodation Outstandings and
outstanding Specified Swing Line Loans and (ii) if such Specified Revolving
Credit Lender is a Multicurrency Lender, its aggregate Multicurrency Exposure.
During the Specified Revolving Credit Commitment Period, the Specified Borrower
may use the Specified Revolving Credit Commitments by borrowing, prepaying the
Specified Revolving Credit Loans in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof.
The Specified Revolving Credit Loans may from time to time be of any
available Type, as determined by the Specified Borrower and notified to the
Specified Agent in accordance with subsections 2.2 and 2.11.
2.2 Procedure for Revolving Credit Borrowing. Any Specified Borrower
may borrow under the related Specified Revolving Credit Commitment during the
Specified Revolving Credit Commitment Period on any Business Day, provided that
such Specified Borrower shall give the Specified Agent irrevocable notice by
the Specified Notice Time specifying (i) the amount and currency to be
borrowed, (ii) the requested Borrowing Date, (iii) the Type or Types of Loan,
(iv) in the case of the Canadian Borrower, if the borrowing is to be entirely
or partially of Canadian B/As, the respective amounts and lengths of the
initial Canadian Contract Period thereof, and (v) if the borrowing is to be
entirely or partly of Eurocurrency Loans, the respective amounts of each such
Type of Specified Loan and the respective lengths of the initial Interest
Periods therefor. Each borrowing under the Specified Revolving Credit
Commitments shall be in a minimum amount equal to (A) in the case of Base Rate
Loans, the Equivalent Amount of $500,000 (or, if the then Specified Available
Revolving Credit Commitments are less than the Equivalent Amount of $500,000,
such lesser amount) and (B)(x) in the case of Eurocurrency Loans, the
Equivalent Amount of $1,000,000 and (y) in the case of Canadian B/As,
C$1,600,000 or a whole multiple of C$100,000 in excess thereof. Upon receipt of
any such notice from the Specified Borrower, the Specified Agent shall promptly
notify each Specified Revolving Credit Lender thereof. Each Specified Revolving
Credit Lender will make the amount of its pro rata
<PAGE> 46
40
share of each borrowing available to the Specified Agent for the account of the
Specified Borrower at the office of the Specified Agent specified in subsection
12.2 or any Joinder Agreement, as the case may be, prior to 11:00 a.m. local
time of the Specified Agent, on the Borrowing Date requested by the Specified
Borrower in funds immediately available to the Specified Agent. Such borrowing
will then be made available to the Specified Borrower by the Specified Agent
crediting the account of the Specified Borrower on the books of such office
with the aggregate of the amounts made available to the Specified Agent by the
Specified Revolving Credit Lenders and in like funds as received by the
Specified Agent. Notwithstanding anything herein to the contrary, each English
Revolving Credit Lender's pro rata share of any Chips Revolving Credit Loan
shall be equal to such English Revolving Credit Lender's Multicurrency
Percentage.
2.3 Commitment Fee; Facility Fee; Administrative Agent Fees. (a) Each
Specified Borrower (other then the Canadian Borrower) agrees to pay to the
Specified Agent for the account of each Specified Revolving Credit Lender a
commitment fee for the period from and including the first day of the Specified
Revolving Credit Commitment Period to the Specified Revolving Credit Commitment
Termination Date, computed at a rate per annum equal to the Applicable Margin
for Commitment Fees on the average daily Specified Available Revolving Credit
Commitment of such Specified Revolving Credit Lender during the period for
which payment is made, payable quarterly in arrears on the last day of each
March, June, September, and December and on the Specified Revolving Credit
Commitment Termination Date. Notwithstanding the foregoing, no commitment fee
shall be payable in respect of any Revolving Credit Commitment to any
Multicurrency Borrower.
(b) The Canadian Borrower agrees to pay to the Canadian Agent for the
account of each Canadian Revolving Credit Lender a facility fee ("Facility
Fee") for the period from and including the first day of the Specified
Revolving Credit Commitment Period to the Specified Revolving Credit Commitment
Termination Date, computed at a rate per annum equal to the Applicable Margin
for Facility Fees on the Canadian Revolving Credit Commitment of such Canadian
Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September, and December and on the
Specified Revolving Credit Commitment Termination Date.
(c) Each Borrower shall pay to Chase and the other Agents the amounts
payable by it set forth in the Fee Letters dated June 30, 1999 in the amounts
and on the dates set forth therein.
2.4 Termination or Reduction of Revolving Credit Commitments. (a) Any
Specified Borrower shall have the right, upon not less than five (5) Business
Days' notice to the Specified Agent, to terminate the Specified Revolving
Credit Commitments or, from time to time, reduce the unutilized portion of the
amount of the Specified Revolving Credit Commitments, provided that any such
termination of the Specified Revolving Credit Commitments shall be accompanied
by prepayment (or payment of cash collateral, as applicable in the case of
Specified Accommodations or Canadian B/As) in full of the Specified Revolving
Credit Loans, Specified Swing Line Loans and Specified Accommodation
Obligations then outstanding, together with accrued interest thereon to the
date of such prepayment, cancellation of all Specified Accommodations and the
payment of any unpaid commitment fee or Facility Fee then accrued
<PAGE> 47
41
hereunder. Any such reduction shall be in a minimum Equivalent Amount of
$500,000, and shall reduce permanently the amount of the Specified Revolving
Credit Commitments then in effect and shall further include any amounts due in
respect thereof under subsection 4.8. Upon termination of the Specified
Revolving Credit Commitments, any Specified Accommodation (or Canadian B/A, if
applicable) then outstanding which has been fully cash collateralized shall no
longer be considered a "Specified Accommodation" (or "Canadian B/A", if
applicable) as defined in subsection 1.1, and any Specified Accommodation
Participating Interest heretofore granted by the Specified Issuing Lender to
the Specified Revolving Credit Lenders in such Specified Accommodation shall be
deemed terminated but the fees payable under subsection 3.3 shall continue to
accrue to the Specified Issuing Lender with respect to such Specified Letter of
Credit until the expiry thereof.
(b) In the case of any reduction of any Specified Revolving Credit
Commitments hereunder, to the extent, if any, that the sum of the Specified
Revolving Credit Loans, Specified Swing Line Loans and the Specified
Accommodation Outstandings exceeds the Specified Revolving Credit Commitments
as so reduced, the Specified Borrower shall make a prepayment equal to such
excess amount, the proceeds of which shall be applied first, to payment of the
Specified Swing Line Loans then outstanding, second, to payment of the
Specified Revolving Credit Loans, except Canadian B/As (if applicable), then
outstanding, third, to payment of any Specified Accommodation Obligations then
outstanding and last, to cash collateralize any outstanding Canadian B/As (if
applicable) and Specified Accommodation on terms reasonably satisfactory to the
Specified Lenders holding a majority of the Specified Revolving Credit
Commitments.
(c) Any Specified Revolving Credit Commitments once terminated or
reduced may not be reinstated.
2.5 US Term Loans. (a) US Borrower's Confirmation. The US Borrower
acknowledges and confirms that the Existing US Lenders have previously made
Additional US Term Loans, Tranche B Term Loans and Tranche C Term Loans to, or
assumed by, it (collectively, the "Existing US Term Loans") in respective
aggregate outstanding principal amounts of $69,250,000, $53,750,000 and
$33,000,000. The US Borrower hereby represents, warrants, agrees, covenants and
reaffirms that: (i) it has no (and it permanently and irrevocably waives, and
releases the Administrative Agent and the Existing US Lenders from, any, to the
extent arising on or prior to the Third Amendment and Restatement Closing Date)
defense, setoff, claim or counterclaim against the Administrative Agent or any
Existing US Lender in regard to its Domestic Obligations in respect of the
Existing US Term Loans and (ii) reaffirms its obligation to pay the Existing US
Term Loans in accordance with the terms and provisions of this Agreement and
the other Loan Documents. Subject to the terms and conditions hereof, each US
Term Loan Lender severally agrees to maintain its Existing US Term Loans. The
US Borrower and the Canadian Borrower hereby acknowledge and confirm that the
Tranche A Term Loans (as defined in the Existing Credit Agreement) and the
Canadian Term Loans (as defined in the Existing Credit Agreement),
respectively, have been paid in full.
(b) Amortization of Tranche B and C Loans. (i) Amortization of
Tranche B Loans. The aggregate outstanding Tranche B Term Loans of all the
Tranche B Term Loan Lenders shall be payable in ten (10) consecutive
semi-annual installments on the dates and in a
<PAGE> 48
42
principal amount equal to the amount set forth below (together with all accrued
interest thereon) opposite the applicable installment date (or, if less, the
aggregate amount of the Tranche B Term Loans then outstanding):
<TABLE>
<CAPTION>
Installment Amount
----------- ------
<S> <C>
December 31, 1999 $ 250,000
June 30, 2000 $ 250,000
December 31, 2000 $ 250,000
June 30, 2001 $ 250,000
December 31, 2001 $ 250,000
June 30, 2002 $ 250,000
December 31, 2002 $ 250,000
June 30, 2003 $16,000,000
December 31, 2003 $16,000,000
June 30, 2004 $20,000,000
</TABLE>
(ii) Amortization of Tranche C Term Loans. The aggregate outstanding
Tranche C Term Loans of all the Tranche C Term Loan Lenders shall be payable in
two (2) consecutive semi-annual installments on the dates and in a principal
amount equal to the amount set forth below (together with all accrued interest
thereon) opposite the applicable installment date (or, if less, the aggregate
amount of the Tranche C Term Loans then outstanding):
<TABLE>
<CAPTION>
Installment Amount
----------- ------
<S> <C>
December 31, 2004 $ 1,500,000
June 30, 2005 $31,500,000
</TABLE>
(c) Chips Limited Term Loan Lenders' Commitments. (i) Subject to the
terms and conditions hereof, each Chips Limited Term Loan Lender severally
agrees to make Chips Limited Term Loans on the dates of any principal drawings
under the Chips Letter of Credit after the Third Amendment and Restatement Date
in an aggregate amount equal to its ratable share of $148,160,729.63, such
Chips Limited Term Loans to be made to finance the portion of the first
$215,312,500 of such principal drawings for which there is no cash collateral
as of the Third Amendment and Restatement Closing Date (such cash collateral
being $67,151,770.40 at such date). Such Chips Limited Term Loans shall be made
following the use of such cash collateral for the first $215,312,500 of such
principal drawings. Such Chips Limited Terms Loans shall be in the aggregate
amount not to exceed the amount set forth opposite such Chips Limited Term Loan
Lender's name on Schedule 1.1. Schedule 2.5 sets forth more fully the
reconciliation of the Chip
<PAGE> 49
43
Limited Term Loans and the related reimbursement obligations of the US Borrower
and the cash collateralization with respect to the Chips Letter of Credit.
(ii) Amortization of Chips Limited Term Loans. The aggregate Chips
Limited Term Loans of all the Chips Limited Term Loan Lenders shall be payable
in five (5) consecutive semi-annual installments on the dates and in a
principal amount equal to the amount set forth below (together with all accrued
interest thereon) opposite the applicable installment date (or, if less, the
aggregate amount of the Chips Limited Term Loans then outstanding). Such
installments shall be applied first to repay any outstanding Chips Limited Term
Loans and second to cash collateralize the reimbursement obligations of the US
Borrower under the Chips Letter of Credit.
<TABLE>
<CAPTION>
Installment Amount
----------- ------
<S> <C>
Jun. 30, 2001 $ 8,826,661.50
Dec. 31, 2001 $24,815,696.95
Jun. 30, 2002 $25,022,592.01
Dec. 31, 2002 $25,022,592.01
Apr. 30, 2003 $64,473,187.16
</TABLE>
(d) Chips Acquisition Term Loan Lenders' Commitments. (i) Subject to
the terms and conditions hereof, each Chips Acquisition Term Loan Lender
severally agrees to make Chips Acquisition Term Loans on the dates of any
principal drawings under the Chips Letter of Credit after the Third Amendment
and Restatement Closing Date in an aggregate amount equal to its ratable share
of $40,589,270.37, such Chips Acquisition Term Loans to be made to finance that
portion of the principal drawings after the first $215,312,500 thereof for
which there is no cash collateral as of the Third Amendment and Restatement
Closing Date (such cash collateral being $22,723,180.68 at such date). Such
Chips Acquisition Term Loans shall be made following the use of such cash
collateral for such principal drawings. Such Chips Acquisition Terms Loans
shall be in the aggregate amount for each Chips Acquisition Term Loan Lender
not to exceed the amount set forth opposite such Chips Acquisition Term Loan
Lender's name on Schedule 1.1. Schedule 2.5 sets forth more fully the
reconciliation of the Chips Acquisition Term Loans and the related
reimbursement obligations of the US Borrower and the cash collateralization
with respect to the Chips Letter of Credit.
(ii) Amortization of Chips Acquisition Term Loans. The aggregate
Chips Acquisition Term Loans of all the Chips Acquisition Term Loan Lenders
shall be payable in five (5) consecutive semi-annual installments on the dates
and in a principal amount equal to the amount set forth below (together with
all accrued interest thereon) opposite the applicable installment date (or, if
less, the aggregate amount of the Chips Acquisition Term Loans then
outstanding). Such installments shall be applied first to repay any outstanding
Chips Acquisition Term Loans and second to cash collateralize the reimbursement
obligations of the US Borrower under the Chips Letter of Credit.
<TABLE>
<CAPTION>
Installment Amount
----------- ------
<S> <C>
Jun. 30, 2001 $ 1,458,338.50
Dec. 31, 2001 $ 6,969,303.05
Jun. 30, 2002 $ 7,027,407.99
Dec. 31, 2002 $ 7,027,407.99
Apr. 30, 2003 $18,106,812.84
</TABLE>
<PAGE> 50
44
(e) Procedure for Chips Acquisition and Chips Limited Term Loan
Borrowings. Subject to the limitations of this subsection 2.5 and 7.14, the US
Borrower shall give the Administrative Agent irrevocable notice by the
Specified Notice Time requesting that the Chips Limited Term Loan Lenders or
the Chips Acquisition Term Loan Lenders, as the case may be, make Chips Limited
Term Loans or Chips Acquisition Term Loans, as the case may be, on the Business
Day of any principal drawing on the Chips Letter of Credit for which the US
Borrower is responsible. Each borrowing shall be in an amount equal to the
applicable principal reimbursement obligation. Upon receipt of any such notice
from the US Borrower, the Administrative Agent shall promptly notify each Chips
Limited Term Loan Lender or Chips Acquisition Term Loan Lender, as the case may
be, thereof. Each Chips Limited Term Loan Lender or Chips Acquisition Term Loan
Lender, as the case may be, will make the amount of its pro rata share of each
borrowing available to the Administrative Agent for the account of the US
Borrower at the office of the Administrative Agent specified in subsection 12.2
for same day value, on the Borrowing Date requested by the US Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be
made available to the US Borrower by applying (and the US Borrower hereby
irrevocably requests and instructs that the Administrative Agent apply) such
amounts to directly reimburse the US Issuing Lender for the applicable
reimbursement obligations.
(f) Amortization of Additional US Term Loans. The aggregate
Additional US Term Loans of all the Additional US Term Loan Lenders shall be
payable in ten (10) consecutive semi-annual installments on the dates and in a
principal amount equal to the amounts set forth in subsection 2.5(f) below
(together with all accrued interest thereon) opposite the applicable
installment date (or, if less, the aggregate amount of all the Additional US
Term Loans then outstanding).
<TABLE>
<CAPTION>
Installment Amount
----------- ------
<S> <C>
December 31, 1999 $ 250,000
June 30, 2000 $ 250,000
December 31, 2000 $ 250,000
June 30, 2001 $ 250,000
December 31, 2001 $ 250,000
June 30, 2002 $ 250,000
December 31, 2002 $ 250,000
June 30, 2003 $15,000,000
December 31, 2003 $15,000,000
March 31, 2004 $37,500,000
</TABLE>
<PAGE> 51
45
(g) New Tranche C Term Loan Commitments. (i) Subject to the terms and
conditions hereof, each New Tranche C Term Loan Lender severally agrees to make
a term loan (a "New Tranche C Term Loan") to the US Borrower to be made in a
single drawing on the Third Amendment and Restatement Closing Date, in an
amount not to exceed the amount of the New Tranche C Term Loan Commitment of
such Lender.
(ii) Amortization of New Tranche C Term Loans. The New Tranche C
Term Loan of each New Tranche C Term Loan Lender shall be payable in twelve
(12) consecutive semi-annual installments on the dates and in principal amount
equal to the amounts set forth opposite the applicable installment date.
<TABLE>
<CAPTION>
Installment Amount
----------- ------
<S> <C>
December 31, 1999 $ 250,000
June 30, 2000 $ 250,000
December 31, 2000 $ 250,000
June 30, 2001 $ 250,000
December 31, 2001 $ 250,000
June 30, 2002 $ 250,000
December 31, 2002 $ 250,000
June 30, 2003 $ 250,000
December 31, 2003 $ 250,000
June 30, 2004 $ 250,000
December 31, 2004 $ 15,000,000
June 30, 2005 $273,500,000
</TABLE>
(iii) Procedure for New Tranche C Term Loan Borrowing. The US
Borrower shall give the Administrative Agent irrevocable notice by 12:00 Noon,
New York City time, one Business Day preceding the requested Borrowing Date
requesting that the New Tranche C Term Loan Lenders make the New Tranche C Term
Loans on the Third Amendment and Restatement Closing Date. Upon receipt of such
notice, the Administrative Agent shall promptly notify each New Tranche C Term
Loan Lender thereof. Each New Tranche C Term Loan Lender will make the amount
of its pro rata share of such borrowing available to the Administrative Agent
for the account of the US Borrower at the office of the Administrative Agent
specified in subsection 12.2 for same day value on the Borrowing Date requested
by the US Borrower in funds immediately available to the Administrative Agent.
Such borrowing will then be made available to the US Borrower at its account
with the Administrative Agent maintained at such office. The New Tranche C Term
Loans shall initially be made as Base Rate Loans.
<PAGE> 52
46
2.6 Foreign Subsidiary Term Loans.
(a) Future Foreign Subsidiary Term Loans. Subject to the terms and
conditions hereof and the applicable Joinder Agreement, each Specified Future
Foreign Subsidiary Term Loan Lender severally agrees to make a term loan to the
Specified Future Foreign Subsidiary Borrower on a date certain in an aggregate
principal amount set forth in the applicable Joinder Agreement.
(b) Type of Foreign Subsidiary Term Loans. The Term Loans may from
time to time be of any available Type, as determined by the Specified Borrower
and notified to the Specified Agent in accordance with subsection 2.11 and in
the applicable Joinder Agreement.
(c) Conversion of Chips Limited Term Loans. On the fifth Business Day
following the date on which the Chips Limited Term Loans have been fully drawn
upon, subject to the terms and conditions hereof, the Chips Limited Term Loans
shall be refinanced by the deemed repayment on the Promissory Note from Chips
Limited to US Borrower (the "Chips Intercompany Note"), which in turn will be
financed with the proceeds of loans to Chips Limited denominated in Pounds
Sterling based on the spot exchange rate on such fifth Business Day (as
reasonably determined by the Administrative Agent). The amortization schedule
for the loan to Chips Limited shall be the same as the amortization schedule
contained in subsection in 2.5(c) but shall be converted to Pounds Sterling on
such date at the same exchange rate. Each Chips Limited Term Loan Lender or its
English Affiliate shall credit on its books a Chips Limited Term Loan of Chips
Limited the proceeds of which shall be deemed to have been used by Chips
Limited to repay the Chips Intercompany Note (and Chips Limited hereby
irrevocably requests such loan and instructs the Chips Limited Term Loan
Lenders to use such proceeds to make payment on its behalf under such Chips
Intercompany Note) which in turn shall be used by the US Borrower to repay the
corresponding Chips Limited Term Loan with the US Borrower (and US Borrower
hereby irrevocably agrees to accept such repayment on the Chips Intercompany
Note and to utilize such amount to repay the corresponding Chips Limited Term
Loan of the US Borrower). The Administrative Agent shall give US Borrower,
Chips Limited and each Chips Limited Term Loan Lenders three Business Days
notice of such refinancing.
(d) European Currency. In the event that the legal currency of the
United Kingdom becomes the Euro prior to the date referred to in subsection
2.6(c), each Chips Limited Term Loan Lender shall remain obligated to refinance
its Chips Limited Term Loans and any references to Pounds Sterling shall be
deemed references to the Euro converted at the appropriate exchange rate (as
reasonably determined by the Administrative Agent).
2.7 Procedure for Future Foreign Subsidiary Term Loan Borrowing. The
Specified Future Foreign Subsidiary Borrower shall give the Specified Agent
irrevocable notice by the Specified Notice Time requesting that the Specified
Term Loan Lenders make the Specified Term Loans on a date certain and
specifying the amount to be borrowed. Upon receipt of such notice the Specified
Agent shall promptly notify each Specified Term Loan Lender thereof. On such
date, each Specified Term Loan Lender shall make available to the Specified
Agent at its office specified in the applicable Joinder Agreement an amount in
immediately available funds equal to the Specified Term Loans to be made by
such Lender. The Specified Agent shall on such date credit the account of such
Specified Borrower on the books of such office of the Specified Agent with the
aggregate of the amounts made available to the Specified Agent by the Specified
Term Loan Lenders.
<PAGE> 53
47
2.8 Repayment of Loans. (a) Each Specified Borrower hereby
unconditionally promises to pay to the Specified Agent for the account of: (i)
each Specified Revolving Credit Lender, the then unpaid principal amount of
each Specified Revolving Credit Loan of such Specified Lender, on the Specified
Revolving Credit Commitment Termination Date (or such earlier date on which the
Specified Revolving Credit Loans become due and payable pursuant to Section 9);
(ii) each Specified Swing Line Lender, the then unpaid principal amount of the
Specified Swing Line Loans of such Swing Line Lender, on the Specified
Revolving Credit Commitment Termination Date (or such earlier date on which the
Specified Swing Line Loans become due and payable pursuant to Section 9); (iii)
each Tranche B Term Loan Lender, such Specified Lender's Ratable Portion of the
amounts specified in subsection 2.5(b)(i) (or, if less, the aggregate amount of
the Tranche B Term Loans of such Specified Lender then outstanding), on the
dates specified in subsection 2.5(b)(i) (or such earlier date on which the
Tranche B Term Loans become due and payable pursuant to Section 9); (iv) each
Tranche C Term Loan Lender, such Specified Lender's Ratable Portion of the
amounts specified in subsection 2.5(b)(ii) (or, if less, the aggregate amount
of the Tranche C Term Loans of such Specified Lender then outstanding), on the
dates specified in subsection 2.5(b)(ii) (or such earlier date on which the
Tranche C Term Loans become due and payable pursuant to Section 9); (v) each
Chips Acquisition Term Loan Lender, such Specified Lender's Ratable Portion of
the amounts specified in subsection 2.5(d)(ii) (or, if less, the aggregate
amount of the Chips Acquisition Term Loans of such Specified Lender then
outstanding), on the dates specified in subsection 2.5(d)(ii) (or such earlier
date on which the Chips Acquisition Term Loans become due and payable pursuant
to Section 9); (vi) each Chips Limited Term Loan Lender, such Specified
Lender's Ratable Portion of the amounts specified in subsection 2.5(c)(ii) (or,
if less, the aggregate amount of the Chips Limited Term Loans of such Specified
Lender then outstanding), on the dates specified in subsection 2.5(c)(ii) (or
such earlier date on which the Chips Limited Term Loans become due and payable
pursuant to Section 9), (vii) each Additional US Term Loan Lender, such
Specified Lender's Ratable Portion of the amounts specified in subsection
2.5(f)(ii) (or, if less, the aggregate amount of the Additional US Term Loans
of such Specified Lender then outstanding), on the dates specified in
subsection 2.5(f)(ii) (or such earlier date on which the Additional US Term
Loans become due and payable pursuant to Section 9), (viii) each New Tranche C
Term Loan Lender, such Specified Lender's Ratable Portion of the amounts
specified in subsection 2.5(g)(ii) (or, if less, the aggregate amount of the
New Tranche C Term Loans of such Specified Lender then outstanding), on the
dates specified in subsection 2.5(g)(ii) (or such earlier date on which the New
Tranche C Term Loans become due and payable pursuant to Section 9) and (ix)
each Future Foreign Subsidiary Term Loan Lender, such Specified Lender's
Ratable Portion of the amounts specified in the applicable Joinder Agreement
(or, if less, the aggregate amount of the Specified Future Foreign Subsidiary
Term Loans of such Lender then outstanding), on the dates specified in an
applicable Joinder Agreement (or such earlier date on which the Specified
Future Foreign Subsidiary Term Loans become due and payable pursuant to Section
9). Each Specified Borrower hereby further agrees to pay interest on the unpaid
principal amount of its Specified Loans from time to time outstanding from the
date hereof until payment in full thereof at the rates per annum, and on the
dates, set forth in subsection 4.1.
(b) Each Specified Lender (including each Specified Swing Line
Lender) shall maintain in accordance with its usual practice an account or
accounts evidencing indebtedness of the Specified Borrower to such Specified
Lender resulting from each Specified Loan of such
<PAGE> 54
48
Specified Lender from time to time, including the amounts of principal and
interest payable and paid to such Specified Lender from time to time under this
Agreement.
(c) Each Specified Agent shall maintain a Specified Register pursuant
to subsection 12.6(d), and a subaccount therein for each Specified Lender, in
which shall be recorded (i) the amount of each Specified Loan made hereunder,
the Type thereof and each Interest Period or Canadian Contract Period, if any,
applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Specified Borrower to each
Specified Lender hereunder and (iii) both the amount of any sum received by
such Specified Agent hereunder from each Specified Borrower and each Specified
Lender's share thereof.
(d) The entries made in each Specified Register and the accounts of
each Specified Lender maintained pursuant to subsection 2.8(b) shall, to the
extent permitted by applicable law and absent manifest error, be prima facie
evidence of the existence and amounts of the obligations of each Specified
Borrower therein recorded; provided, however, that the failure of any Specified
Lender or any Specified Agent to maintain the applicable Specified Register or
any such account, or any error therein, shall not in any manner affect the
obligation of each Specified Borrower to repay (with applicable interest) its
Specified Loans owing to the Specified Lender in accordance with the terms of
this Agreement.
(e) Each Specified Borrower (other than the English Borrower) agrees
that, upon request to the Specified Agent by any Specified Lender, such
Specified Borrower will execute and deliver to such Specified Lender (i) a
promissory note of such Specified Borrower evidencing the Specified Revolving
Credit Loans of such Specified Lender, substantially in the form of Exhibit A-1
with appropriate insertions as to Borrower, currency, date and principal amount
(each as amended, supplemented, replaced or otherwise modified from time to
time, a "Revolving Credit Note"), and/or (ii) a promissory note of the
Specified Borrower evidencing the Specified Term Loan of such Specified Lender,
substantially in the form of Exhibit A-2 with appropriate insertions as to
Borrower, currency, date and principal amount (each as amended, supplemented,
replaced or otherwise modified from time to time, a "Term Note"), and/or (iii)
a promissory note of such Specified Borrower evidencing the Specified Swing
Line Loans of the Specified Swing Line Lender, substantially in the form of
Exhibit A-3 with appropriate insertions as to date and principal amount (as
amended, supplemented, replaced or otherwise modified from time to time, the
"Swing Line Note").
2.9 Optional Prepayments. The US Borrower may, at any time and from
time to time, prepay, or cause any Foreign Subsidiary Borrower to prepay, such
Specified Borrower's Specified Loans, in whole or in part, without premium or
penalty, upon at least three (3) Business Days' irrevocable notice to the
Specified Agent, specifying the date and amount of prepayment and whether the
prepayment is of (i) a specific Type of Loan and, if of a combination thereof,
the amount allocable to each and (ii) (1) Tranche B Term Loans, and/or Tranche
C Term Loans, (2) Chips Acquisition Term Loans, (3) Chips Limited Term Loans,
(4) Future Foreign Subsidiary Term Loans, (5) Specified Revolving Credit Loans,
(6) Additional US Term Loans, (7) New Tranche C Term Loans, or (8) a
combination thereof, as the case may be, and if of a combination thereof, the
amount allocable to each. Upon receipt of any such notice the Specified Agent
shall promptly notify each Specified Term Loan Lender or Specified Revolving
Credit Lender, as the
<PAGE> 55
49
case may be, thereof. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein, together with,
in the case of prepayments of the Eurocurrency Loans only, accrued interest to
such date on the amount prepaid.
Optional prepayments of the Term Loans shall be applied, with respect
to the first $10,000,000 (or the Equivalent Amount thereof) following the Third
Amendment and Restatement Closing Date, as the US Borrower may elect and, with
respect to any amount of such prepayments in excess of $10,000,000 (or the
Equivalent Amount thereof), such prepayments shall be applied (i) pro rata to
each class or tranche of Term Loans ratably based upon the then outstanding
principal amounts of such Term Loans (with each class or tranche of Term Loans,
to be allocated that percentage of the amount to be applied as is equal to a
fraction (expressed as a percentage), the numerator of which is the then
outstanding principal amount of such class or tranche of Term Loans, and the
denominator of which is equal to the then outstanding principal amount of all
Term Loans) and (ii) to reduce the then remaining installments of such Term
Loans based upon the then remaining number of installments (i.e. each then
remaining installment of the applicable Term Loans shall be reduced by an
amount equal to the aggregate amount to be applied to such Term Loan divided by
the number of the then remaining installments for such Term Loans) (or, in the
case of any optional prepayments made pursuant to subsection 8.2(p) only, to
reduce the then remaining installments of such Term Loans in direct order of
maturity); provided, that if the amount to be applied to any installment
required by this Agreement would exceed the then remaining amount of such
installment, then an amount equal to such excess shall be applied to the next
succeeding installment after giving effect to all prior reductions thereto
(including the amount of prepayments theretofore allocated pursuant to the
preceding portion of this sentence); provided further, that, if any Foreign
Subsidiary Borrower desires to prepay its Specified Term Loans and ratable
prepayment of the Term Loans of any other Specified Borrower would result in
any adverse tax impact, the affected Term Loans shall not be required to be
ratably prepaid. Amounts prepaid on account of any Term Loans may not be
reborrowed. Partial prepayments shall be in an aggregate principal Equivalent
Amount of at least $500,000 and shall include any amounts due in respect
thereof under subsection 4.8. Canadian B/As may not be optionally prepaid.
2.10 Mandatory Prepayments.
(a) Subsequent to the Third Amendment and Restatement Closing Date,
unless the Required Lenders and the US Borrower shall otherwise agree, if
Holdings or any of its Subsidiaries shall issue any class of Capital Stock
other than a Permitted Issuance or incur any Indebtedness other than any
Indebtedness permitted pursuant to subsection 8.2 or 11.6, on the date of such
issuance or incurrence, each Borrower shall prepay an amount of its Specified
Term Loans equal to its Specified Borrower Percentage of 100% of the Net Cash
Proceeds thereof (or Equivalent Amount thereof, as the case may be) as set
forth in paragraph (d) of this subsection 2.10.
(b) Unless the Required Lenders and the US Borrower shall otherwise
agree, if Holdings or any of its Subsidiaries shall consummate any Asset Sale
(including the sale and leaseback of assets and any sale of accounts receivable
in connection with a receivable financing transaction), on the date of
consummation of such Asset Sale, each Borrower shall prepay an amount of its
Specified Term Loans equal to its Specified Borrower Percentage of 100% of the
<PAGE> 56
50
Net Cash Proceeds thereof (or the Equivalent Amount thereof, as the case may
be) as set forth in paragraph (d) of this subsection 2.10.
(c) Unless the Required Lenders and the US Borrower shall otherwise
agree, if for any fiscal year, commencing with the fiscal year ending December
31, 1997, there shall be Excess Cash Flow for such fiscal year, each Borrower
shall prepay an amount of its Specified Term Loans equal to its Specified
Borrower Percentage of 75% of such Excess Cash Flow (or Equivalent Amount
thereof, as the case may be) as set forth in paragraph (d) of this subsection
2.10. Each such prepayment shall be made on or before the date which is seven
(7) Business Days after the earlier of (A) the date on which the financial
statements referred to in subsection 7.1(a) are required to be delivered to the
Lenders and (B) the date on which said financial statements are actually
delivered.
(d) Mandatory prepayments of the Term Loans shall be applied (i) pro
rata to each class or tranche of Term Loans ratably based upon the then
outstanding principal amounts of the Term Loans (with each class or tranche of
Term Loan to be allocated that percentage of the amount to be applied as is
equal to a fraction (expressed as a percentage), the numerator of which is the
then outstanding principal amount of such class or tranche of Term Loans, as
the case may be, and the denominator of which is equal to the then outstanding
principal amount of all Term Loans); (ii) to reduce the then remaining
installments of such Term Loans based upon the then remaining number of
installments of such Term Loans (i.e. each then remaining installment of such
Term Loans shall be reduced by an amount equal to the aggregate amount to be
applied to such class or tranche of Term Loans divided by the number of the
then remaining installments for such class or tranche of Term Loans) and (iii)
subject to clauses (i) and (ii), prepayments shall be applied first to Base
Rate Loans and second, pro rata, to Eurocurrency Loans and to cash
collateralize 100% of the face amount of Canadian B/As until their maturity;
provided, that if the amount to be applied to any installment as required by
this Agreement would exceed the then remaining amount of such installment, then
an amount equal to such excess shall be applied to the next succeeding
installment after giving effect to all prior reductions thereto (including the
amount of prepayments theretofore allocated pursuant to the preceding portion
of this sentence), provided further, that in the event the mandatory prepayment
of any class or tranche of Term Loans as a result of an asset sale or
disposition by any Foreign Subsidiary Borrower or any of its Subsidiaries would
result in any adverse tax impact to the US Borrower or any other Foreign
Subsidiary Borrower, the portion allocable to the Term Loans of each affected
Borrower shall instead be applied to the Term Loans of the US Borrower or
applicable Foreign Subsidiary Borrower, as the case may be. Amounts prepaid on
account of any of the Term Loans may not be reborrowed;
(e) With respect to any Specified Borrower, if at any time the sum of
its Specified Revolving Credit Loans, Specified Swing Line Loans and Specified
Accommodation Outstandings (or the sum of the Equivalent Amounts thereof in the
relevant currency, if applicable) exceeds the Specified Revolving Credit
Commitments (including at any time after any reduction of the Specified
Revolving Credit Commitments pursuant to subsection 2.4), the Specified
Borrower shall make a payment in the amount of such excess which payment shall
be applied in the order and in the manner set forth in subsection 2.4(b). To
the extent that after giving effect to any prepayment of the Specified Loans
required by the preceding sentence, the sum of the Specified Revolving Credit
Loans, Specified Swing Line Loans and Specified Accommodation Outstandings
exceeds the Specified Revolving Credit Commitments then in
<PAGE> 57
51
effect, the Specified Borrower shall, without notice or demand, immediately
cash collateralize the then outstanding Specified Accommodation Obligations and
Canadian B/As in an amount equal to such excess upon terms reasonably
satisfactory to the Specified Agent.
(f) If at any time Holdings or any Subsidiary shall receive any cash
proceeds of any casualty or condemnation in excess of the Equivalent Amount of
$2,000,000 pursuant to subsection 8.6(c), such proceeds shall be deposited with
the Collateral Agent (or, in the case of a Foreign Subsidiary Borrower and its
Subsidiaries, the Specified Foreign Agent) who shall hold such proceeds in a
cash collateral account reasonably satisfactory to it. From time to time upon
request, the Collateral Agent or Specified Foreign Agent, as the case may be,
will release such proceeds to Holdings or such Subsidiary, as necessary, to pay
for replacement or rebuilding of the assets lost or condemned. If such assets
are not replaced or rebuilt within one (1) year (subject to reasonable
extension for force majeure or weather delays) following the condemnation or
casualty or if the Specified Borrower fails to notify the Collateral Agent or
Specified Foreign Agent, as the case may be, in writing on or before 180 days
after such casualty or condemnation that the Specified Borrower shall commence
the replacement or rebuilding of such asset, then, in either case, the
Collateral Agent or Specified Foreign Agent, as the case may be, may apply any
amounts in the cash collateral account to the ratable repayment of the
Specified Term Loans or, in the case of a casualty or condemnation affecting
the US Borrower or its Domestic Subsidiaries, the Term Loans as Net Cash
Proceeds of an Asset Sale in accordance with subsection 2.10(b).
(g) The provisions of this subsection 2.10 shall not be in derogation
of any other covenant or obligation of Holdings and its Subsidiaries under the
Loan Documents and shall not be construed as a waiver of, or a consent to
departure from, any such covenant or obligation.
(h) Notwithstanding the foregoing provisions of this subsection 2.10,
if at any time the mandatory prepayment of any Specified Term Loans pursuant to
this Agreement would result, after giving effect to the procedures set forth in
this Agreement, in the Specified Borrower incurring costs, under subsection
4.5, 4.6 or 4.7 as a result of Eurocurrency Loans ("Affected Eurocurrency
Loans") being prepaid other than on the last day of an Interest Period
applicable thereto, which costs are required to be paid pursuant to subsection
4.8, then, the Specified Borrower may, in its sole discretion, initially
deposit a portion (up to 100%) of the amounts that otherwise would have been
paid in respect to the Affected Eurocurrency Loans with the Specified Agent
(which deposit must be equal in amount to the amount of the Affected
Eurocurrency Loans not immediately prepaid) to be held as security for the
obligations of the Specified Borrower to make such mandatory prepayment
pursuant to a cash collateral agreement to be entered into in form and
substance reasonably satisfactory to the Specified Agent, with such cash
collateral to be directly applied upon the first occurrence (or occurrences)
thereafter of the last day of an Interest Period applicable to the relevant
Specified Term Loan that is a Eurocurrency Loan (or such earlier date or dates
as shall be requested by the Specified Borrower), to repay an aggregate
principal amount of such Specified Term Loan equal to the Affected Eurocurrency
Loans not initially repaid pursuant to this sentence.
(i) Notwithstanding anything to the contrary contained herein,
nothing herein shall require any Foreign Subsidiary Borrower to make any
payment to any Lenders (other than its Specified Lenders), it being
acknowledged that no Foreign Subsidiary Borrower is in any way
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52
liable for any of the Domestic Obligations or any Obligations of any other
Foreign Subsidiary Borrower.
(j) In the case of Canadian B/As, the Canadian Agent may, in its
discretion, adjust the amount of any mandatory prepayment upward or downward to
the nearest C$100,000 between the Canadian Lenders.
(k) Any prepayment of the New Tranche C Term Loans made pursuant to
subsection 2.9 or this subsection 2.10 shall be accompanied by payment for the
account of the New Tranche C Term Loan Lenders of a premium fee of 2% of the
amount prepaid if such prepayment is made prior to the first anniversary of the
Third Amendment and Restatement Closing Date and 1% of the amount prepaid from
and after such first anniversary and prior to the second anniversary of the
Third Amendment and Restatement Closing Date.
2.11 Conversion and Continuation Options. (a) Subject to the terms
and conditions hereof and to the extent available to it, any Specified Borrower
may elect from time to time to convert its Base Rate Loans to Eurocurrency
Loans by giving the Specified Agent at least three (3) Business Days' prior
irrevocable notice of such election; provided that at no time may any Specified
Borrower elect to convert any or all of its Specified Swing Line Loans from
Base Rate Loans to Eurocurrency Loans. Any such notice of conversion to
Eurocurrency Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the Specified Agent
shall promptly notify each affected Specified Term Loan Lender or Specified
Revolving Credit Lender, as the case may be, thereof. All or any part of
outstanding Base Rate Loans may be converted as provided herein, provided that
(i) no Base Rate Loan may be converted into a Eurocurrency Loan when any Event
of Default has occurred and is continuing and the Specified Agent has or the
Required Lenders have determined that such a conversion is not appropriate and
(ii) any such conversion may only be made if, after giving effect thereto,
subsection 2.14 shall not have been contravened.
(b) Any Eurocurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Specified Borrower giving notice to the Specified Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection
1.1, of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurocurrency Loan may be continued as such (i) when any Event
of Default has occurred and is continuing and the Specified Agent has or the
Required Lenders have determined that such a continuation is not appropriate or
(ii) if, after giving effect thereto, subsection 2.14 would be contravened and
provided, further, that if the Specified Borrower shall fail to give any
required notice as described above in this paragraph or if such continuation is
not permitted pursuant to the preceding proviso, such Eurocurrency Loans shall
be automatically continued as Eurocurrency Loans on the last day of such then
expiring Interest Period with a new Interest Period of one (1) month.
(c) Subject to the terms and conditions hereof and to the extent
available to it, any Specified Borrower may elect from time to time to convert
its Eurocurrency Loans to Base Rate Loans, by giving the Specified Agent at
least two (2) Business Days' prior irrevocable notice of such election,
provided that, unless such Specified Borrower elects to deposit with the
Specified Agent the amount of any breakage costs and other Eurocurrency Loan
related costs to be
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53
incurred by such Specified Borrower under this Agreement with respect to the
prepayment or conversion of such Eurocurrency Loan prior to the end of an
Interest Period, any such conversion of Eurocurrency Loans may only be made on
the last day of an Interest Period with respect thereto.
(d) For greater certainty, the conversion of any Loan to another Type
of Loan, as provided in this subsection 2.11, shall not constitute a repayment
of amounts owing under the Specified Loans under this Agreement nor a new
advance of funds hereunder.
2.12 Bankers' Acceptances. (a) Subject to the terms and conditions of
this Agreement, the Canadian Borrower may request a borrowing denominated in
Canadian Dollars by presenting drafts for acceptance and purchase as Canadian
B/As by the Canadian Lenders.
(b) No Canadian Contract Period with respect to a Canadian B/A shall
extend beyond the Specified Revolving Credit Commitment Termination Date.
(c) To facilitate availment of the borrowings by way of Canadian
B/As, the Canadian Borrower hereby appoints each Canadian Lender as its
attorney to sign and endorse on its behalf, in handwriting or by facsimile or
mechanical signature as and when deemed necessary by such Canadian Lender,
blank forms of Canadian B/As substantially in the form of Schedule 2.12. In
this respect, it is each Canadian Lender's responsibility to maintain an
adequate supply of blank forms of Canadian B/As for acceptance under this
Agreement. The Canadian Borrower recognizes and agrees that all Canadian B/As
signed and/or endorsed on its behalf by a Canadian Lender shall bind the
Canadian Borrower as fully and effectually as if signed in the handwriting of
and duly issued by the proper signing officers of the Canadian Borrower. Each
Canadian Lender is hereby authorized to issue such B/As endorsed in blank in
such face amounts as may be determined by such Canadian Lender; provided that
the aggregate amount thereof is equal to the aggregate amount of Canadian B/As
required to be accepted and purchased by such Canadian Lender. No Canadian
Lender shall be liable for any damage, loss or other claim arising by reason of
any loss or improper use of any such instrument except the gross negligence or
wilful misconduct of the Canadian Lender or its officers, employees, agents or
representatives. Each Canadian Lender shall maintain a record with respect to
Canadian B/As (a) received by it from the Canadian Agent in blank hereunder,
(b) voided by it for any reason, (c) accepted and purchased by it hereunder,
and (d) cancelled at their respective maturities. Each Canadian Lender further
agrees to retain such records in the manner and for the statutory periods
provided in the various provincial or federal statutes and regulations which
apply to such Canadian Lender. Each Canadian Lender agrees to provide such
records to the Canadian Borrower at the Canadian Borrower's expense upon
request. On request by or on behalf of the Canadian Borrower, a Canadian Lender
shall cancel all forms of Canadian B/A which have been pre-signed or
pre-endorsed on behalf of the Canadian Borrower and which are held by the said
Canadian Lender and are not required to be issued in accordance with the
Canadian Borrower's irrevocable notice.
(d) Drafts of the Canadian Borrower to be accepted as Canadian B/As
hereunder shall be signed as set forth in this subsection 2.12. Notwithstanding
that any Person whose signature appears on any Canadian B/A may no longer be an
authorized signatory for any of the Canadian Lenders or the Canadian Borrower
at the date of issuance of a Canadian B/A, such signature shall nevertheless be
valid and sufficient for all purposes as if such authority had
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remained in force at the time of such issuance and any such Canadian B/A so
signed shall be binding on the Canadian Borrower.
(e) Promptly following receipt of a notice of borrowing, rollover or
conversion in such form as shall be reasonably approved by the Canadian Agent
by way of Canadian B/As, the Canadian Agent shall so advise the Canadian
Lenders and shall advise each Canadian Lender of the aggregate face amount of
the Canadian B/As to be accepted by it and the applicable Canadian Contract
Period (which shall be identical for all Canadian Lenders). The aggregate face
amount of the Canadian B/As to be accepted by a Canadian Lender shall be
determined by the Canadian Agent by reference to such Canadian Lender's Ratable
Portion of such Canadian Loan.
(f) Upon acceptance of a Canadian B/A by a Canadian Lender, such
Canadian Lender shall purchase, or arrange the purchase of, each Canadian B/A
from the Canadian Borrower at the Discount Rate for such Canadian Lender
applicable to such B/A accepted by it and provide to the Canadian Agent the
Discount Proceeds for the account of the Canadian Borrower. The Acceptance Fee
payable by the Canadian Borrower to a Canadian Lender under subsection 4.1 in
respect of each Canadian B/A accepted by such Canadian Lender shall be set off
against the Discount Proceeds payable by such Canadian Lender under this
subsection 2.12.
(g) Each Canadian Lender may at any time and from time to time hold,
sell, rediscount or otherwise dispose of any or all Canadian B/As accepted and
purchased by it.
(h) With respect to each Loan which is outstanding hereunder by way
of Canadian B/As, at or before 11:00 a.m. two (2) Business Days before the
maturity date of such B/As, the Canadian Borrower shall notify the Canadian
Agent at the Canadian Agent's address set forth in subsection 12.2 by
irrevocable telephone notice, followed by a notice of rollover on the same day,
if the Canadian Borrower intends to issue Canadian B/As on such maturity date
to provide for the payment of such maturing B/As. If the Canadian Borrower
fails to notify the Canadian Agent of its intention to issue Canadian B/As on
such maturity date, the Canadian Borrower shall provide payment to the Canadian
Agent on behalf of the Canadian Lenders of an amount equal to the aggregate
face amount of such B/As on the maturity date of such B/As. If the Canadian
Borrower fails to make such payment, such maturing B/As shall be deemed to have
been converted on their maturity date into a Base Rate Loan in an amount equal
to the face amount of such B/As and the Canadian Borrower shall on demand pay
any penalties that may have been incurred by the Canadian Agent and any
Canadian Lender due to the failure of the Canadian Borrower to make such
payment.
(i) The Canadian Borrower waives presentment for payment and any
other defense to payment of any amounts due to a Canadian Lender in respect of
a Canadian B/A accepted and purchased by it pursuant to this Agreement which
might exist solely by reason of such B/A being held, at the maturity thereof,
by such Canadian Lender in its own right and the Canadian Borrower agrees not
to claim any days of grace if such Canadian Lender as holder sues the Canadian
Borrower on the Canadian B/A for payment of the amount payable by the Canadian
Borrower thereunder. On the specified maturity date of a Canadian B/A, or such
earlier date as may be required or permitted pursuant to the provisions of this
Agreement, the Canadian Borrower shall pay the Canadian Lender that has
accepted and purchased such B/A the full face amount of such Canadian B/A and
after such payment, the Canadian Borrower shall have no
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further liability in respect of such Canadian B/A and such Canadian Lender
shall be entitled to all benefits of, and be responsible for all payments due
to third parties under, such B/A.
(j) If a Canadian Lender grants a participation in a portion of its
rights under this Agreement to a Specified Participant, then in respect of any
Loans by way of Canadian B/As, a portion thereof may, at the option of such
Canadian Lender, be by way of Canadian B/A accepted by such Specified
Participant. In such event, the Canadian Borrower shall upon request of the
Canadian Agent or the Canadian Lender granting the participation execute and
deliver a form of Canadian Bankers' Acceptance undertaking in favor of such
Specified Participant for delivery to such Specified Participant.
2.13 Existing Canadian B/As. Canadian B/As issued by the Canadian
Issuing Lender under the Existing Credit Agreement shall be deemed to be
Canadian B/As issued hereunder.
2.14 Minimum Amounts of Tranches. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the Loans
comprising each Eurocurrency Tranche or Canadian B/A Tranche shall be in a
minimum Equivalent Amount of $1,600,000 and so that there shall not be more
than ten (10) Eurocurrency Tranches or Canadian B/A Tranches of any Specified
Borrower at any one time outstanding.
2.15 Swing Line Commitments. (a) Subject to the terms and conditions
hereof, each Specified Swing Line Lender agrees to make Swing Line Loans to the
Specified Borrower from time to time during the Specified Revolving Credit
Commitment Period in an aggregate principal amount at any one time outstanding
not to exceed the Specified Swing Line Commitment of such Specified Swing Line
Lender, provided that at no time may the sum of the Specified Swing Line Loans,
the Specified Revolving Credit Loans and Specified Accommodation Outstandings
exceed the Specified Revolving Credit Commitments. During the Specified
Revolving Credit Commitment Period, the Specified Borrower may use the
Specified Swing Line Commitment by borrowing, prepaying the Specified Swing
Line Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof. All Specified Swing Line Loans shall be Base Rate
Loans. The Specified Borrower shall give the Specified Swing Line Lender
irrevocable notice (which notice must be received by the Specified Swing Line
Lender prior to 12:00 noon (or 11:00 a.m. in the case of Swing Line Loans to
Chips Limited or the English Borrower) local time of the Specified Swing Line
Lender) on the requested Borrowing Date specifying the amount of the requested
Specified Swing Line Loan which shall be in an aggregate minimum Equivalent
Amount of $150,000 (or L.1,000,000 in the case of Swing Line Loans to the
English Borrower or Chips Limited). The proceeds of the Specified Swing Line
Loan will be made available by the Specified Swing Line Lender to the Specified
Borrower at the office of the Specified Swing Line Lender by 2:00 p.m. local
time on the Borrowing Date by crediting the account of the Specified Borrower
at such office with such proceeds. The Specified Borrower may at any time and
from time to time, prepay the Specified Swing Line Loans, in whole or in part,
without premium or penalty, by notifying the Specified Swing Line Lender prior
to 12:00 noon local time on any Business Day of the date and amount of
prepayment. If any such
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notice is given, the amount specified in such notice shall be due and payable
on the date specified therein. Partial prepayments shall be in an aggregate
principal Equivalent Amount of $150,000.
(b) Any Specified Swing Line Lender, at any time in its sole and
absolute discretion may, on behalf of the Specified Borrower (which hereby
irrevocably directs the Specified Swing Line Lender to act on its behalf), and
without regard to the minimum amounts in subsection 2.2, request each Specified
Revolving Credit Lender including the Specified Swing Line Lender to make a
Specified Revolving Credit Loan in an amount equal to such Specified Lender's
Revolving Credit Commitment Percentage of the amount of the Specified Swing
Line Loans outstanding on the date such notice is given (the "Specified
Refunded Swing Line Loans"). Unless any of the events described in paragraph
(f) of Section 9 shall have occurred with respect to the Specified Borrower (in
which event the procedures of paragraph (d) of this subsection 2.15 shall
apply) each Specified Revolving Credit Lender shall make the proceeds of its
Specified Revolving Credit Loan available to the Specified Agent for the
account of the Specified Swing Line Lender at the office of the Specified Agent
specified in subsection 12.2 prior to 1:00 p.m. local time of a Specified Agent
in funds immediately available on the Business Day next succeeding the date
such notice is given. The proceeds of such Specified Revolving Credit Loans
shall be immediately applied to repay the Specified Refunded Swing Line Loans.
Effective on the day such Specified Revolving Credit Loans are made, the
portion of such Loans so paid shall no longer be outstanding as Specified Swing
Line Loans, shall no longer be due under any Specified Swing Line Note and
shall be Specified Revolving Credit Loans made by the Specified Revolving
Credit Lenders in accordance with their respective Specified Revolving Credit
Commitment Percentages. Each Specified Borrower authorizes the Specified Swing
Line Lender to charge its accounts with the Specified Agent (up to the amount
available in each such account) in order to immediately pay the amount of such
Specified Refunded Swing Line Loans to the extent amounts received from the
Specified Revolving Credit Lenders are not sufficient to repay in full such
Specified Refunded Swing Line Loans.
(c) Notwithstanding anything herein to the contrary, no Specified
Swing Line Lender shall be obligated to make any Specified Swing Line Loans if
the conditions set forth in subsection 6.2 have not been satisfied.
(d) If prior to the making of a Specified Revolving Credit Loan
pursuant to paragraph (b) of this subsection 2.15 one of the events described
in paragraph (f) of Section 9 shall have occurred and be continuing with
respect to the Specified Borrower, each Specified Revolving Credit Lender will,
on the date such Specified Revolving Credit Loan was to have been made pursuant
to the notice in subsection 2.15(b), purchase an undivided participating
interest in the Specified Refunded Swing Line Loan in an amount equal to (i)
its Specified Revolving Credit Commitment Percentage times (ii) the Specified
Refunded Swing Line Loans. Each Specified Revolving Credit Lender will
immediately transfer to the Specified Swing Line Lender, in immediately
available funds, the amount of its participation, and upon receipt thereof the
Specified Swing Line Lender will deliver to such Specified Revolving Credit
Lender a Specified Swing Line Loan Participation Certificate dated the date of
receipt of such funds and in such amount.
(e) Whenever, at any time after any Specified Revolving Credit Lender
has purchased a participating interest in a Specified Swing Line Loan, the
Specified Swing Line
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Lender receives any payment on account thereof, the Specified Swing Line Lender
will distribute to such Specified Revolving Credit Lender its participating
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Specified Revolving
Credit Lender's participating interest was outstanding and funded); provided,
however, that in the event that such payment received by the Specified Swing
Line Lender is required to be returned, such Specified Revolving Credit Lender
will return to the Specified Swing Line Lender any portion thereof previously
distributed by the Specified Swing Line Lender to it.
(f) Each Specified Revolving Credit Lender's obligation to make the
Loans referred to in subsection 2.15(b) and to purchase participating interests
pursuant to subsection 2.15(d) shall be absolute and unconditional and shall
not be affected by any circumstance, including, without limitation, (i) any
set-off, counterclaim, recoupment, defense or other right which such Specified
Revolving Credit Lender or the Specified Borrower may have against the
Specified Swing Line Lender, the Specified Borrower or any other Person for any
reason whatsoever; (ii) the occurrence or continuance of a Default or an Event
of Default; (iii) any adverse change in the condition (financial or otherwise)
of the Specified Borrower; (iv) any breach of this Agreement or any other
Specified Loan Document by the Specified Borrower, Holdings, any Subsidiary or
any other Specified Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
SECTION 3. ACCOMMODATIONS
3.1 The Accommodation Commitments. (a) The US Borrower on behalf of
itself and the other Borrowers acknowledges and confirms that the Specified
Issuing Lenders have issued, and that there are outstanding, certain Specified
Accommodations under the Existing Credit Agreement (including the Chips Letter
of Credit) in the outstanding amount of set forth on Schedule 3.1(a) (the
"Existing Accommodations"). The US Borrower on behalf of itself and the other
Borrowers hereby represents, warrants, agrees, covenants and reaffirms that (i)
it has no (and it permanently and irrevocably waivers, and releases the
Specified Issuing Lenders and the Existing Lenders from any, to the extent
arising on or prior to the Third Amendment and Restatement Closing Date)
defense, setoff, claim or counterclaim against any Specified Issuing Lender or
any Existing Lender in regard to any obligation in respect of the Existing
Accommodations and (ii) reaffirms its obligation to pay such Obligations in
accordance with the terms and provisions of this Agreement and the other Loan
Documents. Subject to the terms and conditions hereof, each Specified Issuing
Lender, in reliance on the agreements of the other Specified Revolving Credit
Lenders set forth in subsection 3.4(a), agrees to issue or accept other
Specified Accommodations for the account of the Specified Borrower on any
Business Day during the Specified Revolving Credit Commitment Period in such
form as may be approved from time to time by the Specified Issuing Lender;
provided, that, no Specified Issuing Lender shall issue or accept any Specified
Accommodation if, after giving effect to such issuance, (i) the Specified
Accommodation Outstandings would exceed the Specified Issuing Lender's
Accommodation Commitment or (ii) the sum of the Specified Revolving Credit
Loans, Specified Swing Line Loans, and Specified Accommodation Outstandings of
the Specified Revolving Credit Lenders would exceed the Specified Revolving
Credit Commitments of the Specified Revolving Credit Lenders. Each Specified
Accommodation shall (i) be (w) the Chips Letter of Credit, (x) a
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Standby L/C, (y) a Trade L/C or (z) a bankers' acceptance, to the extent
included in the Specified Accommodation Commitment and (ii) expire or mature no
later than five (5) Business Days prior to the Scheduled Revolving Credit
Commitment Termination Date. No Accommodation (other than the Chips Letter of
Credit) shall have an expiry or maturity date more than one year after its date
of issuance or creation; provided, that, any Specified Letter of Credit may
provide for the renewal thereof for additional periods not to exceed one (1)
year (which shall in no event extend beyond the Scheduled Revolving Credit
Commitment Termination Date) and the Chips Letter of Credit shall mature April
30, 2003; provided, further, that in no case shall any Accommodation (other
than the Chips Letter of Credit) have an expiry or maturity date later than
five (5) Business Days prior to the Scheduled Revolving Credit Commitment
Termination Date. Each Specified Accommodation shall be denominated in the
currency of the Specified Revolving Credit Commitment.
(b) Each Specified Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the
jurisdiction of the Specified Issuing Lender's office.
(c) No Specified Issuing Lender shall at any time be obligated to
issue or accept any Specified Accommodation hereunder if such issuance would
conflict with, or cause the Specified Issuing Lender or any Specified
Participating Lender to exceed any limits imposed by, any applicable
Requirement of Law.
3.2 Procedure for Issuance of Specified Accommodations. Any Specified
Borrower may from time to time request that the Specified Issuing Lender issue
or accept a Specified Accommodation by delivering to the Specified Issuing
Lender and the Specified Agent at their respective address for notices
specified herein a draft of the Specified Accommodation to be accepted by the
Specified Issuing Lender, or a commercial letter of credit application in the
Issuing Lender's then customary form (a "Trade L/C Application"), or a standby
letter of credit application in the Specified Issuing Lender's then customary
form (a "Standby L/C Application"), completed to the satisfaction of the
Specified Issuing Lender, and such other certificates, documents and other
papers and information as may be customary for Accommodations of the kind being
requested and as the Specified Issuing Lender may reasonably request. Upon
receipt of any Letter of Credit Application and appropriate documentation, the
Specified Issuing Lender will process such documents, certificates and other
papers and information delivered to it in connection therewith in accordance
with its customary procedures and, upon receipt by the Specified Issuing Lender
of confirmation from the Specified Agent that issuance of such Specified
Accommodation will not contravene subsection 3.1, the Specified Issuing Lender
shall promptly issue or accept the Specified Accommodation requested thereby
(but in no event shall the Specified Issuing Lender be required to issue or
accept any Specified Letter of Credit earlier than three (3) Business Days
after its receipt of the appropriate documentation therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Specified Letter of Credit to the beneficiary
thereof or as otherwise may be agreed by the Specified Issuing Lender and the
Specified Borrower or delivering the accepted draft to the Specified Borrower
(or as directed by it). The Specified Issuing Lender shall furnish a copy of
such Specified Letter of Credit to the Specified Borrower and the Specified
Agent promptly following the issuance thereof.
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3.3 Fees, Commissions and Other Charges. (a) Each Specified Borrower
shall pay to the Specified Agent, for the account of the Specified Issuing
Lender and the Specified Participating Lenders, a letter of credit commission
or acceptance fee, as applicable, with respect to each Specified Accommodation,
in an amount equal to the Applicable Margin applicable to Specified Revolving
Credit Loans (or, in the case of the Chips Letter of Credit, US Revolving
Credit Loans) bearing interest at the Eurocurrency Rate of the average daily
face amount of such Specified Accommodation (or portion thereof for which the
US Borrower is primarily responsible), payable quarterly in arrears on the last
day of each March, June, September and December and on the Specified Revolving
Credit Commitment Termination Date (or, in the case of the Chips Letter of
Credit, April 30, 2003), provided that, notwithstanding the foregoing,
acceptance fees with respect to Canadian B/As shall be paid as set forth in
subsection 2.12.(f). A portion of such commission or fee, as applicable, equal
to 1/4 (or, in the case of the Chips Letter of Credit, 1/8) of 1% of the
average daily face amount of such Specified Accommodation shall be payable to
the Specified Issuing Lender for its own account, and the remaining portion of
such commission shall be payable to the Specified Issuing Lender and the
Specified Participating Lenders to be shared ratably among them in accordance
with their respective Specified Revolving Credit Commitment Percentages (or, in
the case of the Chips Letter of Credit, the Chips Limited Term Loan Commitments
or Chips Acquisition Term Loan Commitments, as the case may be). Such
commission and fee shall be nonrefundable.
(b) In addition to the foregoing fees and commissions, each Specified
Borrower shall pay or reimburse the Specified Issuing Lender for such normal
and customary costs and expenses as are incurred or charged by such Specified
Issuing Lender in issuing, effecting payment under, amending or otherwise
administering any Specified Accommodation.
(c) The Specified Agent shall, promptly following its receipt
thereof, distribute to the Specified Issuing Lender and the Specified
Participating Lenders all fees and commissions received by the Specified Agent
for their respective accounts pursuant to this subsection.
3.4 Accommodation Participations. (a) Effective on the date of
issuance or acceptance of each Specified Accommodation, the Specified Issuing
Lender irrevocably agrees to grant and hereby grants to each Specified
Participating Lender, and each Specified Participating Lender irrevocably
agrees to accept and purchase and hereby accepts and purchases from the
Specified Issuing Lender, on the terms and conditions hereinafter stated, for
such Specified Participating Lender's own account and risk an undivided
interest equal to such Specified Participating Lender's Specified Revolving
Credit Commitment Percentage (or, in the case of the Chips Letter of Credit,
Chips Acquisition Term Loan Commitment or Chips Limited Term Loan Commitment,
as the case may be) in the Specified Issuing Lender's obligations and rights
under each Specified Accommodation issued by such Specified Issuing Lender and
the amount of each draft paid by the Specified Issuing Lender thereunder. Each
Specified Participating Lender unconditionally and irrevocably agrees with the
Specified Issuing Lender that, if a draft is paid under any Specified
Accommodation for which such Specified Issuing Lender is not reimbursed in full
by the Specified Borrower in accordance with the terms of this Agreement, such
Specified Participating Lender shall pay to the Specified Agent, for the
account of the Specified Issuing Lender, upon demand at the Specified Agent's
address specified in subsection 12.2, an amount equal to such Specified
Participating Lender's Specified Revolving Credit Commitment Percentage (or, in
the case of the Chips Letter of Credit, Chips Acquisition Term Loan
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Commitment (in the case of the principal portion only) or Chips Limited Term
Loan Commitment (in the case of the principal portion or interest portion), as
the case may be) of the amount of such draft, or any part thereof, which is not
so reimbursed. On the date that any Specified Assignee becomes a Specified
Revolving Credit Lender (or, in the case of the Chips Letter of Credit, a Chips
Limited Term Loan Lender or Chips Acquisition Term Loan Lender) party to this
Agreement in accordance with subsection 12.6, participating interests in any
outstanding Specified Accommodation held by the transferor Specified Revolving
Credit Lender (or, in the case of the Chips Letter of Credit, a Chips Limited
Term Loan Lender or Chips Acquisition Term Loan Lender) from which such
Assignee acquired its interest hereunder shall be proportionately reallotted
between such Specified Assignee and such transferor Specified Revolving Credit
Lender (or, in the case of the Chips Letter of Credit, a Chips Limited Term
Loan Lender or Chips Acquisition Term Loan Lender). Each Specified
Participating Lender hereby agrees that its obligation to participate in each
Specified Accommodation, and to pay or to reimburse the Specified Issuing
Lender for its participating share of the drafts drawn or amounts otherwise
paid thereunder, is absolute, irrevocable and unconditional and shall not be
affected by any circumstances whatsoever (including, without limitation, the
occurrence or continuance of any Default or Event of Default), and that each
such payment shall be made without offset, abatement, withholding or other
reduction whatsoever.
(b) If any amount required to be paid by any Specified Participating
Lender to the Specified Issuing Lender pursuant to subsection 3.4(a) in respect
of any unreimbursed portion of any draft paid by the Specified Issuing Lender
under any Specified Letter of Credit is paid to the Specified Issuing Lender
after the date such payment is due, such Specified Participating Lender shall
pay to the Specified Agent, for the account of the Specified Issuing Lender, on
demand, an amount equal to the product of (i) such amount, times (ii) the daily
average Base Rate (or if there is no Base Rate available, daily Eurocurrency
Rate) for the Specified Borrower during the period from and including the date
such payment is required to the date on which such payment is immediately
available to the Specified Issuing Lender, times (iii) a fraction the numerator
of which is the number of days that elapse during such period and the
denominator of which is 360 for Eurocurrency Loans, or 365 or 366 for Base Rate
Loans, as applicable. A certificate of the Specified Issuing Lender submitted
to any Specified Participating Lender with respect to any amounts owing under
this subsection shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after any Specified Issuing Lender has paid
a draft under any Specified Accommodation and has received from any Specified
Participating Lender its pro rata share of such payment in accordance with
subsection 3.4(a), such Specified Issuing Lender receives any reimbursement on
account of such unreimbursed portion, or any payment of interest on account
thereof, the Specified Issuing Lender will pay to the Specified Agent, for the
account of such Specified Participating Lender, its pro rata share thereof;
provided, however, that in the event that any such payment received by the
Specified Issuing Lender shall be required to be returned by the Specified
Issuing Lender, such Specified Participating Lender shall return to the
Specified Agent for the account of the Specified Issuing Lender, the portion
thereof previously distributed to it.
3.5 Reimbursement Obligation of the Specified Borrower. Each
Specified Borrower agrees to reimburse its Specified Issuing Lender on each
date on which such Specified Issuing Lender notifies such Specified Borrower of
the date and amount of a draft presented
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under any Specified Accommodation and paid by the Specified Issuing Lender for
the amount of (a) such draft so paid and (b) any taxes, fees, charges or other
costs or expenses incurred by the Specified Issuing Lender in connection with
such payment. Each such payment shall be made to the Specified Issuing Lender
at its address for notices specified herein in lawful money of the currency in
which such Specified Accommodation is issued and in immediately available
funds. Interest shall be payable on any and all amounts remaining unpaid by the
Specified Borrower under this subsection from the date such amounts become
payable until payment in full, at the rate which would be payable on Specified
Revolving Credit Loans which are Base Rate Loans, denominated in the same
currency as the relevant Specified Accommodation (or, if there is no Base Rate
available, daily Eurocurrency Rate). Notwithstanding anything herein to the
contrary, US Borrower shall not have any reimbursement obligations in respect
of drawings under the Chips Letter of Credit for principal of the Chips Loan
Notes until such drawings exceed $118,250,000.
3.6 Obligations Absolute. Each Specified Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which such Specified Borrower or any other Person may have or have had
against its Specified Issuing Lender or any beneficiary of a Specified
Accommodation. Each Specified Borrower also agrees with its Specified Issuing
Lender that such Specified Issuing Lender shall not be responsible for, and
such Specified Borrower's obligations under subsection 3.5 shall not be
affected by, among other things, the enforceability, validity or genuineness of
documents or of any endorsements thereon, even though such documents shall in
fact prove to be unenforceable, invalid, fraudulent or forged, or any dispute
between or among the Specified Borrower and any beneficiary of any Specified
Accommodation or any other party to which such Specified Accommodation may be
transferred or any claims whatsoever of the Specified Borrower against any
beneficiary of such Specified Accommodation or any such transferee, except for
errors or omissions caused by the Specified Issuing Lender's gross negligence
or wilful misconduct. The Specified Issuing Lender shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Specified
Accommodation, except for errors or omissions caused by the Specified Issuing
Lender's gross negligence or wilful misconduct. The Specified Borrower agrees
that any action taken or omitted by the Specified Issuing Lender under or in
connection with any Specified Accommodation or the related drafts or documents,
if done in the absence of gross negligence or wilful misconduct and in
accordance with the standards of care specified in the Uniform Commercial Code
of the State of New York, including, without limitation, Article V thereof or
the standards of care specified in the laws of the jurisdiction of the
Specified Issuing Lender's issuing office, as applicable, shall be binding on
the Specified Borrower and shall not result in any liability of such Specified
Issuing Lender to the Specified Borrower.
3.7 Accommodation Payments. If any draft shall be presented for
payment under any Specified Accommodation, the Specified Issuing Lender shall
promptly notify the Specified Borrower and the Specified Agent of the date and
amount thereof. The responsibility of the Specified Issuing Lender to the
Specified Borrower in connection with any draft presented for payment under any
Specified Accommodation shall, in addition to any payment obligation expressly
provided for in such Specified Accommodation, be limited to determining that
the documents (including each draft) delivered under such Specified
Accommodation in connection with such presentment are in conformity with such
Specified Accommodation.
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3.8 Letter of Credit Applications. To the extent that any provision
of any Specified Letter of Credit Application, including any reimbursement
provision contained therein, related to any Specified Letter of Credit is
inconsistent with the provisions of this Section 3, the provisions of this
Section 3 shall prevail.
3.9 Cash Collateralization of Accommodations. Upon termination of the
Revolving Credit Commitments, Specified Accommodation Outstandings then
existing which have been fully cash collateralized to the satisfaction of the
Specified Issuing Lender shall no longer be considered "Specified Accommodation
Outstandings" hereunder, and any Specified Accommodation Participating Interest
heretofore granted to any Specified Participating Lender by the applicable
Specified Issuing Lender to any Lender with a Revolving Credit Commitment shall
be deemed terminated; provided that fees payable pursuant to subsection 3.3
shall continue to accrue to the applicable Issuing Lender with respect to the
applicable Specified Accommodations until the expiry thereof.
SECTION 4. GENERAL PROVISIONS
4.1 Interest Rates and Payment Dates. (a) Each Eurocurrency Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurocurrency Rate determined for such
day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum equal
to the Specified Base Rate plus the Applicable Margin.
(c) Upon the occurrence and during the continuance of any Event of
Default specified in subsection 9(a), the Specified Loans and any overdue
amounts hereunder shall bear interest at a rate per annum which is (x) in the
case of the Specified Loans, the rate that would otherwise be applicable
thereto pursuant to the foregoing provisions of this subsection plus 2% per
annum or (y) in the case of overdue interest, commitment fee, Facility Fee, or
other amount, the rate described in paragraph (b) (or, if no Base Rate is
available, paragraph (a) for Interest Periods of one day) of this subsection
4.1 plus 2% per annum.
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
(e) Each Canadian B/A shall be subject to an Acceptance Fee which is
a rate per annum equal to the Applicable Margin for Canadian B/As payable as
set forth in subsection 2.12(f).
(f) To the extent interest is payable after the Third Amendment and
Restatement Closing Date but accrued prior to such date, that portion of the
interest which accrued prior to such date shall be deemed to have accrued in
accordance with the terms of the Existing Agreement.
4.2 Computation of Interest and Fees. (a) Unless otherwise indicated
in the Administrative Schedule or the applicable Joinder Agreement, interest on
Loans, fees, interest on
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overdue interest, and other amounts payable hereunder shall be calculated, on
the basis of a 365- or 366-day year, in each case, for the actual days elapsed.
The Specified Agent shall as soon as practicable notify the Specified Borrower
and the Specified Revolving Credit Lenders or the Specified Term Loan Lenders,
as the case may be, of each determination of a Eurocurrency Rate. Any change in
the interest rate on a Specified Loan resulting from a change in the Specified
Base Rate or the Specified Eurocurrency Rate shall become effective as of the
opening of business on the day on which such change becomes effective. The
Specified Agent shall as soon as practicable notify the Specified Borrower and
the Specified Revolving Credit Lenders or the Specified Term Loan Lenders, as
the case may be, of the effective date and the amount of each such change in
interest rate.
(b) Each determination of an interest rate by a Specified Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Specified Borrower and the Specified Lenders and the other parties hereto
in the absence of manifest error. The Specified Agent shall, at the request of
the Specified Borrower, deliver to the Specified Borrower a statement showing
the quotations used by the Specified Agent in determining any interest rate
pursuant to subsection 4.1(a) or (b).
(c) For the purposes of the Interest Act (Canada) and disclosure
thereunder, whenever interest to be paid under any Loan Document is to be
calculated on the basis of a year of 360 days or any other period of time that
is less than a calendar year, the yearly rate of interest to which the rate
determined pursuant to such calculation is equivalent is the rate so determined
multiplied by the actual number of days in the calendar year in which the same
is to be ascertained and divided by either 360 or such other period of time, as
the case may be.
(d) If any provision of any Loan Document would oblige any Borrower
to make any payment of interest or other amount payable to any Lender in an
amount or calculated at a rate which would be prohibited by law or would result
in a receipt by that Lender of interest at a criminal rate (as such terms are
construed under the applicable Requirement of Law), then notwithstanding such
provision, such amount or rate shall be deemed to have been adjusted with
retroactive effect to the maximum amount or rate of interest, as the case may
be, as would not be so prohibited by law or so result in a receipt by that
Lender of interest at a criminal rate, such adjustment to be effected, to the
extent necessary, as follows:
(i) firstly, by reducing the amount or rate of interest required
to be paid to the affected Lender under subsection 4.1; and
(ii) thereafter, by reducing any fees, commissions, premiums and
other amounts required to be paid to the affected Lender which would
constitute interest for purposes of any applicable Requirement of Law.
4.3 Inability to Determine Interest Rate. If prior to the first day of
any Interest Period:
(a) the Specified Agent shall have determined (which determination,
absent manifest error, shall be conclusive and binding upon the Specified
Borrower) that, by
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reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Specified Eurocurrency
Rate for such Interest Period, or
(b) the Specified Agent shall have received notice from holders of a
majority of the Specified Loans subject to such Interest Period that the
Specified Eurocurrency Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to such
Specified Lenders (as conclusively certified by such Specified Lenders) of
making or maintaining their affected Specified Loans during such Interest
Period,
the Specified Agent shall give telecopy or telephonic notice thereof to the
Specified Borrower and the Specified Lenders as soon as practicable thereafter.
If such notice is given (x) any Specified Eurocurrency Loans requested to be
made on the first day of such Interest Period shall be made as Base Rate Loans,
(y) any Specified Loans that were to have been converted on the first day of
such Interest Period to Eurocurrency Loans shall be converted to or continued
as Base Rate Loans and (z) any outstanding Specified Eurocurrency Loans shall
be converted, on the last day of the Interest Periods therefor, to Base Rate
Loans. Until such notice has been withdrawn by the Specified Agent (which the
Specified Agent agrees to do when the circumstances that prompted the delivery
of such notice no longer exist), no further Eurocurrency Loans shall be made or
continued as such, nor shall the Specified Borrower have the right to convert
such Specified Loans to Eurocurrency Loans. Notwithstanding the foregoing,
until such notice has been withdrawn by the Specified Agent (which the
Specified Agent agrees to do when the circumstances that prompted the delivery
of such notice no longer exist), if a Base Rate is not available to the
Specified Borrower, any Specified Loans or Specified Obligations or other
amounts due hereunder not subject to an Interest Period determined prior to
such notice shall bear interest at a rate determined from time to time by the
Specified Agent to be its cost of maintaining its share of such Specified
Loans, specified Obligations or other amounts plus the Applicable Margin and
any applicable overdue percentage pursuant to Section 4.1(c).
4.4 Pro Rata Treatment and Payments. (a) Each borrowing, conversion
or continuation pursuant to subsection 2.11, of Specified Loans (other than
Swing Line Loans) by a Specified Borrower from the Specified Lenders and any
reduction of the Specified Commitments of the Specified Lenders hereunder shall
be made pro rata, to the nearest C$100,000, only in the case of Canadian B/As,
according to the respective principal amounts of such Specified Loans held by
the Specified Lenders or the respective Specified Commitments of the Specified
Lenders, as the case may be.
(b) Whenever (i) any payment received by a Specified Agent under this
Agreement or any Specified Note or (ii) any other amounts received by such
Specified Agent for or on behalf of the Specified Borrower (including, without
limitation, proceeds of collateral or payments under any guarantee) is
insufficient to pay in full all amounts then due and payable to such Specified
Agent and the Specified Lenders under this Agreement and any Specified Note and
the other Loan Documents, such payment shall be distributed by the Specified
Agent and applied by the Specified Agent and the Specified Lenders in the
following order: First, to the payment of fees and expenses due and payable to
the Specified Agent under and in connection with this Agreement and the other
Specified Loan Documents; Second, to the payment of all expenses due and
payable under subsection 12.5, ratably among the Specified Agent and the
Specified Lenders
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in accordance with the aggregate amount of such payments owed to the Specified
Agent and each such Specified Lenders; Third, to the payment of fees due and
payable under subsections 2.3 and 3.3(a) (in the case of the Specified Lenders,
shall be distributed ratably among such Lenders in accordance with the
Specified Revolving Credit Commitment Percentage (or, in the case of the Chips
Letter of Credit, Chips Acquisition Term Loan Commitments and Chips Limited
Term Loan Commitments) of each such Lender and, in the case of the Specified
Issuing Lender, the amount retained by such Specified Issuing Lender for its
own account pursuant to subsection 3.3(a)) and to the payment of interest then
due and payable under the Specified Loans, ratably in accordance with the
aggregate amount of interest and fees owed to each such Specified Lender;
Fourth, to the payment of the principal amount of the Specified Loans and the
Specified Accommodation Obligations (including any amounts required to be cash
collateralized) then due and payable and, in the case of proceeds of collateral
or payments under any guarantee, to the payment of any other Obligations to any
Secured Party Lender not covered in First through Third above ratably secured
by such collateral or ratably guaranteed under any such guarantee, ratably
among the Secured Parties Lenders in accordance with the aggregate principal
amount and, in the case of proceeds of collateral or payments under any
guarantee, the obligations secured or guaranteed thereby owed to each such
Specified Lender.
(c) If any Specified Revolving Credit Lender, Chips Acquisition Term
Loan Lender, Chips Limited Term Loan Lender (a "Non-Funding Lender") has (x)
failed to make a Specified Revolving Credit Loan, Chips Limited Term Loan or
Chips Acquisition Term Loan, as the case may be, required to be made by it
hereunder, and the Specified Agent has determined that such Specified Lender is
not likely to make such Specified Loan or (y) given notice to the Specified
Borrower or the Specified Agent that it will not make, or that it has
disaffirmed or repudiated any obligation to make, any Specified Loans, in each
case by reason of the provisions of the Financial Institutions Reform, Recovery
and Enforcement Act of 1989 or otherwise, any payment made on account of the
principal of the Specified Loans outstanding shall be made as follows:
(i) in the case of any such payment made on any date when and to
the extent that, in the determination of the Specified Agent, the
Specified Borrower would be able, under the terms and conditions hereof,
to reborrow the amount of such payment under the Specified Commitments and
to satisfy any applicable conditions precedent set forth in subsection 6.2
to such reborrowing, such payment shall be made on account of the
outstanding Specified Revolving Credit Loans, Chips Acquisition Term Loans
or Chips Limited Term Loans, as the case may be, held by the Specified
Lenders other than the Non-Funding Lender pro rata according to the
respective outstanding principal amounts of the Specified Revolving Credit
Loan, Chips Acquisition Term Loan or Chips Limited Term Loan, as the case
may be, of such Specified Lenders;
(ii) otherwise, such payment shall be made on account of the
outstanding Specified Revolving Credit Loans, Chips Acquisition Term Loans
or Chips Limited Term Loans, as the case may be, held by the Specified
Revolving Credit Lenders, Chips Acquisition Term Loan Lenders or Chips
Limited Term Loan Lenders, pro rata according to the respective
outstanding principal amounts of such Loans; and
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(iii) any payment made on account of interest on the Specified
Revolving Credit Loans, Chips Acquisition Term Loans or Chips Limited Term
Loans, as the case may be, shall be made pro rata according to the
respective amounts of accrued and unpaid interest due and payable on such
Loans with respect to which such payment is being made.
The Specified Borrower agrees to give the Specified Agent such assistance in
making any determination pursuant to this paragraph as the Specified Agent may
reasonably request. Any such determination by the Specified Agent shall be
conclusive and binding on the Specified Lenders.
(d) All payments (including prepayments) to be made by the Specified
Borrower on account of principal, interest and fees shall be made without
set-off or counterclaim and shall be made to the Specified Agent, for the
account of the Specified Lenders at the Specified Agent's office listed in
subsection 12.2, in the currency in which such amounts are denominated and in
immediately available funds. The Specified Agent shall promptly distribute such
payments in accordance with the provisions of subsections 4.4(b) and (c)
promptly upon receipt in like funds as received. If any payment hereunder
(other than payments on the Eurocurrency Loans or Canadian B/As) would become
due and payable on a day other than a Business Day, such payment shall become
due and payable on the next succeeding Business Day and, with respect to
payments of principal, interest thereon shall be payable at the applicable rate
during such extension. If any payment on a Eurocurrency Loan or Canadian B/A
becomes due and payable on a day other than a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day (and with respect
to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension), unless the result of such extension
would be to extend such payment into another calendar month in which event such
payment shall be made on the immediately preceding Business Day.
(e) Unless the Specified Agent shall have been notified in writing by
any Lender prior to a Borrowing Date that such Specified Lender will not make
the amount that would constitute its relevant Ratable Portion of the Specified
Loans on such date available to the Specified Agent, the Specified Agent may
assume that such Specified Lender has made such amount available to the
Specified Agent on such Borrowing Date, and the Specified Agent may, in
reliance upon such assumption, make available to the Specified Borrower a
corresponding amount. If such amount is made available to the Specified Agent
on a date after such Borrowing Date, such Specified Lender shall pay to the
Specified Agent on demand an amount equal to the product of (i) the daily
average Base Rate (or, if a Base Rate is not available to such Specified
Borrower, a Eurocurrency Rate with an Interest Period of one day) during such
period, times (ii) the amount of such Specified Lender's relevant Ratable
Portion of such Specified Loans, times (iii) a fraction the numerator of which
is the number of days that elapse from and including such Borrowing Date to the
date on which such Specified Lender's relevant Ratable Portion of such
Specified Loans shall have become immediately available to the Specified Agent
and the denominator of which is 365/366 or 360, as applicable. A certificate of
the Specified Agent submitted to any Specified Lender with respect to any
amounts owing under this subsection shall be conclusive in the absence of
manifest error. If such Specified Lender's relevant Ratable Portion of such
Specified Loans is not in fact made available to the Specified Agent by such
Specified Lender within three (3) Business Days of such Borrowing Date, the
Specified Agent shall be entitled to recover such amount with interest thereon
at the rate per annum applicable to
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Base Rate Loans denominated in the relevant currency (or, if a Base Rate is not
available to the Specified Borrower, a Eurocurrency Rate with an Interest
Period of one day), on demand, from the Specified Borrower. The failure of any
Specified Lender to make any Specified Loan to be made by it shall not relieve
any other Specified Lender of its obligation, if any, hereunder to make its
Specified Loan on such Borrowing Date, but no Specified Lender shall be
responsible for the failure of any other Specified Lender to make the Specified
Loan to be made by such other Specified Lender on such Borrowing Date.
4.5 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Specified Lender to make or
maintain Eurocurrency Loans or Canadian B/As as contemplated by this Agreement,
(a) the commitment of such Specified Lender hereunder to make Eurocurrency
Loans or Canadian B/As, continue Eurocurrency Loans or Canadian B/As as such
and convert Base Rate Loans to Eurocurrency Loans or Canadian B/As, as
applicable, shall forthwith be cancelled and (b) such Specified Lender's Loans
then outstanding as Eurocurrency Loans or Canadian B/As, if any, shall be
converted automatically to Specified Base Rate Loans on the respective last
days of the then current Interest Periods or Canadian Contract Periods, as
applicable, with respect to such Specified Loans or within such earlier period
as required by law; provided that before making any such demand, each Specified
Lender agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions and so long as such efforts would not be
disadvantageous to it, in its reasonable discretion, in any legal, economic or
regulatory manner) to designate a different lending office if the making of
such a designation would allow the Specified Lender or its lending office to
continue to perform its obligations to make Eurocurrency Loans or Canadian
B/As. If any such conversion of a Eurocurrency Loan or Canadian B/A occurs on a
day which is not the last day of the then current Interest Period with respect
thereto, the Specified Borrower shall pay to such Specified Lender such
amounts, if any, as may be required pursuant to subsection 4.8. If
circumstances subsequently change so that any affected Lender shall determine
that it is no longer so affected, such Specified Lender will promptly notify
the Specified Borrower and the Specified Agent, and upon receipt of such
notice, the obligations of such Specified Lender to make or continue
Eurocurrency Loans or Canadian B/As or to convert Base Rate Loans into
Eurocurrency Loans or Canadian B/As, as applicable, shall be reinstated.
Notwithstanding the foregoing, until such notice has been withdrawn by the
Specified Lender (which the Specified Lender agrees to do when the
circumstances that prompted the delivery of such notice no longer exist), if a
Base Rate is not available to the Specified Borrower, any Specified Loans or
Specified Obligations or other amounts due hereunder not subject to an Interest
Period determined prior to such notice shall bear interest at a rate determined
from time to time by the Specified Lender to be its cost of maintaining its
share of such Specified Loans, specified Obligations or other amounts plus the
Applicable Margin and any applicable overdue percentage pursuant to subsection
4.1(c).
If any Specified Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify (in any event no
later than ninety (90) days after such Specified Lender becomes entitled to
make such claim) the Specified Borrower, through the Specified Agent, of the
event by reason of which it has become so entitled.
4.6 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or
compliance by any Specified
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Lender with any request or directive (whether or not having the force of law)
from any central bank or other Governmental Authority made subsequent to the
date hereof:
(i) shall subject any Specified Lender to any tax of any kind
whatsoever with respect to this Agreement, any Specified Eurocurrency
Loan, any Specified Note, any Specified Accommodation, Letter of Credit
Application, or Canadian B/As or change the basis of taxation of payments
to such Specified Lender in respect thereof (except for taxes covered by
subsection 4.7 and the establishment of a tax based on the net income of
such Specified Lender or changes in the rate of tax on the net income of
such Specified Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit (including, without limitation, letters of
credit or bankers acceptances) by, or any other acquisition of funds by,
any office of such Lender; or
(iii) shall impose on such Specified Lender any other condition;
and the result of any of the foregoing is to increase the cost to such
Specified Lender, by an amount which such Specified Lender deems to be
material, of making, converting into, continuing or maintaining Eurocurrency
Loans or Canadian B/As or to increase the cost to such Specified Lender, by an
amount which such Specified Lender deems to be material, of issuing or
maintaining any Specified Accommodation or participation therein or to reduce
any amount receivable hereunder in respect thereof, then, in any such case, the
Specified Borrower shall promptly pay such Specified Lender, upon its demand,
any additional amounts necessary to compensate such Specified Lender for such
increased cost or reduced amount receivable, provided, in respect of
Eurocurrency Loans or Canadian B/As, that before making any such demand, each
Specified Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions and so long as such efforts would
not be disadvantageous to it, in its reasonable discretion, in any legal,
economic or regulatory manner) to designate a different Eurocurrency or
Canadian B/A lending office if the making of such designation would allow the
Specified Lender or its Eurocurrency Loan or Canadian B/A lending office to
continue to perform its obligations to make Eurocurrency Loans or Canadian B/As
or to continue to fund or maintain Eurocurrency Loans or Canadian B/As and
avoid the need for, or materially reduce the amount of, such increased cost. If
any Specified Lender becomes entitled to claim any additional amounts pursuant
to this subsection, it shall promptly notify (in any event no later than ninety
(90) days after such Specified Lender becomes entitled to make such claim) the
Specified Borrower, through the Specified Agent, of the event by reason of
which it has become so entitled. A certificate as to any additional amounts
payable pursuant to this subsection submitted by such Specified Lender, through
the Specified Agent, to the Specified Borrower shall be conclusive in the
absence of manifest error. If the Specified Borrower so notifies the Specified
Agent within five (5) Business Days after any Specified Lender notifies the
Specified Borrower of any increased cost pursuant to the foregoing provisions
of this subsection 4.6, the Specified Borrower may convert all Eurocurrency
Loans or Canadian B/As of such Specified Lender then outstanding into Base Rate
Loans if a Base Rate option is available in accordance with subsection 2.11
and, additionally, reimburse such Specified Lender for any cost in accordance
with subsection 4.8.
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This covenant shall survive the termination of this Agreement and the payment
of the Specified Loans and all other amounts payable hereunder for nine (9)
months following such termination and repayment.
(b) If any Specified Lender shall have determined that the adoption
of or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Specified Lender or
any corporation controlling such Specified Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof does or shall have
the effect of reducing the rate of return on such Specified Lender's or such
corporation's capital as a consequence of its obligations hereunder or under
any Specified Accommodation to a level below that which such Specified Lender
or such corporation could have achieved but for such change or compliance
(taking into consideration such Specified Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such
Specified Lender to be material, then from time to time, after submission by
such Specified Lender to the Specified Borrower (with a copy to the Specified
Agent) of a prompt written request therefor, the Specified Borrower shall pay
to such Specified Lender such additional amount or amounts as will compensate
such Specified Lender for such reduction. This covenant shall survive the
termination of this Agreement and the payment of the Specified Loans and all
other amounts payable hereunder for nine months following such termination and
repayment.
4.7 Taxes. (a) Except as provided below in this subsection, all
payments made by each Specified Borrower under this Agreement and any Specified
Notes shall be made free and clear of, and without deduction or withholding for
or on account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Specified Governmental
Authority, excluding net income taxes and franchise taxes imposed in lieu of
net income taxes. If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes") are required
to be withheld from any amounts payable to the Specified Agent or any Specified
Lender hereunder or under any Specified Notes, the amounts so payable to the
Specified Agent or such Specified Lender shall be increased to the extent
necessary to yield to the Specified Agent or such Specified Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and any
Specified Notes, provided, however, that the Specified Borrower shall be
entitled to deduct and withhold any Non-Excluded Taxes and shall not be
required to increase any such amounts payable to any Specified Lender if such
Specified Lender fails or is unable to comply with the requirements of
paragraph (b) of this subsection or if such Specified Lender fails to comply
with the requirements of paragraphs (c) or (d) of this subsection 4.7. Whenever
any Non-Excluded Taxes are payable by the Specified Borrower, as promptly as
possible thereafter the Specified Borrower shall send to the Specified Agent
for its own account or for the account of such Specified Lender, as the case
may be, a certified copy of an original official receipt received by the
Specified Borrower showing payment thereof. If the Specified Borrower fails to
pay any Non-Excluded Taxes when due to the appropriate taxing authority or
fails to remit to the Specified Agent the required receipts or other required
documentary evidence, the Specified Borrower shall indemnify the Specified
Agent and the Specified Lenders for any incremental taxes, interest or
penalties that may become payable by the Specified Agent or any Specified
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Lender as a result of any such failure. The agreements in this subsection shall
survive the termination of this Agreement and the payment of the Specified
Loans and all other amounts payable hereunder for a period of nine (9) months
thereafter.
(b) With respect to US Lenders, each US Lender that is not
incorporated under the laws of the United States of America or a state thereof
shall:
(i) (x) on or before the date of any payment by the US Borrower
under this Agreement or any Notes to such US Lender, deliver to the
US Borrower and the Administrative Agent (A) two duly completed
copies of United States Internal Revenue Service Form 1001 or 4224,
or successor applicable form, as the case may be, certifying that it
is entitled to receive payments under this Agreement and any Notes
without any deduction or withholding of any United States federal
income taxes and (B) a duly completed Internal Revenue Service Form
W-8 or W-9, or successor applicable form, as the case may be,
certifying that it is entitled to an exemption from United States
backup withholding tax;
(y) deliver to the US Borrower and the Administrative Agent
two further copies of any such form or certification on or
before the date that any such form or certification expires or
becomes obsolete and after the occurrence of any event requiring
a change in the most recent form previously delivered by it to
the US Borrower; and
(z) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by
the US Borrower or the Administrative Agent; or
(ii) in the case of any such US Lender that is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Code and that does not
comply with sub-paragraph (i) of this paragraph (b), (x) represent to
the US Borrower (for the benefit of the US Borrower and the
Administrative Agent) that it is not a bank within the meaning of
Section 881(c)(3)(A) of the Code, (y) deliver to the US Borrower on
or before the date of any payment by the US Borrower, with a copy to
the Administrative Agent, (A) a certificate stating that such US
Lender (1) is not a "bank" under Section 881(c)(3)(A) of the Code, is
not subject to regulatory or other legal requirements as a bank in
any jurisdiction, and has not been treated as a bank for purposes of
any tax, securities law or other filing or submission made to any
Governmental Authority, any application made to a rating agency or
qualification for any exemption from tax, securities law or other
legal requirements, (2) is not a 10-percent shareholder within the
meaning of Section 881(c)(3)(B) of the Code and (3) is not a
controlled foreign corporation receiving interest from a related
person within the meaning of Section 881(c)(3)(C) of the Code (any
such certificate a "U.S. Tax Compliance Certificate") and (B) two
duly completed copies of Internal Revenue Service Form W-8, or
successor applicable
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form, certifying to such US Lender's legal entitlement at the date of
such certificate to an exemption from U.S. withholding tax under the
provisions of Section 881(c) of the Code with respect to payments to
be made under this Agreement and any US Notes (and to deliver to the
US Borrower and the Administrative Agent two further copies of Form
W-8 on or before the date it expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recently
provided form and, if necessary, obtain any extensions of time
reasonably requested by the US Borrower or the Administrative Agent
for filing and completing such forms), and (z) agree, to the extent
legally entitled to do so, upon reasonable request by the US
Borrower, to provide to the US Borrower (for the benefit of the US
Borrower and the Administrative Agent) such other forms as may be
reasonably required in order to establish the legal entitlement of
such US Lender to an exemption from withholding with respect to
payments under this Agreement and any Notes; or
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a US Lender hereunder which renders all such
forms and certificates inapplicable or which would prevent such US Lender from
duly completing and delivering any such form or certificate with respect to it
and such US Lender so advises the US Borrower and the Administrative Agent.
Each Person that shall become a US Lender or a Specified Participant pursuant
to subsection 12.6 shall, upon the effectiveness of the related transfer, be
required to provide all of the forms, certifications and statements required
pursuant to this subsection; provided that in the case of a Specified
Participant the obligations of such Specified Participant pursuant to this
paragraph (b) shall be determined as if such Specified Participant were a US
Lender except that such Specified Participant shall furnish all such required
forms, certifications and statements to the US Lender from which the related
participation shall have been purchased.
(c) Each Specified Lender shall, upon request by the Specified
Borrower, deliver to the Specified Borrower or the applicable Governmental
Authority, as the case may be, any form or certificate required in order that
any payment by the Specified Borrower under this Agreement or any Specified
Notes may be made free and clear of, and without deduction or withholding for
or on account of any Non-Excluded Taxes (or to allow any such deduction or
withholding to be at a reduced rate) imposed on such payment under the laws of
any jurisdiction, provided that such Specified Lender is legally entitled to
complete, execute and deliver such form or certificate and such completion,
execution or submission would not materially prejudice the legal position of
such Specified Lender.
(d) If any Specified Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify (in any event no
later than ninety (90) days after such Specified Lender becomes entitled to
make such claim) the Specified Borrower, through the Specified Agent, of the
event by reason of which it has become so entitled in accordance with clause
(a) of this subsection.
(e) Each English Lender represents to the English Borrower, Chips
Limited or ISL, as the case may be, that at the date hereof it is (and each of
its transferees shall represent and it shall be a condition precedent to the
sale of an English Lender's participating interest in any English Loan or Chips
Loan to a Specified Participant and the assignment of all or part of its
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rights or obligations under any English Loan or Chips Loan to any English
Lender or any affiliate thereof that such Specified Participant, English Lender
or affiliate shall so represent at the time of the sale or assignment that it
is at the date of the sale or assignment) either (i) a bank as defined in
Section 840A of the Income and Corporation Taxes Act of 1988 and is within the
charge to United Kingdom corporation tax in respect of all interest received by
it under this Agreement or (ii) entitled by virtue of an applicable double tax
treaty to claim such exemption or relief from United Kingdom income tax as will
allow interest payments hereunder by the English Borrower, ISL or Chips
Limited, as the case may be, to be made to it free of United Kingdom taxes and
has filed such a claim with all of the appropriate supporting documents and a
gross payment direction will be (or should be issued in due course) to the
English Borrower, ISL or Chips Limited, as the case may be, by the Inland
Revenue; provided no English Lender shall be entitled to payments under
subsection 4.7(a) pending the issuance of a gross payment direction under this
clause (ii).
4.8 Indemnity. Each Specified Borrower agrees to indemnify each
Specified Lender and to hold each Specified Lender harmless from any loss or
expense which such Specified Lender may sustain or incur as a consequence of
(a) default by the Specified Borrower in payment when due of the principal
amount of or interest on any Eurocurrency Loan or Canadian B/A, (b) default by
the Specified Borrower in making a borrowing of, conversion into or
continuation of Eurocurrency Loans or Canadian B/As after the Specified
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (c) default by the Specified Borrower in making
any prepayment after the Specified Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (d) the making of a
prepayment of Eurocurrency Loans or Canadian B/As on a day which is not the
last day of an Interest Period or Canadian Contract Period with respect
thereto, including, without limitation, in each case, any such loss or expense
(but excluding loss of margin) arising from the reemployment of funds obtained
by it or from fees payable to terminate the deposits from which such funds were
obtained. Calculation of all amounts payable to a Specified Lender under this
subsection 4.8 shall be made as though such Specified Lender had actually
funded its relevant Eurocurrency Loan or Canadian B/A through the purchase of a
deposit bearing interest at the Eurocurrency Rate in an amount equal to the
amount of such Eurocurrency Loan or Canadian B/A and having a maturity
comparable to the relevant Interest Period or Canadian Contract Period;
provided, however, that each Specified Lender may fund each of its Eurocurrency
Loans or Canadian B/As in any manner it sees fit, and the foregoing assumption
shall be utilized only for the calculation of amounts payable under this
subsection 4.8. This covenant shall survive the termination of this Agreement
and the payment of the Specified Loans and all other amounts payable hereunder
for a period of nine (9) months thereafter.
4.9 Replacement of Specified Lender. If at any time (a) the Specified
Borrower becomes obligated to pay additional amounts described in subsections
4.5, 4.6 or 4.7 as a result of any condition described in such subsections or
any Specified Lender ceases to make Eurocurrency Loans or Canadian B/As
pursuant to subsection 4.5, (b) any Specified Lender becomes insolvent and its
assets become subject to a receiver, liquidator, trustee, custodian or other
Person having similar powers, (c) any Specified Lender becomes a "Nonconsenting
Lender" (as defined below in this subsection 4.9) or (d) any Specified Lender
becomes a "Non-Funding Lender", then the Specified Borrower may, on ten (10)
Business Days' prior written notice to the Specified Agent and such Specified
Lender, replace such Specified Lender by causing such Specified Lender to (and
such Specified Lender shall) assign pursuant to subsection 12.6(c) all of its
rights and
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obligations under this Agreement to a Specified Lender or other entity selected
by the Specified Borrower and acceptable to the Specified Agent for a purchase
price equal to the outstanding principal amount of such Lender's Specified
Loans and all accrued interest and fees and other amounts payable hereunder;
provided that (i) the Specified Borrower shall have no right to replace the
Specified Agent, (ii) neither the Specified Agent nor any Specified Lender
shall have any obligation to the Specified Borrower to find a replacement
Specified Lender or other such entity, (iii) in the event of a replacement of a
Nonconsenting Lender or a Specified Lender to which the Specified Borrower
becomes obligated to pay additional amounts pursuant to clause (a) of this
subsection 4.9, in order for the Specified Borrower to be entitled to replace
such a Specified Lender, such replacement must take place no later than 180
days after (A) the date the Nonconsenting Lender shall have notified the
Specified Borrower and the Specified Agent of its failure to agree to any
requested consent, waiver or amendment or (B) the Specified Lender shall have
demanded payment of additional amounts under one of the subsections described
in clause (a) of this subsection 4.9, as the case may be, and (iv) in no event
shall the Specified Lender hereby replaced be required to pay or surrender to
such replacement Specified Lender or other entity any of the fees received by
such Specified Lender hereby replaced pursuant to this Agreement. In the case
of a replacement of a Specified Lender to which the Specified Borrower becomes
obligated to pay additional amounts pursuant to clause (a) of this subsection
4.9, the Specified Borrower shall pay such additional amounts to such Specified
Lender prior to such Specified Lender being replaced and the payment of such
additional amounts shall be a condition to the replacement of such Specified
Lender. In the event that (x) the Specified Borrower or the Specified Agent has
requested the Lenders to consent to a departure or waiver of any provisions of
the Specified Loan Documents or to agree to any amendment thereto, (y) the
consent, waiver or amendment in question requires the agreement of all Lenders
in accordance with the terms of subsection 12.1 and (z) Required Lenders have
agreed to such consent, waiver or amendment, then any Specified Lender who does
not agree to such consent, waiver or amendment shall be deemed a "Nonconsenting
Lender." The Specified Borrower's right to replace a Non-Funding Lender
pursuant to this subsection 4.9 is, and shall be, in addition to, and not in
lieu of, all other rights and remedies available to the Specified Borrower
against such Non-Funding Lender under this Agreement, at law, in equity, or by
statute.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement and
to make their respective Loans and to issue and participate in Accommodations,
Holdings, and the US Borrower (and each Foreign Subsidiary Borrower, only as to
itself, and its Subsidiaries) hereby represent and warrant to the Agents and
each Lender that:
5.1 Financial Condition. (a) The audited consolidated financial
statements of the US Borrower and its Subsidiaries, dated December 31, 1998,
copies of which have been furnished to each Lender on or before the Third
Amendment and Restatement Closing Date, have been prepared using accounting
methods, procedures and policies which, except as set forth in Schedule 5.1(a),
are in accordance with GAAP and present fairly in all material respects the
financial positions of the US Borrower and its Subsidiaries on a consolidated
basis as at the date thereof and the results of operations and cash flows for
the period then ended. Neither the US Borrower nor any of its Subsidiaries had,
to the knowledge of the US Borrower, as at the date of
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the balance sheet referred to above, any material Guarantee Obligation,
contingent liability or liability for taxes, or any long-term lease or unusual
forward or long-term commitment, including, without limitation, any interest
rate or foreign currency swap or exchange transaction, which is not reflected
in the foregoing statements or in the notes thereto and which, to the knowledge
of the US Borrower, has any reasonable likelihood of resulting in a material
cost or loss.
(b) The unaudited consolidated financial statement of the US Borrower
and its Subsidiaries, dated March 31, 1999, copies of which have been
heretofore furnished to each Lender, to the best knowledge of the US Borrower,
present fairly in all material respects the financial position of the US
Borrower and its Subsidiaries on a consolidated basis as at the date thereof
and the results of operations and cash flows for the period then ended;
(c) The (i) audited financial statements of each of the companies
comprising the Hong Kong Company (other than the PRC Subsidiaries) and (ii) the
unaudited financial statements of each of the PRC Subsidiaries, each dated
March 31, 1999, copies of which have been furnished to the Administrative Agent
on or before the Third Amendment and Restatement Closing Date, have been
prepared using accounting methods, procedures and policies which are in
accordance with GAAP and present fairly in all material respects the financial
positions of such companies and such PRC Subsidiaries, respectively as at the
date thereof and the results of operations and cash flows for the period then
ended. The unaudited consolidating financial statements of the Hong Kong
Company, dated March 31, 1999, copies of which have been furnished to the
Administrative Agent on or before the Third Amendment and Restatement, have
been prepared using accounting methods, procedures and policies which are in
accordance with GAAP and present fairly in all material respects the financial
position of the Hong Kong Company on a consolidating basis as at the date
thereof and the results of operations and cash flow for the period then ended.
(d) The pro forma balance sheet of the US Borrower and its
Subsidiaries (the "Hong Kong Pro Forma Balance Sheet"), certified by a
Responsible Officer of the US Borrower, copies of which have been heretofore
furnished to the Administrative Agent, is, to the best knowledge of the US
Borrower, the unaudited balance sheet of the US Borrower as at March 31, 1999,
adjusted to give effect to (i) the Hong Kong Acquisition and (ii) the other
transactions contemplated hereby. The Hong Kong Pro Forma Balance Sheet was
prepared based on good faith assumptions and are based on the best information
available to the US Borrower as of the date of delivery thereof, and reflect on
a pro forma basis the financial position of the US Borrower and its
Subsidiaries as at the Third Amendment and Restatement Closing Date.
5.2 No Change. (a) Since each of December 31, 1998 and the date of
the pro forma balance sheet referred to in subsection 5.1(d), there has been no
Material Adverse Change and (b) since the Closing Date no dividends or other
distributions have been declared, paid or made upon the Capital Stock of the
Credit Parties except as permitted hereby nor has any of the Capital Stock of
the Credit Parties been redeemed, retired, purchased or otherwise acquired for
value by the Credit Parties or any of their Subsidiaries except as permitted
hereby.
5.3 Corporate Existence; Compliance with Law. Holdings and each of
its Subsidiaries (a) is duly organized and validly existing or validly
subsisting under the laws of the jurisdiction of its organization or
incorporation, (b) has the power and authority, and the legal
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right, to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently engaged, (c) is in
good standing in the jurisdiction of its organization or incorporation and duly
qualified as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, except to the extent in each case
that the failure to so qualify could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Affect.
5.4 Corporate Power; Authorization; Enforceable Obligations. Each
Credit Party has the power and authority, and the legal right, to make, deliver
and perform this Agreement, any of the Specified Notes and the other Specified
Loan Documents to which it is a party and, with respect to each Specified
Borrower, to borrow hereunder and has taken all necessary action to authorize
the borrowings on the terms and conditions of, or the granting of any security
interests under, this Agreement and any of the Specified Notes and the other
Specified Loan Documents and to authorize the execution, delivery and
performance of this Agreement, any of the Specified Notes and the other
Specified Loan Documents to which it is a party. No consent or authorization
of, filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
under this Agreement or with the execution, delivery, performance, validity or
enforceability of, or the granting of any security interests under, this
Agreement, any of the Specified Notes or the other Specified Loan Documents to
which any Credit Party is a party, except for (i) those set forth on Schedule
5.4, each of which have been or will be made or taken and are or will be in
full force and effect, (ii) consents under immaterial Contractual Obligations
or (iii) those referred to subsection 5.20. This Agreement, any Specified Note
and each of the other Specified Loan Documents has been duly executed and
delivered on behalf of the Credit Party party thereto. This Agreement, any
Specified Note and each of the other Specified Loan Documents constitutes a
legal, valid and binding obligation of the Credit Party party thereto
enforceable against such Credit Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
5.5 No Legal Bar. The execution, delivery and performance of this
Agreement, any of the Notes and the other Loan Documents, the borrowings
hereunder and thereunder and the use of the proceeds thereof will not violate
any Requirement of Law or any material Contractual Obligation of any Credit
Party or of any of their Subsidiaries.
5.6 No Material Litigation. Except as set forth in Schedule 5.6, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of Holdings or any
Specified Borrower, threatened by or against any of the Credit Parties or any
of their Subsidiaries or against any of their respective properties or revenues
(a) with respect to this Agreement, the other Loan Documents, or any of the
transactions contemplated hereby or thereby, (b) with respect to any
Acquisition Document or any transactions contemplated thereby, which affects
any material provision or any material
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transaction contemplated thereby, or (c) which could reasonably be expected to
have a Material Adverse Effect.
5.7 No Default. None of the Credit Parties or any of their
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a
Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
5.8 Ownership of Property; Liens. Each of the Credit Parties and
their Subsidiaries has good and valid title or title in fee simple or the
substantial equivalent thereof to, as applicable, or a valid leasehold interest
in, all its material real and immovable property, and good title to, or a valid
leasehold interest in, all its other material property, and none of such
property is subject to any Lien except as permitted by subsection 8.3. Such
real and other properties comprise all of the properties the use of which is
necessary for the conduct of Holdings' and its Subsidiaries' business as
presently conducted and as proposed to be conducted by it. As of the Third
Amendment and Restatement Closing Date, the Fee Properties as listed on Part I
of Schedule 5.20 constitute all the real and immovable properties owned by good
and valid title or title in fee simple or the substantial equivalent thereof,
as applicable, by Holdings or its Subsidiaries, the Leased Properties as listed
on Part II of Schedule 5.20 together with the Excluded Leased Properties as
listed on Part III of Schedule 5.20 constitute all of the real and immovable
properties leased by Holdings or its Subsidiaries. As of the Third Amendment
and Restatement Closing Date, each of the Leased Properties listed on Part II
of Schedule 5.20 which may be made subject to a recorded Lien without violating
the terms of the applicable Underlying Lease, and each lease agreement under
which an interest in any material Leased Property is held (as amended, an
"Underlying Lease") is in full force and effect.
5.9 Intellectual Property. Each of the Credit Parties and their
Subsidiaries owns, or is validly licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those the failure to own or license
which could not reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). To the best knowledge of any Specified Borrower and
Holdings, and except as set forth on Schedule 5.9, no claim has been asserted
and is pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor do the Credit Parties know of any valid basis for any such claim
which could reasonably be expected to have a Material Adverse Effect. The use
of such Intellectual Property by the Credit Parties and their Subsidiaries does
not infringe on the rights of any Person, except for such claims and
infringements that, in the aggregate, could not reasonably be expected to have
a Material Adverse Effect.
5.10 Taxes. Except as set forth on Schedule 5.10, each of the Credit
Parties and their Subsidiaries has filed or caused to be filed all federal and
all other material tax returns which, to the knowledge of the Credit Parties,
are required to be filed and has paid all taxes shown to be due and payable on
said returns or on any assessments made against it or any of its property
(including without limitation the Mortgaged Properties) and all other material
taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than (i) any such taxes, assessments, fees, or
other charges the amount or validity of which are currently being contested in
good faith by appropriate proceedings and with respect to which reserves in
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conformity with GAAP have been provided on the books of the Credit Parties or
their Subsidiaries, as the case may be, (ii) taxes, assessments, fees or other
charges imposed by any Governmental Authority, other than income taxes imposed
by any Governmental Authority, with respect to which the failure to make
payments could not, by reason of the amount thereof or of remedies available to
such Governmental Authorities, reasonably be expected to have a Material
Adverse Effect, and (iii) taxes, assessments, fees or other charges covered by
indemnities from third parties that are reasonably expected to be collectible);
no tax Lien has been filed, and, to the knowledge of the Credit Parties, no
claim is being asserted, with respect to any such tax, fee or other charge
other than those being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on
the books of the Credit Parties or their Subsidiaries, as the case may be.
5.11 US Federal Regulations. No part of the proceeds of any Loans
will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulations T, U or X as
now and from time to time hereafter in effect or for any purpose which violates
the provisions of the Regulations of the Board. If requested by any US Lender
or the Administrative Agent, the US Borrower will furnish to the Specified
Agent and each Specified Lender a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 or G-3 referred to in said
Regulation U.
5.12 ERISA. Except where the liability, individually or in the
aggregate, which could reasonably be expected to result has not had or could
not reasonably be expected to have a Material Adverse Effect: (i) neither a
Reportable Event nor an "accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Single Employer Plan; (ii) each Plan (other
than a Multiemployer Plan) has complied in all material respects with the
applicable provisions of ERISA and the Code; (iii) no termination of a Single
Employer Plan has occurred, and no Lien in favor of the PBGC or a Single
Employer Plan has arisen and remains outstanding, during such five-year period;
(iv) the present value of all accrued benefits under each Single Employer Plan
(based on those assumptions used to fund such Plans) did not, as of the last
annual valuation date prior to the date on which this representation is made or
deemed made, exceed the value of the assets of such Plan allocable to such
accrued benefits by an amount which could reasonably be expected to have a
Material Adverse Effect; (v) none of the Credit Parties nor any Commonly
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and, to the best knowledge of the Credit Parties, none of
the Credit Parties nor any Commonly Controlled Entity would become subject to
any liability under ERISA if the Credit Parties or any such Commonly Controlled
Entity were to withdraw completely from all Multiemployer Plans as of the
valuation date most closely preceding the date on which this representation is
made or deemed made; (vi) no such Multiemployer Plan is in Reorganization or
Insolvent; and (vii) the present value (determined using actuarial and other
assumptions which are reasonable in respect of the benefits provided and the
employees participating) of the liability of the Credit Parties and each
Commonly Controlled Entity for post retirement benefits to be provided to their
current and former employees under Plans which are welfare benefit plans (as
defined in Section 3(1) of ERISA) does not, in the aggregate, exceed the assets
under all such Plans allocable to such benefits.
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5.13 Non-US Benefit and Pension Plans. (a) The Canadian Pension Plans
are duly registered under the provisions of the ITA and any other Requirements
of Law applicable to a Credit Party and no event has occurred which is
reasonably likely to cause the loss of such registered status. The Canadian
Pension Plans and the Canadian Benefits Plans have been administered in
accordance with the ITA and all other Requirements of Law applicable to a
Credit Party. All material obligations of each Credit Party (including
fiduciary and funding obligations) required to be performed in connection with
the Canadian Pension Plans and the funding media therefor have been performed.
There have been no improper withdrawals or applications of the assets of the
Canadian Pension Plans or the Canadian Benefit Plans which could reasonably be
expected to have a Material Adverse Effect. Except as disclosed in Schedule
5.13 as of the most current evaluation date, each of the Canadian Pension Plans
is fully funded and there exist no going concern unfunded actuarial liabilities
or solvency deficiencies in respect of such plans.
(b) Except as could not reasonably be expected to have a Material
Adverse Effect, the US Borrower and its Subsidiaries are in compliance in all
material respects with the laws, regulations and terms applicable to them in
respect of all pension and employee benefit plans of, or maintain for the
benefit of employee of, the Foreign Subsidiaries of the US Borrower, and they
have no current obligations to or under such plans that are not substantially
included as liabilities in the most recent consolidated financial statements of
the US Borrower to the extent required by GAAP.
5.14 Investment Company Act; Other Regulations. Neither Holdings nor
any of its Subsidiaries is an "investment company", or a company "controlled"
by an "investment company", within the meaning of the Investment Company Act of
1940, as amended. No Specified Borrower is subject to regulation under any
Requirement of Law which limits its ability to incur Indebtedness.
5.15 Subsidiaries, Etc. As of the Third Amendment and Restatement
Closing Date, the only Subsidiaries of Holdings, and the only partnerships,
limited liability companies or other joint ventures in which Holdings or any of
its Subsidiaries has an interest are those listed on Schedule 5.15. As of the
date hereof, Holdings owns the percentage of the Capital Stock or other
evidences of the ownership of each Subsidiary, partnership, limited liability
company or other joint venture listed on Schedule 5.15 as set forth on such
Schedule. As of the date hereof, no such Subsidiary, partnership, limited
liability company, or other joint venture has issued any securities convertible
into shares of its Capital Stock to any Person other than Holdings or its
Subsidiaries, and the outstanding stock and securities (or other evidence of
ownership) of such Subsidiaries, partnerships, limited liability companies, or
other joint ventures owned by Holdings and its Subsidiaries are so owned free
and clear of all Liens, warrants, options or rights of others of any kind
except as set forth in Schedule 5.15. The Subsidiaries comprising the Hong Kong
Company are all directly or indirectly owned, as of the Third Amendment and
Restatement Closing Date and thereafter, by Subsidiaries of the US Borrower, at
least 65% of the voting common stock of each of which is subject to a first
priority security interest and pledge under the Guarantee and Collateral
Agreement.
5.16 Environmental Matters. After taking into account environmental
indemnities in from third parties reasonably expected to be collectible:
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(a) The facilities and properties owned, leased or operated by
Holdings or any of its Subsidiaries (the "Properties") do not contain, and have
not previously contained, any Materials of Environmental Concern in amounts or
concentrations or under such conditions which (i) constitute or constituted a
violation of, or could reasonably be expected to give rise to liability under,
any Environmental Law in effect at the time of the making of this
representation, or (ii) could materially and adversely interfere with the
continued operation of the Properties, or (iii) materially impair the fair
saleable value thereof except in each case insofar as such violation,
liability, interference, or reduction in fair market value, or any aggregation
thereof, is not reasonably likely to result in a Material Adverse Effect.
(b) The business of Holdings and its Subsidiaries, the Properties and
all operations at the Properties are, and to the knowledge of the US Borrower
and Holdings have been, in compliance in all material respects with all
applicable Environmental Laws except for noncompliance which is not reasonably
likely to result in a Material Adverse Effect.
(c) Neither Holdings nor any of its Subsidiaries has received any
written notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the business of
Holdings and its Subsidiaries, nor does Holdings or any Specified Borrower have
knowledge or reason to believe that any such notice will be received or is
being threatened except insofar as such notice or threatened notice, or any
aggregation thereof, does not involve a matter or matters that is or are
reasonably likely to result in a Material Adverse Effect.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a
location which could reasonably be expected to give rise to liability under,
any Environmental Law in effect at the time of the making of this
representation, nor have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of the Properties in
violation of, or in a manner that could reasonably be expected to give rise to
liability under, any applicable Environmental Law in effect at the time of the
making of this representation except insofar as any such violation or liability
referred to in this paragraph, or any aggregation thereof, is not reasonably
likely to result in a Material Adverse Effect.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of any Specified Borrower or Holdings,
threatened, under any Environmental Law to which Holdings or any Subsidiary is
or will be named as a party with respect to the Properties or the business of
Holdings and its Subsidiaries, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to the Properties or the business of Holdings and its Subsidiaries
except insofar as such proceeding, action, decree, order or other requirement,
or any aggregation thereof, is not reasonably likely to result in a Material
Adverse Effect.
(f) There has been no release or, to the best knowledge of any
Specified Borrower and Holdings, threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of Holdings or any Subsidiary in connection with the Properties
or otherwise in connection with the business of Holdings and its Subsidiaries,
in
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violation of or in amounts or in a manner that could reasonably give rise to
liability under Environmental Laws in effect at the time of making this
representation except insofar as any such violation or liability referred to in
this paragraph, or any aggregation thereof, is not reasonably likely to result
in a Material Adverse Effect.
5.17 Delivery of Hong Kong Acquisition Document. The Administrative
Agent has received for itself and for each Lender a complete copy of the Hong
Kong Acquisition Document (including all exhibits, schedules and disclosure
letters referred to therein or delivered pursuant thereto, if any) and all
amendments thereto, waivers relating thereto and other side letters or
agreements affecting the terms thereof.
5.18 Representations and Warranties Contained in the Hong Kong
Acquisition Document. The Hong Kong Acquisition Document has been duly executed
and delivered by Holdings and Viasystems Canada, Inc. parties thereto and, to
the best knowledge of the US Borrower, all other parties thereto and is full
force and effect. To the best knowledge of the US Borrower, the representations
and warranties of the parties, other than Holdings and its Subsidiaries, to the
Hong Kong Acquisition Document are true and correct in all material respects.
5.19 Disclosure. No information, financial statement, report,
certificate or other document prepared or furnished by or on behalf of any
Credit Party to any Agent or any Lender in connection with this Agreement, any
other Specified Loan Document, or the Hong Kong Acquisition Document (but
excluding all projections and pro forma financial statements which shall have
been prepared in good faith and based upon reasonable assumptions) contains any
untrue statement of a material fact or omits to state any material fact
necessary to make the statements herein or therein not misleading. As of the
Third Amendment and Restatement Closing Date, there is no fact known to the US
Borrower or Holdings (other than general economic conditions, which conditions
are commonly known and affect businesses generally) which has, or which could
reasonably be expected to have, in the reasonable judgment of such Credit
Party, a Material Adverse Effect.
5.20 Guarantee and Collateral Agreement; Mortgages. (a) The Guarantee
and Collateral Agreement is effective to create in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Pledged Securities described therein and
proceeds thereof and all actions have been taken to cause the Guarantee and
Collateral Agreement to constitute a fully perfected first Lien on, and
security interest in, all right, title and interest of Holdings, and its
Domestic Subsidiaries, respectively, in such Pledged Securities described
therein and in proceeds thereof superior in right to any other Person other
than Liens permitted hereby.
(b) The Guarantee and Collateral Agreement and the Assignment are
effective to create in favor of the Collateral Agent, for the benefit of the
Secured Parties, a legal, valid and enforceable security interest in the
respective collateral described therein and proceeds thereof, and the Guarantee
and Collateral Agreement constitutes fully perfected, first priority Liens on,
and security interests in, all right, title and interest of Holdings, and its
Domestic Subsidiaries in such collateral and the proceeds thereof superior in
right to any other Person other than Liens permitted hereby.
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(c) As of the Third Amendment and Restatement Closing Date, the
properties listed on Schedule 5.20 constitute all material real properties
owned by Holdings or any of its Subsidiaries. The Mortgages are each effective
to create in favor of the Collateral Agent, for the benefit of the Secured
Parties, a legal, valid and enforceable Lien on the properties described
therein owned by the US Borrower and its Domestic Subsidiaries and proceeds
thereof, subject to obtaining necessary consents and, the Mortgages shall
constitute a fully perfected, first priority Lien on, and security interest in,
all right, title and interest of the US Borrower and its Domestic Subsidiaries
in the Mortgaged Properties and the proceeds thereof, superior in right to any
other Person other than Liens permitted hereby.
(d) Each other Loan Document to which any Credit Party is a party and
which purports to grant a Lien on any property of such Credit Party to secure
the Specified Obligations is effective to create in favor of the Specified
Agent, for the benefit of the Specified Lenders, a legal, valid and enforceable
security interest in the respective collateral described therein and proceeds
thereof, and when appropriate filings and notices have been taken or given,
such Loan Document shall constitute fully perfected, first priority Liens on,
and security interests in, all right, title and interest of such Credit Party
in such collateral and the proceeds thereof superior in right to any other
Person other than Liens permitted hereby.
(e) Schedule 5.20 also sets out, as of the Third Amendment and
Restatement Closing Date, the nations and the states and/or provinces in which
the Canadian Borrower's account debtors are located, together with the
aggregate amount of account receivable owing by such account debtors in each
relevant jurisdiction, in each case where the aggregate amount of such accounts
receivable in such relevant jurisdiction exceeds the Equivalent Amount of
$2,500,000.
5.21 Solvency. Each of Holdings and each Specified Borrower is,
individually and together with its Subsidiaries, Solvent.
5.22 No Fees. Neither Holdings nor any Subsidiary is under any
obligation to pay any broker's fees, finder's fee, commission, transaction fee
or expenses, other than customary professional fees and expenses, in connection
with the transactions contemplated by this Agreement or the Hong Kong
Acquisition Document other than fees and expenses listed on Schedule 5.22.
5.23 Insurance. The insurance maintained by or reserved against on
the books of Holdings, the Borrowers and their respective Subsidiaries is
sufficient to protect Holdings and its Subsidiaries against such risks as are
usually insured against in the same general area by companies engaged in the
same or similar business. None of the Credit Parties or any of their
Subsidiaries is in default under any provisions of any such policy of insurance
or has received notice of cancellation of any such insurance (other than in
connection with the replacement of any such policy). None of the Credit Parties
or any of their Subsidiaries has made any claims under any policy of insurance
with respect to which the insurance carrier has denied liability.
5.24 Year 2000. Any reprogramming required to permit the proper
functioning (but only to the extent that such proper functioning would
otherwise be impaired by the occurrence of the year 2000), in and following the
year 2000, of computer systems owned or
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operated by Holdings or its Subsidiaries (including without limitation, the
Hong Kong Company) or used in the conduct of their business (including any such
systems and other equipment supplied by others or with which the computer
systems of Holdings or any of its Subsidiaries interface) and the testing of
all such systems as so reprogrammed, will be completed by September 30, 1999,
except to the extent that the failure to do so would not reasonably be expected
to have a Material Adverse Effect. The cost to Holdings and its Subsidiaries of
such reprogramming and testing and of the reasonably foreseeable consequences
of year 2000 to Holdings and its Subsidiaries (including reprogramming errors
and failure of others' systems or equipment) will not reasonably be expected to
have a Material Adverse Effect.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Third Amendment and Restatement Closing Date. The
effectiveness of this Agreement and the amendment and restatement of the Credit
Agreement is subject to the satisfaction of the following conditions precedent:
(a) Agreement. The Administrative Agent shall have received
counterparts of this Agreement, duly executed and delivered by Holdings,
the US Borrower, the Foreign Subsidiary Borrowers, the New Tranche C Term
Loan Lenders and the Required Lenders (prior to giving effect to the New
Tranche C Term Loan Commitment).
(b) Acknowledgement. The Credit Parties shall have executed an
acknowledgement and consent in the form of Exhibit G hereto.
(c) Capital Contribution. Holdings shall have received at least
$200,000,000 in cash from a new issuance to affiliates of Hicks, Muse,
Tate & Furst Incorporated and Mills & Partners, Inc., and other investors
reasonably satisfactory to the Administrative Agent, of its Capital Stock
on reasonably satisfactory terms and conditions, and the US Borrower shall
have received at least $200,000,000 as a capital contribution (the
"Contribution") from Holdings.
(d) Acquisitions. The Hong Kong Acquisition shall have been
consummated for an aggregate purchase price of approximately $301,000,000
(plus cash on hand less outstanding Indebtedness) under a satisfactory
purchase or merger agreement (the "Hong Kong Acquisition Document") and in
a manner substantially in compliance with the Hong Kong Acquisition
Document.
(e) Fees. The Lenders, the Administrative Agent and the Arranger
shall have received all fees required to be paid in connection herewith,
and all expenses for which invoices have been presented, on or before the
Third Amendment and Restatement Closing Date.
(f) Consents. (i) All governmental and third party approvals
necessary or, in the discretion of the Administrative Agent, advisable in
connection with this Agreement and the transactions contemplated hereby,
the financing contemplated hereby and the continuing operations of the US
Borrower and its Subsidiaries shall have been obtained
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and be in full force and effect, and (ii) all applicable waiting periods
shall have expired without any action being taken or threatened by any
competent Governmental Authority that would restrain, prevent or otherwise
impose adverse conditions on the transactions contemplated herein or the
financing thereof.
(g) Financial Statements. The Lenders shall have received the
financial statements referred to in subsection 5.1(c).
(h) Balance Sheet. The Lenders shall have received the Hong Kong Pro
Forma Balance Sheet.
(i) Projections. The Lenders shall have received projections for
fiscal years 1999-2007 of the US Borrower and its Subsidiaries for the
period from the Third Amendment and Restatement Closing Date through the
final maturity of the New Tranche C Term Loans, prepared on a pro forma
basis giving effect to the Hong Kong Acquisition.
(j) Environmental Audits. The Administrative Agent shall have
received an environmental audit from ENSR Corporation with respect to the
real property owned or leased by, and the operations of, the Hong Kong
Company.
(k) Legal Opinions. The Administrative Agent shall have received
legal opinions (i) from counsel to the US Borrower and its Subsidiaries
and (ii) from Hong Kong counsel to the US Borrower and its Subsidiaries.
(l) Corporate Proceedings of the Credit Parties. The Administrative
Agent shall have received, with a copy for each Lender, a copy of the
resolutions, in form and substance reasonably satisfactory to the
Administrative Agent, of the Board of Directors or duly authorized
committee of each of Holdings, each Borrower and its applicable
Subsidiaries authorizing (i) the execution, delivery and performance of
this Agreement, the other Loan Documents to which it is a party, (ii) the
borrowings contemplated hereunder, and (iii) if applicable, the Hong Kong
Acquisition and the Contribution, certified by the Secretary, Assistant
Secretary, or comparable officer of such Person as of the Third Amendment
and Restatement Closing Date, which certificate shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded and shall be in form and substance reasonably satisfactory to
the Specified Agent.
(m) Incumbency Certificates. The Administrative Agent shall have
received, with a copy for each Lender, a certificate of the Secretary or
an Assistant Secretary (or comparable officer) of each of Holdings, each
Borrower and its applicable Subsidiaries, dated the Third Amendment and
Restatement Closing Date, as to the incumbency and signature of the
officers of such Person executing this Agreement and any certificate or
other document to be delivered by it pursuant hereto and thereto, together
with evidence of the incumbency of such Secretary, Assistant Secretary, or
comparable officer.
(n) Perfection Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a Perfection Certificate in
the form of Exhibit F duly completed by US Borrower and its Subsidiaries
that are Credit Parties.
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(o) Closing Certificate. The Administrative Agent shall have
received, with a copy for each Lender, a Closing Certificate substantially
in the form of Exhibit E hereto and dated the Third Amendment and
Restatement Closing Date, executed by a Responsible Officer of the US
Borrower and Holdings.
(p) Cash Collateral Agreement. The Administrative Agent shall have
received the Cash Collateral Agreement, duly executed by a Responsible
Officer of the US Borrower.
(q) Prepayment of Revolving Credit Loans. The US Borrower shall have
made a prepayment of the outstanding US Revolving Credit Loans in an
amount equal to $70,000,000; provided that such prepayment shall not
reduce the US Revolving Credit Commitments.
6.2 Conditions to Each Specified Loan. The agreement of each
Specified Lender to make any Specified Loan requested to be made by it on any
date (including the Third Amendment and Restatement Closing Date) or of the
Specified Revolving Credit Lenders and the Specified Issuing Lender to issue,
accept or participate in any Specified Accommodation is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Credit Parties and their Subsidiaries in or
pursuant to the Loan Documents shall be true and correct in all material
respects on and as of such date as if made on and as of such date, except
for any representation and warranty which is expressly made as of an
earlier date, which representation and warranty shall have been true and
correct in all material respects as of such earlier date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Specified
Loans requested to be made, or Specified Accommodation requested to be
issued or accepted, on such date.
(c) Letter of Credit Application. With respect to the issuance of any
Specified Letter of Credit, the Specified Issuing Bank shall have received
a Specified Letter of Credit Application, completed to its reasonable
satisfaction and duly executed by a Responsible Officer; provided that if
such Specified Letter of Credit is being issued to support the repayment
of any Indebtedness of any Subsidiary of the Specified Borrower, such
Subsidiary shall also execute such Specified Letter of Credit Application
and shall agree to be jointly and severally liable with the Specified
Borrower for any and all obligations arising under or in connection with
such Specified Letter of Credit or the Specified Letter of Credit
Application related thereto.
Each borrowing by a Specified Borrower hereunder and issuance of any Specified
Accommodation shall constitute a representation and warranty by Holdings, US
Borrower and the Specified Borrower as of the date of such Specified Loan or
issuance or acceptance, as the case may be, that the conditions contained in
this subsection 6.2 have been satisfied.
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SECTION 7. AFFIRMATIVE COVENANTS
The US Borrower, each Foreign Subsidiary Borrower, as to itself and
its Subsidiaries, and Holdings each hereby agrees that, so long as any
Commitment remains in effect, any Loan remains outstanding and unpaid, any
Accommodation is outstanding, or any other Obligations are owing to any Secured
Party, the US Borrower, each Foreign Subsidiary Borrower, as to itself and its
Subsidiaries, and Holdings shall and (except in the case of delivery of
financial information, reports and notices) shall cause each of its
Subsidiaries to:
7.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of US Borrower, a copy of the consolidated (and
unaudited consolidating) balance sheet of US Borrower and its consolidated
Subsidiaries as at the end of such year and the consolidated (and
unaudited consolidating) statements of income and retained earnings and
consolidated statement of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by independent
certified public accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three (3) quarterly periods of each
fiscal year of US Borrower, the unaudited consolidating and consolidated
balance sheet of US Borrower and its consolidated Subsidiaries as at the
end of such quarter and the related unaudited consolidating and
consolidated statements of income and retained earnings and consolidated
statement of cash flows of US Borrower and its consolidated Subsidiaries
for such quarter and the portion of the fiscal year through the end of
such quarter, setting forth in each case in comparative form (i) the
figures for the previous year and (ii) the figures set forth in the
relevant budgets required to be delivered in accordance with subsection
7.2(c), certified by a Responsible Officer as being fairly stated in all
material respects when considered in relation to the consolidated
financial statements of US Borrower and its consolidated Subsidiaries
(subject to normal year-end audit adjustments);
(c) as soon as available, but in any event not later than 45 days
after the end of each month (other than a month the last day of which
coincides with the last day of any fiscal quarter) of each fiscal year of
US Borrower, the consolidated balance sheet of US Borrower and its
consolidated Subsidiaries as at the end of such month and the related
unaudited consolidated statements of income and retained earnings and
consolidated statement of cash flows of Holdings and its consolidated
Subsidiaries for such month and the portion of the fiscal year through the
end of such month, setting forth in each case in comparative form (i) the
figures for the previous year and (ii) the figures set forth in the
relevant budgets required to be delivered in accordance with subsection
7.2(c);
all such financial statements shall fairly present in all material respects the
consolidated financial position of the US Borrower and its Subsidiaries as of
such date and shall be prepared in reasonable detail and in accordance with
GAAP applied consistently throughout the periods reflected therein and with
prior periods (except as approved by such accountants or officer, as the case
may be, and disclosed therein).
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7.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default relating to the covenants
contained in subsection 8.1, except as specified in such certificate.
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and 7.1(b), a certificate of a
Responsible Officer (i) stating that, to the best of such Responsible
Officer's knowledge, Holdings and the US Borrower and its Subsidiaries
during such period has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained in this
Agreement, in the Notes and the other Loan Documents to which it is a
party to be observed, performed or satisfied by it, in all material
respects, and that such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as specified in such certificate,
(ii) stating that all such financial statements fairly present in all
material respects (subject, in the case of interim statements, to normal
year-end audit adjustments) and have been prepared in reasonable detail
and in accordance with GAAP applied consistently throughout the periods
reflected therein (except as disclosed therein) and (iii) showing in
detail the calculations supporting such statement in respect of
subsections 8.1, 8.8 and 8.9;
(c) as soon as available but not later than forty-five (45) days
subsequent to the end of each fiscal year of US Borrower, a copy of the
projections by US Borrower of the operating budget and cash flow budget of
US Borrower and its Subsidiaries for the succeeding fiscal year, such
projections to be accompanied by a certificate of a Responsible Officer to
the effect that such projections have been prepared in good faith and
based upon reasonable assumptions;
(d) within five (5) days after the same are filed, copies of all
financial statements and reports which Holdings or any Subsidiary may make
to, or file with, the Securities and Exchange Commission or any successor
or analogous Governmental Authority; and
(e) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of Holdings or its Subsidiaries, as the case may be; provided that,
notwithstanding the foregoing, Holdings and each of its Subsidiaries shall have
the right to pay any such obligation and in good faith contest, by proper legal
actions or proceedings, the validity or amount of such claims.
7.4 Conduct of Business and Maintenance of Existence. Except as
provided in subsection 8.5, continue to engage in business of the same general
type as now conducted by it
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and preserve, renew and keep in full force and effect its corporate existence
and take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business except
if (i) in the reasonable business judgment of Holdings or such Subsidiary, as
the case may be, it is in its best economic interest not to preserve and
maintain such rights or franchises, and (ii) such failure to preserve and
maintain such privileges, rights or franchises would not materially adversely
affect the rights of the Secured Parties under the Loan Documents or the value
of the collateral security for the Specified Obligations, and as otherwise
permitted pursuant to subsection 8.5; comply with all Contractual Obligations
and Requirements of Law except to the extent that failure to comply therewith
could not, in the aggregate, be reasonably expected to have a Material Adverse
Effect.
7.5 Maintenance of Property; Insurance. (a) Keep all property
(including the Mortgaged Properties) useful and necessary in its business in
good working order and condition; maintain with financially sound and reputable
insurance companies insurance on all its property in at least such amounts and
against at least such risks (but including in any event public liability,
product liability and business interruption) as are usually insured against in
the same general area by companies engaged in the same or a similar business or
as otherwise reasonably requested by the Specified Agent; and furnish to each
Lender, upon written request, full information as to the insurance carried
except to the extent that the failure to do any of the foregoing with respect
to any such property could not reasonably be expected to materially adversely
affect the value or usefulness of such property.
(b) With respect to Inventory and Equipment (as defined in the
Guarantee and Collateral Agreement) (i) maintain, with financially sound and
reputable companies, insurance policies insuring the Inventory and Equipment
against loss by fire, explosion, theft and such other casualties as may be
reasonably satisfactory to the Collateral Agent and (ii) insuring the US
Borrower, its Domestic Subsidiary or Holdings, as the case may be, the
Collateral Agent and the Secured Parties, against liability for personal injury
and property damage relating to such Inventory and Equipment, such policies to
be in such form and amounts and having such coverage as may be reasonably
satisfactory to the Collateral Agent and the Secured Parties.
(c) All such insurance shall (i) provide that no cancellation,
material reduction in amount or material change in coverage thereof shall be
effective until at least thirty (30) days after receipt by the Collateral Agent
of written notice thereof, (ii) name the Collateral Agent as insured party or
loss payee, and (iii) if reasonably requested by the Collateral Agent, include
a breach of warranty clause.
7.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Specified Lender to visit and inspect any of its
properties and examine and make abstracts from any of its books and records
upon reasonable advance notice at any reasonable time on any Business Day and
as often as may reasonably be desired and to discuss the business, operations,
properties and financial and other condition of Holdings and its Subsidiaries
with officers and employees of Holdings and its Subsidiaries and with its
independent certified public accountants; provided that the Specified Agent or
such
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Specified Lender shall notify US Borrower prior to any contact with such
accountants and give US Borrower the opportunity to participate in such
discussions.
7.7 Notices. Promptly give notice to the Administrative Agent and
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of Holdings or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between Holdings
or any of its Subsidiaries and any Governmental Authority, which in either
case, if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
(c) the following events, if, individually or in the aggregate, the
liability that could reasonably be expected to result would be material to
Holdings and its Subsidiaries, taken as a whole: (i) the occurrence or
expected occurrence of any Reportable Event with respect to any Single
Employer Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Single Employer Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of
any other action by the PBGC or the US Borrower or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from, or
the terminating, Reorganization or Insolvency of, any Single Employer Plan
or Multiemployer Plan;
(d) the occurrence of any Material Adverse Change; and
(e) the receipt by Holdings or any Subsidiary of any complaint,
order, citation, notice or other written communication from any Person
with respect to the existence or alleged existence of a violation of any
Environmental Laws or Materials of Environmental Concern or any other
environmental, health or safety matter including the occurrence of any
spill, discharge or release in a quantity that is reportable under any
Environmental Law on any Mortgaged Property or any other property owned,
leased or utilized by Holdings or any Subsidiary of Holdings but only to
the extent that such complaint, order, citation, notice or written
communication individually or in the aggregate could reasonably be
expected to result in material liability or a material obligation under
any Environmental Law.
Each notice pursuant to this subsection shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action Holdings or the applicable Commonly Controlled
Entity proposes to take with respect thereto.
7.8 Benefit and Pension Plans.
(a) For each existing pension or employee benefit plan of, or to the
benefit of any employees of, the US Borrower or any of its Subsidiaries,
and hereafter adopted, the US Borrower and each of its Subsidiaries shall
in a timely fashion perform all obligations
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(including fiduciary, funding, investment and administration obligations)
required to be performed by them in connection with such plan and the
funding media therefor in accordance with the terms of such plan and any
Requirement of Law.
(b) The US Borrower shall deliver to the Administrative Agent, if
requested by the Administrative Agent, acting reasonably, promptly after
the filing thereof with any applicable Governmental Authority, copies of
any annual and other return, report or valuation with respect to each
pension or employee benefit plan of, or for the benefit of any employees
of, the US Borrower or any of its Subsidiaries prepared by them or at
their direction, and promptly after receipt thereof, a copy of any
direction, notice or other communication in respect of any breach of any
Requirement of Law, which would have the effect of increasing in any
material respect for the US Borrower and its Subsidiaries taken as a whole
the funding obligation in respect of any such plan, or which could result
in the imposition of any Lien on any of the properties or assets of the US
Borrower or any of its Subsidiaries, and any order or ruling that it may
receive from any applicable Governmental Authority with respect to any
such plan.
7.9 Environmental Laws.
(a) Comply in all material respects with, and will use reasonable
best efforts to ensure compliance in all material respects by all tenants
and subtenants, if any, with, all applicable Environmental Laws;
(b) Conduct and complete (or cause to be conducted and completed) all
investigations, studies, sampling and testing, and all remedial, removal
and other actions required under Environmental Laws and in a timely
fashion comply in all material respects with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws
except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not be
reasonably expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Specified Agent and the
Specified Lenders, and their respective employees, agents, officers,
directors and controlling persons, from and against any and all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to
the operations of Holdings, any of its Subsidiaries or the Properties, or
any orders, requirements or demands of Governmental Authorities related
thereto, including, without limitation, reasonable attorney's and
consultant's fees, investigation and laboratory fees, response costs,
court costs and litigation expenses, except to the extent that any of the
foregoing arise out of or relate to the gross negligence or wilful
misconduct of, or any post-foreclosure actions not taken in accordance
with the Assets Conservation, Lender Liability and Deposit Insurance
Protection Act of 1996 or any similar foreign law or otherwise in the
ordinary course of business consistent with past practices of the party
seeking indemnification therefor. The agreements in this paragraph shall
survive repayment of all Specified Loans and all other amounts payable
hereunder.
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7.10 Pledge of After Acquired Property. If at any time following the
Third Amendment and Restatement Closing Date the US Borrower or any of its
Subsidiaries (other than any Foreign Subsidiary) shall acquire at any time
property of any nature whatsoever with a monetary value on the date of such
acquisition in excess of the Equivalent Amount of $1,000,000 in the aggregate,
the US Borrower and any such Subsidiary shall grant to the Collateral Agent for
the ratable benefit of the Secured Parties a first priority or first ranking
Lien on and security interest in such property as collateral security for the
Obligations pursuant to documentation reasonably satisfactory to the Collateral
Agent and take such actions as the Collateral Agent shall reasonably require to
ensure the priority and perfection of such Lien, provided that (i) only 65% of
the voting Capital Stock of any direct Foreign Subsidiary of International
Holdings need be so pledged, (ii) with respect to real or immovable property,
only fee owned real estate or immovable property in excess of $1,000,000 need
be mortgaged, and (iii) property subject to a Lien permitted by subsection
8.3(h) or falling within 8.14(a)(ii) need not be so pledged.
7.11 Pledge During Event of Default. At any time during the
continuance of an Event of Default, upon the request of the Specified Agent,
grant to the Specified Agent for the ratable benefit of the Specified Lenders a
first priority or first ranking Lien on and security interest in any
unencumbered property of the Specified Borrower and its Subsidiaries of any
nature whatsoever, as collateral security for the Specified Obligations,
pursuant to documentation reasonably satisfactory to the Specified Agent and
take such actions the Specified Agent shall reasonably require to ensure the
priority and perfection of such Lien, provided, however, that if the grant of
such Lien would be reasonably likely to result in Holdings incurring income tax
liability (as determined by Holdings and agreed to by the Specified Agent)
pursuant to Subpart F of the Code, the property pledged pursuant hereto will be
that property which can be pledged without incurring such liability; provided,
further, that (i) only 65% of the voting Capital Stock of any direct Foreign
Subsidiary of International Holdings need be so pledged and (ii) no voting
Capital Stock of any indirect Foreign Subsidiary of International Holdings need
be so pledged unless such Foreign Subsidiary is also a Subsidiary of a Foreign
Subsidiary Borrower and such pledge is only to secure the Specified Obligations
of such Foreign Subsidiary Borrower, in which case subsection 7.12 shall be
complied with.
7.12 Additional Subsidiaries. If, at any time, any Specified Borrower
or any of its Subsidiaries shall form any new Subsidiary after the date of this
Agreement (this subsection not constituting authority to form a Subsidiary),
such Specified Borrower or such Subsidiary, as the case may be, shall, subject
to applicable Requirements of Law and the absence of adverse tax consequences
(i) if such Subsidiary is a Domestic Subsidiary of Holdings, cause such new
Subsidiary to guarantee the Domestic Obligations, (ii) cause each holder of any
Capital Stock of such Subsidiary to pledge 100% of such Capital Stock to the
Specified Agent which shall be accompanied by such resolutions, incumbency
certificates and legal opinions as are reasonably requested by the Specified
Agent and (iii) if such Subsidiary is a Future Foreign Subsidiary Borrower
cause 100% of the Capital Stock of such Future Foreign Subsidiary Borrower to
be pledged to the Specified Agent to secure the Obligations of such Future
Foreign Subsidiary Borrower; provided, that (x) except as provided in clause
(iii) in the event such Subsidiary is a direct Foreign Subsidiary of
International Holdings, only 65% of the voting Capital Stock of such Foreign
Subsidiary need be pledged to the Collateral Agent and (y) no voting Capital
Stock of any indirect Foreign Subsidiary of International Holdings need be so
pledged unless such Foreign Subsidiary is also a direct Subsidiary of a Foreign
Subsidiary Borrower and such pledge is only to
<PAGE> 97
91
secure the Specified Obligations of such Foreign Subsidiary Borrower, in which
case the foregoing shall be complied with, subject to applicable Requirements
of Law.
7.13 Intellectual Property. Whenever any Credit Party, either by
itself or through any agent, employee, licensee or designee, shall file an
application for the registration of any Copyright, Patent or Trademark with the
United States Patent and Trademark Office or any similar office or agency in
any other country or any political subdivision thereof, Holdings shall cause
such Credit Party to report such filing to the Specified Agent within five (5)
Business Days after the last day of the fiscal quarter in which such filing
occurs. Upon request of the Specified Agent, such Credit Party shall execute
and deliver any and all agreements, instruments, documents, and papers as the
Collateral Agent may reasonably request to evidence the Agent's security
interest in any Copyright, Patent or Trademark or such Intellectual Property
and the goodwill and general intangibles of such Credit Party relating thereto
or represented thereby.
7.14 Use of Proceeds. Use the Specified Revolving Credit Commitments
for general corporate purposes of the Specified Borrower and its Subsidiaries.
Use the Chips Limited Term Loans solely to refinance reimbursement obligations
of the US Borrower under the Chips Letter of Credit. Use the Chips Acquisition
Term Loans solely to refinance reimbursement obligations of the US Borrower
under the Chips Letter of Credit. Use the New Tranche C Term Loans to finance
the Hong Kong Acquisition, a prepayment of the Revolving Credit Loans (but not
a reduction of the Revolving Credit Commitments), a prepayment of certain
installments of the Chips Limited Term Loans and the Chips Acquisition Term
Loans and the related reimbursement obligations in respect of the Chips Letter
of Credit.
SECTION 8. NEGATIVE COVENANTS
The US Borrower, each Foreign Subsidiary Borrower as to itself and
its Subsidiaries, and Holdings each hereby agrees that, so long as the
Specified Commitments remain in effect, any Specified Loan remains outstanding
and unpaid, any Specified Accommodation remains outstanding or any other
Obligations are owing to any Secured Party, the US Borrower, each Foreign
Subsidiary Borrower as to itself and its Subsidiaries, and Holdings shall not,
and (except with respect to subsection 8.1) shall not permit any of its
Subsidiaries to, directly or indirectly:
8.1 Financial Condition Covenants.
(a) Interest Coverage. Permit the Interest Coverage Ratio of US
Borrower for any period of four consecutive calendar quarters ending at
the end of the calendar quarters
<PAGE> 98
92
set forth below to be less than the ratio set forth opposite such calendar
quarter below:
<TABLE>
<CAPTION>
Calendar Quarter Interest Coverage Ratio
---------------- -----------------------
<S> <C>
1999 4th 1.75 to 1.00
2000 1st 1.75 to 1.00
2nd 1.75 to 1.00
3rd 1.75 to 1.00
4th 1.85 to 1.00
2001 1st 1.85 to 1.00
2nd 1.85 to 1.00
3rd 1.85 to 1.00
4th 2.05 to 1.00
2002 1st 2.20 to 1.00
2nd 2.20 to 1.00
3rd 2.20 to 1.00
4th 2.75 to 1.00
2003 1st 2.75 to 1.00
2nd 2.75 to 1.00
3rd 2.75 to 1.00
4th 3.00 to 1.00
2004 1st 3.00 to 1.00
2nd 3.00 to 1.00
3rd 3.00 to 1.00
4th 3.00 to 1.00
2005 1st 3.00 to 1.00
2nd 3.00 to 1.00
</TABLE>
(b) Maintenance of Consolidated EBITDA. Permit Consolidated EBITDA of
Holdings for any period of four consecutive calendar quarters ending at
the end of the calendar quarters set forth below to be less than the
<PAGE> 99
93
amount set forth opposite such calendar quarter below:
<TABLE>
<CAPTION>
Calendar Quarter Amount
---------------- ------
<S> <C>
1999 4th $ 210,000,000
2000 1st $ 210,000,000
2nd $ 210,000,000
3rd $ 210,000,000
4th $ 235,000,000
2001 1st $ 235,000,000
2nd $ 235,000,000
3rd $ 235,000,000
4th $ 270,000,000
2002 1st $ 285,000,000
2nd $ 285,000,000
3rd $ 285,000,000
4th $ 325,000,000
2003 1st $ 325,000,000
2nd $ 325,000,000
3rd $ 325,000,000
4th $ 350,000,000
2004 1st $ 350,000,000
2nd $ 350,000,000
3rd $ 350,000,000
4th $ 350,000,000
2005 1st $ 350,000,000
2nd $ 350,000,000
</TABLE>
(c) Maintenance of Consolidated Total Debt to Consolidated EBITDA.
Permit the ratio of Consolidated Total Debt of Holdings and its
Subsidiaries to Consolidated EBITDA of Holdings and its Subsidiaries for
any period of four consecutive calendar quarters ending at the end of the
<PAGE> 100
94
calendar quarters set forth below to be greater than the ratio set forth
opposite such calendar quarter below:
<TABLE>
<CAPTION>
Calendar Quarter Ratio
---------------- -----
<S> <C>
1999 4th 5.75 to 1.00
2000 1st 5.75 to 1.00
2nd 5.75 to 1.00
3rd 5.75 to 1.00
4th 5.35 to 1.00
2001 1st 5.35 to 1.00
2nd 5.35 to 1.00
3rd 5.35 to 1.00
4th 4.85 to 1.00
2002 1st 4.75 to 1.00
2nd 4.75 to 1.00
3rd 4.75 to 1.00
4th 4.25 to 1.00
2003 1st 4.25 to 1.00
2nd 4.25 to 1.00
3rd 4.25 to 1.00
4th 4.00 to 1.00
2004 1st 4.00 to 1.00
2nd 4.00 to 1.00
3rd 4.00 to 1.00
4th 4.00 to 1.00
2005 1st 4.00 to 1.00
2nd 4.00 to 1.00
</TABLE>
8.2 Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness of the Credit Parties under the Loan Documents;
(b) (i) Indebtedness among the Credit Parties arising as a result of
intercompany loans, (ii) Indebtedness of Foreign Subsidiaries of the US
Borrower that are not Credit Parties to the Credit Parties and the other
Subsidiaries in an aggregate Equivalent Amount outstanding not to exceed
$75,000,000 at any one time after giving effect to the Hong Kong
Acquisition and (iii) Indebtedness of Non-Credit Parties to other
Non-Credit Parties;
(c) Indebtedness of Subsidiaries of Holdings listed on Schedule 8.2
and extensions, renewals or replacements thereof provided that no such
extension, renewal or replacement shall increase the principal amount
thereof, except that the Indebtedness of the Canadian Borrower used in
respect of Financing Leases and the Canada/Quebec Agreement on Industrial
Development may be increased by an aggregate amount not to exceed
C$2,250,000 and the Indebtedness of Circo Caribe, Inc. under a line of
credit, may be replaced or refinanced with a line of credit not to exceed
$3,000,000;
(d) Indebtedness resulting from the endorsement of negotiable
instruments in the ordinary course of business;
(e) Indebtedness of Subsidiaries of Holdings in respect of
obligations under Financing Leases and purchase money Indebtedness in an
aggregate amount outstanding not to exceed Equivalent Amount of
$30,000,000 at any one time;
(f) Indebtedness in respect of Interest Rate Agreements;
<PAGE> 101
95
(g) Indebtedness of any Credit Party (other than Holdings) to any
other Credit Party from intercompany transfers of assets made in the
ordinary course of business or to the extent permitted under subsections
8.6 and 8.9;
(h) Guarantee Obligations permitted by subsection 8.4;
(i) Indebtedness subject to Liens permitted under subsections 8.3(b),
(c), (d), and (e);
(j) Indebtedness incurred in connection with the sale of the accounts
receivable of Holdings and its Subsidiaries in connection with a trade
receivables financing transaction otherwise permitted under subsection
8.6(i);
(k) additional Indebtedness of Subsidiaries of Holdings in an
aggregate principal amount outstanding not to exceed the Equivalent Amount
of $75,000,000 (of which up to $37,500,000 may be guaranteed by Holdings
and the US Borrower) at any one time;
(l) at any time following the termination of the US Revolving Credit
Commitment, Indebtedness of Subsidiaries of Holdings in respect of
unsecured revolving lines of credit in an aggregate amount outstanding not
to exceed $100,000,000 at any one time;
(m) (i) unsecured Indebtedness of the Subsidiaries of Holdings to the
seller in any Permitted Acquisition or (ii) Indebtedness assumed in
connection with any Permitted Acquisition in an aggregate amount for
clauses (i) and (ii) for all Permitted Acquisitions not to exceed the
Equivalent Amount of $30,000,000; provided at the time of incurrence the
requirements of subsection 8.9(k) shall be satisfied;
(n) Indebtedness of any Foreign Subsidiary of the US Borrower which
is not a Credit Party under overdraft facilities incurred in the ordinary
course of business in an aggregate amount outstanding not to exceed the
Equivalent Amount of $12,500,000 at any one time;
(o) Indebtedness of Caribe in an aggregate amount outstanding not to
exceed $5,000,000 at any one time;
(p) unsecured Senior Subordinated Indebtedness of the US Borrower not
to exceed $650,000,000 in the aggregate at any one time outstanding so
long as any Net Cash Proceeds of such Senior Subordinated Indebtedness in
excess of $500,000,000 (excluding refinancings) are (i) used for Permitted
Acquisitions, but only if for each such Permitted Acquisition on the date
thereof, the ratio of Consolidated Debt to Consolidated EBITDA on a pro
forma basis as of the date of the financial statements most recently
furnished pursuant to subsection 7.1(c) and taking into account such
Permitted Acquisition and any indebtedness incurred or assumed in
connection therewith is at least 0.40 below that then required by
subsection 8.1(c), or (ii) immediately used to make a prepayment of the
Term Loans in accordance with subsection 2.9;
<PAGE> 102
96
(q) Indebtedness arising from agreements with Governmental
Authorities of any foreign country, or political subdivision or agency
thereof, relating to the construction of plants and the purchase and
installation (including related training costs) of equipment to be used in
a Related Business; provided that such Indebtedness (i) has a maturity in
excess of 91 days from June 30, 2005 and (ii) in the aggregate does not
exceed $50,000,000 or the Equivalent Amount;
(r) Indebtedness of Holdings in respect of the Chips Loan Notes not
to exceed $437,500,000; and
(s) Indebtedness as a result of the Hong Kong Acquisition and the
Hong Kong Restructuring.
8.3 Limitation on Liens. Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens created by the Loan Documents in favor of the Specified
Agent or the Lenders, including Liens on cash collateral securing any
reimbursement obligations of the US Borrower in respect of the Chips
Letter of Credit required by subsections 2.5(c) and (d) and 2.10(d),
provided, such cash collateral shall, notwithstanding anything in any Loan
Document to the contrary, first be applied to such reimbursement
obligations;
(b) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
respect to contested taxes are maintained on the books of Holdings or its
Subsidiaries, as the case may be, in conformity with GAAP;
(c) carriers', landlord's, warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than sixty (60) days or which
are being contested in good faith by appropriate proceedings;
(d) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(e) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, insurance
contracts, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(f) easements, rights-of-way, zoning restrictions, restrictions and
other similar encumbrances (i) previously or hereinafter incurred in the
ordinary course of business which, in the aggregate, are not material in
amount and which, in the case of such encumbrances on any of the
Properties covered by the Mortgage, do not in the aggregate materially
detract from the value of the Property subject thereto or, in the case of
such encumbrances on any property, materially interfere with the ordinary
conduct of the
<PAGE> 103
97
business of Holdings or its Subsidiaries or (ii) which are set forth in
the "marked up" commitments for title insurance at any time delivered to
the Administrative Agent;
(g) Liens in existence listed on Schedule 8.3, securing Indebtedness
permitted by subsection 8.2(c) (including extensions, renewals and
replacements of such Indebtedness as permitted under subsection 8.2(c)),
provided that no such Lien is spread to cover any additional property
(other than after acquired title in or on such property and proceeds of
the existing collateral in accordance with the instrument creating such
Lien) after such date and that the amount of Indebtedness secured thereby
is not increased except pursuant to the instrument creating such Lien
(without any modification thereof) other than as set forth in subsection
8.2(c);
(h) purchase money Liens and Liens in respect of Financing Leases
upon or in any property acquired or held by Subsidiaries of Holdings to
secure Indebtedness permitted under subsection 8.2(e) incurred solely for
the purpose of financing the acquisition of such property, and Liens
existing on such property at the time of its acquisition or existing on
property of any Person that becomes a Subsidiary after the date hereof at
the time such Person becomes a Subsidiary (other than any such Lien
created in contemplation of such acquisition);
(i) Liens on the property of Holdings or any of its Subsidiaries in
favor of landlords securing licenses, subleases, or leases permitted
hereunder;
(j) licenses, leases or subleases permitted hereunder granted to
others not interfering in any material respect in the business of Holdings
or any of its Subsidiaries;
(k) attachment or judgment Liens (other than judgment Liens paid or
fully covered by insurance which are not outstanding for more than sixty
(60) days) in an aggregate amount outstanding at any one time not in
excess of the Equivalent Amount of $5,000,000;
(l) Liens arising from precautionary Uniform Commercial Code
financing statement filings with respect to operating leases or
consignment arrangements entered into by Holdings or any of its
Subsidiaries in the ordinary course of business;
(m) Liens in favor of a banking institution arising by operation of
law encumbering deposits (including the right of set-off) held by such
banking institutions incurred in the ordinary course of business and which
are within the general parameters customary in the banking industry;
(n) Liens arising from the sale of the accounts receivable of
Subsidiaries of Holdings in connection with a trade receivables financing
transaction otherwise permitted under subsection 8.6(i);
(o) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to Subsidiaries of Holdings) the Equivalent
Amount of $30,000,000 in aggregate amount at any time outstanding; and
<PAGE> 104
98
(p) Liens on property financed thereby securing grants and
Indebtedness permitted under subsection 8.2(q).
8.4 Limitation on Guarantee Obligations. Create, incur, assume or
suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations pursuant to the Loan Documents;
(b) guarantees of Indebtedness by Subsidiaries of Holdings permitted
pursuant to subsection 8.2(c) set forth on Schedule 8.4 and extensions,
renewals and replacements thereof, provided, however, that no such
extension, renewal or replacement shall (i) amend or modify the
subordination provisions, if any, contained in such guarantee in a manner
adverse to the Secured Parties, or (ii) increase the principal amount of
such Indebtedness guaranteed by the original guarantee;
(c) the Specified Accommodation Obligations;
(d) indemnities in favor of the companies issuing title insurance
policies insuring the title to any property to induce such issuance;
(e) surety bonds issued in respect of the type of obligations
described in subsection 8.3(e);
(f) indemnities made in the Loan Documents, the Acquisition Documents
or in any of the agreements contemplated hereby and thereby and in the
monitoring and oversight agreement and the financial advisory agreement
described in subsection 8.7(a)(iv) and in the corporate charter and/or
bylaws of Holdings and its Subsidiaries;
(g) indemnities and guarantees (other than guarantees of Indebtedness
(other than Indebtedness of Subsidiaries of Holdings permitted hereunder))
made in the ordinary course of business, provided that such indemnities
and guarantees could not individually or in the aggregate have a Material
Adverse Effect;
(h) unsecured subordinated guarantees by the Domestic Subsidiaries of
the US Borrower of the Senior Subordinated Indebtedness;
(i) Guarantee Obligations of Holdings or its Subsidiaries in respect
of the incurrence of grants and Indebtedness permitted under subsection
8.2(q); and
(j) guarantees by Holdings and the US Borrower permitted under
subsection 8.2(k).
8.5 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets, or make any material change in its present method of
conducting business, except (i) any Domestic Subsidiary of a Specified Borrower
may be merged or consolidated with
<PAGE> 105
99
or into such Specified Borrower (provided that the Specified Borrower shall be
the continuing or surviving Person) or with or into any one or more Wholly
Owned Subsidiaries of any such Specified Borrower (provided that no Domestic
Subsidiary of Holdings may be merged or consolidated with or into any Foreign
Subsidiary of Holdings unless such Domestic Subsidiary shall be the surviving
Person), (ii) any Subsidiary of a Specified Borrower may liquidate or dissolve
if, in connection therewith, all of its assets are transferred to such
Specified Borrower (or a Subsidiary thereof which is a Credit Party), (iii)
Non-Credit Party may merge into, consolidate with or convey, sell, lease,
assign, transfer or otherwise dispose of, all or substantially all of its
property, business or assets, to any other Non-Credit Party (provided that the
surviving or continuing Non-Credit Party shall be owned, directly or
indirectly, by Holdings in a percentage not less than the percentage of the
non-surviving or non-continuing Non-Credit Party owned, directly or indirectly,
by Holdings prior to such merger, consolidation or disposition) or any Credit
Party (provided that such Credit Party shall be the continuing or surviving
Person), (iv) any Non-Credit Party may liquidate, wind up or dissolve itself,
if such liquidation, wind up or dissolution is reasonably determined by the
Administrative Agent, not to adversely effect the interests of the Lenders and
(v) the Hong Kong Restructuring may be consummated.
8.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, except:
(a) obsolete or worn out property disposed of in the ordinary course
of business or property that is no longer useful in the conduct of
Holdings' business disposed of in the ordinary course of business;
(b) the sale, transfer or exchange of inventory in the ordinary
course of business;
(c) transfers resulting from any casualty or condemnation of property
or assets;
(d) any sale or other transfer of any property or assets constituting
fixed assets for at least 75% cash, provided that the net cash proceeds of
the sales and transfers made pursuant to this paragraph (d) in the
aggregate do not exceed the Equivalent Amount of $12,500,000 in any fiscal
year;
(e) intercompany sales or transfers of assets made in the ordinary
course of business;
(f) licenses or sublicenses of intellectual property and general
intangibles and licenses, leases or subleases of other property in the
ordinary course of business and which do not materially interfere with the
business of Holdings and its Subsidiaries;
(g) any consignment arrangements or similar arrangements for the sale
of assets in the ordinary course of business;
(h) the sale or discount of overdue accounts receivable arising in
the ordinary course of business, but only in connection with the
compromise or collection thereof;
<PAGE> 106
100
(i) the sale of the accounts receivable of Subsidiaries of Holdings
in connection with a trade receivable financing transaction reasonably
acceptable to the Specified Agent; provided that all of the Net Cash
Proceeds of each such sale are applied to the prepayment of the Term Loans
as required by subsection 2.10; and
(j) dispositions permitted by subsection 8.5.
8.7 Limitation on Dividends. Declare or pay any dividend (other than
dividends payable solely in common stock of US Borrower or Holdings) on, or
make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any class of Capital Stock of US Borrower or Holdings or any of
their respective Subsidiaries or any warrants or options to purchase any such
Capital Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property, obligations of Holdings or any Subsidiary or otherwise (such
declarations, payments, setting apart, purchases, redemptions, defeasances,
retirements, acquisitions and distributions being herein called "Restricted
Payments"), except that:
(a) US Borrower may make Restricted Payments to Holdings, so long as
(except with respect to clause (iii) below or with respect to clause (iv)
below an Event of Default which relates to a payment default under
subsection 9(a)) no Event of Default has occurred and is continuing or
would be continuing after giving effect to such Restricted Payment:
(i) the proceeds of which shall be applied by Holdings directly
to pay out of pocket expenses, for administrative, legal and
accounting services provided by third parties that are reasonable and
customary and incurred in the ordinary course of business for such
professional services, or to pay franchise fees and similar costs;
provided, however any such administrative expenses shall not exceed
an aggregate amount of $1,000,000 per fiscal year;
(ii) payments, the proceeds of which will be used to repurchase
the Capital Stock or other securities of Holdings from outside
directors, employees or members of the management of Holdings, or any
Subsidiary, at a price not in excess of fair market value, in an
aggregate amount not in excess of $3,000,000, net of the proceeds
received by the US Borrower as a result of any resales of any such
Capital Stock or other securities;
(iii) payments, the proceeds of which will be used to pay taxes
of Holdings as part of a consolidated group;
(iv) payments, the proceeds of which will be used to pay
management fees to Hicks Muse & Co. Partners, L.P. in accordance with
the terms of its monitoring and oversight agreement and the financial
advisory agreement;
<PAGE> 107
101
(v) if such Restricted Payment is a purchase of Capital Stock or
a distribution to Holdings to permit Holdings to purchase its Capital
Stock, in either case, made in order to fulfil the obligations of
Holdings or any of the Borrowers under an employee stock purchase
plan or similar plan covering employees of Holdings or any Subsidiary
as from time to time in effect in an aggregate net amount not to
exceed $5,000,000.
(b) any Subsidiary of any of the Borrowers may make Restricted
Payments to the Specified Borrower or to their respective Subsidiaries;
(c) Permitted Issuances may be made; and
(d) Restricted Payments necessary to complete the transactions
contemplated hereby.
8.8 Limitation on Capital Expenditures. (a) Make or commit to make
any Capital Expenditure except for expenditures in the ordinary course of
business not exceeding, in the aggregate for US Borrower and its Subsidiaries
during any of the fiscal years of US Borrower set forth below the amount set
forth opposite such fiscal year below:
<TABLE>
<CAPTION>
Fiscal Year Amount
----------- ------
<S> <C>
1999 $ 140,000,000
2000 $ 130,000,000
2001 $ 130,000,000
2002 $ 110,000,000
2003 $ 110,000,000
2004 $ 110,000,000
</TABLE>
; provided that 100% of any amount not used in any fiscal year may be carried
forward only into the next succeeding fiscal year;
(b) In addition to the Capital Expenditures permitted pursuant to
paragraph (a) of this subsection 8.8, the US Borrower may spend additional
Capital Expenditures (which shall not be counted in the limitations set forth
such paragraph) of $16,000,000 to build a new facility in the United States of
America.
(c) In addition to the Capital Expenditures permitted pursuant to
paragraphs (a) and (b) of this subsection 8.8, to the extent such proceeds are
not otherwise utilized pursuant to the last paragraph of subsection 8.9 or
8.9(k), US Borrower and its Subsidiaries may make additional Capital
Expenditures (which shall not be counted in the limitations set forth in
paragraph (a) of this subsection 8.8) consisting of the investment of Excess
Cash Flow generated during prior fiscal years (in each case including the
retained portion of Excess Cash Flow for only those periods where the
respective Excess Cash Flow payment has theretofore occurred) and not required
to be applied to prepay the Term Loans pursuant to subsection 2.10.
<PAGE> 108
102
(d) Notwithstanding the foregoing, in no event shall Capital
Expenditures be made by Holdings.
8.9 Limitation on Investments, Loans and Advances. Make any advance,
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets constituting a
business unit of, or make any other investment in, any Person ("Investments"),
except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) (i) Investments (other than Permitted Acquisitions) by Holdings
and its Subsidiaries in any of the Credit Parties, including any new
Subsidiary which becomes a Credit Party, (ii) Investments by Credit
Parties in Foreign Subsidiaries of the US Borrower that are not Credit
Parties not to exceed $75,000,000 after giving effect to the Hong Kong
Acquisition; and (iii) Investments by Non-Credit Parties in other
Non-Credit Parties;
(d) loans and advances by Holdings or its Subsidiaries to their
respective directors, officers and employees in an aggregate principal
amount not exceeding the Equivalent Amount of $2,500,000 at any one time
outstanding;
(e) loans, advances or Investments listed on Schedule 8.9, and
extensions, renewals, modifications or restatements or replacements
thereof, provided that no such extension, renewal, modification or
restatement shall (i) increase the amount of the original loan, advance or
investment, or (ii) adversely affect the interests of the Secured Parties
with respect to such original loan, advance or investment or the interests
of the Specified Lenders under this Agreement or any other Loan Document
in any material respect;
(f) Investments permitted by subsections 8.2(b) and (o), subsection
8.4, subsection 8.7 and by subsection 8.8;
(g) promissory notes and other similar non-cash consideration
received by the Subsidiaries of Holdings in connection with the
dispositions permitted by subsection 8.6;
(h) Investments in Interest Rate Agreements;
(i) Investments (including debt obligations and Capital Stock)
received in connection with the bankruptcy or reorganization of suppliers
and customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course of
business;
(j) in addition to the foregoing, Investments by Subsidiaries of
Holdings in an aggregate amount not exceeding the Equivalent Amount of
$10,000,000 (at cost, without regard to any write down or write up
thereof) at any one time outstanding;
<PAGE> 109
103
(k) so long as after giving effect thereto no Default or Event of
Default shall have occurred and be continuing, Investments after the Third
Amendment and Restatement Closing Date by Subsidiaries of Holdings
resulting from Permitted Acquisitions in an aggregate amount (which may
include Indebtedness permitted by subsections 8.2(m) and 8.2(p)) not to
exceed the sum of (A) the amount of $75,000,000 and (B) the amount of
common stock of Holdings issued subsequent to the Third Amendment and
Restatement Closing Date in connection with Permitted Acquisitions, (C)
the amount, not to exceed $150,000,000, of unsecured Senior Subordinated
Indebtedness issued subsequent to the Third Amendment and Restatement
Closing Date and (D) the portion of Excess Cash Flow for all prior fiscal
years commencing with 1997 retained by Holdings and not utilized pursuant
to subsection 8.8(c) or the last sentence of this subsection 8.9,
provided, that (i) the Administrative Agent shall have received, prior to
or simultaneously with such Permitted Acquisition, (I) such opinions
(including with respect to environmental matters), certificates and copies
of related agreements and documents as it shall reasonably request and
(II) a certificate of a Responsible Officer of Holdings after giving
effect to such Permitted Acquisition showing the aggregate purchase price
(including the assumption of any Indebtedness) for Permitted Acquisitions
made by Holdings and its Subsidiaries since the Third Amendment and
Restatement Closing Date, (ii) such actions as may be required or
reasonably requested to ensure that the Specified Agent, for the ratable
benefit of the Specified Lenders, has a perfected first priority security
interest or first ranking hypothec in any assets required to be secured
pursuant to subsections 7.10 and 7.12 or any other Loan Document, subject
to Liens permitted by subsection 8.3, shall have been taken and (iii) (I)
on a pro forma basis for the period of four consecutive fiscal quarters
most recently ended (assuming the consummation of such Permitted
Acquisition and the incurrence or assumption of any Indebtedness in
connection therewith occurred on the first day of such period of four
consecutive fiscal quarters), Holdings shall be in compliance with the
covenants contained in subsection 8.1 (and, if applicable, the
requirements of subsection 8.2(p)) and (II) the Administrative Agent shall
have received calculations in reasonable detail reasonably satisfactory to
it showing compliance with the requirements of this clause (iii) certified
by a Responsible Officer of Holdings;
(l) Investments in Caribe not to exceed $20,000,000 in an aggregate
amount at any one time outstanding;
(m) the Acquisition;
(n) Investments as a result of the Hong Kong Acquisition and the Hong
Kong Restructuring; and
(o) so long as after giving effect thereto no Default or Event of
Default shall have occurred and be continuing, purchases by Holdings of
the Chips Loan Notes; provided that (i) the acquisition price of the Chips
Loan Notes does not exceed the principal of and accrued and unpaid
interest on such Chips Loan Notes on the date of the acquisition and (ii)
any such Chips Loan Notes are promptly delivered to the Paying Agent for
cancellation.
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In addition to the Investments permitted pursuant to this subsection
8.9, to the extent such proceeds are not otherwise utilized pursuant to
subsection 8.8(c) or 8.9(k), the Subsidiaries of Holdings may make additional
Investments (which shall not be counted in the limitations set forth above) as
follows: (i) Investments consisting of the investment of Net Cash Proceeds not
required to be applied to prepay the Term Loans pursuant to subsection 2.10,
including (x) with respect to the investment of proceeds of the insurance and
condemnation proceeds not required to prepay the Term Loans pursuant to
subsection 2.10 and (y) with respect to the investment of proceeds of the sale
of assets which are permitted pursuant to subsection 8.6; and (ii) Investments
consisting of the investment of Excess Cash Flow generated during prior fiscal
years (in each case including the retained portion of the respective Excess
Cash Flow for only those periods where the respective Excess Cash Flow payment
has theretofore occurred) and not required to be applied to prepay the Term
Loans pursuant to subsection 2.10.
8.10 Limitation on Optional Payments and Modifications of
Subordinated Debt Instruments. (a) Make any optional payment or prepayment on or
redemption of any Senior Subordinated Indebtedness and any payments in
redemption, defeasance or repurchase thereof, except mandatory payments of
interest, fees and expenses required by the terms of the agreement governing or
instrument evidencing such indebtedness but only to the extent permitted under
the subordination provisions applicable thereto and except for refinancings of
any such Senior Subordinate Indebtedness under terms that would be permitted for
an amendment of such Senior Subordinated Indebtedness by subsection 8.10(b).
(b) Amend, supplement or otherwise modify any of the provisions of
any Senior Subordinated Indebtedness:
(i) which amends or modifies the subordination provisions contained
therein;
(ii) which shortens the fixed maturity, or increases the rate or
shortens the time of payment of interest on, or increases the amount or
shortens the time of payment of any principal or premium payable whether
at maturity, at a date fixed for prepayment or by acceleration or
otherwise of such Indebtedness, or increases the amount of, or accelerates
the time of payment of, any fees payable in connection therewith;
(iii) which relates to the affirmative or negative covenants, events
of default or remedies under the documents or instruments evidencing such
Indebtedness and the effect of which is to subject the Borrower or any of
its Subsidiaries, to any more onerous or more restrictive provisions; or
(iv) which otherwise adversely affects the interests of the Lenders as
senior creditors or the interests of the Lenders under this Agreement or
any other Loan Document in any respect.
(c) Make any payment in cash on any equity or debt security that may
be made under the terms thereof by the issuance of any security of the same
nature.
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(d) Designate any Indebtedness as "Designated Senior Indebtedness" under
the Senior Subordinated Indebtedness.
8.11 Limitation on Transactions with Affiliates. (a) Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (i) otherwise permitted under this Agreement, or (ii) (x)
in the ordinary course of Holdings's or such Subsidiary's business and (y) upon
fair and reasonable terms no less favorable to Holdings or such Subsidiary, as
the case may be, than it would obtain in a comparable arm's length transaction
with a Person which is not an Affiliate.
(b) In addition, notwithstanding the foregoing, Holdings and its
Subsidiaries shall be entitled to make the following payments and/or to enter
into the following transactions:
(i) the payment of reasonable and customary fees and reimbursement of
expenses payable to directors of Holdings;
(ii) the payment to Hicks Muse & Co. Partners, L.P. of fees and
expenses pursuant to a monitoring and oversight agreement and a financial
advisory agreement approved by the board of directors of Holdings; and
(iii) the employment arrangements with respect to the procurement of
services of directors, officers and employees in the ordinary course of
business and the payment of reasonable fees in connection therewith.
8.12 Limitation on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by Holdings or any Subsidiary of real
or personal, immovable or movable, property which has been or is to be sold or
transferred by Holdings or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of Holdings or such Subsidiary;
provided that this subsection 8.12 shall not prohibit any sale and leaseback
resulting from the incurrence of any lease in respect of any capital asset
entered into within 120 days of the acquisition of such capital asset for the
purpose of providing permanent financing of such capital asset.
8.13 Limitation on Changes in Fiscal Year. Permit the fiscal year of
Holdings to end on a day other than December 31; provided that Holdings may
change such fiscal year upon the approval of each of the Specified Agents.
8.14 Restrictions Affecting Subsidiaries. Enter into with any Person,
or suffer to exist any agreement which prohibits or limits the ability of
Holdings or any of its Subsidiaries to (a) create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, other than (i) this Agreement and the other Loan
Documents, and (ii) any industrial revenue bonds (including the government loan
to Caribe), purchase money mortgages or Financing Leases or any other agreement
or transaction permitted by this Agreement (in which cases, any prohibition or
limitation shall only be effective against the assets financed thereby) or (b)
pay dividends or make other distributions or pay any Indebtedness
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owed to Holdings or any of its Subsidiaries except as permitted by this
Agreement and the other Loan Documents.
8.15 Limitation on Lines of Business. Enter into any business, either
directly or through any Subsidiary, except for those businesses in which
Holdings and its Subsidiaries are engaged on the date of this Agreement or
which are reasonably related thereto.
8.16 Amendments to Corporate Documents; Acquisition Agreement;
Licenses. (a) Amend its certificate of incorporation or by-laws or other
governing documents unless such amendment does not adversely affect the
interests of any Secured Party in any material respect, (b) amend, supplement
or otherwise modify the terms and conditions of the indemnities and licenses
furnished pursuant to the Hong Kong Acquisition Document such that after giving
effect thereto such indemnities or licenses shall be materially less favorable
to the interests of the Credit Parties or the Secured Parties with respect
thereto, (c) otherwise amend, supplement or otherwise modify the terms and
conditions of the Hong Kong Acquisition Document or the Supply Agreement except
to the extent that any such amendment, supplement or modification could not
reasonably be expected to have a Material Adverse Effect.
8.17 Passive Status of International Holdings. Permit International
Holdings to engage in any activities or incur any Indebtedness or Guarantee
Obligations other than (A) owning the stock of Foreign Subsidiaries of the US
Borrower and VTC Nevada, (B) its activities incident to the performance of the
Loan Documents and (C) unsecured subordinated guarantees of the Senior
Subordinated Indebtedness.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Specified
Loan and/or Specified Note or any Specified Accommodation Obligation when
due in accordance with the terms thereof or hereof; or any Borrower shall
fail to pay any interest on any Specified Loan and/or Specified Note, or
any other amount payable hereunder by it, within five (5) days after any
such interest or other amount becomes due in accordance with the terms
thereof or hereof; or
(b) Any representation or warranty made or deemed made by any
Borrower, Holdings or any of their Subsidiaries herein or in any other
Loan Document or which is contained in any certificate, document or
financial or other statement furnished at any time under or in connection
with any Loan Document shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) Any Borrower, Holdings or any of their Subsidiaries shall default
in the performance or observance of any agreement contained in Section 8
or Section 11 of this Agreement or Section 5 of the Guarantee and
Collateral Agreement; or
(d) Any Borrower, Holdings or any of their Subsidiaries shall default
in the observance or performance of any other agreement contained in this
Agreement or in any
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other Loan Document (other than as provided in paragraphs (a) through (c)
of this Section), and such default shall continue unremedied for a period
of thirty (30) days; or
(e) Except as set forth on Schedule 9(e), any Credit Party or any of
its Subsidiaries shall (i) default (x) in any payment of principal of or
interest on any Indebtedness (other than any of the Loans) or (y) in the
payment of any Guarantee Obligation (other than the guarantees pursuant to
the Loan Documents), having an outstanding principal amount individually
or in the aggregate for both of clauses (x) and (y) in excess of the
Equivalent Amount of $10,000,000, beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness or
Guarantee Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation
(or a trustee or agent on behalf of such holder or holders or beneficiary
or beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; or
(f) (i) Any Credit Party or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future law
of any jurisdiction, domestic or foreign, relating to bankruptcy,
liquidation, administration, winding up, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with
respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, administration, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, administrator, liquidator, custodian, conservator or other
similar official for it or for all or any substantial part of its assets,
or any of the Credit Parties or any of their Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there shall
be commenced against any Credit Party or any of its Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of sixty (60) days; or (iii) there shall be
commenced against any Credit Party or any of its Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within sixty (60) days from the entry thereof; or (iv) any
Credit Party or any of its Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v)
any Credit Party or any of its Subsidiaries shall generally not, or shall
be unable to, or shall admit in writing its inability to, pay its debts
(other than intercompany debts) as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any
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"accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in
favor of the PBGC or a Plan shall arise on the assets of the US Borrower
or any Commonly Controlled Entity, (iii) a Reportable Event shall occur
with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the US Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the US
Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with
respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to result in a Material
Adverse Effect; or
(h) Any Credit Party or any of its Subsidiaries shall directly or
indirectly (i) terminate or cause to terminate, in whole or in part, or
initiate the termination of, in whole or in part, any Canadian Pension
Plan so as to result in any liability to a Credit Party, (ii) accept
payment of any amount from any Canadian Pension Plan, or (iii) merge any
Canadian Pension Plan which in each case could reasonably be expected to
have a Material Adverse Effect; or
(i) One or more judgments or decrees shall be entered against
Holdings, the Specified Borrower or any of their Subsidiaries involving in
the aggregate a liability (not paid or fully covered by insurance) of the
Equivalent Amount of $10,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within sixty (60) days from the entry thereof; or
(j) Holdings, any Borrower or any of their Subsidiaries shall incur
any liability (not paid or fully covered by insurance) under any
Environmental Law in an amount which would result in a Material Adverse
Effect; or
(k) Any Loan Document shall, at any time, cease to be in full force
and effect (unless released by the Specified Agent, at the direction of
the Required Lenders or as otherwise permitted under this Agreement) or
shall be declared null and void (and, if such invalidity is such so as to
be amenable to cure without materially disadvantaging the position of the
Specified Agent and the Secured Parties thereunder, the Credit Party shall
have failed to cure such invalidity within thirty (30) days after notice
from the Specified Agent or such shorter time period as is specified by
the Specified Agent in such notice and is reasonable in the
circumstances), or the validity or enforceability thereof shall be
contested by any Credit Party, or any of the Liens intended to be created
by the Loan Documents shall cease to be or shall not be a valid and
perfected Lien having the priority contemplated thereby (and, if such
invalidity is such so as to be amenable to cure without materially
disadvantaging the position of the Specified Agent and the Secured
Parties, as secured parties thereunder, the Credit Party shall have failed
to cure such invalidity within
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thirty (30) days after notice from the Specified Agent or such shorter
time period as specified by the Specified Agent in such notice and is
reasonable in the circumstances); or
(l) (x) A Change of Control shall occur, (y) Holdings shall fail to
own directly or indirectly, beneficially and of record 100% of the Capital
Stock of the US Borrower free and clear of all Liens other than Liens in
favor of the Secured Parties pursuant to the Guarantee and Collateral
Agreement, or (z) the US Borrower shall fail to own directly or
indirectly, beneficially and of record 100% of the Capital Stock of each
Foreign Subsidiary Borrower; or
(m) A Notice of crystallization, a prior notice of exercise of a
hypothecary recourse, an advance registration (as such terms is used in
Article 2966 to 2968 of the Civil Code of Quebec) or a notice of
withdrawal of an authorization to collect claims (a "Civil Code Notice")
is sent to any Credit Party in respect of a substantial part of the
claims, properties or assets of such Credit Party, or is registered there
against, unless the rights purported to be enforced pursuant to such Civil
Code Notice are being contested in good faith by appropriate legal
proceedings and the exercise of such rights is stayed pending such
proceedings;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to a Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon), the maximum amount available to be
drawn under all outstanding Accommodations and all other amounts owing under
this Agreement and any Notes shall immediately become due and payable, and (B)
if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrowers declare the Commitments
to be terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrowers declare the Loans
hereunder (with accrued interest thereon), the maximum amount available to be
drawn under all outstanding Accommodations and all other amounts owing under
this Agreement and any Notes to be due and payable forthwith, whereupon the
same shall immediately become due and payable. All payments under this Section
9 on account of undrawn Accommodations shall be made by the Specified Borrower
directly to a cash collateral account established for such purpose for
application to the Specified Borrower's obligations with respect thereto as
drafts are presented under the Specified Accommodations. Any remaining amounts
paid by the Specified Borrower in respect of such undrawn Specified
Accommodations shall be returned to the Specified Borrower after the last
expiry date of the Accommodations and after the Obligations have been paid in
full. Except as expressly provided above in this Section, presentment, demand,
protest and all other notices of any kind are hereby expressly waived.
SECTION 10. THE AGENTS
10.1 Appointment. Each Specified Lender hereby irrevocably designates
and appoints its Specified Agent and person holding a power of attorney of such
Specified Lender
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under this Agreement and the other Specified Loan Documents, and each such
Specified Lender irrevocably authorizes such Specified Agent for such Specified
Lender, to take such action on its behalf under the provisions of this
Agreement and the other Specified Loan Documents and to exercise such powers
and perform such duties as are expressly delegated to the Specified Agent by
the terms of this Agreement and the other Specified Loan Documents, together
with such other powers as are reasonably incidental thereto including, without
limitation, the execution and delivery of the Sharing Agreement on behalf of
such Specified Lender and the appointment of Chase, as Collateral Agent
thereunder. Notwithstanding any provision to the contrary elsewhere in this
Agreement, no Specified Agent shall have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other
Specified Loan Document or otherwise exist against the Specified Agent.
10.2 Delegation of Duties. Each Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
10.3 Exculpatory Provisions. The Agents shall not, nor shall any of
their officers, directors, controlling persons, employees, agents,
attorneys-in-fact or Affiliates be (i) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this
Agreement or any other Loan Document (except for its or such Person's own gross
negligence or wilful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
any Credit Party or any officer thereof contained in this Agreement or any
other Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Specified Agent under or in
connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any Notes or any other Loan Document or for any failure of any
Credit Party to perform its obligations hereunder or thereunder. No Agent shall
be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Credit Parties.
10.4 Reliance by the Specified Agents. The Agents shall be entitled
to rely, and shall be fully protected in relying, upon any Note, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or
teletype message, statement, order or other document or conversation believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to any Credit Party), independent
accountants and other experts selected by the Agent. The Agents shall deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Specified Agent. Each Agent shall be fully justified in failing
or refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Required
Lenders or all the Lenders, as it deems appropriate or it shall first be
indemnified to its satisfaction by the Specified Lenders against any and all
liability and expense
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which may be incurred by it by reason of taking or continuing to take any such
action. Each Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and any Notes and the other Loan
Documents in accordance with a request of the Required Lenders or all the
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Obligations.
10.5 Notice of Default. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless it
has received written notice from a Specified Lender or any Credit Party
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that an Agent
receives such a notice, the Specified Agent shall give notice thereof to the
Specified Lenders and other Agents. The Agents shall each take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders or all the Lenders; provided that unless and until such
Agents shall have received such directions, the Agents may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as they shall deem advisable in the
best interests of the Lenders.
10.6 Non-Reliance on Agent and Lenders. Each Lender expressly
acknowledges that no Agent has, nor has any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates made any representations or
warranties to it and that no act by any Agent hereinafter taken, including any
review of the affairs of any Credit Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender represents
to the Agents 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 appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Credit Parties and made its own decision to make its
Specified Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the Agents 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 analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of any Credit Party. Except for notices, reports and other
documents expressly required to be furnished to the Specified Lenders by the
Specified Agent hereunder, the Agents shall not have any duty or responsibility
to provide any Lender with any credit or other information concerning the
business, operations, property, condition (financial or otherwise), prospects
or creditworthiness of any Credit Party which may come into the possession of
the Agents or any of their officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
10.7 Indemnification. The Specified Lenders agree to indemnify the
Specified Agent in its capacity as such (to the extent not reimbursed by the
Specified Borrower and without limiting the obligation of the Specified
Borrower to do so), ratably according to their respective Specified Commitment
Percentages in effect on the date on which indemnification is sought under this
subsection, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Specified Loans) be imposed on, incurred
by or asserted against the Specified Agent in any way relating to or
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arising out of this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Specified
Agent under or in connection with any of the foregoing; provided that no
Specified Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from the Specified
Agent's gross negligence or wilful misconduct. The agreements in this
subsection shall survive the payment of the Specified Loans and all other
amounts payable hereunder.
10.8 Agents in Their Individual Capacity. The Agent, and their
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Credit Parties as though the Agents were not the
Agents hereunder and under the other Loan Documents. With respect to its
Specified Loans made or renewed by it and any Specified Note issued to it, the
Specified Agent shall have the same rights and powers under this Agreement and
the other Specified Loan Documents as any Specified Lender and may exercise the
same as though it were not a Specified Agent, and the terms "Specified Lender"
and "Specified Lenders" shall include each of the Specified Agents in its
individual capacity.
10.9 Successor Agents. Any Specified Agent may resign as the
Specified Agent upon ten (10) days' prior written notice to the Lenders. If the
Specified Agent shall resign as Specified Agent under this Agreement and the
other Loan Documents, then the Required Lenders shall appoint from among the
Specified Lenders a successor agent for the Specified Lenders, which successor
agent shall be subject to the approval of the Specified Borrower, whereupon
such successor agent shall succeed to the rights, powers and duties of the
Specified Agent, and the term "Specified Agent" shall mean such successor agent
effective upon such appointment and approval, and the former Specified Agent's
rights, powers and duties as Specified Agent shall be terminated, without any
other or further act or deed on the part of such former Specified Agent or any
of the parties to this Agreement or any holders of the Specified Loans. After
any retiring Specified Agent's resignation as Specified Agent, the provisions
of this subsection shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Specified Agent under this Agreement and
the other Loan Documents.
10.10 Additional Ministerial Powers of the Specified Agents. Each
Specified Agent is hereby irrevocably authorized by each of the Specified
Lenders to execute any document creating any Lien and to release any Lien
covering any asset of the Specified Borrower or any of its Subsidiaries
(including, without limitation, any Properties, accounts receivable or
inventory) that is the subject of a disposition, sale or assignment which is
permitted under this Agreement or, subject to subsection 12.1, which has been
consented to by the Required Lenders.
10.11 Specified Issuing Lender and Collateral Agent. Each Specified
Revolving Credit Lender, Chips Limited Term Loan Lender and Chips Acquisition
Term Loan Lender hereby acknowledges that the provisions of this Section 10
shall apply to the Specified Issuing Lender, in its capacity as issuer of any
Specified Accommodation, in its capacity under the other Loan Documents, in the
same manner as such provisions are expressly stated to apply to a Specified
Agent.
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10.12 English Agent as Trustee.
(a) The English Agent in its capacity as trustee or otherwise under
the Loan Documents:
(i) is not liable for any failure, omission, or defect in
perfecting or registering the security constituted or created by any
Loan Document;
(ii) may accept without inquiry such title as any Credit Party
may have to any asset secured by any Loan Document; and
(iii) is not under any obligation to hold any Loan Document or
any other document in connection with the Loan Documents or the
assets secured by any Loan Document (including title deeds) in its
own possession or take any steps to protect or preserve the same. The
English Agent may permit any Credit Party to retain any Loan Document
or other document in its possession.
(b) Except as otherwise provided in the Loan Documents, all moneys
which under the trusts contained in the Loan Documents are received by the
English Agent in its capacity as trustee or otherwise may be invested in
the name of or under the control of the English Agent in any investment
authorized by English law for the investment by trustee of trust money or
in any other investments which may be selected by the English Agent.
Additionally, the same may be placed on deposit in the name or under the
control of the English Agent at such bank or institution (including the
English Agent) and upon such terms as the English Agent may think fit.
SECTION 11. GUARANTEE
11.1 Guarantee. To induce the Lenders to execute and deliver this
Agreement, to make Loans, and to issue and participate in Accommodations, and
in consideration thereof, Holdings hereby unconditionally and irrevocably
guarantees, as primary obligor and joint and several co-debtor and not merely
as surety to the Agents, the Secured Parties and their successors, indorsees,
transferees and assigns, the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations, and Holdings further agrees to pay the expenses which may be paid
or incurred by the Agents or the Secured Parties in collecting any or all of
the Obligations and/or enforcing any rights under this Section 11 or under the
Obligations in accordance with subsection 12.5. The guarantee contained in this
Section 11 shall remain in full force and effect until the Obligations are paid
in full and each of the Commitments is terminated, notwithstanding that from
time to time prior thereto any Borrower may be free from any Specified
Obligations.
11.2 Waiver of Subrogation. Notwithstanding any payment or payments
made by Holdings in respect of the Obligations or any setoff or application of
funds of Holdings by any Agent or any Lender, until payment in full of the
Obligations and the termination of each of Commitments and until the
Accommodations have been terminated, Holdings shall not be entitled to be
subrogated to any of the rights of the Agents or the Lenders against the
Borrowers or any collateral security or guarantee or right of offset held by
any Agent or any Lender for the payment
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of the Obligations, nor shall Holdings seek any reimbursement from any Borrower
in respect of payments made by Holdings hereunder.
11.3 Modification of Obligations. Holdings hereby consents that,
without the necessity of any reservation of rights against Holdings and without
notice to or further assent by Holdings, (a) any demand for payment of the
Obligations made by any Agent, any Issuing Lender or any Lender may be
rescinded by the Agent, the Issuing Lender, or the Lenders, and the Obligations
continued; (b) the Obligations, or the liability of any other party upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by any Agent, any Issuing Lender, or any Lender, and
that this Agreement, any Notes, and the other Loan Documents, including,
without limitation, any collateral security document or other guarantee or
document in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Agents, the Issuing Lenders, or the
Lenders, may deem advisable from time to time; and (c) to the extent permitted
by applicable law, any collateral security or guarantee or right of offset at
any time held by any Agent, any Issuing Lender, or any Lender, for the payment
of the Obligations may be sold, exchanged, waived, surrendered or released, all
without the necessity of any reservation of rights against Holdings and without
notice to or further assent by Holdings which will remain bound hereunder
notwithstanding any such renewal, extension, modification, acceleration,
compromise, amendment, supplement, termination, sale, exchange, waiver,
surrender or release. The Agents, the Issuing Lenders, and the Lenders shall
not have any obligation to protect, secure, perfect or insure any collateral
security document or property subject thereto at any time held as security for
the Obligations. When making any demand hereunder against Holdings, the Agents,
the Issuing Lenders, or the Lenders, may, but shall be under no obligation to,
make a similar demand on any other party or any other guarantor, and any
failure by any Agent, any Issuing Lender, or any Lender, to make any such
demand or to collect any payments from any Borrower or any such other guarantor
shall not relieve Holdings of its obligations or liabilities hereunder, and
shall not impair or affect the rights and remedies, express or implied, or as a
matter of law, of the Agents, the Issuing Lenders, or the Lenders, against
Holdings. For the purposes of this subsection "demand" shall include the
commencement and continuance of any legal proceedings.
11.4 Waiver by Holdings. Holdings waives the benefits of division and
discussion and any and all notice of the creation, renewal, extension or
accrual of the Obligations and notice of or proof of reliance by the Agents,
the Issuing Lenders, or the Lenders upon the guarantee contained in this
Section 11 or acceptance of the guarantee contained in this Section 11, and the
Obligations, and any of them, shall conclusively be deemed to have been
created, contracted, continued or incurred in reliance upon the guarantee
contained in this Section 11, and all dealings between Holdings and the Agents,
the Issuing Lenders, or the Lenders shall likewise be conclusively presumed to
have been had or consummated in reliance upon the guarantee contained in this
Section 11. Holdings waives diligence, presentment, protest, demand for payment
and notice of default or nonpayment to or upon the Specified Borrower or
Holdings with respect to any Specified Obligations. This guarantee shall be
construed as a continuing absolute and unconditional guarantee of payment
without regard to the validity, regularity or enforceability of this Agreement,
any Note or any other Loan Document, including, without limitation, any
collateral security or guarantee therefor or right of offset with respect
thereto at any time or from
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time to time held by any Agent, any Issuing Lender, or any Lender and without
regard to any defense, setoff or counterclaim which may at any time be
available to or be asserted by any Borrower against any Agent, any Issuing
Lender, or any Lender, or any other Person, or by any other circumstance
whatsoever (with or without notice to or knowledge of any Borrower or Holdings)
which constitutes, or might be construed to constitute, an equitable or legal
discharge of any Borrower for any of its Obligations, or of Holdings under the
guarantee contained in this Section 11 in bankruptcy or in any other instance,
and the obligations and liabilities of Holdings hereunder shall not be
conditioned or contingent upon the pursuit by any Agent, any Issuing Lender or
any Lender or any other Person at any time of any right or remedy against any
Borrower or against any other Person which may be or become liable in respect
of any Obligations or against any collateral security or guarantee therefor or
right of offset with respect thereto. The guarantee contained in this Section
11 shall remain in full force and effect and be binding in accordance with and
to the extent of its terms upon Holdings and the successors and assigns
thereof, and shall inure to the benefit of the Lenders and their successors,
indorsees, transferees and assigns, until the Obligations shall have been
satisfied in full and the Commitments shall be terminated, notwithstanding that
from time to time during the term of this Agreement any Borrower may be free
from any Obligations.
11.5 Reinstatement. This guarantee shall continue to be effective, or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any Obligations is rescinded or must otherwise be restored or returned by
any Agent, any Issuing Lender, or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of Holdings or any Borrower or upon
or as a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, Holdings, any Borrower or any substantial
part of their respective property, or otherwise, all as though such payments
had not been made.
11.6 Negative Covenants. Until the Obligations shall have been paid
in full, the Accommodations shall have expired or been terminated and the
Commitments shall have been terminated, Holdings hereby agrees that it shall
not (i) cease to own, directly or indirectly, 100% of the Capital Stock of the
US Borrower, (ii) amend its certificate of incorporation or by-laws unless such
amendment does not adversely affect the interests of any Secured Party in any
material respect, (iii) engage in any activities other than (A) owning the
stock of the US Borrower, (B) its activities incident to the performance of (x)
the Loan Documents, and (y) the issuance and/or sale of its common stock or
options or warrants in respect of its Capital Stock, provided that the proceeds
thereof are applied as set forth in subsection 2.10, (C) transactions
contemplated hereby, (D) as permitted by subsections 8.3(b), (e), (i), (k) and
(m), 8.4(e), (f), (g) and (i) and 8.9(c), (d), (f), (i) and (k) and Schedules
8.2, 8.3, 8.4 and 8.9 and (D) activities contemplated by this Section 11, (iv)
make any Restricted Payment except as permitted by subsections 8.7(a) through
(d) or (v) amend, supplement or otherwise modify any of the provisions of the
Chips Loan Notes without the consent of the Administrative Agent and the
Required Lenders, provided this clause (v) shall not prevent investments in the
Chips Loan Notes by Holdings in accordance with subsection 8.9(o), or
redemption of the Chips Loan Notes by Holdings as long as the redemption price
of the Chips Loan Notes does not exceed the principal of and accrued and unpaid
interest on such Chips Loan Notes on the date of the redemption.
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SECTION 12. MISCELLANEOUS
12.1 Amendments and Waivers. Neither this Agreement, any Note, any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or otherwise modified except in accordance with the provisions of
this subsection. The Required Lenders may, or, with the written consent of the
Required Lenders, the Specified Agent, as the case may be, may, from time to
time, (a) enter into with any Credit Party written amendments, supplements or
modifications hereto and to any Notes and the other Loan Documents for the
purpose of adding any provisions to this Agreement or any Notes or the other
Loan Documents or changing in any manner the rights of the Secured Parties or
any Credit Party or any other Person hereunder or thereunder or (b) waive, on
such terms and conditions as the Required Lenders or the Specified Agent, as
the case may be, may specify in such instrument, any of the requirements of
this Agreement or any Notes or the other Loan Documents or any Default or Event
of Default and its consequences; provided, however, that no such waiver and no
such amendment, supplement or modification shall directly (i) reduce the
aggregate amount or extend the scheduled date of maturity of any Loan or of any
installment thereof, or reduce the stated rate of any interest or fee payable
hereunder or thereunder or extend the scheduled date of any payment thereof or
increase the aggregate amount or extend the expiration date of any Lender's
Specified Revolving Credit Commitment, in each case without the consent of each
Lender affected thereby, (ii) amend, modify or waive any provision of this
subsection 12.1 or reduce the percentage specified in the definition of
Required Lenders or consent to the assignment or transfer by Holdings or any
Borrower of any of its rights and obligations under this Agreement and the
other Loan Documents or release collateral having an aggregate value in excess
of the Equivalent Amount of $20,000,000 or release Holdings from any Guarantee
Obligation under the Loan Documents, in each case, except as set forth in
subsection 10.10, without the written consent of all the Lenders, (iii) amend,
modify or waive any provision of subsection 2.14 and Sections 3 or 10 (to the
extent applicable to Swing Line Notes or Swing Line Lenders) without the
written consent of the then Swing Line Lenders, (iv) amend, modify or waive any
provision of (x) subsection 2.5 (to the extent such subsection 2.5 relates to
the Tranche B Term Loans) without the written consent of Tranche B Term Loan
Lenders the Tranche B Term Loan Percentages of which aggregate at least a
majority, (y) subsection 2.5 (to the extent such subsection 2.5 relates to the
Tranche C Term Loans) without the written consent of Tranche C Term Loan
Lenders the Tranche C Term Loan Percentages of which aggregate at least a
majority, or (z) subsection 2.6 (to the extent subsection 2.6 relates to the
Specified Foreign Subsidiary Term Loans) without the written consent of the
Specified Foreign Subsidiary Lenders holding a majority of the outstanding
Specified Foreign Subsidiary Term Loans, (v) amend, modify or waive any
provision of subsection 2.1, 2.2, 2.3 or 2.4 or Section 3 without the written
consent of the Specified Revolving Credit Lenders the Specified Revolving
Credit Commitment Percentages of which aggregate at least a majority of the
outstanding Revolving Credit Commitments, (vi) amend, modify or waive any
provision of Section 10 without the written consent of each Agent, (vii) amend,
modify or waive any prepayment required by subsection 2.10(a), (b) or (c),
without the consent of Lenders having in the aggregate at least a majority of
the outstanding Term Loans, (viii) amend, modify or waive the order of
application of prepayments specified in subsection 4.4(b) without the consent
of (A) US Revolving Credit Lenders the Total Credit Percentages (calculated for
this purpose without reference to outstanding Tranche B Term Loans, Tranche C
Term Loans, or the Foreign Subsidiary Term Loans and outstanding Foreign
Revolving Credit Commitments) of which aggregate at least a majority, (B)
Specified Foreign Revolving Credit Lenders the Total Credit Percentages
(calculated for this purpose without reference to outstanding other Specified
Revolving Credit Commitments, Tranche B Term Loans, Tranche C Term Loans, or
the Foreign
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Subsidiary Term Loans) of which aggregate at least a majority, (C) Tranche B
Term Loan Lenders the Tranche B Term Loan Percentages of which aggregate at
least a majority, (D) Tranche C Term Loan Lenders the Tranche C Term Loan
Percentages of which aggregate at least a majority, and (E) Specified Foreign
Subsidiary Term Loan Lenders with respect to each class of Specified Foreign
Subsidiary Term Loans which hold a majority of the outstanding Specified
Foreign Subsidiary Term Loans of such class, (the US Lenders and the Foreign
Subsidiary Lenders referred to in clauses (A), (B), (C), (D), and (E),
collectively, the "Majority Class Lenders"), (ix) amend, modify or waive the
provisions of any Specified Accommodation or any Specified Accommodation
Obligation without the written consent of the Specified Issuing Lender and each
affected Specified Accommodation Participant, (x) amend, modify or waive any
provision of any Loan Document that provides for the ratable sharing by the
Secured Parties of the proceeds of any realization on the security for the
Obligations to provide for a non-ratable sharing thereof, without the consent
of the Majority Class Lenders, or (xi) amend, modify or waive any provision
herein that (A) affects the Revolving Credit Lenders, or Term Loan Lenders (or
any tranche thereof) only, without the prior written consent of a majority in
interest of the Revolving Credit Lenders, Term Loan Lenders (or tranche
thereof), as the case may be, (B) affects the Specified Lenders or Specified
Revolving Credit Lenders or Specified Term Lenders only, without the prior
written consent of a majority in interest of such Specified Lenders or
Specified Revolving Credit Lenders or Specified Term Lenders, as the case may
be, or (C) except as provided in the foregoing provisions of this subsection
12.1, adversely affects the rights and interests of any of the Specified
Lenders differently from those of any other class of Specified Lenders, without
the prior written consent of a majority in interest of each separate class of
Specified Lenders affected thereby. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall
be binding upon each of the Borrowers, the Agents, the Lenders, and all future
holders of any of the Obligations. In the case of any waiver, the Credit
Parties, the Lenders, and each of the Agents shall be restored to their former
position and rights hereunder and under the outstanding Loans and the other
Loan Documents, and any Default or Event of Default waived shall be deemed to
be cured and not continuing; but no such waiver shall extend to any subsequent
or other Default or Event of Default, or impair any right consequent thereon.
12.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or two (2) days after
being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of any Borrower,
Holdings and the Agents, the Issuing Lenders and the Swing Line Lenders, and as
set forth on the signature pages hereto or in any Joinder Agreement in the case
of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of the Loans
or any Notes:
The Borrowers: c/o Mills & Partners, Inc.
101 South Hanley Road
St. Louis, Missouri 63105
Attention: David Sindelar
Telecopy: (314) 746-2299
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with copies to: Hicks, Muse, Tate & Furst Incorporated
200 Crescent Court, Suite 1600
Dallas, Texas 75201
Attention: Lawrence D. Stuart, Jr.
Telecopy: (214) 740-7313
Holdings: c/o Mills & Partners, Inc.
101 South Hanley Road
St. Louis, Missouri 63105
Attention: David Sindelar
Telecopy: (314) 746-2299
with copies to: Hicks, Muse, Tate & Furst Incorporated
200 Crescent Court, Suite 1600
Dallas, Texas 75201
Attention: Lawrence D. Stuart, Jr.
Telecopy: (214) 740-7313
The Administrative The Chase Manhattan Bank
Agent, the US Loan & Agency Services Group
Issuing Lender or One Chase Manhattan Plaza, 8th Floor
US Swing Line New York, New York 10081
Lender: Attention: Janet Belden
Telecopy: (212) 552-5658
with copies to: The Chase Manhattan Bank
270 Park Avenue, 37th Floor
New York, New York 10017
Attention: Edmund DeForest
Telecopy: (212) 270-4584
The Canadian The Chase Manhattan Bank of Canada
Agent, the Canadian 1 First Canadian Place
Issuing Lender or Suite 6900, P.O. Box 106
Canadian Swing Line
Toronto, Ontario
Lender: Canada M5X 1A4
Attention: Amanda Staff
Telecopy: (416) 216-4162
with copies to: The Chase Manhattan Bank
270 Park Avenue, 37th Floor
New York, New York 10017
Attention: Edmund DeForest
Telecopy: (212) 270-4584
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The English Chase Manhattan International Limited
Agent, the English Trinity Tower
Issuing Lender: 9 Thomas More Street
London, England E19YT
Attention: Stephen Clark or Stephen Hurfford
Telecopy: 011 44 171 777 3840
with copies to: The Chase Manhattan Bank
270 Park Avenue, 37th Floor
New York, New York 10017
Attention: Edmund DeForest
Telecopy: (212) 270-4584
The Collateral The Chase Manhattan Bank
Agent: Loan & Agency Services Group
One Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Janet Belden
Telecopy: (212) 552-5658
provided that any notice, request or demand to or upon the Specified Agent or
the Specified Lenders pursuant to subsection 2.2, 2.4, 2.5, 2.7, 2.8, 2.11,
2.12, 2.13 or 4.4 shall not be effective until received.
12.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.
12.4 Survival of Representations and Warranties. All representations
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the making of the Specified Loans hereunder.
12.5 Payment of Expenses and Taxes. Each Specified Borrower agrees
(a) to pay or reimburse the Specified Agent for all reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and any Notes and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of
the transactions contemplated hereby and thereby, including, without
limitation, the reasonable fees and disbursements of counsel to the Specified
Agent, (b) to pay or reimburse each Specified Lender and the Specified Agent
for all its reasonable out-of-pocket costs and expenses incurred in connection
with the enforcement or preservation of any rights under this Agreement, any
Notes, the other Loan Documents and any such other documents, including,
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without limitation, the reasonable fees and disbursements of counsel to the
Specified Agent and, at any time after and during the continuance of an Event
of Default, of one counsel to all the Specified Lenders, and (c) to pay,
indemnify, and hold each Specified Lender and the Specified Agent (and their
respective directors, officers, employees and agents) harmless from, any and
all recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other similar taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, any Notes, the
other Loan Documents and any such other documents, and (d) to pay, indemnify,
and hold each Specified Lender and the Specified Agent (and their respective
directors, officers, employees and agents) harmless from and against any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance
and administration of this Agreement, any Notes, the other Loan Documents, the
Hong Kong Acquisition Documents, the Hong Kong Acquisition or the use of the
proceeds of the New Tranche C Term Loans in connection with the Hong Kong
Acquisitions and any such other documents (all the foregoing in this clause
(d), collectively, the "indemnified liabilities"), provided that the Specified
Borrower shall have no obligation hereunder to the Specified Agent, or any
Specified Lender (or their respective directors, officers, employees and
agents) with respect to indemnified liabilities arising from the gross
negligence or wilful misconduct of the indemnified party or, in the case of
indemnified liabilities arising under this Agreement, any Notes and the other
documents, from material breach by the indemnified party of this Agreement, any
Notes or the other Loan Documents, as the case may be. The agreements in this
subsection shall survive repayment of the Specified Loans and all other amounts
payable hereunder.
12.6 Successors and Assigns; Participations and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of the Borrowers, the
Lenders, Agents, and all future holders of the Loans and their respective
successors and assigns, except that no Borrower nor Holdings may, except as
permitted under subsection 8.5, assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Specified Lender may, in the ordinary course of its
commercial lending business and in accordance with applicable law, at any time
sell to one or more banks, insurance companies, mutual funds, or other
financial institutions or other entities ("Specified Participants")
participating interests in any Specified Loan owing to such Lender, any Note
held by such Lender, any Specified Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Specified Lender of a participating interest to a
Specified Participant, such Specified Lender's obligations under this Agreement
to the other parties to this Agreement shall remain unchanged, such Specified
Lender shall remain solely responsible for the performance thereof, such
Specified Lender shall remain the holder of any such Specified Loan for all
purposes under this Agreement and the other Loan Documents, and the Specified
Borrower and the Specified Agent shall continue to deal solely and directly
with such Specified Lender in connection with such Specified Lender's rights
and obligations under this Agreement and the other Loan Documents. No Specified
Lender shall permit any Specified Participant to have the right to consent to
any amendment or waiver in respect of this Agreement or any of the other Loan
Documents, except that such Lender may
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grant such Specified Participant the right to consent to any amendment or
waiver in respect of this Agreement or the other Loan Documents that would,
directly or indirectly, (i) reduce the aggregate amount or extend the final
maturity of any Specified Loan, or reduce the stated rate of any interest or
fee payable hereunder or extend the scheduled date of any payment thereof or
(ii) consent to the assignment or transfer by the Specified Borrower of any of
its rights and obligations under this Agreement or any of the other Loan
Documents. Each Specified Borrower agrees that if amounts outstanding under
this Agreement and the Specified Loans are due or unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an Event
of Default, each Specified Participant shall be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement and any Note to the same extent as if the amount of its participating
interest were owing directly to it as a Specified Lender under this Agreement
or any Note, provided that in purchasing such participating interest, such
Specified Participant shall be deemed to have agreed to share with the
Specified Lenders the proceeds thereof as provided in subsection 12.7(a) as
fully as if it were a Specified Lender hereunder. The Specified Borrower also
agrees that each Specified Participant shall be entitled to the benefits of
subsections 4.5, 4.6 and 4.7 with respect to its participation in the Specified
Commitments and the Specified Loans and Specified Accommodations outstanding
from time to time as if it was a Specified Lender; provided that in the case of
subsection 4.6 and 4.7, such Specified Participant shall have complied with the
requirements of said subsection and provided, further, that no Specified
Participant shall be entitled to receive any greater amount pursuant to any
such subsection than the transferor Specified Lender would have been entitled
to receive in respect of the amount of the participation transferred by such
transferor Specified Lender to such Specified Participant had no such transfer
occurred; and provided further that no Specified Participant with respect to a
Canadian Lender under this subsection 12.6(b) which is a non-resident of Canada
(as defined in the ITA) shall be entitled to the benefit of subsection 4.7.
(c) Any Specified Lender may, in the ordinary course of its
commercial lending business and in accordance with applicable law, at any time
and from time to time assign to any other Specified Lender of the same class or
any local affiliate or Approved Fund thereof or, with the consent of the
Specified Agent and the Specified Borrower (such consents not to be
unreasonably withheld), to an additional bank, mutual fund, or financial or
lending institution or any fund that is regularly engaged in making,
purchasing, or investing in loans or securities (a "Specified Assignee") all or
any part of its rights and obligations under this Agreement and any Specified
Notes pursuant to an Assignment and Acceptance, executed by such Specified
Assignee, such assigning Lender (and, in the case of a Specified Assignee that
is not then a Specified Lender of the same class or a local affiliate thereof,
by the Specified Agent) and delivered to the Specified Agent for its acceptance
and recording in the Specified Register; provided that (x) each such transfer
shall be in respect of a portion of such assigning Lender's rights and
obligations under this Agreement and any Specified Notes equal to or in excess
of the Equivalent Amount of $5,000,000 or, if such assigning Lender's
outstanding Commitment on the date of such assignment is less than the
Equivalent Amount of $5,000,000, the aggregate of such assigning Lender's
Commitments hereunder) unless otherwise agreed by the Specified Borrower and
the Specified Agent, (y) no Swing Line Lender may transfer any portion of its
Specified Swing Line Commitment without the consent of the Specified Borrower
(such consent not to be unreasonably withheld) and (z) any Chips Limited Term
Loan Lender shall only be permitted to assign all or any part of its rights and
obligations (with respect to its Specified Accommodation Participating Interest
in the Chips Letter of Credit to be converted to Chips Limited Term Loans
<PAGE> 128
122
or its outstanding Chips Limited Term Loans to US Borrower) to a US entity
which (i) satisfies subsection 4.7(d)(ii) or (ii) has an English affiliate,
branch or agency that satisfies subsection 4.7(d)(i). Upon such execution,
delivery, acceptance and recording, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the Specified
Assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Specified
Lender hereunder with Specified Commitments as set forth therein, and (y) the
assigning Specified Lender thereunder shall, to the extent provided in 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 Specified Lender's rights and obligations
under this Agreement, such assigning Specified Lender shall cease to be a party
hereto but shall continue to be entitled to the expense reimbursement and
indemnity provisions hereof for the period prior to such assignment). No
Assignee of a Canadian Lender under this subsection 12.6(c) which is a
non-resident of Canada (as defined in the ITA) shall be entitled to the benefit
of section 4.7.
(d) Each Specified Agent acting, for this purpose, as agent of the
Specified Borrower shall maintain at its address referred to in subsection 12.2
a copy of each Assignment and Acceptance delivered to it and a register (the
"Specified Register") for the recordation of the names and addresses of the
Specified Lenders and the Specified Commitments of, and principal amount of the
Specified Loans owing to, each Specified Lender from time to time. The entries
in the Specified Register shall be conclusive, in the absence of manifest
error, and the Borrowers, the Agents and the Lenders may treat each Person
whose name is recorded in the Specified Register as the owner of the Specified
Loans recorded therein for all purposes of this Agreement. No assignment or
transfer of any Specified Loan (or portion thereof) or any Specified Note and
the obligations evidenced thereby, shall be effected unless and until it has
been recorded in the Specified Register as provided in this subsection 12.6(d).
The Specified Register shall be available for inspection by the Borrowers or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Specified Lender and a Specified Assignee (and, in the case of a
Specified Assignee that is not, before such assignment, a Specified Lender or
an affiliate thereof, by the Specified Agent) together with payment, by a
Specified Assignee, to the Specified Agent of a registration and processing fee
of the Equivalent Amount of $4,000 if the Specified Assignee is not a Specified
Lender prior to the execution of the Specified Assignment and Acceptance and
$1,000 otherwise, the Specified Agent shall (i) promptly accept such Assignment
and Acceptance and (ii) on the effective date determined pursuant thereto
record the information contained therein in the Specified Register and give
notice of such acceptance and recordation to the assigning Specified Lender,
the Specified Assignee and the Specified Borrower. On or prior to such
effective date, if requested, the Specified Borrower, at its own expense, shall
execute and deliver to the Specified Agent (in exchange for any Specified
Revolving Credit Note, Specified Swing Line Note or Specified Term Note of the
assigning Specified Lender) a new Specified Revolving Credit Note, Specified
Swing Line Note or Specified Term Note, as the case may be, to the order of
such Specified Assignee in an amount equal to the Specified Revolving Credit
Commitment, Specified Swing Line Commitment or portion of the Specified Term
Loan, as the case may be, assumed by it pursuant to such Specified Assignment
and Acceptance and, if the assigning Specified Lender has retained a Specified
Revolving Credit Commitment, Specified Swing Line Commitment or
<PAGE> 129
123
portion of a Specified Term Loan hereunder, a new Specified Revolving Credit
Note, Specified Swing Line Note or Specified Term Note, as the case may be, to
the order of the assigning Specified Lender in an amount equal to the Specified
Revolving Credit Commitment or Specified Term Loan, as the case may be,
retained by it hereunder. Such new Specified Notes shall be in the form of the
Specified Note replaced thereby.
(f) The Specified Borrower authorizes each Specified Lender to
disclose to any Specified Participant or Specified Assignee (each, a "Specified
Transferee") and any prospective Specified Transferee any and all financial
information in such Specified Lender's possession concerning the Credit Parties
and their Affiliates which has been delivered to such Specified Lender by or on
behalf of the Credit Parties pursuant to this Agreement or which has been
delivered to such Specified Lender by or on behalf of the Credit Parties in
connection with such Specified Lender's credit evaluation of the Specified
Borrower and its Affiliates prior to becoming a party to this Agreement, under
the condition such Specified Transferee or prospective Specified Transferee
agrees to comply with the provisions of subsection 12.18.
(g) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection concerning assignments of Specified
Loans and Specified Notes relate only to absolute assignments and that such
provisions do not prohibit assignments creating security interests, including,
without limitation, any pledge or assignment by US Lender of any Loan or Note
to any Federal Reserve Bank in accordance with applicable law.
12.7 Adjustments; Set-off. (a) If any Specified Lender (a "benefitted
Specified Lender") shall at any time receive any payment of all or part of the
Specified Obligations owing to it or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in subsection 9(f), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Specified Lender, if any, in respect of the Specified Obligations owing to such
other Specified Lender, such benefitted Specified Lender shall purchase for
cash from the other Specified Lenders a participating interest in such portion
of the Specified Obligations owing to each such other Specified Lender, or
shall provide such other Specified Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Specified Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Specified Lenders; provided,
however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such benefitted Specified Lender, such purchase shall
be rescinded, and the purchase price and benefits returned, to the extent of
such recovery, but without interest.
(b) In addition to any rights and remedies of the Specified Lenders
provided by law, each Specified Lender shall have the right, without prior
notice to the Specified Borrower, any such notice being expressly waived by the
Specified Borrower to the extent permitted by applicable law, upon any amount
becoming due and payable by the Specified Borrower hereunder or under any
Specified Notes (whether at the stated maturity, by acceleration or otherwise)
to set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency,
and any other credits, indebtedness or claims, in any currency, in each case
whether direct or indirect, absolute or contingent, matured or unmatured, at
any time held or owing by such Specified Lender or any branch or agency thereof
<PAGE> 130
124
to or for the credit or the account of the Specified Borrower. Each Specified
Lender agrees promptly to notify the Specified Borrower and the Specified Agent
after any such set-off and application made by such Specified Lender, provided
that the failure to give such notice shall not affect the validity of such
set-off and application.
12.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with each of the Borrowers and Agents. The execution
and delivery of this Agreement by any Lender shall be binding upon each of its
successors and assigns (including Transferees of its commitments and Loans in
whole or in part prior to effectiveness hereof) and binding in respect of all
of its commitments and Loans, including any acquired subsequent to its
execution and delivery hereof and prior to the effectiveness hereof.
12.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Credit Parties and the Secured Parties with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by any of the Agents or any Lender relative to
the subject matter hereof not expressly set forth or referred to herein or in
the other Loan Documents.
12.11 Judgment Currency.
(a) If, for the purpose of obtaining or enforcing judgment against
any Credit Party in any court in any jurisdiction, it becomes necessary to
convert into any other currency (such other currency being hereinafter in
this subsection 12.11 referred to as the "Judgment Currency") an amount
due in a particular currency (the "Denominated Currency") under any Loan
Document, the conversion shall be made at the rate of exchange prevailing
on the Business Day immediately preceding the date of actual payment of
the amount due, in the case of any proceeding in the courts of any
jurisdiction that will give effect to such conversion being made on such
date, or the date on which the judgment is given, in the case of any
proceeding in the courts of the province of Ontario or in the courts of
any other jurisdiction (the applicable date as of which such conversion is
made pursuant to this subsection 12.11 being hereinafter in this
subsection 12.11 referred to as the "Judgment Conversion Date").
(b) If, in the case of any proceeding in the court of any
jurisdiction referred to in subsection 12.11(a), there is a change in the
rate of exchange prevailing between the Judgment Conversion Date and the
time of actual receipt of the amount due in immediately available funds,
the applicable Credit Party shall pay such additional amount (if any, but
in any event not a lesser amount) as may be necessary to ensure that the
amount actually received in the Judgment Currency, when converted at the
rate of exchange prevailing on the date of payment, will produce the
amount of Denominated Currency which could have been purchased with the
amount of the
<PAGE> 131
125
Judgment Currency stipulated in the judgment or judicial order at the rate
of exchange prevailing on the Judgment Conversion Date.
(c) Any amount due from any Credit Party under this subsection 12.11
shall be due as a separate debt and shall not be affected by judgment
being obtained for any other amounts due under or in respect of any of the
Loan Documents.
(d) The term "rate of exchange" in this subsection 12.11 means the
spot rate of exchange at which the Specified Agent would, on the relevant
date at or about 12:00 noon, be prepared to sell Denominated Currency
against the Judgment Currency.
12.12 Risks of Superior Force. Each of the Credit Parties expressly
assumes all risks of superior force, such that it shall be bound to timely
execute each and every of its obligations under this Agreement notwithstanding
the existence or occurrence of any event or circumstance constituting a
superior force within the meaning of Article 1693 of the Civil Code of Quebec.
12.13 Language. The parties hereto have agreed that this Agreement as
well as any document or instrument relating thereto be drawn up in English
only. Les parties aux presentes ont convenu que la presente Convention ainsi
que tous autres actes ou documents s'y rattachant soient rediges en anglais
seulement.
12.14 GOVERNING LAW. THIS AGREEMENT AND ANY NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND ANY NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
12.15 Submission To Jurisdiction; Waivers. Each of the Borrowers and
Holdings hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgement
in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to Holdings
or such Borrower at their respective addresses set forth in subsection
12.2 or at such other address of which any Agent shall have been notified
pursuant thereto;
<PAGE> 132
126
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this subsection any special, exemplary, punitive or consequential
damages.
(f) with respect to the Foreign Subsidiary Borrowers, appoints
Viasystems, Inc., 101 South Hanley Road, Suite 400, St. Louis, Missouri
63105, as its agent (the "Process Agent") to receive on its behalf service
of copies of the summons and complaint and any other process that may be
served in any such proceeding. Service may be made on the Process Agent at
its address specified above or on the Specified Foreign Subsidiary
Borrower at its address specified hereunder, in each case in the manner
provided for the giving of notices in subsection 12.2 hereof.
12.16 Acknowledgements. Each of the Borrowers and Holdings hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and any Notes and the other Loan Documents;
(b) no Secured Party has any fiduciary relationship with or duty to
the Credit Parties arising out of or in connection with this Agreement or
any of the other Loan Documents, and the relationship between the Secured
Parties, on one hand, and the Credit Parties, on the other hand, in
connection herewith or therewith is solely that of creditor and debtor;
and
(c) no joint venture exists among the Secured Parties or among the
Credit Parties and the Secured Parties.
12.17 WAIVERS OF JURY TRIAL. HOLDINGS, EACH BORROWER, THE LENDERS,
AND EACH AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY NOTES OR ANY
OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
12.18 Confidentiality. Each Specified Lender agrees to keep
confidential any information obtained by it pursuant hereto and the other Loan
Documents identified as confidential in writing at the time of delivery in
accordance with such Lender's customary practices and agrees that it will only
use such information in connection with the transactions contemplated by this
Agreement and not disclose any of such information other than (a) to such
Lender's officers, directors, employees, representatives, attorneys, agents or
affiliates who are advised of the confidential nature of such information, (b)
to the extent such information presently is or hereafter becomes available to
such Lender on a non-confidential basis from any source or such information
that is in the public domain at the time of disclosure, (c) to the extent
disclosure is required by law, regulation, subpoena or judicial order or
process (provided that notice of such
<PAGE> 133
127
requirement or order shall be promptly furnished to the Specified Borrower
unless such notice is legally prohibited) or requested or required by bank
regulators or auditors or any administrative body, commission, or other
Governmental Authority to whose jurisdiction such Lender may be subject, (d) to
assignees or participants or potential assignees or participants or to
professional advisors or direct or indirect contractual counterparties in swap
agreements provided in each case such Person agrees to be bound by the
provisions of this subsection 12.18, (e) to the extent required in connection
with any litigation between any Credit Party and any Specified Lender with
respect to the Specified Loans or this Agreement and the other Loan Documents,
(f) to rating agencies, their employees, representatives, attorneys, agents or
affiliates who are advised of the confidential nature of such information and
agree to be bound by provisions of this subsection 12.18, (g) to the National
Association of Insurance Commissioners and (h) with the Specified Borrower's
prior written consent. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED,
HEREIN, THE AGENTS, THE LENDERS AND THE ISSUING LENDERS AGREE THAT NO PUBLIC
ANNOUNCEMENT, CIRCULAR OR ADVERTISEMENT SHALL BE MADE, ISSUED OR PUBLISHED BY
ANY OF THEM DISCLOSING ANY OF THE TERMS OF OR THE SELLER TO THE CHIPS
ACQUISITION. FOR PURPOSES OF THE IMMEDIATELY PRECEDING SENTENCE THE PROVISION
OF INFORMATION TO ANY NEWSPAPER, MAGAZINE OR ANY OTHER FORM OF MEDIA SHALL
CONSTITUTE THE MAKING, ISSUANCE OR PUBLICATION OF A PUBLIC ANNOUNCEMENT,
CIRCULAR OR ADVERTISEMENT. The agreements in this subsection shall survive
repayment of the Specified Loans and all other amounts payable hereunder.
12.19 Sharing Agreement. Notwithstanding anything to the contrary
contained in this Agreement, any of the other Loan Documents, or the Sharing
Agreement, the Credit Parties and their respective Subsidiaries are not a party
to and shall not be bound by the Sharing Agreement.
12.20 No Guarantee of Domestic Obligations by Foreign Subsidiaries of
US Borrower. Notwithstanding anything herein to the contrary or in any of the
other Loan Documents, no Foreign Subsidiary of the US Borrower guarantees the
Domestic Obligations and none of the assets of any Foreign Subsidiary secure or
shall be used to pay the Domestic Obligations; provided that each of Viasystems
Cayman and Viasystems Luxembourg may (a) guarantee the Domestic Obligations and
(b) use its assets to secure and pay the Domestic Obligations.
12.21 Application of Indentures. The US Borrower represents,
acknowledges and agrees that (a) the incurrence of the New Tranche C Term Loans
is permitted under Section 4.3(a) of each of the indentures to the Senior
Subordinated Notes and the borrowing of the New Tranche C Term Loans will be
made pursuant thereto and (b) for all purposes of such indentures it is not
intended that the New Tranche C Term Loans be treated as a borrowing under the
Credit Agreement.
12.22 Chips Prepayment. The US Borrower hereby agrees to make a
prepayment (the "Chips Prepayment"), subject to and effective upon the
effectiveness of this Agreement, of the installment payments in respect of the
Chips Limited Term Loans and the Chips Acquisition Term Loans and to cash
collateralize the related reimbursement obligations in respect of the Chips
Letter of Credit, all as provided for in subsections 2.5(c) and (d) of the
Existing Credit
<PAGE> 134
128
Agreement, in the aggregate amount of $100,000,000. The Chips Prepayment shall
be applied to such installments and such cash collateralization obligations in
direct order of maturity and ratably as between the Chips Limited Term Loans
and the Chips Acquisition Term Loans (including, in each case, the related cash
collateralization required for the reimbursement obligations in respect of to
Chips Letter of Credit). The Required Lenders hereby waive the provisions of
subsection 2.9 to the extent such provisions require application of such
prepayment in a manner inconsistent with this subection 12.22 (without
affecting the availability of the $10,000,000 optional applications provided
for therein).
12.23 Consent of Additional Tranche C Term Loan Lenders. The Lenders
executing and delivering this Agreement hereby agree on behalf of themselves
and their successors and assignees (including any direct or indirect Assignee
or Transferees) that they will not execute and deliver, or consent to, any
amendment, modification or waiver of this Agreement if such amendment,
modification or waiver (a) is described in subsection 12.1(b)(vii) without the
consent of the New Tranche C Term Loan Lenders constituting, when added to the
other consenting Lenders, Lenders having in the aggregate at least a majority
of the outstanding Term Loans, (b) is described in subsection 12.1(b) (viii) or
12.1(b)(x) without the consent of the New Tranche C Term Loan Lenders, the New
Tranche C Term Loan Percentages of which aggregate at least a majority or (c)
amends, modifies or waives any provision of subsection 2.5 (to the extent such
subsection relates to the New Tranche C Term Loans) without the written consent
of the New Tranche C Term Loan Lenders, the New Tranche C Term Loan Percentages
of which aggregate at least a majority.
<PAGE> 135
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
VIASYSTEMS GROUP, INC.,
as Guarantor
By:
--------------------------------------
Name:
Title:
BORROWERS
VIASYSTEMS, INC.,
as US Borrower
By:
--------------------------------------
Name:
Title:
VIASYSTEMS CANADA, INC.,
as Canadian Borrower
By:
--------------------------------------
Name:
Title:
PCB INVESTMENTS PLC,
as English Bidco
By:
--------------------------------------
Name:
Title:
<PAGE> 136
VIASYSTEMS HOLDINGS LIMITED,
as English Borrower
By:
--------------------------------------
Name:
Title:
CHIPS ACQUISITION LIMITED,
as a Foreign Subsidiary Borrower
By:
--------------------------------------
Name:
Title:
PRINT SERVICE HOLDING N.V.,
as a Foreign Subsidiary Borrower
By:
--------------------------------------
Name:
Title:
VIASYSTEMS II LIMITED,
as a Foreign Subsidiary Borrower
By:
--------------------------------------
Name:
Title:
<PAGE> 137
AGENTS
THE CHASE MANHATTAN BANK,
as Administrative Agent and Collateral
Agent, and as a Lender
By:
--------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
OF CANADA, as Canadian Agent,
and as a Canadian Lender
By:
--------------------------------------
Name:
Title:
CHASE MANHATTAN INTERNATIONAL
LIMITED, as English Agent
By:
--------------------------------------
Name:
Title:
CHASE MANHATTAN BANK DELAWARE,
as a US Issuing Lender
By:
--------------------------------------
Name:
Title:
<PAGE> 138
US LENDERS
ABN AMRO BANK N.V.
By:
--------------------------------------
Its:
-------------------------------------
By:
--------------------------------------
Its:
-------------------------------------
ALLSTATE LIFE INSURANCE
COMPANY
By:
--------------------------------------
Name:
Title:
ALLSTATE INSURANCE COMPANY
By:
--------------------------------------
Name:
Title:
AMARA-1 FINANCE LTD.
By:
--------------------------------------
Name:
Title:
AMARA-2 FINANCE LTD.
By:
--------------------------------------
Name:
Title:
<PAGE> 139
ARAB BANKING CORPORATION (B.S.C.)
By:
--------------------------------------
Name:
Title:
BANK OF MONTREAL
By:
--------------------------------------
Title:
THE BANK OF NEW YORK
By:
--------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
--------------------------------------
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
<PAGE> 140
BANKBOSTON, N.A.
By:
--------------------------------------
Name:
Title:
BANKERS TRUST
By:
--------------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS, NEW YORK
BRANCH
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
BHF BANK AKTIENGESELLSCHAFT
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
<PAGE> 141
BHF (USA) CAPITAL CORPORATION
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
BALANCED HIGH-YIELD FUND I LIMITED
BY: BHF (USA) CAPITAL CORPORATION,
acting through its New York branch as
attorney-in-fact
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
BALANCED HIGH-YIELD FUND II
BY: BHF (USA) CAPITAL CORPORATION,
acting as attorney-in-fact
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
BOEING CAPITAL CORPORATION
By:
--------------------------------------
Name:
Title:
<PAGE> 142
CERES FINANCE LTD.
By:
--------------------------------------
Name:
Title:
CIBC INC.
By:
--------------------------------------
Name:
Title:
CITIBANK, N.A.
By:
--------------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
CRESCENT/MACH I PARTNERS, L.P.
by: TCW Asset Management Company
Its Investment Manager
By:
--------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
on behalf of PIMCO LANGDALE LLC
By:
--------------------------------------
Name:
Title:
<PAGE> 143
CYPRESS TREE SENIOR FLOATING RATE
FUND
By: Cypress Tree Investment Management
company, Inc.
as Portfolio Manager
By:
--------------------------------------
Name:
Title:
DLJ CAPITAL FUNDING, INC.
By:
--------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO
By:
--------------------------------------
Name:
Title:
FRANKLIN FLOATING RATE TRUST
By:
--------------------------------------
Name:
Title:
<PAGE> 144
FREMONT INVESTMENT & LOAN
By:
--------------------------------------
Name:
Title:
THE FUJI BANK LIMITED,
NEW YORK BRANCH
By:
--------------------------------------
Name:
Title:
GOLDMAN SACHS CREDIT PARTNERS
By:
--------------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING III
By:
--------------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF
JAPAN, LIMITED
By:
--------------------------------------
Name:
Title:
<PAGE> 145
KEMPER FLOATING RATE FUND
By:
--------------------------------------
Name:
Title:
KZH SOLEIL LLC
(formerly known as KZH Holding
Corporation)
By:
--------------------------------------
Name:
Title:
KZH CRESCENT LLC
By:
--------------------------------------
Name:
Title:
KZH CRESCENT-3 LLC
By:
--------------------------------------
Name:
Title:
KZH CYPRESSTREE-1 LLC
By:
--------------------------------------
Name:
Title:
<PAGE> 146
KZH HIGHLAND-2 LLC
By:
--------------------------------------
Name:
Title:
KZH PAMCO LLC
By:
--------------------------------------
Name:
Title:
KZH SHENKMAN LLC
By:
--------------------------------------
Name:
Title:
KZH CRESCENT-2 LLC
By:
--------------------------------------
Name:
Title:
KZH ING-3 LLC
By:
--------------------------------------
Name:
Title:
KZH SOLEIL-2 LLC
By:
--------------------------------------
Name:
Title:
KZH III LLC
By:
--------------------------------------
Name:
Title:
<PAGE> 147
THE LONG-TERM CREDIT BANK
OF JAPAN, LIMITED
By:
--------------------------------------
Name:
Title:
MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC.
By:
--------------------------------------
Name:
Title:
MERRILL LYNCH SENIOR FLOATING RATE
FUND II, INC.
By:
--------------------------------------
Name:
Title:
THE MITSUBISHI TRUST &
BANKING CORPORATION
By:
--------------------------------------
Name:
Title:
MORGAN STANLEY DEAN WITTER
PRIME INCOME TRUST
By:
--------------------------------------
Name:
Title:
<PAGE> 148
NATEXIS BANQUE BFCE, FORMERLY
BANQUE FRANCAISE DU
COMMERCE EXTERIEUR
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
NATIONAL BANK OF CANADA
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
NATIONAL WESTMINSTER
BANK Plc
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
<PAGE> 149
NORTH AMERICAN SENIOR FLOATING RATE
FUND
By: Cypress Tree Investment Management
Company, Inc.
as Portfolio Manager
By:
--------------------------------------
Name:
Title:
OCTAGON LOAN TRUST
By: Octagon Credit Investors, as Manager
By:
--------------------------------------
Name:
Title:
OLYMPIC FUNDING TRUST, SERIES 1999-1
By:
--------------------------------------
Name:
Title:
ORIX USA CORPORATION
By:
--------------------------------------
Name:
Title:
<PAGE> 150
PAMCO CAYMAN LTD.
By: Highland Capital Management L.P.,
as Collateral Manager
By:
--------------------------------------
Name:
Title:
PILGRIM PRIME RATE TRUST
By:
--------------------------------------
Name:
Title:
ROYAL BANK OF CANADA
By:
--------------------------------------
Name:
Title:
THE SAKURA BANK, LIMITED
By:
--------------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
By:
--------------------------------------
Name:
Title:
<PAGE> 151
SEQUILS I, LTD.
By: TCW Advisors, Inc. as its
Collateral Manager
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
STANFIELD CLO, LTD.
By: Stanfield Capital Partners LLC
as its Collateral Manager
By:
--------------------------------------
Name:
Title:
STRATA FUNDING LTD.
By:
--------------------------------------
Name:
Title:
TYLER TRADING, INC.
By:
--------------------------------------
Name:
Title:
<PAGE> 152
TORONTO DOMINION (TEXAS), INC.
By:
--------------------------------------
Name:
Title:
UNITED OF OMAHA LIFE INSURANCE
COMPANY
By: TCW Asset Management Company,
its Investment Advisor
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
VAN KAMPEN PRIME RATE
INCOME TRUST
By:
--------------------------------------
Name:
Title:
VAN KAMPEN SENIOR
INCOME TRUST
By:
--------------------------------------
Name:
Title:
<PAGE> 153
CANADIAN LENDERS
BANK OF MONTREAL
By:
--------------------------------------
Title:
THE BANK OF NOVA SCOTIA
By:
--------------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI
(CANADA)
By:
--------------------------------------
Name:
Title:
BT BANK OF CANADA
By:
--------------------------------------
Name:
Title:
<PAGE> 154
BANQUE NATIONALE DE PARIS (CANADA)
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By:
--------------------------------------
Name:
Title:
CITIBANK CANADA
By:
--------------------------------------
Name:
Title:
FIRST CHICAGO NBD BANK, CANADA
By:
--------------------------------------
Name:
Title:
FUJI BANK CANADA
By:
--------------------------------------
Name:
Title:
GOLDMAN SACHS CANADA CREDIT
PARTNERS
By:
--------------------------------------
Name:
Title:
<PAGE> 155
NATIONAL BANK OF CANADA
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
ROYAL BANK OF CANADA
By:
--------------------------------------
Name:
Title:
THE SAKURA BANK (CANADA)
By:
--------------------------------------
Name:
Title:
<PAGE> 156
ENGLISH LENDERS
THE CHASE MANHATTAN BANK
By:
--------------------------------------
Title:
BHF (USA) CAPITAL CORPORATION
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
BALANCED HIGH-YIELD FUND I LIMITED
BY: BHF (USA) CAPITAL CORPORATION,
acting through its New York branch as
attorney-in-fact
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
BANK OF MONTREAL
By:
--------------------------------------
Title:
<PAGE> 157
THE BANK OF NOVA SCOTIA
By:
--------------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS, LONDON
BRANCH
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
CIBC WOOD GUNDY PLC
By:
--------------------------------------
Name:
Title:
CITIBANK, N.A.
By:
--------------------------------------
Name:
Title:
BANKBOSTON, N.A.
By:
--------------------------------------
Name:
Title:
<PAGE> 158
NATEXIS BANQUE BFCE, FORMERLY
BANQUE FRANCAISE DU
COMMERCE EXTERIEUR
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
NATIONAL WESTMINSTER
BANK Plc
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
ROYAL BANK OF CANADA
By:
--------------------------------------
Name:
Title:
SAKURA BANK, LIMITED LONDON BRANCH
By:
--------------------------------------
Name:
Title:
GOLDMAN SACHS
CREDIT PARTNERS CO.
By:
--------------------------------------
Name:
Title:
<PAGE> 159
ADMINISTRATIVE SCHEDULE TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
I. Available Currencies.
US Borrower: Dollars.
Canadian Borrower: Canadian Dollars, and, with respect to the Canadian
Revolving Credit Loans and Letters of Credit, Dollars.
English Borrower, English Bidco and ISL: Pounds Sterling
Chips Limited: Pounds Sterling, Deutsche Marks
Print Service: Dutch Guilders, Deutsche Marks
II. Base Rates and Interest Payment Dates.
US Borrower: "Alternate Base Rate": 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%. For purposes hereof: "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; "Base CD Rate" shall mean the sum of (a) the product of
(i) the Three-Month Secondary CD Rate and (ii) a fraction, the numerator
of which is one and the denominator of which is one minus the C/D Reserve
Percentage and (b) the C/D Assessment Rate; "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; and "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 which is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative
Agent from
<PAGE> 160
3
three federal funds brokers of recognized standing selected by it. 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 or failure of the Administrative
Agent to obtain sufficient quotations in accordance with the terms thereof,
the Alternate Base Rate shall be determined without regard to clause (b) or
(c), or both, of the first sentence of this definition, 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 day of such change in the Prime Rate, the Base CD Rate or the
Federal Funds Effective Rate, respectively; "C/D Assessment Rate" shall
mean for any day as applied to the Base CD Rate, the net annual assessment
rate (rounded upward to the nearest 1/100th of 1%) determined by the
Administrative Agent to be payable on such day to the Federal Deposit
Insurance Corporation or any successor ("FDIC") for FDIC's insuring time
deposits made in Dollars at offices of the Administrative Agent in the
United States; and "C/D Reserve Percentage" shall mean, for any day as
applied to the CD Base Rate, that percentage (expressed as a decimal) which
is in effect on such day, as prescribed by the Board, for determining the
maximum reserve requirement for a member bank of the Federal Reserve System
in New York City with deposits exceeding one billion Dollars in respect of
new non-personal time deposits in Dollars in New York City having a three
month maturity and in an amount of $100,000 or more.
Interest shall be payable on the last day of each March, June, September,
and December and shall be calculated on the basis of 360 days when based
on the Federal Funds Effective Rate or the CD Base Rate.
Canadian Borrower: For Canadian Dollars: "C$ Prime Rate": on any day, the
annual rate of interest (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the greater of:
(a) the annual rate of interest determined by the Canadian Agent as
the annual rates of interest announced from time to time by the
Canadian Agent as its Prime Rate in effect at its principal
office in Toronto on such day for determining interest rates on
C$ denominated commercial loans in Canada; and
(b) the annual rate of interest equal to the sum of (A) the CDOR
Rate in effect on such day and (B) 1%. To the extent that the C$
Prime Rate as determined under (a) above is not available, the
C$ Prime Rate will be determined in accordance with subsection
(b) above.
"CDOR Rate": on any date, the annual rate of interest which is
the rate based on an average rate applicable to C$ bankers'
acceptances for a term of 30 days (in the case of the definition of
"C$ Prime Rate") appearing on the "Reuters Screen CDOR Page" (as
defined in the International Swaps and Derivatives Association, Inc.
definitions, as modified and amended from time to time) at
<PAGE> 161
4
approximately 10:00 a.m., (Toronto time), on such date, or if such
date is not a Business Day, then on the immediately preceding
Business Day; provided, however, if such rate does not appear on the
Reuters Screen CDOR Page as contemplated, then the CDOR Rate on any
date shall be calculated as the arithmetic mean of the rates for the
term referred to above applicable to C$ bankers' acceptances quoted
by the Canadian Reference Lenders as of 10:00 a.m., (Toronto time),
on such date, or if such date is not a Business Day, then on the
immediately preceding Business Day.
Interest shall be payable on the last day of each March, June, September,
and December and shall be calculated on the basis of a 365 or 366 day year
when based on the C$ Prime Rate.
Canadian Borrower: For Dollars: "Canadian Alternate Base Rate": on any
day, the annual rate of interest (rounded upwards, if necessary, to the
nearest 1/16 of 1%) equal to the greater of:
(i) the annual rate of interest determined by the Canadian Agent as
being the rate of interest announced from time to time by the
Canadian Agent as its prime reference rate in effect on such day
for determining interest rates on US$ denominated commercial
loans in Canada; and
(ii) the annual rate of interest equal to the sum of (A) the Federal
Funds Effective Rate and (B) 0.5%
Interest shall be payable on the last day of each March, June, September,
and December and shall be calculated on the basis of a 365 or 366 day year
when based on the Canadian Alternate Base Rate.
English Borrower and Chips Limited: For Pounds Sterling, the annual rate
of interest determining by the English Agent as being the rate of interest
amended from time to time as its prime reference rate in effect on such date
for determining interest rates on Pounds Sterling commercial loans in England.
English Bidco, ISL, and Print Service: None.
III. Eurocurrency Base Rates and Interest Periods.
US Borrower: "Eurocurrency Base Rate": with respect to each day during
each Interest Period pertaining to a Eurocurrency Loan, the rate per annum
equal to the rate at which the Administrative Agent is offered Dollar
deposits at or about 10:00 a.m., New York City time, two Business Days
prior to the beginning of such Interest Period in the interbank eurodollar
market where the eurodollar and foreign currency and exchange operations
in respect of its Eurocurrency Loans are then being conducted for delivery
on the first day of such Interest Period for the number of days comprised
therein and in an
<PAGE> 162
5
amount comparable to the amount of its Eurocurrency Loan to be outstanding
during such Interest Period.
Permitted Interest Periods shall be one, two, three, six or to the extent
available to all US Lenders, nine or twelve months and interest shall be
calculated on the basis of a 360-day year.
Canadian Borrower: For Dollars only: "Eurocurrency Base Rate": with
respect to each day during each Interest Period pertaining to a
Eurocurrency Loan, the rate per annum equal to the rate at which the
Canadian Agent is offered Dollar deposits at or about 10:00 a.m., Toronto
time, two Business Days prior to the beginning of such Interest Period in
the interbank eurodollar market where the eurodollar and foreign currency
and exchange operations in respect of its Eurocurrency Loans are then
being conducted for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable to the
amount of its Eurocurrency Loan to be outstanding during such Interest
Period.
Permitted Interest Periods shall be one, two, three, six or to the extent
available to all Canadian Lenders, nine or twelve months and interest
shall be based on a 360 day year when based on the Eurocurrency Base Rate.
English Borrower, English Bidco, ISL and Chips Limited: "Eurocurrency Base
Rate": with respect to each day during each Interest Period pertaining to
a Loan, a rate per annum (rounded upward to the nearest 1/100th of 1%)
equal to the sum of (a) LIBOR for such Interest Period and (b) the rate
per annum calculated by the English Agent in accordance with Schedule
1.1(B); "LIBOR" means in relation to any Interest Period, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100th of 1%) quoted
at or about 11:00 a.m., London time, on the Quotation Date for such period
on that page of the Telerate Screen which displays British Bankers
Association Interest Settlement Rates for deposits in Pounds Sterling of
the equivalent amount for such period (such page being currently 3750) or,
if such page or such service shall cease to be available, such other page
or such other service (as the case may be) for the purpose of displaying
British Bankers Association Interest Settlement Rates for Pounds Sterling
as the English Agent, after consultation with the Lenders and the
Borrower, shall select provided that if no such rate is displayed for
Pounds Sterling and the relevant period and the English Agent has not
selected an alternative service on which two or more such quotations are
displayed, "LIBOR" shall mean the arithmetic mean (rounded upwards, if
necessary, to the nearest 1/100th of 1%) of the rates (as notified to the
English Agent) at which each of the Reference Banks was offering to prime
banks in the London Interbank Market deposits in Pounds Sterling of such
amount and for such period at or about 11:00 a.m., London time, on the
Quotation Date for such period; "Reference Banks" means the principal
London offices of The Chase Manhattan Bank and/or such other bank or banks
as may from time to time be agreed between the English Agent and the
English Borrower; and "Quotation Date" means in relation to any period for
which an interest rate is to be determined hereunder, the day on which
quotations would ordinarily be given by prime banks in the London
Interbank Market for deposits in the currency in relation to which such
rate is to
<PAGE> 163
6
be determined for delivery on the first day of that period, provided that,
if, for any such period, quotations would ordinarily be given on more than
one date, the Quotation Date for that period shall be the last of those
dates.
Permitted Interest Periods shall be one, two, three, six or to the extent
agreed to by all the English Lenders such other periods as may be
available.
Chips Limited (for borrowings in Deutsche Marks): "Eurocurrency Base
Rate": with respect to each day during each Interest Period pertaining to
a Eurocurrency Loan, the rate per annum determined by the Administrative
Agent to be the arithmetic mean (rounded to the nearest 1/100th of 1%) of
the offered rates for Deutsche Mark deposits with a term comparable to
such Interest Period that appears on the Telerate British Bankers Assoc.
Interest Settlement Rates Page (as defined below) at approximately 11:00
A.M., London time, on the second full Business Day preceding the first day
of such Interest Period; provided, however, that if there shall at any
time no longer exist a Telerate British Bankers Assoc. Interest Settlement
Rates Page, "Eurocurrency Base Rate" shall mean, with respect to each day
during each Interest Period pertaining to a Eurocurrency Loan, the rate
per annum equal to the rate at which Chase is offered Deutsche Mark
deposits at or about 10:00 A.M., New York City time, two Business Days
prior to the beginning of such Interest Period in the interbank
eurocurrency market where the eurocurrency and foreign currency and
exchange operations in respect of its Eurocurrency Loans are then being
conducted for delivery on the first day of such Interest Period for the
number of days comprised therein and in an amount comparable to the amount
of its Eurocurrency Loan to be outstanding during such Interest Period.
"Telerate British Bankers Assoc. Interest Settlement Rates Page" shall
mean the display designated as Dow Jones Market Page 3750 (or such other
page as may replace such page for the purpose of displaying the rates at
which Deutsche Mark deposits are offered by leading banks in the London
interbank deposit market).
Permitted Interest Periods shall be one, two, three, six or to the extent
agreed to by the English Lenders such other periods as may be available.
Print Service: "Eurocurrency Base Rate": with respect to each day during
each Interest Period pertaining to a Eurocurrency Loan, the rate per annum
determined by the Administrative Agent to be the arithmetic mean (rounded
to the nearest 1/100th of 1%) of the offered rates for Dutch Guilder or
Deutsche Mark, as the case may be, deposits with a term comparable to such
Interest Period that appears on the Telerate British Bankers Assoc.
Interest Settlement Rates Page (as defined below) at approximately 11:00
A.M., London time, on the second full Business Day preceding the first day
of such Interest Period; provided, however, that if there shall at any
time no longer exist a Telerate British Bankers Assoc. Interest Settlement
Rates Page, "Eurocurrency Base Rate" shall mean, with respect to each day
during each Interest Period pertaining to a Eurocurrency Loan, the rate
per annum equal to the rate at which Chase is offered Dutch Guilder, or
Deutsche Mark, as the case may be, deposits at or about 10:00 A.M., New
York City time, two Business Days prior to the beginning of such Interest
Period in the interbank eurocurrency market where the eurocurrency and
foreign currency and exchange operations in respect
<PAGE> 164
7
of its Eurocurrency Loans are then being conducted for delivery on the
first day of such Interest Period for the number of days comprised therein
and in an amount comparable to the amount of its Eurocurrency Loan to be
outstanding during such Interest Period. "Telerate British Bankers Assoc.
Interest Settlement Rates Page" shall mean the display designated as Dow
Jones Market Page 3750 (or such other page as may replace such page for
the purpose of displaying the rates at which Dutch Guilder or Deutsche
Mark, as the case may be, deposits are offered by leading banks in the
London interbank deposit market).
Permitted Interest Periods shall be one, two, three, six or to the extent
agreed to by all the English Lenders such other periods as may be
available.
IV. Available Accommodations
US Borrower: Letters of Credit in an amount not to exceed $40,000,000
Canadian Borrower: Letters of Credit in an amount not to exceed $15,000,000
or the Equivalent Amount thereof in C$.
English Borrower: Letters of Credit and Bankers' Acceptances in an amount
not to exceed L.5,000,000.
ISL: Letters of Credit in an amount not to exceed
L.10,000,000.
Chips Limited
and Print Service: N/A.
V. Swing Line Lenders
US Borrower: Chase in an amount not to exceed $10,000,000
Canadian Borrower: Chase Canada in an amount not to exceed $5,000,000 or
the Equivalent Amount thereof in C$.
English Borrower, and Chips Limited: Chase Manhattan International Limited
in an amount and to exceed
L.5,000,000.
English Bidco, ISL, and Print Service: N/A
VI. Cash Equivalents.
Dollars. (a) securities with maturities of one year or less from the date
of acquisition issued or fully guaranteed or insured by the United States
Government or any agency thereof, (b) certificates of deposit, time
deposits, overnight bank deposits, bankers
<PAGE> 165
8
acceptances and repurchase agreements of any commercial bank which has, or
whose obligations are guaranteed by an affiliated commercial bank which
has capital and surplus in excess of $500,000,000 having maturities of one
year or less from the date of acquisition, (c) commercial paper of an
issuer rated at least A-2 by Standard & Poor's Corporation or P-2 by
Moody's Investors Service, Inc., or carrying an equivalent rating by a
nationally recognized rating agency if both of the two named rating
agencies cease publishing ratings of investments, (d) money market
accounts or funds with or issued by Qualified Issuers, (e) repurchase
obligations with a term of not more than 90 days for underlying securities
of the types described in clause (a) above entered into with any bank
meeting the qualifications specified in clause (b) above, and (f) demand
deposit accounts maintained in the ordinary course of business with any
Lender or with any bank that is not a Lender not in excess of $100,000 in
the aggregate on deposit with any such bank; "Qualified Issuer" means any
commercial bank (a) which has, or whose obligations are guaranteed by an
affiliated commercial bank which has, capital and surplus in excess of
$500,000,000 and (b) the outstanding short-term debt securities of which
are rated at least A-2 by Standard & Poor's Corporation or at least P-2 by
Moody's Investors Service, Inc., or carry an equivalent rating by a
nationally recognized rating agency if both of the two named rating
agencies cease publishing ratings of investments.
Canadian Dollars. (a) marketable direct obligations issued or
unconditionally guaranteed by the Government of Canada or any agency
thereof, maturing no more than one year after the date of acquisition
thereof; (b) marketable direct obligations issued or unconditionally
guaranteed by the governments of the Provinces of Canada or any agencies
thereof, maturing no more than one year after the date of acquisition
thereof and currently having a rating not lower than R-1 (mid), A-1,
Prime-2 or A-1 from any of Dominion Bond Rating Service Inc., Canadian
Bond Rating Service, Moody's Investors Service, Inc. or Standard & Poor's
Corporation, respectively; (c) commercial paper and banker's acceptances
maturing no more than 180 days after the date of creation thereof and
currently having a rating not lower than R-1 (mid), A-1, Prime-2 or A-1
from any of Dominion Bond Rating Service Inc., Canadian Bond Rating
Service, Moody's Investors Service, Inc. or Standard & Poor's Corporation,
respectively; and (d) certificates of deposit or time deposits, maturing
no more than 180 days after the date of creation thereof, issued by
commercial banks incorporated under the laws of Canada or the United
States of America, each having a rating not lower than R-1 (mid), A-1,
Prime-2 or A-1 from any of Dominion Bond Rating Service Inc., Canadian
Bond Rating Service, Moody's Investors Service, Inc. or Standard & Poor's
Corporation, respectively.
Pounds Sterling. (a) any credit balances, realizable within three (3)
months, on any bank or other deposit, savings or current account held in
the United Kingdom (or any other jurisdiction from which cash is readily
remittable to the United Kingdom); (b) cash in hand; (c) gilt edged
securities; (d) Sterling commercial paper maturing not more than twelve
(12) months from the date of issue and rated A-1 by Standard & Poor's
Corporation or P-1 by Moody's Investor Services Inc.; (e) any deposit with
or acceptance maturing not more than one (1) year after issue accepted by
an institution authorized under the Banking Act 1987 or a Bank; and (f)
Sterling denominated debt securities having not more than one (1) year
until final maturity and listed on a recognized stock
<PAGE> 166
9
exchange and rated at least AA by Standard & Poor's Corporation or Aa by
Moody's Investors Services Inc.
Deutsche Marks. (a) securities with maturities of one year or less from
the date of acquisition issued or fully guaranteed or insured by Germany
or any agency thereof, (b) certificates of deposit, time deposits,
overnight bank deposits, bankers acceptances and repurchase agreements of
any commercial bank which has, or whose obligations are guaranteed by an
affiliated commercial bank which has capital and surplus in excess of
$500,000,000 having maturities of one year or less from the date of
acquisition, (c) commercial paper or other short-term obligations for
borrowed money of any issuer in the Netherlands given the highest
short-term debt rating for German issuers by Standard & Poor's Corporation
or Moody's Investor Service, Inc. or other nationally recognized rating
agency, (d) money market accounts or funds with or issued by Qualified
Issuers, (e) repurchase obligations with a term of not more than 90 days
for underlying securities of the types described in clause (a) above
entered into with any bank meeting the qualifications specified in clause
(b) above, and (f) demand deposit accounts maintained in the ordinary
course of business with any Lender or with any bank that is not a Lender
not in excess of $100,000 in the aggregate on deposit with any such bank;
"Qualified Issuer" means any commercial bank (a) which has, or whose
obligations are guaranteed by an affiliated commercial bank which has,
capital and surplus in excess of $500,000,000 and (b) the outstanding
short-term debt securities of which are given the highest rating for
German issuers by Standard & Poor's Corporation or Moody's Investor
Service, Inc. or other nationally recognized rating agency.
Dutch Guilders. (a) securities with maturities of one year or less from
the date of acquisition issued or fully guaranteed or insured by the
Netherlands or any agency thereof, (b) certificates of deposit, time
deposits, overnight bank deposits, bankers acceptances and repurchase
agreements of any commercial bank which has, or whose obligations are
guaranteed by an affiliated commercial bank which has capital and surplus
in excess of $500,000,000 having maturities of one year or less from the
date of acquisition, (c) commercial paper or other short-term obligations
for borrowed money of any issuer in the Netherlands given the highest
short-term debt rating for Dutch issuers by Standard & Poor's Corporation
or Moody's Investor Service, Inc. or other nationally recognized rating
agency, (d) money market accounts or funds with or issued by Qualified
Issuers, (e) repurchase obligations with a term of not more than 90 days
for underlying securities of the types described in clause (a) above
entered into with any bank meeting the qualifications specified in clause
(b) above, and (f) demand deposit accounts maintained in the ordinary
course of business with any Lender or with any bank that is not a Lender
not in excess of $100,000 in the aggregate on deposit with any such bank;
"Qualified Issuer" means any commercial bank (a) which has, or whose
obligations are guaranteed by an affiliated commercial bank which has,
capital and surplus in excess of $500,000,000 and (b) the outstanding
short-term debt securities of which are given the highest rating for Dutch
issuers by Standard & Poor's Corporation or Moody's Investor Service, Inc.
or other nationally recognized rating agency.
<PAGE> 167
10
VII. Specified Notice Times
US Borrower: (a) Eurocurrency borrowings, 12:00 noon New York City time
three Business Days prior to the applicable event and (b) Base Rate
borrowings, 12:00 noon New York City time one Business Days prior to the
applicable event.
Canadian Borrower: (a) Eurocurrency borrowings, 12:00 noon Toronto time
three Business Days prior to the applicable event, (b) Base Rate
borrowings, 12:00 noon Toronto time one Business Days prior to the
applicable event and (c) Canadian B/As, 12:00 noon Toronto time two
Business Days prior to the applicable event.
English Bidco, English Borrower, ISL, Chips Limited and Print Service:
12:00 noon London time three Business Days prior to the applicable event.
VIII. Specified Revolving Credit Commitment Periods.
US Borrower: the period from and including the Closing Date to, but not
including, the Specified Revolving Credit Commitment Termination Date or
such earlier date on which the US Revolving Credit Commitments are
terminated (whether pursuant to Section 9 or otherwise).
Canadian Borrower: the period from and including the Closing Date to, but
not including, the Specified Revolving Credit Commitment Termination Date
or such earlier date on which the Canadian Revolving Credit Commitments
are terminated (whether pursuant to Section 9 or otherwise).
English Borrower: the period from and including the Third Amendment and
Restatement Closing Date to, but not including, the Scheduled Revolving
Credit Commitment Termination Date or such other earlier date on which the
English Revolving Credit Commitments are terminated (whether pursuant to
Section 9 or otherwise).
ISL: the period from and including the Third Amendment and Restatement
Closing Date to, but not including the Scheduled Revolving Credit
Commitment Termination Date or such earlier date on which the Chips
Revolving Credit Commitments are terminated (whether pursuant to Section 9
or otherwise).
Chips Limited: the period from and including August 14, 1998 to, but not
including the Scheduled Revolving Credit Commitment Termination Date or
such earlier date on which the Chips Revolving Credit Commitments are
terminated (whether pursuant to Section 9 or otherwise).
Print Service: the period from and including August 14, 1998 to, but not
including the Scheduled Revolving Credit Commitment Termination Date or
such earlier date on which the Chips Revolving Credit Commitments are
terminated (whether pursuant to Section 9 or otherwise).
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11
IX. Specified Revolving Credit Commitment Termination Date.
US Borrower: the Scheduled Revolving Credit Commitment Termination Date.
Canadian Borrower: the Scheduled Revolving Credit Commitment Termination
Date.
English Borrower: Scheduled Revolving Credit Commitment Termination Date.
ISL: Scheduled Revolving Credit Commitment Termination Date.
X. Conversion of Borrowings
Canadian Borrower: Conversion of Canadian B/As and Base Rate Loans:
The Canadian Borrower shall be permitted to convert Canadian B/As to Base
Rate Loans in C$ and convert Base Rate Loan in C$ to Canadian B/As in
accordance with Section 2.11 (a) and (c) of this Agreement; provided that
for this purpose: (i) Section 2.11(a) and (c) shall be read as if all
references therein to Eurocurrency Loans mean Canadian B/As and all
references therein to Interest Periods mean Canadian Contract Periods,
(ii) all such conversions shall be made in minimum aggregate amounts and
whole multiples in excess thereof as are provided for in respect of such
Loans in Section 2.2 of this Agreement, and (iii) after any partial
conversion not less than C$1,600,000 shall remain outstanding as Canadian
B/As or not less than C$500,000 shall remain outstanding as Base Rate
Loans, as applicable.
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SCHEDULE 1.1(B) TO
THIRD AMENDED AND
RESTATED CREDIT AGREEMENT
1 The rate per annum referred to in clause (b) of the definition of
"Eurocurrency Base Rate" relative to each English Loan or Chips Loan, as
the case may be, where (and to the extent that) English Lenders making
such Loans are subject to the Mandatory Liquid Asset requirements of the
Bank of England, will be, subject as hereinafter provided, for the
Interest Period relating to such Loan (or, if longer than three (3)
months, for each consecutive period for three (3) months within such
Interest Period and for any balance of such Interest Period) (which
Interest Period if not longer than three (3) months and each other such
period is herein referred to as a "Relevant Period") the percentage rate
(or the arithmetic average of the percentage rates where there is more
than one Reference Bank supplying the same) supplied by the Reference
Banks (or such of them as supply it to the English Agent) arrived at by
applying the following formula in relation to each Reference Bank:
Additional Cost = BY + L(Y-X) + S(Y-Z)% per annum
--------------------
100 - (B+S)
Where:
B = The percentage of such Reference Bank's eligible liabilities
then required to be held on a non-interest deposit account with
the Bank of England pursuant to the cash ratio requirements of
the Bank of England.
Y = The rate at which Pounds Sterling deposits in an amount
approximately equal to the principal amount of such Loan are
offered by such Reference Bank to leading banks in the London
Interbank Market at or about 11:00 a.m. on the first day of the
Relevant Period for a period comparable to the Relevant Period.
L = The average percentage of eligible liabilities which the Bank of
England from time to time requires each Reference Bank to
maintain as secured money with members of the London Discount
Market Association and/or as secured call money with those money
brokers and gilt-edged market makers recognized by the Bank of
England.
X = The rate at which secured Pounds Sterling deposits in an amount
approximately equal to the principal amount of such Loan may be
placed by such Reference Bank with members of the London
Discount Market Association and/or as secured call money with
money brokers and gilt-edged market makers at or about 11:00
a.m. on the first day of the Relevant Period for a period
comparable to the Relevant Period.
S = The percentage of such Reference Bank's eligible liabilities
then required to be placed as a special deposit with the Bank of
England.
<PAGE> 170
Z = The percentage interest rate per annum allowed by the Bank of
England on special deposits.
For purposes of this paragraph, "eligible liabilities" and "special
deposits" shall bear the meanings ascribed to them from time to time by
the Bank of England.
2 In the application of the above formula, B, Y, L, X, S, and Z will be
included in the formula as figures and not as percentages, e.g., if
B = 0.5% and Y = 15%, BY will be calculated as 0.5 x 15 and not as
0.5% x 15%.
3 The Additional Cost computed by the English Agent in accordance with this
Schedule shall be rounded upward, if necessary to four (4) decimal places.
4 The calculation in respect of the Additional Cost for each English Loan or
Chips Loan, as the case may be, denominated in Pounds Sterling will be
made by the English Agent on the first day of each Relevant Period.
5 Calculations will be made on the basis of a year of 365 days and the
actual number of days elapsed.
6 If no Reference Bank furnishes the appropriate information for the
purposes of this Schedule, the Additional Cost shall be determined by the
English Agent on the basis of such other information and quotations as the
English Agent shall reasonably determine to be appropriate.
7 In the event of a change in circumstances (including the imposition of
alternative or additional official requirements, excluding capital
adequacy requirements) which renders the above formula inappropriate in
the reasonable opinion of the English Agent, the English Agent shall
promptly notify the English Borrower, Chips Limited or ISL, as the case
may be, and the English Lenders thereof and (after consultation with the
Reference Banks and the English Borrower, Chips Limited or ISL, as the
case may be) shall notify the English Borrower, Chips Limited or ISL, as
the case may be, of the manner in which the rate for the purposes of
paragraph (b) of the definition of "Eurocurrency Base Rate" shall
thereafter be determined (which manner shall be determined in a bona fide
manner and provide a fair assessment of the additional cost to the English
Lenders of compliance with the relevant requirements of the Bank of
England) and the English Borrower, Chips Limited or ISL, as the case may
be, and the English Lenders shall be bound thereby.
