<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1996
Commission file number: 33-67866
A I M MANAGEMENT GROUP INC.
(Exact name of registrant as specified in its charter)
Delaware 74-1881407
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
11 Greenway Plaza, Suite 1919, Houston, Texas 77046
(Address of principal executive offices, including zip code)
(713) 626-1919
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
----- -----
At July 31, 1996, there were 2,325,074 shares outstanding of the
Registrant's common stock, par value $0.0025 per share, and 1,037,100 shares
outstanding of the Registrant's Class B common stock, par value $0.0025 per
share.
<PAGE> 2
A I M MANAGEMENT GROUP INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
(in thousands)
<TABLE>
<CAPTION>
June 30, December 31,
1996 1995
-------- ------------
(unaudited)
<S> <C> <C>
ASSETS
Cash and cash equivalents . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 44,134 $ 42,148
Accounts receivable:
Due from dealers for sales of capital stock of affiliated
registered investment companies . . . . . . . . . . . . . . . . . . . . . . 1,802 1,670
Management fees due from affiliated registered investment companies . . . . . 20,804 15,949
Management fees due from managed accounts . . . . . . . . . . . . . . . . . . 331 360
Other, primary due from affiliated registered investment companies . . . . . . 18,823 12,071
-------- --------
Total accounts receivable . . . . . . . . . . . . . . . . . . . . . . . . . 41,760 30,050
-------- --------
Prepaid expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,023 1,343
Investments:
Affiliated registered investment companies, at market . . . . . . . . . . . . 13,431 6,787
Other equity investments, at market . . . . . . . . . . . . . . . . . . . . . 1,351 1,041
-------- --------
Total investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,782 7,828
-------- --------
Furniture, equipment and leasehold improvements, at cost, less
accumulated depreciation and amortization of $16,913 in 1996
and $14,044 in 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,423 15,760
Acquisition and organization costs, net of accumulated amortization of
$13,697 in 1996 and $12,114 in 1995 . . . . . . . . . . . . . . . . . . . . . 39,924 38,961
Financing costs, net of accumulated amortization of $6,134 in 1996
and $5,372 in 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,267 6,738
Deferred sales commissions, net of accumulated amortization of
$20,225 in 1996 and $15,872 in 1995 . . . . . . . . . . . . . . . . . . . . . 33,225 39,073
Deferred changes and other assets . . . . . . . . . . . . . . . . . . . . . . . 14,516 15,754
-------- --------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $218,054 $197,655
======== ========
</TABLE>
See accompanying notes to unaudited interim consolidated financial statements.
2
<PAGE> 3
A I M MANAGEMENT GROUP INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS - continued
(in thousands, except share amounts)
<TABLE>
<CAPTION>
June 30, December 31,
1996 1995
-------- ------------
(unaudited)
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' DEFICIT
Liabilities:
Payables to affiliated registered investment companies for sales of
their capital stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,793 $1,662
Accounts payable and accrued expenses . . . . . . . . . . . . . . . . . . . . . 20,981 20,752
Interest payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,114 1,482
Federal and state income taxes payable . . . . . . . . . . . . . . . . . . . . 12,071 5,832
Deferred compensation payable . . . . . . . . . . . . . . . . . . . . . . . . . 23,721 31,831
Credit facility to finance deferred sales commissions . . . . . . . . . . . . . 37,037 43,921
Senior secured notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97,250 110,000
Deferred income tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,454 6,254
-------- --------
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200,421 221,734
-------- --------
Class B common stock of $.0025 par value per shares subject to Redemption
Agreement, including a cumulative increase in the Redemption Price
since inception of $48,564 in 1996 and $24,590 in 1995:
authorized, issued and outstanding 1,037,100 shares . . . . . . . . . . . . 83,564 59,590
Stockholders' deficit:
Common stock of $.0025 par value per share:
authorized 4,240,000 shares in 1996 and 1995, issued and
outstanding 2,325,074 shares in 1996 and 2,243,800 shares
in 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 6
Additional paid-in capital . . . . . . . . . . . . . . . . . . . . . . . . . . 5,783 3,275
Deficit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (72,741) (87,339)
Net unrealized appreciation of marketable equity
securities, net of applicable taxes . . . . . . . . . . . . . . . . . . . . . 1,063 450
Translation loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (42) (61)
-------- --------
Total stockholders' deficit . . . . . . . . . . . . . . . . . . . . . . . . . (65,931) (83,669)
-------- --------
Total liabilities and stockholders' deficit . . . . . . . . . . . . . . . . $218,054 $197,655
======== ========
</TABLE>
See accompanying notes to unaudited interim consolidated financial statements.
3
<PAGE> 4
A I M MANAGEMENT GROUP INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
------------------- ---------------------
1996 1995 1996 1995
------- ------- -------- -------
<S> <C> <C> <C> <C>
Management and advisory fees . . . . . . . . . . . . . . . . . . . . . . . . $61,216 $32,349 $112,619 $60,551
Commission income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,743 7,551 29,763 12,682
Distribution fee income . . . . . . . . . . . . . . . . . . . . . . . . . . 10,399 5,991 19,191 10,734
Other operating revenues . . . . . . . . . . . . . . . . . . . . . . . . . . 10,380 7,903 19,646 13,494
------- ------- -------- -------
Total operating revenues . . . . . . . . . . . . . . . . . . . . . . . . . 96,738 53,794 181,219 97,461
------- ------- -------- -------
Compensation and related expenses . . . . . . . . . . . . . . . . . . . . . 29,157 17,497 56,552 33,292
Other administrative expenses . . . . . . . . . . . . . . . . . . . . . . . 18,604 10,623 34,308 20,110
Interest and amortization of debt issuance costs . . . . . . . . . . . . . . 3,408 4,875 7,077 9,385
Depreciation and amortization . . . . . . . . . . . . . . . . . . . . . . . 4,329 4,422 8,609 8,720
Other expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 798 506 1,735 955
------- ------- -------- -------
Total operating expenses . . . . . . . . . . . . . . . . . . . . . . . . . 56,296 37,923 108,281 72,462
------- ------- -------- -------
Income before taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40,442 15,871 72,938 24,999
Income tax expense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,692 5,947 26,636 9,481
------- ------- -------- -------
Income before extraordinary item . . . . . . . . . . . . . . . . . . . . . . 25,750 9,924 46,302 15,518
Extraordinary item - extinguishment of debt (less applicable income tax
of $289 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 537 - 537 -
------- ------- -------- -------
Net income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $25,213 $ 9,924 $ 45,765 $15,518
======= ======= ======== =======
Net income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $25,213 $ 9,924 $ 45,765 $15,518
Increase in Redemption Price of Class B
Common Stock (see Note 2). . . . . . . . . . . . . . . . . . . . . . . . . 15,725 - 23,974 -
------- ------- -------- -------
Net income applicable to common stock . . . . . . . . . . . . . . . . . . . $ 9,488 $ 9,924 $ 21,791 $15,518
======= ======= ======== =======
Income before extraordinary item . . . . . . . . . . . . . . . . . . . . . $2.75 $2.79 $6.17 $4.38
Extraordinary item, net of tax . . . . . . . . . . . . . . . . . . . . . . (.15) - (.15) -
-------- ------- -------- -------
Net income applicable to common stock . . . . . . . . . . . . . . . . . . . $2.60 $2.79 $6.02 $4.38
======== ======= ======== =======
Weighted average shares . . . . . . . . . . . . . . . . . . . . . . . . . . 3,646 3,558 3,617 3,542
======== ======= ======== =======
</TABLE>
See accompanying notes to unaudited interim consolidated financial statements.
4
<PAGE> 5
A I M MANAGEMENT GROUP INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
Six Months Ended
June 30,
-------------------------------------
1996 1995
---- ----
<S> <C> <C>
Cash flows from operating activities:
Net income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $45,765 $15,518
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization . . . . . . . . . . . . . . . . . . . . . . . . 9,445 9,630
Deferred income tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (130) 3,135
Gain on sale of unconsolidated affiliate . . . . . . . . . . . . . . . . . . - (1,671)
Extraordinary item, net of tax . . . . . . . . . . . . . . . . . . . . . . . 537 -
Changes in assets and liabilities:
Increase in accounts receivable . . . . . . . . . . . . . . . . . . . . . . . (11,710) (5,919)
(Increase) decrease in prepaid expenses . . . . . . . . . . . . . . . . . . . (680) 120
Decrease (increase) in deferred sales commissions . . . . . . . . . . . . . . 1,667 (15,858)
Increase in financing costs . . . . . . . . . . . . . . . . . . . . . . . . . (821) (775)
Decrease in deferred charges and other assets . . . . . . . . . . . . . . . . 1,238 1,227
Increase in payables to affiliated registered investment companies. . . . . . 131 1,895
Increase in accounts payable and accrued expenses . . . . . . . . . . . . . . 229 777
(Decrease) increase in interest payable . . . . . . . . . . . . . . . . . . . (368) 14
Increase in income taxes payable . . . . . . . . . . . . . . . . . . . . . . 8,659 4,940
Decrease in deferred compensation payable . . . . . . . . . . . . . . . . . . (8,110) (3,380)
-------- --------
Total adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 (5,865)
-------- --------
Net cash provided by operating activities . . . . . . . . . . . . . . . 45,852 9,653
-------- --------
Cash flows from investing activities:
Purchases of investments in affiliated registered
investment companies . . . . . . . . . . . . . . . . . . . . . . . . . . (6,011) (285)
Proceeds from sale of government security . . . . . . . . . . . . . . . . . . . - 12,000
Proceeds from sale of unconsolidated affiliate . . . . . . . . . . . . . . . . . - 4,097
Acquisition costs paid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2,424) (11,764)
Purchases of furniture, equipment and leasehold improvements . . . . . . . . . . (8,532) (1,896)
-------- --------
Net cash (used in) provided by investing activities . . . . . . . . . . . (16,967) 2,152
-------- --------
Cash flows from financing activities:
Proceeds from long-term debt . . . . . . . . . . . . . . . . . . . . . . . . . . - 15,767
Principal repayments and repurchases of long-term debt . . . . . . . . . . . . . (20,063) (8,936)
Payment of common stock dividends . . . . . . . . . . . . . . . . . . . . . . . (7,213) (2,857)
Proceeds from exercise of options . . . . . . . . . . . . . . . . . . . . . . . 377 493
-------- --------
Net cash (used in) provided by financing activities . . . . . . . . . . . (26,899) 4,467
-------- --------
Net increase in cash and cash equivalents . . . . . . . . . . . . . . . . 1,986 16,272
Cash and cash equivalents at beginning of year . . . . . . . . . . . . . . . . . . 42,148 25,534
-------- --------
Cash and cash equivalents at end of period . . . . . . . . . . . . . . . . . . . . $44,134 $41,806
======== ========
Supplemental cash flow disclosure:
Cash paid for interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $6,413 $8,264
Cash paid for taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $22,939 $1,462
</TABLE>
See accompanying notes to unaudited interim consolidated financial statements.
5
<PAGE> 6
A I M MANAGEMENT GROUP INC. AND SUBSIDIARIES
NOTES TO UNAUDITED INTERIM CONSOLIDATED FINANCIAL STATEMENTS
(1) General
The consolidated financial statements of A I M Management Group Inc. and
its subsidiaries (collectively, the "Company") have been prepared without
audit, pursuant to the rules and regulations of the Securities and Exchange
Commission and in accordance with generally accepted accounting principles, and
reflect all normal recurring adjustments which, in the opinion of management,
are necessary to present fairly the results of the interim periods presented.
These financial statements do not include all disclosures associated with
annual financial statements and, accordingly, should be read in conjunction
with the financial statements and notes contained in the Form 10-K of A I M
Management Group Inc. for the year ended December 31, 1995, File Number
33-67866. Certain reclassifications have been made to conform prior year
amounts to the 1996 presentation.
(2) Class B Common Stock
In connection with the sale of the Class B Common Stock, the purchasers
received the right to sell the Company the shares of Class B Common Stock (the
"Put"). The Put may be exercised after August 20, 2000 if the Company has
not completed a public stock offering with net proceeds in excess of $25
million ("Qualified Public Stock Offering") prior thereto. Pursuant to the
Put, up to 345,700 shares of Class B Common Stock may be sold to the Company in
each of the 12-month periods ended August 20, 2001, 2002 and 2003, at a
purchase price equal to an agreed upon formula price ("Redemption Price").
Currently, both of the bank facility agreements and the indenture for the
senior secured notes contain restrictions related to the purchase of Class B
Common Stock by the Company.
The Class B Common Stock is recorded at the higher of its original
selling price or the present value of the formula price in accordance with Staff
Accounting Bulletin #64 issued by the Securities and Exchange Commission. The
present value of the future formula price is based on the agreed upon formula
times the maximum number of shares which could be put to the Company in 2001,
2002, and 2003, discounted using the Company's cost of capital.
During the first six months of 1996, the Company increased
stockholders' deficit by $24.0 million and increased the recorded value of the
Class B Common Stock by a pro rata portion of the present value of the Put
based on the estimated formula price at December 31, 1996 which exceeded the
original selling price. If the Company completes a Qualified Public Stock
Offering prior to August 20, 2000, increases in the value of the Put over the
selling price of $48.6 million as of June 30, 1996 as well as the original
selling price of $35 million of the Class B Common Stock will be restored to
stockholders' equity.
Periodic increases in the carrying amount of Class B Common Stock are
treated as dividends in the calculation of earnings per share. The current
increase in the value of the Put reduced earnings per share by approximately
$6.63 for the six months ended June 30, 1996.
(3) Extraordinary Item
During the second quarter of 1996, the Company expensed, as an
extraordinary item, approximately $0.5 million net of tax, related to a premium
paid upon repurchase of an aggregate of approximately $12.8 million principal
amount of its senior notes and the related debt issuance costs.
6
<PAGE> 7
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
GENERAL
A I M Management Group Inc.'s largest sources of revenues are mutual fund
management and advisory fees, commission income earned from underwriting and
distributing retail mutual fund shares, distribution fee income and transfer
agent fees. Other sources of operating revenues include accounting service fees
and interest income. The term "Company," as used herein, unless the context
otherwise requires, refers to A I M Management Group Inc. and its direct and
indirect subsidiaries.
The Company sponsors, markets and provides investment advisory,
distribution and administrative services to the AIM Family of Funds, a family
of retail mutual funds that consists of 23 portfolios reflecting a broad range
of investment objectives and strategies. In addition, the Company manages and
distributes a retail mutual fund sold exclusively through a contractual plan
arrangement and co-sponsors a variable annuity product which gives investors
the ability to invest in nine separate portfolios. The Company previously
managed a closed-end fund which invested primarily in convertible securities
and engaged in short-selling investment strategies. Effective July 29, 1996,
AIM High Yield Fund assumed substantially all of the assets and liabilities of
such closed-end fund pursuant to a tax-free reorganization for federal tax
purposes. These specialized retail fund products and the AIM Family of Funds
are together herein referred to as the "AIM Retail Funds."
Certain retail classes of shares of the AIM Retail Funds are sold with a
front-end sales charge ("Class A Shares"). Commission income earned by the
Company on sales of Class A Shares is based on the amount of such shares which
are sold, and is paid from the customer-funded sales charge less an applicable
concession to the selling dealer. The Company also earns a fee from several
insurance companies for services performed in connection with certain sales of
units of the variable annuity product. Certain AIM Retail Funds also offer
classes of shares which are sold without a front-end sales charge, but which
are generally subject to a contingent deferred sales charge ("CDSC") at the
time of their redemption ("Class B Shares"). The Company pays commissions at
the time of sale to financial intermediaries which sell Class B Shares.
The Company also sponsors and provides investment advisory and related
administrative services to a number of institutional mutual funds (or classes of
funds) sold primarily to banks (acting for themselves or in a fiduciary
capacity), collective and common trust funds, and accounts of public entities
(collectively, the "AIM Institutional Funds-Registered Trademark-"). Sales of
the AIM Institutional Funds-Registered Trademark- do not generate sales
commission revenue to the Company. The AIM Retail Funds and the AIM
Institutional Funds-Registered Trademark- are collectively referred to herein as
the "AIM Funds." The Company also provides investment advisory services to
individuals, corporations, pension plans and other private investment advisory
accounts (the "Managed Accounts"), provides investment sub-advisory services to
two Canadian mutual funds and one portfolio of an open-end registered investment
company that is offered to separate accounts of variable insurance companies
(collectively, the "Sub-Advised Funds") and manages an offshore investment
company domiciled in Ireland (the "Offshore Fund"). As of June 30, 1996, total
assets under the Company's management were approximately $53.9 billion.
Mutual fund management and advisory fees are based on the average daily
net assets of the AIM Funds. Such fees are accrued daily by each AIM Fund and
paid to the Company monthly. The Company's management and advisory fees
fluctuate due to changes in the total value of the net assets under management.
Variations in the level of assets under management result from both sales and
redemptions of AIM Fund shares and changes in the market value of the
investments of the AIM Funds.
From time to time, the Company may waive all or a portion of its
management fees or 12b-1 Plan (as hereinafter defined) service or distribution
fees and/or assume all or a portion of the operating expenses of an AIM Fund
for competitive reasons and in response to commitments made to the directors of
such fund. In some cases, the Company may waive all or a portion of its
management fees and 12b-1 Plan distribution fees for new funds or to reflect
economies of scale at higher asset levels. During the second quarter of 1996,
the Company waived approximately $2.2 million in management fees and assumed
approximately $0.2 million in operating expenses for certain AIM Funds. Such
waivers and assumptions were made for the sole purpose
7
<PAGE> 8
of reducing the operating expenses of such AIM Funds and were not made for the
purposes of mitigating any losses from investments in derivative securities or
other portfolio securities. It is difficult to measure the effect such waivers
and assumptions had on the Company's results of operations because the Company
believes they enhance its ability to retain the assets under its management and
to attract additional investments in the AIM Funds. The Company currently is
unable to estimate to what extent, if any, it may terminate existing fee
waivers or cease assuming operating expenses in the future. It is not possible
to predict what effect, if any, the termination of arrangements regarding fee
waivers and assumptions of expenses may have on the future level of assets
under the Company's management.
Certain AIM Funds also pay service fees and distribution fees pursuant to
distribution plans ("12b-1 Plans") adopted pursuant to Rule 12b-1 under the
Investment Company Act of 1940, as amended. These distribution and service fees
are based on the value of the net assets of the applicable funds or classes and
are subject to certain limits imposed under rules of the National Association of
Securities Dealers, Inc. See "Capital Resources and Liquidity" for a discussion
of the Company's ability to sell the right to receive future 12b-1 Plan
distribution fees and CDSCs attributable to certain Class B Shares. Pursuant to
administrative service agreements, the Company is reimbursed for all or a
portion of the expenses, including salary, general and administrative and office
lease expenses, incurred by the Company in providing certain administrative
services (such as fund accounting) to the AIM Funds. Fund accounting
reimbursements paid to the Company by an AIM Fund are based on the Company's
costs of providing such service. Transfer agent fees paid to the Company by the
AIM Retail Funds are based on the number of shareholder accounts outstanding
during a calendar month, and transfer agent fees paid by the AIM Institutional
Funds-Registered Trademark- are based on the average daily net assets in the
institutional shareholder accounts.
The Company's largest expenses are compensation and related expenses and
other administrative expenses, which include expenses related to mutual fund
sales promotion.
8
<PAGE> 9
NET ASSETS UNDER MANAGEMENT AND ADMINISTRATION
The following table sets forth the Company's net assets under management
and administration at June 30, 1996 and 1995, and at December 31, 1995, 1994
and 1993.
NET ASSETS UNDER MANAGEMENT AND ADMINISTRATION
(in millions)
<TABLE>
<CAPTION>
June 30, December 31,
------------------- ------------------------------
1996 1995 1995 1994 1993
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Retail:
Equity $ 35,675 $ 19,016 $ 26,461 $ 13,777 $ 12,056
Money Market 878 519 656 605 373
Fixed Income 3,254 2,190 2,784 1,859 1,887
Closed-End 69 66 68 64 68
-------- -------- -------- -------- --------
Total Retail 39,876 21,791 29,969 16,305 14,384
-------- -------- -------- -------- --------
Institutional:
Money Market 12,204 10,075 10,827 10,664 10,401
Other 472 286 383 221 257
-------- -------- -------- -------- --------
Total Institutional 12,676 10,361 11,210 10,885 10,658
-------- -------- -------- -------- --------
Managed Accounts 954 251 268 284 286
-------- -------- -------- -------- --------
Sub-Advised Funds 119 29 60 -- --
-------- -------- -------- -------- --------
Offshore Fund 238 -- 39 -- --
-------- -------- -------- -------- --------
Total Net Assets $ 53,863 $ 32,432 $ 41,546 $ 27,474 $ 25,328
======== ======== ======== ======== ========
</TABLE>
The net assets of the AIM Retail Funds increased to $39.9 billion at June
30, 1996 from $30.0 billion at December 31, 1995 and $21.8 billion at June 30,
1995. These increases of $9.9 billion, or 33.0%, and $18.1 billion, or 83.0%,
respectively, were attributable to a number of factors, including increases in
the market value of the assets held in the AIM Retail Funds' portfolios
resulting from generally improving equity markets and increased sales of AIM
Retail Fund shares. Approximately 70.0% of the increase in the assets of the
Company's fixed income and equity funds from December 31, 1995 to June 30, 1996
was due to an increase in the net sales of such funds and approximately 30.0% of
such increase was primarily due to appreciation in the value of the securities
held in such funds' portfolios. The increase in sales of the AIM Retail Funds
during the six months ended June 30, 1996 was primarily due to the strong
performance of several of the AIM Retail Funds during recent years, expansion of
the Company's retail distribution system, improved name recognition of the AIM
Family of Funds and the general increase in cash flows into equity and fixed
income mutual funds during the six months ended June 30, 1996. The net assets of
the AIM Institutional Funds-Registered Trademark- increased by 13.1% from
December 31, 1995 to June 30, 1996, and by 22.3% from June 30, 1995 to June 30,
1996. These increases were primarily due to increased sales of such funds which
were related to performance of certain of the AIM Institutional Funds-Registered
Trademark- and the Company's focus on new distribution channels for the shares
of the AIM Institutional Funds-Registered Trademark-. Total net assets under
management increased by $12.3 billion, or 29.6%, from December 31, 1995 to June
30, 1996, and by $21.4 billion, or 66.1%, from June 30, 1995 to June 30, 1996.
9
<PAGE> 10
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Total Operating Revenues. Total operating revenues increased to $96.7
million for the second quarter of 1996 from $53.8 million for the second
quarter of 1995, and increased to $181.2 million for the six months ended June
30, 1996 from $97.5 million for the six months ended June 30, 1995. These
increases of $42.9 million, or 79.7%, and $83.7 million, or 85.8%,
respectively, were primarily due to an increase in the total amount of
management and advisory fees received from the AIM Retail Funds.
Management and Advisory Fees. Revenues from management and advisory fees
increased to $61.2 million for the second quarter of 1996 from $32.3 million
for the second quarter of 1995, and increased to $112.6 million for the six
months ended June 30, 1996 from $60.6 million for the six months ended June 30,
1995. These increases of $28.9 million, or 89.5%, and $52.0 million, or 85.8%,
respectively, were primarily due to growth in net assets under management in
the AIM Retail Funds, as discussed above.
Commission Income. Revenues from retained portions of AIM Retail Fund
sales commissions increased to $14.7 million for the second quarter of 1996
from $7.6 million for the second quarter of 1995, and increased to $29.8
million for the six months ended June 30, 1996, from $12.7 million for the six
months ended June 30,1995. These increases of $7.1 million, or 93.4%, and $17.1
million, or 134.6%, respectively, were primarily due to an increase in
commissionable sales of Class A Shares. Sales of Class A Shares increased
107.1% to $2.9 billion for the second quarter of 1996 from $1.4 billion for the
second quarter of 1995, and increased 145.8% to $5.9 billion for the six months
ended June 30, 1996 from $2.4 billion for the six months ended June 30, 1995.
These increases in sales of Class A Shares were due primarily to the strong
performance of several of the AIM Retail Funds during recent years, expansion
of the Company's retail distribution system, improved name recognition of the
AIM Family of Funds and the general increase in cash flows into equity and
fixed income mutual funds during the second quarter of 1996 and the six months
ended June 30, 1996.
Distribution Fee Income. Distribution fee income increased to $10.4
million for the second quarter of 1996 from $6.0 million for the second quarter
of 1995, and increased to $19.2 million for the six months ended June 30, 1996
from $10.7 million for the six months ended June 30, 1995. These increases of
$4.4 million, or 73.3%, and $8.5 million, or 79.4%, respectively, were
primarily due to appreciation of the assets attributable to Class A Shares and
Class B Shares and an increase in sales of Class A Shares and Class B Shares
during recent periods. Distribution fee income includes both distribution fees
and service fees received by the Company. The Company retains service fees on
Class A Shares sold in amounts of $1.0 million or more and all Class B Shares
for 12 months after the sale of such shares. Service fees retained by the
Company have increased in connection with appreciation of the assets
attributable to, and an increase in sales of, Class A Shares that were sold in
amounts of $1 million or more and all Class B Shares during recent periods.
Additionally, the Company receives distribution fees from certain Class A
Shares. Such Class A Share distribution fees increased in connection with
appreciation of the assets attributable to, and an increase in the sales of,
such Class A Shares. Distribution fees related to sales of Class B Shares on or
after April 1, 1995 are not recognized as income by the Company since the
Company has sold these distribution fees to Citibank, N.A. ("Citibank"), as
discussed below. See "Capital Resources and Liquidity." During the six months
ended June 30, 1996, distribution fees in the amount of $15.2 million related
to Class B Shares sold since April 1, 1995 were sold to Citibank and thus were
not recognized as income by the Company. If the Company had not sold such
distribution fees to Citibank, the related distribution fee income that would
have been recognized by the Company generally would have been offset by the
amortization expense incurred by the Company. The Company retains distribution
fees related to sales of Class B Shares prior to April 1, 1995.
Other Operating Revenues. Other operating revenues increased to $10.4
million for the second quarter of 1996 from $7.9 million for the second quarter
of 1995, and increased to $19.6 million for the six months ended June 30, 1996
from $13.5 million for the six months ended June 30, 1995. These increases of
$2.5 million, or 31.6%, and $6.1 million, or 45.2%, respectively, were
primarily due to an increase in transfer agent fees during the second quarter
of 1996 and the six months ended June 30, 1996. Transfer agent fees increased
to $8.0 million for the second quarter of 1996 from $4.5 million for the second
quarter of 1995, and increased to $15.0 million for the six months ended June
30, 1996 from $8.5 million for the six months ended
10
<PAGE> 11
June 30, 1995. These increases of 77.8% and 76.5%, respectively, were primarily
due to an increase in the number of shareholder accounts in the AIM Retail
Funds.
Total Operating Expenses. Total operating expenses increased to $56.3
million for the second quarter of 1996 from $37.9 million for the second
quarter of 1995, and increased to $108.3 million for the six months ended June
30, 1996 from $72.5 million for the six months ended June 30, 1995. These
increases of $18.4 million, or 48.5%, and $35.8 million, or 49.4%,
respectively, were primarily due to increases in compensation and related
expenses and other administrative expenses for the second quarter of 1996 and
the six months ended June 30, 1996.
Compensation and Related Expenses. Compensation and related expenses
increased to $29.2 million for the second quarter of 1996 from $17.5 million
for the second quarter of 1995, and increased to $56.6 million for the six
months ended June 30, 1996 from $33.3 million for the six months ended June 30,
1995. These increases of 66.9% and 70.0%, respectively, were primarily due to
(i) growth in the size of the Company's operations and the net assets managed
by the Company and (ii) an increase in the amount recorded as bonus expense
under the Company's incentive compensation plan relating to increases in the
Company's income and a change in the timing of the payments of awards under
such plan.
Other Administrative Expenses. Other administrative expenses increased to
$18.6 million for the second quarter of 1996 from $10.6 million for the second
quarter of 1995, and increased to $34.3 million for the six months ended June
30, 1996 from $20.1 million for the six months ended June 30, 1995. These
increases of 75.5% and 70.6%, respectively, were primarily due to an increase
in business promotional costs related to the Company's expansion of its retail
distribution system and an increase in the aggregate amount of concessions paid
to dealers due to an increase in sales of Class A Shares in the amount of $1
million or more.
Net Income. Net income increased to $25.2 million for the second quarter
of 1996 from $9.9 million for the second quarter of 1995, and increased to
$45.8 million for the six months ended June 30, 1996 from $15.5 million for the
six months ended June 30, 1995. These increases of $15.3 million, or 154.5%,
and $30.3 million, or 195.5%, respectively, were due to the changes in the
Company's revenues and expenses discussed above.
CAPITAL RESOURCES AND LIQUIDITY
Net increase in cash and cash equivalents was $2.0 million during the six
months ended June 30, 1996. At June 30, 1996, the Company had liquid assets of
$96.4 million, including $44.1 million in unrestricted cash and cash
equivalents. Payables and accrued expenses due within 12 months totaled $51.1
million at June 30, 1996.
Net cash provided by operating activities was $45.9 million during the six
months ended June 30, 1996, which represented a 373.2% increase from $9.7
million net cash provided by operating activities during the six months ended
June 30, 1995. The increase was primarily due to the increase in the Company's
net income during the six months ended June 30, 1996, as discussed above, and a
decrease in deferred sales commissions paid by the Company due to the Company's
utilization of the Program (as defined below) to fund the payment of certain
sales commissions on Class B Shares.
Net cash used in investing activities was $17.0 million during the six
months ended June 30, 1996. Net cash provided by investing activities was $2.2
million during the six months ended June 30, 1995. This difference was
primarily due to the Company's increased capital expenditures and its
investment in an affiliated investment company during the six months ended June
30, 1996, as compared to the Company's receipt of cash from the sale of a
government security and the sale of an unconsolidated affiliate which increased
cash provided from investing activities during the six months ended June 30,
1995. The cash received by the Company during the six months ended June 30,
1995 was partially offset by the Company's payment of deferred acquisition
costs during the second quarter of 1995. The Company spent approximately $8.5
million
11
<PAGE> 12
during the six months ended June 30, 1996 on capital expenditures relating
primarily to office expansion. The Company leases all of its operating
facilities.
Net cash used in financing activities was $26.9 million during the six
months ended June 30, 1996. Net cash provided by financing activities was $4.5
million during the six months ended June 30, 1995. This difference was
primarily due to the Company's repayment of $20.1 million in long-term debt,
including its repurchase of an aggregate of approximately $12.8 million of the
Notes (as defined below), during the six months ended June 30, 1996, as
compared to its borrowings of a net amount of approximately $6.8 million in
long-term debt during the six months ended June 30, 1995. The Company ceased
borrowing under the Bank Facility to finance the payment of sales commissions
to financial intermediaries that sell Class B Shares beginning in the second
quarter of 1995, as discussed below. The Company funded payments of B Share
Commissions (as defined below) from April 1, 1995 through June 30, 1996 under
the Program (as defined below).
Outstanding borrowings under the Company's credit facilities and the 9%
Senior Secured Notes due 2003 (the "Notes") issued by the Company in 1993 in
connection with the recapitalization totaled $134.3 million at June 30, 1996.
This amount includes approximately $97.2 million of outstanding Notes which
bear interest at a rate of 9% per annum. Such interest is payable in semiannual
installments of approximately $4.4 million. The Company repurchased an
aggregate of approximately $12.8 million principal amount of the Notes in the
open market during the second quarter of 1996. Such repurchased Notes may be
reissued by the Company pursuant to the terms of the indenture under which the
Notes were issued (the "Indenture"). Effective June 26, 1996, the security
interests securing the Notes were released, as discussed below.
Currently, the Company has two methods available to fund the payment of
sales commissions to financial intermediaries who sell Class B Shares ("B Share
Commissions"): the Program (as defined below) and the B Share Facility (as
defined below).
Program. In May 1995, the Company entered into agreements establishing a
program (the "Program") with Citibank to provide additional funding for payment
of B Share Commissions once amounts available to fund such commissions under
Tranche C of the Bank Facility (as defined below) had been substantially
utilized. Pursuant to the Program, during the second quarter of 1995, the
Company began selling to Citibank the right to receive future distribution fees
under the 12b-1 Plans and CDSCs (the "Fees") attributable to certain Class B
Shares sold on or after April 1, 1995 for a purchase price equal to a percentage
of the price at which each Class B Share is sold. The Program has been amended
several times since May 1995 to increase the total amount of financing for B
Share Commissions payable by the Company. Effective June 26, 1996, the amount of
financing for B Share Commissions payable by the Company under the Program was
increased by $40 million. Accordingly, as of July 31, 1996, the total amount of
the Program was approximately $255 million, of which approximately $41.3 million
remained available to the Company as of July 31, 1996. The remaining $41.3
million would fund B Share Commissions on the sale of approximately $1.0 billion
of Class B Shares. Effective July 30, 1996, the amount of financing for B Share
Commissions available under the Program was increased by $109 million. In June
1996, the Company received approximately $13.5 million from Citibank for the
sale of Fees under the Program. The amount of financing under the Program can be
further increased from time to time in connection with securitization
transactions closed by Citibank. Future increases in the amount of financing
under the Program will depend upon the amount of each securitization transaction
closed by Citibank. The Company intends to continue utilizing the Program to
finance the payment of B Share Commissions for the near future; however, as
discussed below, it may fund the payment of such commissions under the B Share
Facility.
B Share Facility. On June 26, 1996, the Company entered into agreements
establishing a credit facility (the "B Share Facility") with Citibank and other
financial institutions to provide a method of financing the payment of B Share
Commissions as an alternative to the Program. The aggregate amount of financing
available under the B Share Facility is $200.0 million. The Company may
increase such amount to $250.0 million if certain conditions are met. On June
27, 1996, approximately $37.0 million under the B Share Facility was used to
repay Tranche C under the Bank Facility in its entirety. The B Share Facility
is secured only by the Fees attributable to Class B Shares which have not been
sold under the Program. The terms of the B Share Facility provide that the
Company must prepay each month an amount equal to the 12b-1 Plan distribution
fees for certain Class B Shares and the CDSCs paid by shareholders for early
redemption of certain
12
<PAGE> 13
Class B Shares. Such mandatory prepayments are credited toward the amount
required to be paid by the Company if the outstanding principal balance under
the B Share Facility exceeds a computed amount.
As of June 30, 1996 approximately $44.7 million was available as a series
of term loans to the Company for working capital purposes ("Tranche A") under a
credit facility entered into by the Company in August 1993 (the "Bank
Facility"). The Company's borrowings under the Bank Facility to finance the
payment of B Share Commissions ("Tranche C") were fully utilized by the Company
prior to March 31, 1995. Effective June 26, 1996, the Credit Facility was
amended to provide that the security interests securing the amounts borrowed
under Tranche A of the Bank Facility were released. In connection with the
release of such security interests, the security interests securing the Notes
were also released effective June 26, 1996, as provided in the Indenture. On
June 27, 1996, Tranche C was repaid in full with proceeds from the B Share
Facility.
B Share Commissions that are financed under the B Share Facility are
capitalized and amortized over a period of six years (the period of time during
which the investor is subject to a CDSC at the time of redemption of Class B
Shares) for accounting purposes and are currently expensed for tax purposes.
CDSC payments received by the Company related to Class B Shares sold before
April 1, 1995 currently reduce unamortized B Share Commissions. A CDSC paid to
the Company is generally greater than the related unamortized portion of the B
Share Commission.
Stockholders' deficit decreased 21.3% to $65.9 million at June 30, 1996
from $83.7 million at December 31, 1995. The decrease in stockholders' deficit
was primarily due to the increase in the Company's net income discussed above.
Stockholders' deficit would have decreased further if not for the Company's
accounting treatment of the Put (as defined below) owned by TA Associates, Inc.
In connection with its purchase of the Company's Class B Common Stock, par value
$0.0025 per share (the "Class B Common"), TA Associates, Inc. received the right
to sell to the Company the shares of Class B Common (the "Put") after August 20,
2000 if the Company has not completed a public stock offering with net proceeds
in excess of $25.0 million (a "Qualified Public Stock Offering") prior thereto.
Pursuant to the Put, up to 345,700 shares of Class B Common may be sold to the
Company in each of the 12-month periods ended August 20, 2001, 2002 and 2003 at
a purchase price equal to an agreed upon formula price (the "Redemption Price").
Currently, the Bank Facility, the B Share Facility and the Indenture contain
restrictions related to the purchase of Class B Common by the Company. The Class
B Common is recorded at the higher of its original selling price or the present
value of the formula price, which is based on an agreed upon formula. During the
six months ended June 30, 1996, the Company increased stockholders' deficit by
$24.0 million and increased the recorded value of the Class B Common by a pro
rata portion of the present value of the Put based on the estimated formula
price at December 31, 1996 which exceeded the original selling price. If the
Company completes a Qualified Public Stock Offering prior to August 20, 2000,
increases in the value of the Put over the selling price of $48.6 million as of
June 30, 1996 as well as the original selling price of the $35 million will be
restored to stockholders' equity.
The Company has several subsidiaries which are registered in various
jurisdictions as broker-dealers or investment managers. At June 30, 1996, the
Company's ability to obtain dividends from such subsidiaries was limited by net
capital requirements in the aggregate amount of $0.9 million designed to ensure
the liquidity of such subsidiaries.
13
<PAGE> 14
PART II
OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company is not a party to any material pending litigation, nor is it
aware of any threatened material legal proceeding involving the Company or its
subsidiaries or any of the property of the Company or its subsidiaries.
ITEM 2. CHANGES IN SECURITIES
As part of the amendment of the Bank Facility on June 26, 1996, the
security interests securing amounts payable under Tranche A of the Bank
Facility were released. As a result of the release of such security interests
and the satisfaction of certain conditions under the Indenture, all security
interests securing the Notes were automatically released as provided in the
Indenture.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
Not applicable.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Not applicable.
ITEM 5. OTHER INFORMATION
Not applicable.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibits
3.1 Amended and Restated By-Laws of the Company effective May 20,
1996.
10.1 Amendment No. 2, First Facility Amendment, dated as of May 3,
1996, among the Company, as seller and as servicer, A I M
Distributors, Inc., A I M Advisors, Inc., Citibank, N.A., as
purchaser, Citibank, N.A., as 12b-1 collateral agent, Citicorp
North America, Inc. and Bankers Trust Company, as collection
agent, to the Purchase and Sale Agreement, dated May 2, 1995,
among the Company, Citibank, N.A. and Citicorp North America,
Inc. (the "Purchase and Sale Agreement").
10.2 Take-Out Notice, dated as of May 3, 1996, pursuant to the
Purchase and Sale Agreement, as amended.
10.3 Amendment No. 3, Second Facility Amendment, dated as of June
26, 1996, among the Company, A I M Distributors, Inc.,
Citibank, N.A., as purchaser, Citibank, N.A., as 12b-1
collateral agent, Citicorp North America, Inc., Bankers Trust
Company, as collection agent, and Citibank, N.A., as
administrative agent under the B Share Collateral Agreement,
to the Purchase and Sale Agreement.
10.4 Third Amended and Restated Credit Agreement, dated as of June
26, 1996, among the Company, as borrower, the Tranche A
Lenders named therein, and Citibank, N.A., as lead managing
agent, and Chemical Bank and NationsBank, N.A. (South), as
co-managing agents.
14
<PAGE> 15
10.5 Amended and Restated Guaranty from A I M Advisors, Inc., dated
as of June 26, 1996.
10.6 B Share Credit Agreement, dated as of June 26, 1996, among the
Company, as borrower, the lenders and co-agents named therein,
and Citibank, N.A., as administrative agent.
10.7 Amended and Restated Distribution Fee Purchase Agreement,
dated as of June 26, 1996, between A I M Distributors, Inc.
and the Company.
10.8 Guaranty from A I M Advisors, Inc. dated June 26, 1996.
10.9 B Share Collateral Agreement, dated June 26, 1996, from the
Company as borrower to Citibank, N.A. as administrative agent.
10.10 Amendment No. 25, dated June 29, 1996, to the Lease Contract
for premises located at 11 Greenway Plaza, Houston, Texas.
11 Statement regarding computation of earnings per share.
27 Financial Data Schedule.
b. Reports on Form 8-K
A report on Form 8-K was filed on July 2, 1996 to report the release
of the security interests securing the Notes in connection with the
release of the security interests securing amounts payable under Tranche A
of the Bank Facility.
15
<PAGE> 16
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized on August 9, 1996.
A I M MANAGEMENT GROUP INC.
/s/ Charles T. Bauer
------------------------------------
Charles T. Bauer
Chairman and Chief Executive Officer
/s/ John J. Arthur
------------------------------------
John J. Arthur
Vice President and Treasurer
(Chief Accounting Officer)
16
<PAGE> 17
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------ ----------------------
<S> <C>
3.1 Amended and Restated By-Laws of the Company effective May 20,
1996.
10.1 Amendment No. 2, First Facility Amendment, dated as of May 3,
1996, among the Company, as seller and as servicer, A I M
Distributors, Inc., A I M Advisors, Inc., Citibank, N.A., as
purchaser, Citibank, N.A., as 12b-1 collateral agent, Citicorp
North America, Inc. and Bankers Trust Company, as collection
agent, to the Purchase and Sale Agreement, dated May 2, 1995,
among the Company, Citibank, N.A. and Citicorp North America, Inc.
(the "Purchase and Sale Agreement").
10.2 Take-Out Notice, dated as of May 3, 1996, pursuant to the Purchase
and Sale Agreement, as amended.
10.3 Amendment No. 3, Second Facility Amendment, dated as of June 26,
1996, among the Company, A I M Distributors, Inc., Citibank, N.A.,
as purchaser, Citibank, N.A., as 12b-1 collateral agent, Citicorp
North America, Inc., Bankers Trust Company, as collection agent,
and Citibank, N.A., as administrative agent under the B Share
Collateral Agreement, to the Purchase and Sale Agreement.
10.4 Third Amended and Restated Credit Agreement, dated as of June 26,
1996, among the Company, as borrower, the Tranche A Lenders named
therein, and Citibank, N.A., as lead managing agent, and Chemical
Bank and NationsBank, N.A. (South), as co-managing agents.
10.5 Amended and Restated Guaranty from A I M Advisors, Inc., dated as
of June 26, 1996.
10.6 B Share Credit Agreement, dated as of June 26, 1996, among the
Company, as borrower, the lenders and co-agents named therein,
and Citibank, N.A., as administrative agent.
10.7 Amended and Restated Distribution Fee Purchase Agreement, dated as
of June 26, 1996, between A I M Distributors, Inc. and the
Company.
10.8 Guaranty from A I M Advisors, Inc. dated June 26, 1996.
10.9 B Share Collateral Agreement, dated June 26, 1996, from the
Company as borrower to Citibank, N.A. as administrative agent.
10.10 Amendment No. 25, dated June 29, 1996, to the Lease Contract for
premises located at 11 Greenway Plaza, Houston, Texas.
11 Statement regarding computation of earnings per share.
27 Financial Data Schedule.
</TABLE>
<PAGE> 1
EXHIBIT 3.1
AMENDED AND RESTATED
BY-LAWS
OF
A I M MANAGEMENT GROUP INC.
Adopted Effective May 20, 1996
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1. Registered Office . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Other Offices . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II MEETINGS OF STOCKHOLDERS. . . . . . . . . . . . . . . . . . . 1
SECTION 2.1. Annual Meeting . . . . . . . . . . . . . . . . . . . . 1
SECTION 2.2. Voting List . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2.3. Special Meeting . . . . . . . . . . . . . . . . . . . . 1
SECTION 2.4. Notice of Meeting . . . . . . . . . . . . . . . . . . . 2
SECTION 2.5. Notification of Nominations . . . . . . . . . . . . . . 2
SECTION 2.6. Quorum . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.7. Voting . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.8. Organization of Meetings . . . . . . . . . . . . . . . 3
SECTION 2.9. Consent of Stockholders . . . . . . . . . . . . . . . . 3
SECTION 2.10. Voting of Stock of Certain Holders . . . . . . . . . . 4
SECTION 2.11. Treasury Stock . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.12. Fixing Record Date . . . . . . . . . . . . . . . . . . 4
ARTICLE III BOARD OF DIRECTORS. . . . . . . . . . . . . . . . . . . . . . 4
SECTION 3.1. Powers . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 3.2. Number, Election and Term . . . . . . . . . . . . . . . 5
SECTION 3.3. Vacancies, Additional Directors and Removal From Office 5
SECTION 3.4. Regular Meeting . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.5. Special Meeting . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.6. Notice of Special Meeting . . . . . . . . . . . . . . . 5
SECTION 3.7. Quorum and Participation . . . . . . . . . . . . . . . 5
SECTION 3.8. Action Without Meeting . . . . . . . . . . . . . . . . 6
SECTION 3.9. Compensation . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE IV COMMITTEES OF DIRECTORS . . . . . . . . . . . . . . . . . . . 6
SECTION 4.1. Designation, Powers and Name . . . . . . . . . . . . . 6
SECTION 4.2. Minutes . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 4.3. Compensation . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE V ADVISORY DIRECTORS. . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE VI NOTICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 6.1. Methods of Giving Notice . . . . . . . . . . . . . . . 7
SECTION 6.2. Written Waiver . . . . . . . . . . . . . . . . . . . . 8
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE VII OFFICERS. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 7.1. Officers . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 7.2. Election and Term of Office . . . . . . . . . . . . . . 8
SECTION 7.3. Removal and Resignation . . . . . . . . . . . . . . . . 8
SECTION 7.4. Vacancies . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 7.5. Salaries . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 7.6. Chairman and Vice Chairman of the Board . . . . . . . . 9
SECTION 7.7. Chairman and Chief Executive Officer . . . . . . . . . 9
SECTION 7.8. President . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 7.9. Vice Presidents . . . . . . . . . . . . . . . . . . . . 10
SECTION 7.10. Secretary . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 7.11. Treasurer . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 7.12. Assistant Secretaries and Assistant Treasurers. . . . . 11
SECTION 7.13. Assistant Vice Presidents . . . . . . . . . . . . . . . 11
ARTICLE VIII CERTIFICATES OF STOCK . . . . . . . . . . . . . . . . . . . . 11
SECTION 8.1. Issuance . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 8.2. Lost Certificates . . . . . . . . . . . . . . . . . . . 12
SECTION 8.3. Transfers . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 8.4. Registered Stockholders . . . . . . . . . . . . . . . . 12
ARTICLE IX DIVIDENDS . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 9.1. Declaration . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 9.2. Reserve . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE X INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 10.1. Third Party Actions . . . . . . . . . . . . . . . . . . 13
SECTION 10.2. Actions by or in the Right of the Corporation . . . . . 13
SECTION 10.3. Determination of Conduct . . . . . . . . . . . . . . . 14
SECTION 10.4. Payment of Expenses in Advance . . . . . . . . . . . . 14
SECTION 10.5. Indemnity Not Exclusive . . . . . . . . . . . . . . . . 14
SECTION 10.6. Insurance . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 10.7. Constituent Corporation . . . . . . . . . . . . . . . . 14
ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 11.1. Seal . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 11.2. Books . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE XII AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 15
</TABLE>
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<PAGE> 4
AMENDED AND RESTATED
BY-LAWS
OF
A I M MANAGEMENT GROUP INC.
ARTICLE I
OFFICES
SECTION 1.1. Registered Office. The registered office of the
corporation in the State of Delaware shall be in the City of Wilmington, County
of New Castle, and the name of its registered agent shall be The Corporation
Trust Company.
SECTION 1.2. Other Offices. The corporation may also have offices
at such other places both within and without the State of Delaware as the Board
of Directors may from time to time determine or the business of the corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.1. Annual Meeting. The annual meeting of stockholders
for the election of directors shall be held at such place either within or
without the State of Delaware and at such date and time as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting.
SECTION 2.2. Voting List. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
SECTION 2.3. Special Meeting. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called by the President
and shall be called by the President or the Secretary at the request in writing
of a majority of the Board of Directors, or at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
corporation issued and outstanding and entitled to vote. Such request shall
state the purposes of the proposed meeting. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice.
The President
<PAGE> 5
so calling, or the directors or stockholders so requesting, any such meeting
shall fix the date and time of, and the place (either within or without the
State of Delaware) for, the meeting.
SECTION 2.4. Notice of Meeting. Written notice of the annual and
each special meeting of stockholders, stating the time, place and purpose or
purposes thereof, shall be given to each stockholder entitled to vote thereat,
not less than ten nor more than 60 days before the meeting.
SECTION 2.5. Notification of Nominations. Nominations for the
election of directors may be made by the Board of Directors or by any
stockholder entitled to vote for the election of directors. Any stockholder
entitled to vote for the election of directors at a meeting may nominate
persons for election as directors only if written notice of such stockholder's
intent to make such nomination is given, either by personal delivery or by
United States mail, postage prepaid, to the Secretary of the corporation not
later than (i) with respect to an election to be held at an annual meeting of
stockholders, 90 days in advance of such meeting, and (ii) with respect to an
election to be held at a special meeting of stockholders for the election of
directors, the close of business on the seventh day following the date on which
notice of such meeting is first given to stockholders. Each such notice shall
set forth: (a) the name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated; (b) a representation
that such stockholder is a holder of record of stock of the corporation
entitled to vote at such meeting and intends to appear in person or by proxy at
the meeting to nominate the person or persons specified in the notice; (c) a
description of all arrangements or understandings between such stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by such
stockholder; (d) such other information regarding each nominee proposed by such
stockholder as would have been required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission had
each nominee been nominated, or intended to be nominated by the Board of
Directors and had the corporation been subject to such proxy rules at the time
of such nomination; and (e) the consent of each nominee to serve as a director
of the corporation if so elected. The chairman of a stockholder meeting may
refuse to acknowledge the nomination of any person not made in compliance with
the foregoing procedure.
SECTION 2.6. Quorum. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the Certificate of Incorporation. Notwithstanding the other
provisions of the Certificate of Incorporation or these by-laws, the holders of
a majority of the shares of stock present in person or represented by proxy,
although not constituting a quorum, shall have power to adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present or represented. If the adjournment is for more than
30 days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified.
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SECTION 2.7. Voting. When a quorum is present at any meeting of
the stockholders, the vote of the holders of a majority of the stock having
voting power present in person or represented by proxy shall decide any
question brought before such meeting, unless the question is one upon which, by
express provision of the statutes, of the Certificate of Incorporation or of
these by-laws, a different vote is required, in which case such express
provision shall govern and control the decision of such question. Every
stockholder having the right to vote shall be entitled to vote in person, or by
proxy appointed by an instrument in writing subscribed by such stockholder,
bearing a date not more than three years prior to voting, unless such
instrument provides for a longer period, and filed with the Secretary of the
corporation before, or at the time of, the meeting. If such instrument shall
designate two or more persons to act as proxies, unless such instrument shall
provide the contrary, a majority of such persons present at any meeting at
which their powers thereunder are to be exercised shall have and may exercise
all the powers of voting or giving consents thereby conferred, or if only one
be present, then such powers may be exercised by that one, or, if an even
number attend and a majority do not agree on any particular issue, each proxy
so attending shall be entitled to exercise such powers in respect of the same
portion of the shares as he is of the proxies representing such shares.
SECTION 2.8. Organization of Meetings. (a) The Chairman of the
Board of Directors shall preside at each meeting of stockholders. In the
absence of the Chairman of the Board, the meeting shall be chaired by an
officer of the corporation in accordance with the following order: Vice
Chairman of the Board (if any), Chairman and Chief Executive Officer,
President, Executive Vice President (if any), Senior Vice President (if any)
and Vice President. In the absence of all such officers, the meeting shall be
chaired by a person chosen by the vote of a majority in interest of the
stockholders present in person or represented by proxy and entitled to vote
thereat.
(b) The Board of Directors of the corporation shall
be entitled to make such rules and regulations for the conduct of meetings of
stockholders as it shall deem necessary, appropriate or convenient. Subject to
such rules and regulations of the Board of Directors, if any, the chairman of
the meeting shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
chairman, are necessary, appropriate or convenient for the proper conduct of
the meeting, including, without limitation, establishing: an agenda or order
of business for the meeting; rules and procedures for maintaining order at the
meeting and the safety of those present; limitations on participation in such
meeting to stockholders of record of the corporation and their duly authorized
and constituted proxies, and such other persons as the chairman shall permit;
restrictions on entry to the meeting after the time fixed for the commencement
thereof; limitations on the time allotted to questions or comments by
participants; and regulation of the opening and closing of the polls for
balloting on matters which are to be voted on by ballot, unless and to the
extent the Board of Directors or the chairman of the meeting determines that
meetings of stockholders shall not be required to be held in accordance with
the rules of parliamentary procedure.
SECTION 2.9. Consent of Stockholders. Unless otherwise provided
in the Certificate of Incorporation, any action required to be taken at any
annual or special meeting of stockholders of the corporation, or any action
which may be taken at any annual or special meeting of such stockholders, may
be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding
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<PAGE> 7
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given by the Secretary of the corporation to those stockholders who have not
consented in writing.
SECTION 2.10. Voting of Stock of Certain Holders. Shares standing
in the name of another corporation, domestic or foreign, may be voted by such
officer, agent or proxy as the by-laws of such corporation may prescribe, or in
the absence of such provision, as the board of directors of such corporation
may determine. Shares standing in the name of a deceased person may be voted
by the executor or administrator of such deceased person, either in person or
by proxy. Shares standing in the name of a guardian, conservator or trustee
may be voted by such fiduciary, either in person or by proxy, but no fiduciary
shall be entitled to vote shares held in such fiduciary capacity without a
transfer of such shares into the name of such fiduciary. Shares standing in
the name of a receiver may be voted by such receiver. A stockholder whose
shares are pledged shall be entitled to vote such shares, unless in the
transfer by the pledgor on the books of the corporation, he has expressly
empowered the pledgee to vote thereon, in which case only the pledgee, or his
proxy, may represent the stock and vote thereon.
SECTION 2.11. Treasury Stock. The corporation shall not vote,
directly or indirectly, shares of its own stock owned by it; and such shares
shall not be counted in determining the total number of outstanding shares.
SECTION 2.12. Fixing Record Date. The Board of Directors may fix
in advance a date, not exceeding 60 days preceding the date of any meeting of
stockholders, or the date for payment of any dividend or distribution, or the
date for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection with
obtaining a consent, as a record date for the determination of the stockholders
entitled to notice of, and to vote at, any such meeting and any adjournment
thereof, or entitled to receive payment of such dividend or distribution, or to
receive any such allotment of rights, or to exercise the rights in respect of
any such change, conversion or exchange of capital stock, or to give such
consent, and in such case such stockholders and only such stockholders as shall
be stockholders of record on the date so fixed shall be entitled to such notice
of, and to vote at, any such meeting and any adjournment thereof, or to receive
payment of such dividend or distribution, or to receive such allotment or
rights, or to exercise such rights, or to give such consent, as the case may
be, notwithstanding any transfer of any stock on the books of the corporation
after any such record date fixed as aforesaid.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1. Powers. The business and affairs of the corporation
shall be managed by or under the direction of its Board of Directors, which may
exercise all such powers of the corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
by-laws directed or required to be exercised or done by the stockholders.
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SECTION 3.2. Number, Election and Term. The number of directors
which shall constitute the whole Board of Directors shall be not less than
three. Such number of directors shall from time to time be fixed and
determined by resolution of the Board of Directors and shall be set forth in
the notice of any meeting of stockholders held for the purpose of electing
directors. The directors shall be elected at the annual meeting of
stockholders, except as provided in Section 3.3, and each director elected
shall hold office until his successor shall be elected and shall qualify or
until his earlier resignation or removal. Directors need not be residents of
Delaware or stockholders of the corporation.
SECTION 3.3. Vacancies, Additional Directors and Removal From
Office. If any vacancy occurs in the Board of Directors caused by death,
resignation, retirement, disqualification or removal from office of any
director, or otherwise, or if any new directorship is created by an increase in
the authorized number of directors, a majority of the directors then in office,
though less than a quorum, or a sole remaining director, may choose a successor
or fill the newly created directorship; and a director so chosen shall hold
office until the next annual election and until his successor shall be duly
elected and shall qualify, or until his earlier resignation or removal. If
there are no directors in office, then an election of directors may be held in
the manner provided by statute. Any director may be removed either for or
without cause at any special meeting of stockholders duly called and held for
such purpose.
SECTION 3.4. Regular Meeting. A regular meeting of the Board of
Directors shall be held each year at the place of, and immediately following,
the annual meeting of stockholders, and no notice of such meeting shall be
necessary to the newly elected directors in order to legally constitute the
meeting, provided a quorum shall be present. Other regular meetings of the
Board of Directors shall be held each year, at such time and place as the Board
of Directors may provide by resolution, either within or without the State of
Delaware, without notice other than such resolution.
SECTION 3.5. Special Meeting. A special meeting of the Board of
Directors may be called by the Chairman of the Board or by the President and
shall be called by the Secretary on the written request of any two directors.
The Chairman or President so calling, or the directors so requesting, any such
meeting shall fix the time and any place, either within or without the State of
Delaware, as the time and place of holding such meeting.
SECTION 3.6. Notice of Special Meeting. Written or telephonic
notice of special meetings of the Board of Directors shall be given to each
director at least 48 hours prior to the time of such meeting. Any director may
waive notice of any meeting. The attendance of a director at any meeting shall
constitute a waiver of notice of such meeting, except where a director attends
a meeting for the purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business
to be transacted at, nor the purpose of, any special meeting of the Board of
Directors need be specified in the notice or waiver of notice of such meeting,
except that notice shall be given with respect to any matter where notice is
required by statute.
SECTION 3.7. Quorum and Participation. A majority of the Board of
Directors shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors, and the
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act of a majority of the directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute, by the Certificate of Incorporation or by
these by-laws. Members of the Board of Directors may participate in a meeting
of the Board of Directors by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other and such participation shall constitute presence in
person and attendance at such meeting. If a quorum shall not be present at any
meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
SECTION 3.8. Action Without Meeting. Unless otherwise restricted
by the Certificate of Incorporation or these by-laws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof as provided in Article IV of these by-laws, may be taken
without a meeting, if a written consent thereto is signed by all members of the
Board or of such committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the Board or committee.
SECTION 3.9. Compensation. Directors, as such, shall be entitled
to any compensation for their services which is voted by the stockholders or
the Board of Directors, including a fixed sum and expenses of attendance, if
any, which may be allowed for attendance at each regular or special meeting of
the Board of Directors or any meeting of a committee of directors. No
provision of these by-laws shall be construed to preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor.
ARTICLE IV
COMMITTEES OF DIRECTORS
SECTION 4.1. Designation, Powers and Name. The Board of Directors
may, by resolution passed by a majority of the whole Board, designate one or
more committees, including, if they shall so determine, an Executive Committee,
each such committee to consist of two or more of the directors of the
corporation. Each committee shall have and may exercise such of the powers of
the Board of Directors in the management of the business and affairs of the
corporation as may be provided in such resolution. The Executive Committee, if
any, may authorize the seal of the corporation to be affixed to all papers
which may require it. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of such committee. In the absence or
disqualification of any member of such committee or committees, the member or
members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member. Such committee or committees shall have such
name or names and such limitations of authority as may be determined from time
to time by resolution adopted by the Board of Directors.
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SECTION 4.2. Minutes. Each committee of directors shall keep
regular minutes of its proceedings and report the same to the Board of
Directors when required.
SECTION 4.3. Compensation. Members of special or standing
committees may be allowed compensation for attending committee meetings, if the
Board of Directors shall so determine.
ARTICLE V
ADVISORY DIRECTORS
SECTION 5. In addition to the Officers of the corporation, there
may be one or more advisory directors who shall be appointed by the Board of
Directors. Advisory directors shall provide advice and information to the
Board of Directors and shall have such other advisory responsibilities to the
Board as shall be requested by the Board of Directors from time to time, but
shall not be members of the Board of Directors of the corporation, shall not be
held out to the public or to stockholders as directors and shall have no powers
to act on behalf of the corporation or to act in any other capacity as
directors. Advisory directors shall not be permitted to initiate or second
motions of, or to vote on actions considered by, the Board of Directors.
References to "directors" throughout these by-laws and other corporate
documents shall not include advisory directors, unless the term "advisory
director", specifically, is used; however, to the extent that liability is
asserted as arising from action taken by the Board of Directors and it is
asserted that an advisory director participated in or contributed to the action
taken, the advisory director's liability shall be considered to be within the
scope of the indemnification provided in Article X for directors, officers,
employees and agents under the indemnification provisions of Section 145 of the
Delaware General Corporation Law. Advisory directors shall be entitled to such
compensation for their services as may be determined from time to time by the
Board of Directors, and may be reimbursed reasonable expenses associated with
the services rendered by them. No provision of these by-laws shall be
construed to preclude any advisory director from serving the corporation in any
other capacity and receiving compensation therefor.
ARTICLE VI
NOTICE
SECTION 6.1. Methods of Giving Notice. Whenever, under the
provisions of the statutes of the State of Delaware, the Certificate of
Incorporation or these by-laws, notice is required to be given to any director,
member of any committee or stockholder, such notice shall be in writing and
delivered personally or mailed to such director, member or stockholder;
provided that in the case of a director or a member of any committee such
notice may be given orally in person or by telephone, by telex or telecopier,
telegram or via overnight courier. If mailed, notice to a director, member of
a committee or stockholder shall be deemed to be given when deposited in the
United States mail first class in a sealed envelope, with postage prepaid,
addressed, in the case of a stockholder, to the stockholder at the
stockholder's address as it appears on the records of the corporation or, in
the case of a director or a member of a committee, to such person at his
business
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<PAGE> 11
address. If sent by telex or telecopier, notice to a director or member of a
committee shall be deemed to be given upon transmittal; if sent by telegram,
notice to a director or member of a committee shall be deemed to be given when
the telegram, so addressed, is delivered to the telegraph company; and if sent
via overnight courier, notice to a director or member of a committee shall be
deemed to be given when delivered against a receipt therefor.
SECTION 6.2. Written Waiver. Whenever any notice is required to
be given under the provisions of the statutes of the State of Delaware, the
Certificate of Incorporation or these by-laws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent thereto.
ARTICLE VII
OFFICERS
SECTION 7.1. Officers. The officers of the corporation shall be a
Chairman of the Board, Vice Chairman of the Board (if such office is created by
the Board), a Chairman and Chief Executive Officer, Chief Operating Officer, a
President, one or more Vice Presidents, any one or more of which may be
designated Executive Vice President or Senior Vice President, a Secretary and a
Treasurer. In the event that the Board of Directors creates the office of Vice
Chairman of the Board, the Board shall, by resolution, define the duties of
such office. The Board of Directors may appoint such other officers and
agents, including Assistant Vice Presidents, Assistant Secretaries and
Assistant Treasurers, as it shall deem necessary, who shall hold their offices
for such terms and shall exercise such powers and perform such duties as shall
be determined by the Board. Any two or more offices, other than the offices of
Chairman and Chief Executive Officer and Secretary, or President and Secretary,
may be held by the same person. No officer shall execute, acknowledge, verify
or countersign any instrument on behalf of the corporation in more than one
capacity, if such instrument is required by law, by these by-laws or by any act
of the corporation to be executed, acknowledged, verified or countersigned by
two or more officers. The Chairman of the Board and any Vice Chairman of the
Board shall be elected from among the directors. With the foregoing
exceptions, none of the other officers need be a director, and none of the
officers need be a stockholder of the corporation.
SECTION 7.2. Election and Term of Office. The officers of the
corporation shall be elected annually by the Board of Directors at its first
regular meeting held after the annual meeting of stockholders or as soon
thereafter as conveniently possible. Each officer shall hold office until his
successor shall have been elected and shall have qualified or until his death
or the effective date of his resignation or removal, or until he shall cease to
be a director in the case of the Chairman of the Board and the Vice Chairman of
the Board, if such office is created by the Board.
SECTION 7.3. Removal and Resignation. Any officer or agent
elected or appointed by the Board of Directors may be removed without cause by
the affirmative vote of a majority of the Board of Directors whenever, in its
judgment, the best interests of the corporation shall be served thereby, but
such removal shall be without prejudice to the contractual rights, if any, of
the person so removed. Any officer may resign at any time by giving written
notice to the corporation. Any such
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resignation shall take effect at the date of the receipt of such notice or at
any later time specified therein, and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 7.4. Vacancies. Any vacancy occurring in any office of
the corporation by death, resignation, removal or otherwise, may be filled by
the Board of Directors for the unexpired portion of the term.
SECTION 7.5. Salaries. The salaries of all officers and agents of
the corporation shall be fixed by the Board of Directors or pursuant to its
direction; and no officer shall be prevented from receiving such salary by
reason of his also being a director or advisory director.
SECTION 7.6. Chairman and Vice Chairman of the Board . The
Chairman of the Board shall preside at all meetings of the Board of Directors
and of the stockholders of the corporation. In the absence of the Chairman,
such duties shall be attended to by the Vice Chairman of the Board, if such
office is created by the Board, and as provided in Section 2.8(a) of these
by-laws, with respect to meetings of the stockholders. The Chairman shall
formulate and submit to the Board of Directors or the Executive Committee
matters of general policy of the corporation and shall perform such other
duties as usually appertain to the office or as may be prescribed by the Board
of Directors or the Executive Committee.
SECTION 7.7. Chairman and Chief Executive Officer. The Chairman
and Chief Executive Officer, subject to the control of the Board of Directors,
shall in general supervise and control the business and affairs of the
corporation. In the absence of the Chairman or Vice Chairman of the Board (if
such office is created by the Board), the Chairman and Chief Executive Officer
shall preside at all meetings of the Board of Directors and of the
stockholders. He may also preside at any such meeting attended by the Chairman
or Vice Chairman of the Board, if he is so designated by such Chairman or, in
the Chairman's absence, by the Vice Chairman. He shall have general and active
management of the business of the corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. The Chairman
and Chief Executive Officer shall have the power to appoint and remove
subordinate officers, agents and employees, except those elected or appointed
by the Board of Directors. The Chairman and Chief Executive Officer shall keep
the Board of Directors fully informed and shall consult them concerning the
business of the corporation. He may execute certificates for shares of the
corporation and any deeds, bonds, mortgages, contracts, checks, notes, drafts
or other instruments which the Board of Directors has authorized to be
executed, except where required or permitted by law to be otherwise signed and
executed and except where the signing and execution thereof has been expressly
delegated by these by-laws or by the Board of Directors to some other officer
or agent of the corporation. He shall vote, or give a proxy to any other
officer of the corporation to vote, all shares of stock of any other
corporation standing in the name of the corporation and in general he shall
perform all other duties normally incident to the office of Chairman and Chief
Executive Officer and such other duties as may be prescribed by the
stockholders or the Board of Directors from time to time.
SECTION 7.8. President. The President shall be the Chief
Operating Officer of the corporation and shall have such other duties and
perform such other responsibilities as may be
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delegated to him by the Board of Directors or the Chairman and Chief Executive
Officer, and, in the absence of the Chairman and Chief Executive Officer, shall
assume the responsibilities of that office in addition to his other
responsibilities. The President shall keep the Chairman and Chief Executive
Officer and the Board of Directors fully informed and shall consult them
concerning the operations of the corporation. He may execute certificates for
shares of the corporation and any deeds, bonds, mortgages, contracts, checks,
notes, drafts or other instruments which the Board of Directors has authorized
to be executed, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof has been
expressly delegated by these by-laws or by the Board of Directors to some other
officer or agent of the corporation. In the absence of the Chairman and Chief
Executive Officer, the President shall vote, or give a proxy to any other
officer of the corporation to vote, all shares of stock of any other corporation
standing in the name of the corporation and, in general, he shall perform all
other duties normally incident to the office of the President and such other
duties as may be prescribed by the stockholders, the Board of Directors or the
Chairman and Chief Executive Officer from time to time.
SECTION 7.9. Vice Presidents. In the absence of the President, or
in the event of his inability or refusal to act, the Executive Vice President
(or in the event there shall be no Vice President designated Executive Vice
President, any Vice President designated by the Board) shall perform the duties
and exercise the powers of the President. Any Vice President may execute
certificates for shares of the corporation and any deeds, bonds, mortgages,
contracts, checks, notes, drafts or other instruments which the Board of
Directors has authorized to be executed, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof has been expressly delegated by these by-laws or by the Board
of Directors to some other officer or agent of the corporation. The Vice
Presidents shall perform such other duties as from time to time may be assigned
to them by the President, the Board of Directors or the Executive Committee.
SECTION 7.10. Secretary. The Secretary shall: (a) attend meetings
of the Board of Directors, committees of directors and the stockholders and
shall keep the minutes of such meetings of the Board of Directors, committees
of directors and the stockholders; (b) see that all notices are duly given in
accordance with the provisions of these by-laws and as required by law; (c) be
custodian of the corporate records and of the seal of the corporation, and see
that the seal of the corporation or a facsimile thereof is affixed to all
certificates for shares prior to the issue thereof and to all documents, the
execution of which on behalf of the corporation under its seal is duly
authorized in accordance with the provisions of these by-laws; (d) keep or
cause to be kept a register of the post office address of each stockholder
which shall be furnished by such stockholder; (e) sign with the Chairman and
Chief Executive Officer, the President, or an Executive Vice President or Vice
President, certificates for shares of the corporation, the issue of which shall
have been authorized by resolution of the Board of Directors; (f) have general
charge of the stock transfer books of the corporation; and (g) in general,
perform all duties normally incident to the office of Secretary and such other
duties as from time to time may be assigned to him by the Chairman and Chief
Executive Officer, the President, the Board of Directors or the Executive
Committee.
SECTION 7.11. Treasurer. The Treasurer shall: (a) have charge and
custody of and be responsible for all funds and securities of the corporation,
receive and give receipts for moneys due and payable to the corporation from
any source whatsoever, and deposit all such moneys in the
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<PAGE> 14
name of the corporation in such banks, trust companies or other depositories;
(b) prepare, or cause to be prepared, for submission at each regular meeting of
the Board of Directors, at each annual meeting of the stockholders, and at such
other times as may be required by the Board of Directors, the Chairman and
Chief Executive Officer, the President or the Executive Committee, a statement
of financial condition of the corporation in such detail as may be required;
and (c) in general, perform all the duties incident to the office of Treasurer
and such other duties as from time to time may be assigned to him by the
Chairman and Chief Executive Officer, the President, the Board of Directors or
the Executive Committee. If required by the Board of Directors, the Treasurer
shall give the corporation a bond for the faithful discharge of his duties in
such sum and with such surety or sureties as the Board of Directors shall
determine.
SECTION 7.12. Assistant Secretaries and Assistant Treasurers. The
Assistant Secretaries and Assistant Treasurers shall, in general, perform such
duties as shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the Chairman and Chief Executive Officer, the President,
the Board of Directors or the Executive Committee. The Assistant Secretaries
and Assistant Treasurers shall, in the absence of the Secretary or Treasurer,
respectively, perform all functions and duties which such absent officers may
delegate, but such delegation shall not relieve the absent officer from the
responsibilities and liabilities of his office. The Assistant Secretaries may
sign, with the Chairman and Chief Executive Officer, the President, or an
Executive Vice President or a Vice President, certificates for shares of the
corporation, the issue of which shall have been authorized by a resolution of
the Board of Directors. The Assistant Treasurers shall respectively, if
required by the Board of Directors, give bonds for the faithful discharge of
their duties in such sums and with such sureties as the Board of Directors
shall determine.
SECTION 7.13. Assistant Vice Presidents. The Assistant Vice
Presidents shall, in general, perform such duties as shall be assigned to them
by the President, any Vice President, the Board of Directors or the Executive
Committee. The Assistant Vice Presidents shall, in the absence of a Vice
President, perform all functions and duties which such absent officer may
delegate, but such delegation shall not relieve the absent officer from the
responsibilities and liabilities of his office.
ARTICLE VIII
CERTIFICATES OF STOCK
SECTION 8.1. Issuance. Each stockholder of this corporation shall
be entitled to a certificate or certificates showing the number of shares of
stock registered in his name on the books of the corporation. The certificates
shall be in such form as may be determined by the Board of Directors, shall be
issued in numerical order and shall be entered in the books of the corporation
as they are issued. They shall exhibit the holder's name and number of shares
and shall be signed by the Chairman and Chief Executive Officer, the President,
an Executive Vice President or a Vice President, and by the Secretary or an
Assistant Secretary. Any or all of the signatures on the certificate may be
facsimiles. If the corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and rights shall be set forth in full or
summarized on
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<PAGE> 15
the face or back of the certificate which the corporation shall issue to
represent such class of stock; provided that, except as otherwise provided by
statute, in lieu of the foregoing requirements there may be set forth on the
face or back of the certificate which the corporation shall issue to represent
such class or series of stock, a statement that the corporation will furnish
without charge to each stockholder who so requests the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and rights. All certificates surrendered to
the corporation for transfer shall be cancelled and no new certificate shall be
issued until the former certificate for a like number of shares shall have been
surrendered and cancelled, except that in the case of a lost, stolen, destroyed
or mutilated certificate a new one may be issued therefor in accordance with
Section 8.2 of these by-laws. Certificates shall not be issued representing
fractional shares of stock.
SECTION 8.2. Lost Certificates. The Board of Directors may direct
a new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require or to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate or certificates alleged to have been lost,
stolen or destroyed, or both.
SECTION 8.3. Transfers. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books. Transfers of shares shall be made only on the
books of the corporation by the registered holder thereof, or by his attorney
thereto authorized by power of attorney and filed with the Secretary of the
corporation or the transfer agent, if any.
SECTION 8.4. Registered Stockholders. The corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of the State of Delaware.
ARTICLE IX
DIVIDENDS
SECTION 9.1. Declaration. Dividends upon the capital stock of the
corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property or in
shares of capital stock, subject to the provisions of the Certificate of
Incorporation.
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<PAGE> 16
SECTION 9.2. Reserve. Before payment of any dividend, there may
be set aside out of any funds of the corporation available for dividends such
sum or sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the Board of Directors shall think
conducive to the interest of the corporation, and the Directors may modify or
abolish any such reserve in the manner in which it was created.
ARTICLE X
INDEMNIFICATION
SECTION 10.1. Third Party Actions. The corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of his service as a member of the
Indemnified Class. For purposes of this Article X, the Indemnified Class shall
include any person who is or was a director (including an advisory director),
officer, employee or agent of the corporation, or who is or was serving at the
request of the corporation as a director (including an advisory director),
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans. The corporation shall indemnify any member of the Indemnified Class
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, if such
person had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order, settlement
or conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the person did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 10.2. Actions by or in the Right of the Corporation. The
corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the corporation to procure a judgment in its favor by reason of
the fact that he is or was a member of the Indemnified Class, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
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<PAGE> 17
SECTION 10.3. Determination of Conduct. The determination that a
director, officer, employee or agent (including any advisory director) has or
has not met the applicable standard of conduct set forth in Sections 10.1 and
10.2 (unless indemnification is ordered by a court) shall be made (1) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (2) if such quorum is
not obtainable, or even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
SECTION 10.4. Payment of Expenses in Advance. Expenses incurred in
defending a civil or criminal action, suit or proceeding shall be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent (including any advisory director) to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this Article X.
SECTION 10.5. Indemnity Not Exclusive. The indemnification and
advancement of expenses provided hereunder or granted pursuant to the other
subsections of this Article shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any other by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent (including
any advisory director) and shall inure to the benefit of the heirs, executors
and administrators of such person.
SECTION 10.6. Insurance. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director (including an
advisory director), officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director (including an advisory
director), officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including service to employee benefit
plans, against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of this Article X of these by-laws.
SECTION 10.7. Constituent Corporation. For the purpose of this
Article X, references to "the corporation" include all constituent corporations
absorbed in a consolidation or merger as well as the resulting or surviving
corporation so that any person who is or was a director (including an advisory
director), officer, employee or agent of such a constituent corporation or is
or was serving at the request of such constituent corporation as a director
(including an advisory director), officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, including
service to employee benefit plans, shall stand in the same position under the
provisions of this Article X with respect to the resulting or surviving
corporation as he would if he had served the resulting or surviving corporation
in the same capacity.
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<PAGE> 18
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Seal. The corporate seal shall have inscribed
thereon the name of the corporation, and the words "Corporate Seal, Delaware."
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or otherwise reproduced.
SECTION 11.2. Books. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at the offices of the corporation at Houston, Texas, or at such other
place or places as may be designated from time to time by the Board of
Directors.
ARTICLE XII
AMENDMENT
SECTION 12. These by-laws may be altered, amended or
repealed at any regular or special meeting of the Board of Directors without
prior notice.
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<PAGE> 1
EXHIBIT 10.1
FIRST FACILITY AMENDMENT
FIRST FACILITY AMENDMENT dated as of May 3, 1996 (the
"Amendment") among A I M MANAGEMENT GROUP INC. as seller (the "Seller") and
as servicer (the "Servicer"), A I M DISTRIBUTORS, INC. (the "Distributor"),
A I M ADVISORS, INC. (the "Advisor"), CITIBANK, N.A., as purchaser (the
"Purchaser"), CITIBANK, N.A., as 12b-1 collateral agent (the "12-b Collateral
Agent"), CITICORP NORTH AMERICA, INC. (the "Program Agent") and BANKERS TRUST
COMPANY, as collection agent (the "Collection Agent").
W I T N E S S E T H
WHEREAS, the Purchaser, the Program Agent and the Seller have
entered into that certain Purchase and Sale Agreement dated as of May 2, 1995
(as supplemented, the "Purchase Agreement");
WHEREAS, the Seller, the Purchaser, the Program Agent, the
Collection Agent and the 12b-1 Collateral Agent have entered into that certain
Collection Agency Agreement dated as of May 2, 1995 (as supplemented, the
"Collection Agency Agreement");
WHEREAS, the Servicer, the Purchaser and the Program Agent
have entered into that certain Servicing Agreement dated as of May 2, 1995 (as
supplemented, the "Servicing Agreement");
WHEREAS, the Purchaser, the Program Agent and the Distributor
have entered into that certain Distributor Undertaking dated as of May 2, 1995
(as supplemented, the "Distributor Undertaking");
WHEREAS, the Purchaser, the Program Agent and the Advisor are
parties to that certain Advisor Undertaking dated as of May 2, 1995 (as
supplemented, the "Advisor Undertaking"); and
WHEREAS, the parties to this Amendment desire to, among other
things, amend the Purchase Agreement, the Servicing Agreement, the Collection
Agency Agreement, the
<PAGE> 2
Distributor Undertaking and the Advisor Undertaking as hereinafter provided;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants herein contained, the parties hereto agree as follows:
Section 1. Defined Terms.
"Amendment Effective Date" means the later to occur of (i) the
day on which the Program Agent shall have executed and delivered one or more
counterparts of this Amendment and shall have received one or more counterparts
of this Amendment executed by each of the parties hereto, and (ii) the
conditions precedent set forth in Section 7 hereof shall have been fulfilled.
Unless otherwise defined herein, the capitalized terms used
herein shall have the meanings assigned to such terms in the Purchase
Agreement.
Section 2. Amendments to the Purchase Agreement.
(a) Section 1.01 of the Purchase Agreement is hereby amended
by adding the following definitions in their proper alphabetical order therein:
""Demand Deposit Account" shall have the meaning assigned to
such term in Section 4.1 of the Collection Agency Agreement.
"Take-out Adjustment Amount" shall mean in connection with a
Take-out Transaction, the amount by which the Purchaser's capacity to
purchase Receivables has been increased as a result of such Take-out
Transaction, as set forth in the related Take-out Notice.
"Take-out Notice" shall mean a notice from the Program Agent
to the Seller, substantially in the form attached hereto as Exhibit H,
stating that the Purchaser has completed a Take-out Transaction and
specifying the related Take-out Adjustment Amount."
(b) Section 1.01 of the Purchase Agreement is hereby further
amended (A) by inserting the words ", the Demand Deposit Account" after the
words "Collection Account" in clause (viii) of the definition of "Adverse
Effect" set
2
<PAGE> 3
forth therein, and (B) by replacing the definition of "Unamortized Aggregate
Purchase Price" set forth therein with the following definition:
""Unamortized Aggregate Purchase Price" shall mean, in
respect of the Purchased Receivables as of any date of determination,
an amount equal to the aggregate Purchase Prices paid by the Purchaser
under this Agreement in respect of all Purchased Receivables, less the
sum of (i) the portions of the aggregate amounts paid by each Company
and on behalf of the holders of Shares in respect of Contingent
Deferred Sales Charges to the Collection Account and distributed to
the Purchaser in accordance with the terms of the Collection Agency
Agreement through such date of determination which exceeds the accrued
and unpaid Purchaser's Assumed yield, and (ii) the sum of each
Take-out Adjustment Amount in respect of each Take-out Transaction
specified in one or more Take-out Notices which have been acknowledged
by the Seller, the Distributor and the Advisor and returned to the
Program Agent on or prior to such date of determination."
(c) Section 3.02(g) of the Purchase Agreement is hereby
amended by inserting the words "the Demand Deposit Account for further credit
to" after the words "Collections or Related Collections to" set forth therein.
(d) Section 4.01(r) of the Purchase Agreement is hereby
amended by inserting the words "the Demand Deposit Account for further credit
to" after the words "Related Collections directly to" set forth therein.
(e) Section 6.01(p) of the Purchase Agreement is hereby
amended by inserting the words "the Demand Deposit Account for further credit
to" after the words "remit such funds to" set forth therein.
(f) Exhibit E to the Purchase Agreement is hereby amended by
replacing the first paragraph following the definitions set forth therein with
the following paragraph:
"You are hereby directed to make all payments in respect of
all amounts (other than Service Fees) paid or payable by the Fund
pursuant to the Underwriting Agreement, the Distribution Plan, the
3
<PAGE> 4
Prospectus and the Rules of Fair Practice in respect of the
Receivables relating to each Fund and all proceeds therefrom
(hereinafter, "Payments"), which otherwise would be payable by you to
the Distributor on the eleventh (11th) Business Day of each calendar
month directly by wire in immediately available funds to the dedicated
demand deposit account of Bankers Trust Company (the "Collection
Agent") entitled the "Bankers Trust-AIM-Demand Deposit Account",
account no. 00-325-892 (the "Demand Deposit Account") established and
maintained by the Collection Agent at Four Albany Street, New York,
New York 10006, for further transfer by the Collection Agent to the
account of the Collection Agent entitled the "Bankers Trust-AIM
Collection Account" : Account No. 14781 (the "Collection Account")."
(g) Exhibit G to the Purchase Agreement is hereby replaced in
its entirety with Annex A hereto.
(h) The Purchase Agreement is further amended by inserting
Annex B attached hereto as new Exhibit H thereto.
Section 3. Amendments to the Servicing Agreement.
(a) Section 2.01(a) of the Servicing Agreement is hereby
amended by inserting the words "the Demand Deposit Account for further credit
to" after the words "cause the applicable Company to pay to" set forth therein.
(b) Section 3.03(a) of the Servicing Agreement is hereby
amended by inserting the words "determined without regard to clause (ii) of the
definition of such term," after the term "Unamortized Aggregate Purchase
Price," each time it appears therein.
(c) Section 6.02 of the Servicing Agreement is hereby amended
by inserting the words "the Demand Deposit Account for further credit to" after
the words "shall promptly pay over to" set forth therein.
4
<PAGE> 5
Section 4. Amendments to the Distributor Undertaking.
(a) Section 3.01(j) of the Distributor Undertaking is hereby
amended (i) by inserting the language "the Demand Deposit Account for further
credit to" after the words "for deposit into" set forth therein, and (ii) by
replacing the words "Collection Account" appearing after the words "remitted to
the" set forth therein with the words "Demand Deposit Account".
(b) Clause (i) of Section 3.01(x) of the Distributor
Undertaking is hereby amended by inserting the words "the Demand Deposit
Account for further credit to" after the words "Transfer Agent to pay to" set
forth therein.
Section 5. Amendments to the Advisor Undertaking.
Section 3.01(i) of the Advisor Undertaking is hereby amended
(i) by inserting the words "the Demand Deposit Account for further credit to"
after the words "for deposit into" set forth therein, and (ii) by replacing the
words "Collection Account" appearing after the words "remitted to the" set
forth therein with the words "Demand Deposit Account".
Section 6. Amendments to the Collection Agency Agreement.
(a) Section 1(a) of the Collection Agency Agreement is hereby
amended by adding the following definition in its proper alphabetical position:
""Demand Deposit Account" shall have the meaning assigned to
such term in Section 4.1."
(b) Section 2.2 of the Collection Agency Agreement is hereby
amended by adding the words "the Demand Deposit or the" after the words
"instruments with respect to" set forth in the first sentence thereof.
(c) Section 4.1 of the Collection Agency Agreement is hereby
replaced in its entirety with the following language:
"4.1 Establishment and Maintenance. Concurrently with the
execution and delivery of
5
<PAGE> 6
this Agreement, the Collection Agent shall establish (i) an account
entitled "Banker's Trust - AIM Collection Account", account no. 14781
(the "Collection Account"), the operation of which shall be governed
by this Section 4, and (ii) a dedicated demand deposit account
entitled the "Bankers Trust - AIM-Demand Deposit Account", account no.
00-325-892 (the "Demand Deposit Account"). The Collection Agent shall
also establish within the Collection Account two separate subaccounts
the "Purchaser"s CDSC Portion Subaccount" and the "Seller's CDSC
Portion Subaccount" the operation of which shall be governed by this
Section 4. Each such Subaccount shall be maintained separate and
apart from the other Subaccount and the funds remitted to any such
Subaccount in accordance with the terms of Section 4.3(a) shall not
be commingled with any other funds. The Program Agent and the 12b-1
Collateral Agent hereby appoint the Collection Agent as their agent to
hold the Demand Deposit Account and the Collection Account (including
without limitation the Subaccounts) and all moneys on deposit therein,
with the sole and exclusive right to withdraw or order a transfer of
funds from the Demand Deposit Account to the Collection Account and
with the sole and exclusive right to withdraw or order a transfer of
Deposited Funds from the Collection Account, with full power of
substitution, for the purpose of making any such withdrawal or
ordering any such transfer of funds from the Demand Deposit Account,
and of Deposited Funds from the Collection Account, which appointment
is coupled with an interest and is irrevocable, all in accordance with
the terms of this Agreement. Neither the Purchaser, the Program
Agent, the Distributor, the Seller nor the 12b-1 Collateral Agent
shall have any right of withdrawal from the Demand Deposit Account or
the Collection Account (including without limitation the Subaccounts),
but may request application of amounts on deposit in the Collection
Account be made strictly in accordance with the terms of this Section
4."
(d) Section 4.2(a) of the Collection Agency Agreement is
hereby amended by inserting the language "the Demand Deposit Account for
transfer" after the words "shareholders of each Fund to" set forth therein.
6
<PAGE> 7
(e) Section 4.2 of the Collection Agency Agreement is further
amended by adding the following paragraph after Section 4.2(b) thereof:
"(c) The Collection Agent agrees that no funds other than
Collections and Related Collections and other funds to be remitted to
the Demand Deposit Account pursuant to the terms of the Program
Documents shall be deposited in the Demand Deposit Account. The
Collection Agent further agrees to promptly transfer all amounts
remitted to the Demand Deposit Account to the Collection Account".
Section 7. Conditions Precedent to Effectiveness of this
Amendment.
The occurrence of the Amendment Effective Date shall be
subject to the fulfillment of each of the following conditions precedent:
(a) this Amendment shall have been duly executed by the
parties hereto and shall be in full force and effect, and the Program Agent
shall have received a fully executed copy of this Amendment; and
(b) the Program Agent shall have received an amendment to each
Irrevocable Payment Instruction dated as of the date hereof, executed by the
Distributor, each Company and the Transfer Agent, in substantially the form of
Annex C hereto.
Section 8. Execution in Counterparts.
This Amendment may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an
original, and all of which counterparts, when taken together, shall constitute
but one and the same amendment.
Section 9. Governing Law.
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
7
<PAGE> 8
Section 10. Severability of Provisions.
Any provision of this Amendment 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 or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 11. Captions.
The captions in this Amendment are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
8
<PAGE> 9
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first above written.
A I M MANAGEMENT GROUP INC.
By: /s/ CHARLES T. BAUER
-----------------------------------
Name: Charles T. Bauer
Title:
CITIBANK, N.A.,
as Purchaser
By: /s/ WILLIAM P. HENSON
-----------------------------------
Name:
Title:
CITIBANK, N.A.,
as 12b-1 Collateral Agent
By: /s/ JOHN J. MACDONALD
-----------------------------------
Name: John J. MacDonald
Title: Attorney-in-fact
CITIBANK NORTH AMERICA, INC.
as Program Agent
By: /s/ WILLIAM P. HENSON
-----------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as Collection Agent
By: /s/ LOUIS BODI
-----------------------------------
Name: Louis Bodi
Title: Assistant Vice President
9
<PAGE> 10
A I M DISTRIBUTORS, INC.
By: /s/ MICHAEL J. CEMO
-----------------------------------
Name: Michael J. Cemo
Title:
A I M ADVISORS, INC.,
as Advisor
By: /s/ ROBERT H. GRAHAM
-----------------------------------
Name: Robert H. Graham
Title:
10
<PAGE> 11
ANNEX A
EXHIBIT G
TO PURCHASE AND SALE AGREEMENT
PROCEDURES FOR ALLOCATING RECEIVABLES AND SHARES
Receivables in respect of each Fund shall be allocated between
Purchased Receivables and Receivables which do not constitute Purchased
Receivables in accordance with the rules set forth in clauses (A), (B) and (C)
below. Clause (A) attributes each Share either to the Seller or to the
Purchaser. Clauses (B) and (C) allocate Receivables to the Purchaser and the
Seller with reference to the Shares which have been attributed to each in
accordance with clause (A).
(A) Attribution of Shares: Shares of each Fund outstanding from
time to time shall be attributed to either the Purchaser or the Seller in
accordance with the following rules:
(1) Commission Shares: Each Commission Share is specifically
tracked by the records maintained by the Transfer Agent with reference to an
"original issuance date" of the Commission Share in question or of the
Commission Share from which the Commission Share in question derived through
one or more Permitted Free Exchanges.
The following Commission Shares outstanding from time to time shall
be attributed to the Purchaser: (a) Commission Shares issued other than in a
Permitted Free Exchange, the issuance of which occurs on or after the Inception
Date and on or prior to the last Sale Cutoff Date, and (b) Commission Shares
issued in a Permitted Free Exchange for Shares of another Fund which were
attributed to the Purchaser in accordance with this paragraph (1) of this
clause (A), in each case determined in accordance with the records maintained
by the Transfer Agent.
The following Commission Shares outstanding from time to time shall
be attributed to the Seller: (a) Commission Shares issued other than in a
Permitted Free Exchange, the issuance of which occurs prior to the Inception
Date or after the last Sale Cutoff Date, and (b) Commission Shares issued in a
Permitted Free Exchange for Shares of another Fund which were attributed to
Seller in accordance with this paragraph (1) of this clause (A), in each case
determined in accordance with the records maintained by the Transfer Agent.
<PAGE> 12
(2) Free Shares. Free Shares are not specifically tracked by the
Transfer Agent and accordingly, the number of Free Shares of each Fund
outstanding from time to time shall be attributed to the Purchaser and the
Seller in accordance with records maintained by the Servicer in accordance with
this paragraph (2) of this clause (A).
All Free shares which are AIM Shares outstanding immediately prior
to the Inception Date for such Fund will be attributed to the Seller.
(a) Free Shares which are AIM Shares issued on any date on or after the
Inception Date for such Fund shall be attributed to the Purchaser in a
number computed as follows:
FS X (PCS + PFS)
-----------
(FCS + FFS)
where:
FS = AIM Shares that are Free Shares issued on such date
PCS + PFS = Commission Shares and Free Shares which are AIM Shares
attributed to the Purchaser and outstanding as of the close of
business on the immediately preceding date.
FCS + FFS = Total number of Commission Shares and Free Shares which are
AIM shares outstanding as of the close of business on the
immediately preceding date.
The balance of such AIM Free Shares issued on such date shall be attributed
to the Seller.
(b) (i) On the opening of the first business day of each calendar month,
all Free Shares which are Merrill Lynch Omnibus Shares outstanding as of
the close of business on the last day of the immediately preceding calendar
month shall be reattributed among the Purchaser and the Seller as follows.
Such Share will be reattributed to Purchaser in a number computed as
follows:
MFS X PMCS
----
FMCS
where:
MFS = Total number of Free Shares which are Merrill Lynch Omnibus
Shares which are outstanding as
2
<PAGE> 13
of the close of business on the last day of the immediately
preceding calendar month.
PMCS = Commission Shares which are Merrill Lynch Omnibus Shares
attributed to the Purchaser and outstanding as of the close of
business on the last day of the immediately preceding calendar
month.
FMCS = Total number of Commission Shares which are Merrill Lynch
Omnibus Shares outstanding as of the close of business on the
last day of the immediately preceding calendar month.
The balance of such Free Shares which are Merrill Lynch Omnibus Shares
shall be reattributed to the Seller.
This calculation shall be used to establish the monthly beginning
balance of Commission Shares and Free Shares which are Merrill Lynch
Omnibus Shares which are attributed to Purchaser and Seller.
(ii) Free Shares which are Merrill Lynch Omnibus Shares issued during
any calendar month on or after the Inception Date for such Fund shall be
attributed to the Purchaser as of the end of such calendar month in a
number computed as follows:
MFS X PMCS + PMFS
-----------
FMCS + FMFS
where:
MFS = Merrill Lynch Omnibus Shares which are Free Shares issued
during such calendar month.
PMCS+PMFS = Commission Shares and Free Shares which are Merrill
Lynch Omnibus Shares deemed to be attributed to the
Purchaser and outstanding as of the opening of business
on the first day of such calendar month in accordance
with (b) (i) above.
FMCS+FMFS = Total number of Commission Shares and Free Shares which
are Merrill Lynch Omnibus Shares outstanding as of the
close of business on the last day of the immediately
preceding calendar month.
The balance of such Free Shares which are Merrill Lynch Omnibus Shares
issued during such calendar month shall be attributed to the Seller.
3
<PAGE> 14
(c) Free Shares which are AIM Shares redeemed on any date shall be
attributed to the Purchaser in a number computed as follows:
FSR X PFS
---
FFS
where:
FSR = AIM shares which are Free Shares redeemed on such date.
PFS = AIM Shares which are Free Shares attributed to the Purchaser
and outstanding as of the close of business on the immediately
preceding date.
FFS = Total number of AIM Shares which are Free Shares outstanding
as of the close of business on the immediately preceding date.
The balance of such AIM Shares which are Free Shares redeemed on such
date shall be attributed to the Seller.
(d) Free Shares which are Merrill Lynch Omnibus Shares redeemed during
any calendar month shall be attributed to the Purchaser in a number
computed as follows:
MFSR X PMFS
----
FMFS
where:
MFSR = Free Shares which are Merrill Lynch Omnibus Shares redeemed
during such calendar month.
PMFS = Free Shares which are Merrill Lynch Omnibus Shares are deemed
to be attributed to the Purchaser and outstanding as of the
opening of business on the first day of such calendar month in
accordance with (b)(1) above.
FMFS = Total number of Free Shares which are Merrill Lynch Omnibus
Shares outstanding as of the opening of business on the first
day of such calendar month.
The balance of such Free Shares which are Merrill Lynch Omnibus Shares
redeemed during such calendar month shall be attributed to the Seller.
(3) Timing of Attributions. The foregoing attributions of
Shares shall be made on a daily basis in respect of all Shares other than
Merrill Lynch Omnibus Shares. The attributions of Merrill Lynch Omnibus Shares
4
<PAGE> 15
shall be made on a calendar month basis on or prior to the tenth (10th)
Business Day of the immediately succeeding calendar month.
(B) Receivables Constituting Contingent Deferred Sales
Charges: Receivables constituting Contingent Deferred Sales Charges will be
allocated to the Purchaser and the Seller depending upon whether the related
redeemed Shares were attributed to the Purchaser or the Seller in accordance
with clause (A) above. Contingent Deferred Sales Charges relating to Shares
other than Merrill Lynch Omnibus Shares shall be allocated between the
Purchaser and the Seller on or prior to the second Business Day of the
immediately succeeding calendar week in which they are remitted to the
Collection Account, unless in accordance with the Collection Agency Agreement,
the Program Agent or the 12b-1 Collateral Agent requires a more frequent
allocation. Contingent Deferred Sales Charges relating to Merrill Lynch
Omnibus Shares shall be allocated between the Purchaser and the Seller on or
prior to the tenth (10th) Business Day of the calendar month immediately
succeeding the calendar month in which they are remitted to the Collection
Account, unless in accordance with the Collection Agency Agreement more
frequent allocations are required.
(C) Receivables Constituting Asset Based Sales Charges: The
Asset Based Sales Charges accruing to the Purchaser during any calendar month
shall be computed and allocated as follows:
A X (B + C)/2
---------
(D + E)/2
where:
A. = Total amount of Asset Based Sales Charges
accrued during such calendar month.
B. = Shares attributed to the Purchaser and
outstanding, as of the close of business on the
last day of the immediately preceding calendar
month, times Net Asset Value per Share as of
such time.
C. = Shares attributed to the Purchaser and
outstanding, as of the close of business on the
last day of such calendar month, times Net
Asset Value per Share as of such time.
D. = Total AIM Shares and Merrill Lynch Omnibus
Shares outstanding as of the close of business
on the last day of the immediately preceding
calendar month,
5
<PAGE> 16
times Net Asset Value per Share as of such
time.
E. = Total AIM Shares and Merrill Lynch Omnibus
Shares outstanding as of the close of business
on the last day of such calendar month, times
Net Asset Value per Share as of such time.
The balance of the Asset Based Sales Charges of such Fund
accruing during such calendar month shall be allocated to the Seller. The
allocations contemplated by this paragraph shall be made on or prior to the
tenth (10th) Business Day of the immediately following calendar month.
(D) In General. For purposes of the foregoing: (1) Shares
will be deemed to be issued and redeemed in accordance with the rules used by
the Transfer Agent for each Fund. All computations and allocations included in
this Exhibit G shall be reported in the relevant Purchaser Report; and (2)
notwithstanding anything to the contrary set forth above: (i) all Shares of any
Fund attributed to the Seller with reference to Commission Shares issued prior
to the Inception Date for such Fund shall be deemed to have been redeemed at
the point in time when the aggregate amount of the Contingent Deferred Sales
Charges and Asset Based Sales Charges theretofore allocated to the Seller in
respect of such Shares shall equal the Maximum Aggregate Sales Charge Allowable
in respect of the Shares of such Fund on the assumption that the only
Commission Shares issued by such Fund were the Commission Shares of such Fund
issued prior to the Inception Date for such Fund which were attributed to
Seller through such point in time; and (ii) all Shares of any Fund attributed
to the Purchaser shall be deemed to have been redeemed at the point in time
when the Collection Agency Agreement terminates in accordance with Section 14
thereof.
6
<PAGE> 17
ANNEX B
EXHIBIT H
FORM OF TAKE-OUT NOTICE
[Date]
A I M Management Group Inc.
A I M Distributors, Inc.
A I M Advisors, Inc.
11 Greenway Plaza, Suite 1919
Houston, Texas 77046
Ladies and Gentlemen:
Pursuant to that certain Purchase and Sale Agreement dated as
of May 2, 1995 (as amended and supplemented, the Purchase Agreement) among AIM
Management Group Inc., Citibank N.A. and the undersigned Citicorp North
America, Inc., we hereby deliver this Take-Out Notice advising you that the
Purchaser completed a Take-out Transaction [stipulate transaction]. The
"Take-out Adjustment Amount" in connection with such Take-out Transaction is
$___________. Capitalized terms used herein and which are not otherwise
defined herein shall have the meanings assigned to such terms in the Purchase
Agreement.
Very truly yours,
Citicorp North America, Inc.,
as Program Agent
By:
-----------------------------------
Authorized Signatory
Acknowledged and
agreed as of the date
first written above:
A I M Management Group, Inc.
By:
-----------------------------------
Authorized Signatory
A I M Distributors, Inc.
By:
-----------------------------------
Authorized Signatory
A I M Advisors, Inc.
By:
-----------------------------------
Authorized Signatory
<PAGE> 18
ANNEX C
AMENDMENT TO IRREVOCABLE PAYMENT INSTRUCTION
Dated as of May 3, 1996
Reference is made to that certain Irrevocable Payment
Instruction as acknowledged and agreed to as of ______________, 1995 (the
"Instruction") from A I M Distributors, Inc. and A I M Management Group Inc. to
[INSERT NAME OF COMPANY] and A I M Fund Services, Inc.
Each of the undersigned hereby agrees that the Instruction is
hereby amended by replacing the first paragraph following the definitions set
forth therein with the following paragraph:
"You are hereby directed to make all payments in respect of
all amounts (other than Service Fees) paid or payable by the Fund
pursuant to the Underwriting Agreement, The Distribution Plan, the
Prospectus and the Rules of Fair Practice in respect of the
Receivables relating to each Fund and all proceeds therefrom
(hereinafter, "Payments"), which otherwise would be payable by you to
the Distributor on the eleventh (11th) Business Day of each calendar
month directly by wire in immediately available funds to the dedicated
demand deposit account of Bankers Trust Company (the "Collection
Agent") entitled the "Bankers Trust-AIM- Demand Deposit Account",
account no. 00-325-892 (the "Demand Deposit Account") established and
maintained by the Collection Agent at Four Albany Street, New York,
New York 10006, for further transfer by the Collection Agent to the
account of the Collection Agent entitled the "Bankers Trust-AIM
Collection Account" : Account No. 14781 (the "Collection Account")."
This Amendment may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an
original, and all of which counterparts, when taken together, shall constitute
but one and the same amendment.
<PAGE> 19
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
A I M DISTRIBUTORS, INC.
By:
-----------------------------------
Authorized Signatory
A I M MANAGEMENT GROUP INC.
By:
-----------------------------------
Authorized Signatory
A I M FUND SERVICES INC.
By:
-----------------------------------
Authorized Signatory
[INSERT NAME OF COMPANY]
By:
-----------------------------------
Authorized Signatory
Acknowledged and agreed
to as of the date
first written above:
CITIBANK, N.A.,
as Purchaser
By:
-----------------------------------
Authorized Signatory
CITIBANK, N.A.,
as 12b-1 Collateral Agent
By:
-----------------------------------
Authorized Signatory
CITICORP NORTH AMERICA, INC.,
as Program Agent
By:
-----------------------------------
Authorized Signatory
2
<PAGE> 1
EXHIBIT 10.2
TAKE-OUT NOTICE
May 3, 1996
A I M Management Group Inc.
A I M Distributors, Inc.
A I M Advisors, Inc.
11 Greenway Plaza, Suite 1919
Houston, Texas 77046
Ladies and Gentlemen:
Pursuant to that certain Purchase and Sale Agreement dated as of May
2, 1995 (as amended and supplemented, the Purchase Agreement) among AIM
Management Group Inc., Citibank N.A. and the undersigned Citicorp North
America, Inc., we hereby deliver this Take-out Notice advising you that the
Purchaser completed a Take-out Transaction in connection with the Series 1996-1
Asset Backed Certificates issued by the Mutual Fund Fee Trust. The "Take-out
Adjustment Amount" in connection with such Take-out Transaction is $40,000,000.
Capitalized terms used herein and which are not otherwise defined herein shall
have the meanings assigned to such terms in the Purchase Agreement.
Very truly yours,
Citicorp North America, Inc.,
as Program Agent
By: /s/ WILLIAM P. HENSON
--------------------------
Authorized Signatory
Acknowledged and
agreed as of the date
first written above:
A I M Management Group, Inc.
By: /s/ CHARLES T. BAUER
--------------------------
Authorized Signatory
A I M Distributors, Inc.
By: /s/ MICHAEL J. CEMO
--------------------------
Authorized Signatory
A I M Advisors, Inc.
By: /s/ ROBERT H. GRAHAM
--------------------------
Authorized Signatory
<PAGE> 1
EXHIBIT 10.3
SECOND FACILITY AMENDMENT
SECOND FACILITY AMENDMENT dated as of June 26, 1996 (the
"Amendment") among A I M MANAGEMENT GROUP INC. (the "Seller"), A I M
DISTRIBUTORS, INC. (the "Distributor") CITIBANK, N.A., as purchaser (the
"Purchaser"), CITIBANK, N.A., as 12b-1 collateral agent (the 12b-1 Collateral
Agent"), CITICORP NORTH AMERICA, INC. (the "Program Agent"), BANKERS TRUST
COMPANY, as collection agent (the "Collection Agent") and CITIBANK, N.A., as
administrative agent under the B Share Collateral Agreement (as defined below)
(the "Administrative Agent").
W I T N E S S E T H
-------------------
WHEREAS, the Purchaser, the Program Agent and the Seller have
entered into that certain Purchase and Sale Agreement dated as of May 2, 1995
(as amended and supplemented, the "Purchase Agreement");
WHEREAS, the Seller, the Purchaser, the Program Agent, the
collection Agent and the 12b-1 Collateral Agent have entered into that certain
Collection Agency Agreement dated as of May 2, 1995 (as amended and
supplemented, the "Collection Agency Agreement");
WHEREAS, the Distributor and the Seller have entered into that
certain Distribution Fee Purchase Agreement dated as of August 20, 1993 (the
"Distribution Fee Purchase Agreement");
WHEREAS, the Seller and the Administrative Agent have entered
into that certain B Share Collateral Agreement dated June 26, 1996 (the "B
Share Collateral Agreement");
WHEREAS, the parties to this Amendment desire to, among other
things, amend the Purchase Agreement and the Collection Agency Agreement and
to amend and restate the Distribution Fee Purchase Agreement as hereinafter
provided;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants herein contained, the parties hereto agree as follows:
<PAGE> 2
Section 1. Defined Terms.
"Amendment Effective Date" means the later to occur of (i) the
day on which the Program Agent shall have executed and delivered one or more
counterparts of this Amendment and shall have received one or more counterparts
of this Amendment executed by each of the parties hereto, and (ii) the
conditions precedent set forth in Section 5 hereof shall have been fulfilled.
Unless otherwise defined herein, the capitalized terms used
herein shall have the meanings assigned to such terms in the Purchase
Agreement.
Section 2. Amendments to the Purchase Agreement.
(a) Section 1.01 of the Purchase Agreement is hereby
amended by deleting the definitions "12b-1 Collateral Agent", "12b-1 Collateral
Agreement" and "Credit Agreement" set forth therein.
(b) Section 1.01 of the Purchase Agreement is hereby
amended by adding the following definitions in their proper alphabetical order
therein:
""Administrative Agent" shall mean Citibank, N.A., in its
capacity as administrative agent under the B Share Collateral
Agreement, together with its successors and assigns.
"B Share Collateral Agreement" shall mean the B Share
Collateral Agreement dated June 26, 1996 between the Seller and the
Administrative Agent.
"Credit Agreement" shall mean the B share Credit Agreement
dated June 26, 1996 among the Seller, the Lenders and the
Administrative Agent, as the same may from time to time be amended,
supplemented waived or modified."
(c) Section 1.01 of the Purchase Agreement is hereby further
amended by replacing the definition of "Purchase Limit" set forth therein with
the following definition:
""Purchase Limit" shall mean (i) through and including June 30,
1996, $175,000,000, (ii) from and including July 1, 1996 through and
including
2
<PAGE> 3
September 30, 1996, $215,000,000, (iii) from and including October 1,
1996 through and including December 31, 1996, $160,000,000 and (iv)
from and after January 1, 1997, $110,000,000, or such other amounts as
shall be agreed to in writing by the Purchaser, the Program Agent and
the Seller; provided, that on and after the Termination Date the
Purchase Limit shall be deemed to be zero for all purposes of this
Agreement."
(d) The Purchase Agreement is hereby amended by replacing
each reference to the term "12b-1 Collateral Agent" set forth in (i) the
definitions of "Adverse Claim" and "Collection Agency Agreement" contained in
Section 1.01 of the Purchase Agreement, (ii) Section 5.02(u) and Section
7.04(a) of the Purchase Agreement, and (iii) clause (B) of Exhibit G to the
Purchase Agreement, with the term "Administrative Agent".
(e) The Purchase Agreement is hereby amended by replacing
the reference to the term "12b-1 Collateral Agreement" set forth in the
definition of "Loan Documents" contained in Section 1.01 of the Purchase
Agreement with the term "B Share Collateral Agreement".
Section 3. Amendments to the Distribution Fee Purchase
Agreement.
From and after the Amendment Effective Date, the Distribution
Fee Purchase Agreement shall be amended and restated as set forth in Exhibit A
hereto (as so amended and restated, the "Amended and Restated Distribution Fee
Purchase Agreement"). The parties thereto shall execute a copy thereof in the
form of such exhibit in order to further evidence such amendment and
restatement.
Section 4. Amendments to the Collection Agency
Agreement.
(a) On and as of the Addition Effective Date (i) the
12b-1 Collateral Agent shall be deemed to be removed as a party to the
Collection Agency Agreement, and (ii) the Administrative Agent shall become a
party to the Collection Agency Agreement.
(b) Section 1(a) of the Collection Agency Agreement is
hereby amended by deleting the definitions "12b-1
3
<PAGE> 4
Collateral Account" and 12b-1 Collateral Agreement" set forth therein.
(c) Section 1(a) of the Collection Agency Agreement is
hereby amendment by adding the following definitions in their proper
alphabetical order therein:
"B Share Collateral Agreement" shall mean the B Share
Collateral Agreement dated June __, 1996 between the Seller and the
Administrative Agent, as the same may from time to time be amended,
supplemented, waived or modified.
"B Share Collateral Account" shall mean the money market
mutual fund account of the Seller, ABA No. 113000609, Account No.
100366807, Shareholder Account No. 402702 9182, pledged to the
Administrative Agent and maintained with AIM Money Market Fund at its
office at 11 Greenway Plaza, Suite 1919, Houston, Texas 77046 or such
other account as the Administrative Agent shall designate in writing."
(d) All references in the Collection Agency Agreement
(including, without limitation, in Exhibit A thereof) to the terms "12b-1
Collateral Agent" or "12b-1 collateral agent" shall be replaced with the term
"Administrative Agent".
(e) All references in the Collection Agency Agreement to
the terms "12b-1 Collateral Agreement" shall be replaced with the term "B Share
Collateral Agreement.
(f) All references in the Collection Agency Agreement to
the term "12b-1 Collateral Account" shall be replaced with the term "B Share
Collateral Account".
(g) Section 16 of the Collection Agency Agreement is
hereby amended by deleting the words "and the Servicing Fees" set forth in the
first sentence thereof and by deleting the words "and the Servicing Fee" set
forth in the second sentence thereof.
4
<PAGE> 5
Section 5. Conditions Precedent to Effectiveness of this
Amendment.
The occurrence of the Amendment Effective Date shall be
subject to the fulfillment of each of the following conditions precedent:
(a) this Amendment shall have been duly executed by the
parties hereto and shall be in full force and effect, and the Program Agent
shall have received a fully executed copy of this Amendment;
(b) the Amended and Restated Distribution Fee Purchase
Agreement shall have been duly executed by the parties thereto and shall be in
full force and effect, the Program Agent shall have received a fully executed
copy thereof;
(c) the Administrative Agent shall have delivered to the
Collection Agent an Authorized Representatives Certificate as contemplated by
Section 4.3(f) of the Collection Agency Agreement;
(d) immediately after giving effect to this Amendment,
there shall exist no Event of Termination (or event which, with the passage of
time or notice, or both, would constitute an Event of Termination); and
(e) the Program Agent shall have received such opinions
of counsel as it shall have reasonable requested each dated reasonably near the
Amendment Effective Date and in form, scope and substance reasonably
satisfactory to the Program Agent.
Section 6. Execution in Counterparts.
This Amendment may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an
original, and all of which counterparts, when taken together, shall constitute
but one and the same amendment.
5
<PAGE> 6
Section 7. Governing Law.
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 8. Severability of Provisions.
Any provision of this Amendment 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 or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 9. Captions.
The captions in this Amendment are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
6
<PAGE> 7
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first above written.
A I M MANAGEMENT GROUP INC.
By: /s/ ROBERT H. GRAHAM
----------------------------
Authorized Signatory
CITIBANK, N.A.,
as Purchaser
By: /s/ ARTHUR B. BOVINO
----------------------------
Authorized Signatory
Arthur B. Bovino
Attorney-in-fact
CITIBANK, N.A.,
as 12b-1 Collateral Agent
By: /s/ [ILLEGIBLE]
---------------------------
Authorized Signatory
Attorney-in-fact
CITIBANK, N.A.,
as Administrative Agent
By: /s/ [ILLEGIBLE]
---------------------------
Authorized Signatory
Attorney-in-fact
CITICORP NORTH AMERICA. INC.,
as Program Agent
By: /s/ ARTHUR B. BOVINO
---------------------------
Authorized Signatory
Arthur B. Bovino
Attorney-in-fact
BANKERS TRUST COMPANY
as Collection Agent
By: /s/ [ILLEGIBLE]
---------------------------
Authorized Signatory
7
<PAGE> 8
A I M DISTRIBUTORS, INC.
By: /s/ JOHN CALDWELL SVP
-----------------------------------
Senior Vice President
Consented and Agreed to
as of the Date First
Written Above:
A I M ADVISORS, INC.
as Advisor
By: /s/ CAROL F. RELIHAN
-----------------------------------
Authorized Signatory
8
<PAGE> 9
ANNEX A
[AMENDED AND RESTATED DISTRIBUTION
FEE PURCHASE AGREEMENT]
<PAGE> 1
EXHIBIT 10.4
================================================================================
$44,688,715.78
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
As Amended and Restated as of June 26, 1996
Among
A I M MANAGEMENT GROUP INC.
as Borrower
and
THE TRANCHE A LENDERS NAMED HEREIN
and
CITIBANK, N.A.
as Lead Managing Agent
and
CHEMICAL BANK
and
NATIONSBANK, N.A. (SOUTH)
as Co-Managing Agents
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
Page
----
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
<S> <C>
Section 1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.02. Certain Defined Terms Relating to ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 1.03. Computation of Time Periods; Terms Generally . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 1.04. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE II
TRANCHE A LOANS
Section 2.01. The Tranche A Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.02. The Tranche A Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.03. Repayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.04. Termination or Reduction of the Tranche A Commitment . . . . . . . . . . . . . . . . . . . . 31
ARTICLE III
LOAN PROCEDURE AND PREPAYMENTS
Section 3.01. Loan Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 3.02. Mandatory Prepayments from Certain Asset Sales . . . . . . . . . . . . . . . . . . . . . . . 34
Section 3.03. Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE IV
INTEREST, ETC.
Section 4.01. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 4.02. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.03. Conversion of Tranche A Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.04. Interest Rate Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 4.05. Changes in Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 4.06. Payments and Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 4.07. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 4.08. Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 4.09. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
</TABLE>
<PAGE> 3
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<TABLE>
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ARTICLE V
CONDITIONS OF LENDING
<S> <C>
Section 5.01. Conditions to Third Restatement Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 5.02. Conditions to Each Tranche A Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01. Organization, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.02. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.03. Authorization, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.04. Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.05. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.06. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.07. Liens; Insurance; Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.08. Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.09. Existing Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.10. Projections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.11. Accuracy of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.12. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 6.13. Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 6.14. Investment Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 6.15. Public Utility Holding Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 6.16. Margin Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 6.17. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE VII
COVENANTS OF THE BORROWER
Section 7.01. Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 7.02. Liens, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 7.03. Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 7.04. Consolidation, Merger, Sale of Assets, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 7.05. Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 7.06. Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 7.07. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 7.08. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
</TABLE>
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<TABLE>
Page
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<S> <C>
Section 7.09. Corporate Existence, Etc.; Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 7.10. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 7.11. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 7.12. Insurance Agency Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 7.13. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 7.14. Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 7.15. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 7.16. Issuance of Stock By Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 7.17. Modification of Agreements; Delivery of Opinions and Documents . . . . . . . . . . . . . . . 63
Section 7.18. Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 7.19. Descriptions of Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.20. Dividends of Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.21. Certain Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE IX
THE LEAD MANAGING AGENT AND THE
CO-MANAGING AGENTS
Section 9.01. Authorization and Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 9.02. Duties and Reliance, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 9.03. Lead Managing Agent, Co-Managing Agents and Affiliates . . . . . . . . . . . . . . . . . . . 73
Section 9.04. Tranche A Lender Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.05. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.06. Successor Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 9.07. Public Filings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 10.02. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 10.03. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
</TABLE>
<PAGE> 5
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<TABLE>
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<S> <C>
Section 10.04. Costs; Expenses and Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 10.05. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 10.06. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 10.07. Assignments and Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 10.08. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.09. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.10. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.11. CONSENT TO JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 10.12. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 10.13. No Third Party Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
</TABLE>
<PAGE> 6
v
EXHIBITS
Exhibit 1.01 - Form of Assignment and Acceptance
Exhibit 2.02 - Form of Tranche A Note
Exhibit 3.01 - Form of Notice of Borrowing
Exhibit 5.01(d) - Form of Termination Agreement
Exhibit 5.01(f)(iv)-1 - Form of Borrower's Solvency Certificate
Exhibit 5.01(f)(iv)-2 - Form of Guarantor's Solvency Certificate
Exhibit 5.01(f)(v) - Form of Opinion of Carol F. Relihan, general
counsel to the Loan Parties
Exhibit 5.01(f)(vi) - Form of Opinion of Ballard Spahr Andrews &
Ingersoll, special counsel to the Loan Parties
Exhibit 7.21 - Form of Guaranty
<PAGE> 7
vi
SCHEDULES
Schedule I - Tranche A Commitments and Applicable Lending Offices
Schedule 1.01A - Eligible Funds
Schedule 1.01B - Key Shareholders
Schedule 1.01C - Distribution Expenses
Schedule 1.01D - Investments
Schedule 3.02 - Excluded Asset Sales
Schedule 6.02 - Subsidiaries
Schedule 6.04 - Approvals
Schedule 6.09 - Existing Debt
Schedule 6.12 - Taxes
Schedule 6.13 - ERISA
Schedule 7.02 - Liens
<PAGE> 8
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
AS AMENDED AND RESTATED AS OF JUNE 26, 1996
THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June
26, 1996, among A I M Management Group Inc., a Delaware corporation (the
"Borrower"), the lenders listed on the signature pages hereof (the "Tranche A
Lenders"), Citibank, N.A. ("Citibank"), as administrative agent and lead
managing agent (the "Lead Managing Agent", such term to include any successor
Lead Managing Agent appointed pursuant to Article IX) for the Tranche A Lenders
hereunder, and Chemical Bank ("Chemical Bank") and NationsBank, N.A. (South)
("NationsBank"), as Co-Managing Agents (the "Co-Managing Agents" and, together
with the Lead Managing Agent, the "Managing Agents").
PRELIMINARY STATEMENTS:
(1) The Borrower entered into a Credit Agreement dated
as of August 20, 1993, as amended and restated as of December 6, 1994 and
November 30, 1995 (the "Existing Credit Agreement") with the banks (the
"Existing Lenders") parties thereto, Citibank, as the lead managing agent for
the Existing Lenders, and Chemical Bank and NationsBank, as co-managing agents.
(2) Pursuant to the Existing Credit Agreement, the
Borrower requested that the Existing Lenders make advances to it in an
aggregate principal amount of up to $89,915,938.78, on the terms and conditions
set forth therein.
(3) The Borrower has requested that the Tranche A
Lenders hereunder enter into this Agreement to amend and restate the Existing
Credit Agreement. The Tranche A Lenders hereunder have indicated their
willingness to amend and restate the Existing Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein, the parties hereto hereby
agree that, subject to the satisfaction of the conditions set forth in Article
V, the Existing Credit Agreement is amended and restated in its entirety to
read as follows:
<PAGE> 9
2
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. As used in this
Agreement, the following terms have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 10% or more of the Voting
Stock of such Person or to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Stock, by
contract or otherwise.
"Agreement" means this Third Amended and Restated Credit
Agreement, as the same may be amended, modified or supplemented from time to
time.
"AIM Advisors" means A I M Advisors, Inc., a Delaware
corporation and a Wholly-Owned Subsidiary of the Borrower.
"AIM Advisors Guaranty" means the amended and restated
guaranty by AIM Advisors, dated as of the date hereof, as the same may be
amended, modified or supplemented from time to time.
"AIM Capital Management" means A I M Capital Management, Inc.,
a Texas corporation and a Wholly-Owned Subsidiary of the Borrower.
"AIM Distributors" means A I M Distributors, Inc., a Delaware
corporation and a Wholly-Owned Subsidiary of the Borrower.
"AIM Entities" has the meaning specified in the definition of
"Permitted Deferred Load Amounts Securitization".
"AIM Fund Services" means A I M Fund Services, Inc., a
Delaware corporation and a Wholly-Owned Subsidiary of the Borrower.
"AIM Funds" means all open-end mutual funds (and every series
thereof) sponsored by the Borrower or any of its Subsidiaries or for which the
Borrower or any of its Subsidiaries provides investment advisory, management,
administrative, supervisory,
<PAGE> 10
3
consulting, underwriting or similar services from time to time, including such
funds which are now existing and which may hereafter be organized.
"AIM Guaranties" means the AIM Advisors Guaranty and any
Guaranty granted pursuant to Section 7.21, in each case as the same may be
amended, modified or supplemented from time to time.
"AIM Money Market Fund" means any open-end AIM Fund that (i)
complies with paragraphs (c)(2), (c)(3) and (c)(4) of Rule 2a-7, and (ii) uses
the "Amortized Cost Method" (as such term is defined in Rule 2a-7) of
calculating such AIM Fund's net asset value.
"AIM Participants" has the meaning specified in the definition
of "Permitted Deferred Load Amounts Securitization".
"Applicable Lending Office" means, with respect to each
Tranche A Lender, such Tranche A Lender's Domestic Lending Office in the case
of a Base Rate Loan and such Tranche A Lender's Eurodollar Lending Office in
the case of a Eurodollar Rate Loan.
"Applicable Margin" means, with respect to Base Rate Loans,
Eurodollar Loans and Commitment Fees, in each case at any time and from time to
time thereafter, a percentage per annum equal to the applicable percentage
determined by reference to the Leverage Ratio as set forth below:
<TABLE>
<CAPTION>
Leverage Base Rate Eurodollar Commitment
Ratio Loan Rate Loan Fee
------------------ ---------- ----------- ---------------
<S> <C> <C> <C>
Less than 0.5:1 0.00% 0.50% 0.150%
0.5:1-1.5:1 0.00% 0.75% 0.175%
Greater than 1.5:1 0.00% 1.00% 0.225%
</TABLE>
The Applicable Margin shall be determined on the date of delivery of each
compliance certificate referred to in Section 7.18(d) by reference to the
Leverage Ratio as of the last day of the most recently ended Fiscal Quarter of
the Borrower as reported in such compliance certificate.
"Asset Sale" means any sale, lease, transfer or other
disposition in a transaction or a series of related transactions of (i) any
tangible or intangible asset (including shares of Capital Stock other than
shares of Capital Stock issued by the Borrower) owned by
<PAGE> 11
4
the Borrower or any of its Subsidiaries other than in the ordinary course of
business or (ii) any right or interest of the Borrower or any of its
Subsidiaries in any Management Contract or any other contract with, or with
respect to, any AIM Fund.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Tranche A Lender and an Eligible Assignee, and accepted by
the Lead Managing Agent and the Borrower, in accordance with Section 10.07 and
in substantially the form of Exhibit 1.01.
"B Share Collateral Agreement" has the meaning specified in
the B Share Credit Agreement.
"B Share Credit Agreement" means the credit agreement, dated
as of June 26, 1996 among the Borrower, Citibank, as Administrative Agent, and
the lenders party thereto (the "B Share Lenders").
"B Share Loans" means the loans granted by the B Share Lenders
to the Borrower pursuant to the B Share Credit Agreement.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be equal to
the highest of:
(a) the rate of interest announced publicly by Citibank
in New York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i)
1/2 of 1% per annum, plus (ii) the rate obtained by dividing (A) the
latest three-week moving average of secondary market morning offering
rates in the United States for three-month certificates of deposit of
major United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for Citibank with
respect to liabilities consisting of or including (among other
liabilities)
<PAGE> 12
5
three-month U.S. dollar non-personal time deposits in the United
States, plus (iii) the average during such three-week period of the
annual assessment rates reasonably estimated by Citibank for
determining the then current annual assessment payable by Citibank to
the Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds
Rate.
"Base Rate Loans" means Tranche A Loans which bear interest at
the rate in the manner set forth in Section 4.01(a)(i) and, if applicable,
Section 4.01(b).
"Beneficial Ownership" and "Beneficially Own" have the
meanings ascribed to such terms in the Securities Exchange Act and Rules 13d-3
and 13d-5 thereunder.
"Borrower" has the meaning specified in the recital of parties
to this Agreement.
"Borrower Information" means the written information provided
by or on behalf of the Borrower to the Lead Managing Agent and the Co-Managing
Agents in connection with the syndication of this Agreement (including any
written materials, financial statements and financial projections and any
amendments, supplements, schedules and exhibits thereto).
"Borrower's Account" means the account designated by the
Borrower in writing to the Lead Managing Agent from time to time.
"Broker Commissions" means the amounts paid by the Borrower or
any Subsidiary to unaffiliated broker- dealers or other distributors in
connection with the distribution by such broker-dealers or other distributors
of mutual funds sponsored by the Borrower and its Subsidiaries.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Loans, on which dealings are
carried on in the London interbank market.
"Capital Expenditure" means any expenditure in respect of the
purchase or other acquisition of fixed or capital assets (excluding any such
asset acquired in connection with normal replacement and maintenance charged to
current operations) capitalized in accordance with GAAP.
"Capital Lease" as applied to any Person means any lease of
any property (whether real, personal or mixed) by such Person as lessee which
would, in accordance with
<PAGE> 13
6
GAAP, be required to be classified and accounted for as a capital lease on a
balance sheet of such Person, other than, in the case of the Borrower or a
Subsidiary, any such lease under which the Borrower or a Subsidiary is the
lessor.
"Capital Lease Obligations" means, with respect to any Capital
Lease, the amount of the obligation of the lessee thereunder which would, in
accordance with GAAP, appear on a balance sheet of such lessee in respect of
such Capital Lease.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of such
Person's capital stock.
"Cash Equivalent" means (A) any evidence of Debt, maturing
not more than one year after the date of acquisition, issued or guaranteed by
the United States of America, or an instrumentality or agency thereof or
guaranteed fully as to principal, premium, if any, and interest by the United
States, (B) marketable direct obligations issued or guaranteed by any state of
the United States or any political subdivision of any such state or public
instrumentality thereof maturing within one year from the date of acquisition
thereof and having as at any date of determination the highest rating
obtainable from either S&P or Moody's, (C) any certificate of deposit, maturing
not more than one year after the date of acquisition, issued by, or time
deposit of, a commercial banking institution that is a member of the Federal
Reserve System and that has combined capital and surplus and undivided profits
of not less than $500,000,000, whose debt has a rating, at the time as of which
any investment therein is made, of "P-1" (or higher) according to Moody's or
any successor rating agency, or "A-1" (or higher) according to S&P or any
successor rating agency, (D) commercial paper, maturing not more than one year
after the date of acquisition, issued by a corporation (other than an Affiliate
or Subsidiary of the Borrower) organized and existing under the laws of the
United States with a rating, at the time as of which any investment therein is
made, of "P-1" (or higher) according to Moody's or any successor rating agency,
or "A-1" (or higher) according to S&P or any successor rating agency, (E) any
money market deposit accounts issued or offered by a domestic commercial bank
having capital and surplus in excess of $500,000,000; provided the debt of such
domestic commercial bank has a rating, at the time of investment, of "P-1" (or
higher) according to Moody's or any successor rating agency, or "A-1" (or
higher) according to S&P or any successor rating agency, (F) repurchase
obligations with a term of not more than 14 days for underlying securities of
the types described in clauses (A), (B), (C) and (D) above, entered into with
any financial institution designated as a "Primary Dealer" by the Federal
Reserve Bank of New York, or any commercial banking institution that satisfies
the criteria set forth in clause (C) above as a counterparty, and (G) the
securities of any AIM Money Market Fund.
"Cash Interest Expense" as applied to any Person means, for
any period, all cash interest charges (including imputed interest on Capital
Lease Obligations) paid or
<PAGE> 14
7
accrued by such Person (but excluding amortization of debt discount or debt
issuances and excluding overdue interest).
"CDSC Shares" means any shares (or class of shares) of
beneficial interest or capital stock of any AIM Fund, which (i) are offered at
net asset value without an initial sales charge, (ii) are subject to a
Contingent Deferred Sales Charge upon the redemption of such shares for six
years from the initial purchase of such shares and (iii) as to which
Distribution Fees are payable in connection with the distribution thereof.
"Chemical Bank" has the meaning specified in the recital of
parties to this Agreement.
"Citibank" has the meaning specified in the recital of parties
to this Agreement.
"Collateral Fund" means an AIM Fund into which CDSC Shares
initially issued by an Eligible Fund may be exchanged without the payment of a
Contingent Deferred Sales Charge.
"Collections" means the sum, without duplication, of:
(a) with respect to any Deferred Load Amounts, all funds
which are received in any period by or for the benefit of the Borrower
from the relevant AIM Fund and/or from any of the shareholders of such
AIM Fund in payment of any amounts owed in respect of such Deferred
Load Amounts minus (i) amounts (not exceeding 0.25% per annum of the
net asset value from time to time of all CDSC Shares) paid to the
Borrower or any of its Subsidiaries by an AIM Fund as "Service Fees",
as such term is defined in the applicable Rules of Fair Practice of
the National Association of Securities Dealers; and
(b) all Securitization Program Collections.
"Co-Managing Agents" has the meaning specified in the first
paragraph of this Agreement.
"Commitment Fee" has the meaning specified in Section 4.02(a).
"Confidential Information" means information that the Borrower
or an Affiliate of the Borrower furnishes to the Lead Managing Agent or any
Tranche A Lender, but does not include any such information that is or becomes
generally available to the public other than as a result of a breach by the
Lead Managing Agent or any Tranche A Lender of its obligations hereunder or
that is or becomes available to the Lead Managing Agent or such
<PAGE> 15
8
Tranche A Lender from a Person other than the Borrower or an Affiliate of the
Borrower, which Person is not known by the Lead Managing Agent or such Tranche
A Lender, as the case may be, to be subject to a confidentiality restriction.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Contingent Deferred Sales Charge" means the amount payable by
a shareholder of any AIM Fund on redemption of such shareholder's CDSC Shares
in such AIM Fund prior to the end of the holding period specified from time to
time in such AIM Fund's prospectus, the proceeds of which charge are payable to
or for the benefit of the Borrower.
"Contractual Obligation" of any Person means any obligation,
agreement, undertaking or similar provision in any security issued by such
Person or in any agreement, undertaking, contract, lease, indenture, mortgage,
deed of trust or other instrument to which such Person is a party or by which
it or any of its properties is bound.
"Conversion", "Convert" and "Converted" each refers to a
conversion of Tranche A Loans of one Type into Tranche A Loans of the other
Type pursuant to Section 4.03.
"Currency Hedging Arrangements" means one or more of the
following agreements which shall be entered into by one or more financial
institutions: foreign exchange contracts, currency swap agreements or other
similar agreements.
"Debt" as applied to any Person (without duplication), means:
(a) any indebtedness for borrowed money which such Person
has directly or indirectly created, incurred or assumed;
(b) any indebtedness, whether or not for borrowed money,
secured by any Lien in respect of property owned by such Person,
whether or not such Person has assumed or become liable for the
payment of such indebtedness;
(c) any indebtedness, whether or not for borrowed money,
with respect to which such Person has become directly or indirectly
liable and which represents or has been incurred to finance the
purchase price (or a portion thereof) of any property or services
(except for accounts payable and other current liabilities arising in
the ordinary course of business and payable on customary terms) or
business acquired by such Person, whether by purchase, consolidation,
merger or otherwise;
<PAGE> 16
9
(d) any Interest Rate Protection Agreement or Currency
Hedging Arrangement;
(e) any Capital Lease Obligation of such Person;
(f) any indebtedness of the character referred to in
clause (a), (b), (c), (d) or (e) of this definition deemed to be
extinguished under GAAP but for which such Person remains legally
liable; and
(g) any indebtedness of any other Person of the character
referred to in clause (a), (b), (c), (d), (e) or (f) of this
definition with respect to which the Person whose Debt is being
determined has become liable by way of a Guaranty.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given or
time elapse, or both.
"Deferred Load Amounts" means all amounts payable or that
become payable to or for the benefit of the Borrower by any AIM Fund which is
an Eligible Fund, a Collateral Fund or a Designated AIM Fund and/or any
shareholder of such an AIM Fund from time to time in respect of all
Distribution Fees and all Contingent Deferred Sales Charges.
"Designated AIM Fund" has the meaning specified in the
definition of Permitted Deferred Load Amounts Securitization.
"Distribution Agreement" means any underwriting agreement and
any plan or related agreement as contemplated by Rule 12b-1 under the
Investment Company Act in connection with the distribution of shares of any
Eligible Fund or any Collateral Fund.
"Distribution Expenses" means the amounts paid by AIM
Distributors (or any Subsidiary successor thereto) in respect of Broker
Commissions and prepaid service fees in connection with the distribution of
CDSC Shares of an Eligible Fund in amounts no greater than the amounts set
forth on Schedule 1.01C hereto, but only if such expenses are covered by a
Distribution Plan providing for Distribution Fees and Contingent Deferred Sales
Charges no less than those set forth on Schedule 1.01C. Distribution Expenses
does not include any other marketing or other distribution-related costs or
service fees payable to brokers.
"Distribution Fees" means all fees payable to or for the
benefit of the Borrower by any AIM Fund pursuant to a Distribution Plan with
respect to CDSC Shares.
<PAGE> 17
10
"Distribution Fee Purchase Agreement" means the Second Amended
and Restated Distribution Fee Purchase Agreement, dated as of June 26, 1996,
between the Borrower and AIM Distributors, as such agreement may be further
amended, modified or supplemented from time to time.
"Distribution Plan" means any plan adopted (as amended from
time to time) by an Eligible Fund or any Collateral Fund and any related
agreements, as contemplated by Rule 12b-1 under the Investment Company Act, in
connection with the distribution of CDSC Shares of such Eligible Fund (or any
Collateral Fund).
"Domestic Lending Office" means, with respect to any Tranche A
Lender, the office of such Tranche A Lender specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Tranche A Lender, or such other office
of such Tranche A Lender as it may from time to time specify by notice to the
Borrower and the Lead Managing Agent.
"EBITDA" means, for any period, Consolidated Net Income for
such period, adjusted (i) by adding thereto the sum of (A) Consolidated
Interest Expense of the Borrower and its Subsidiaries, (B) depreciation
expense, (C) amortization expense, (D) income tax expense, (E) extraordinary
losses and other losses on Asset Sales not included in extraordinary losses and
(F) Contingent Deferred Sales Charges to the extent not recognized as revenue
for such period and (ii) by subtracting therefrom extraordinary gains and other
gains on Asset Sales not included in extraordinary gains; in each case (other
than clause (F) above) to the extent such amounts were included in arriving at
Consolidated Net Income for such period.
"Eligible Assignee" means (i) a commercial bank organized
under the laws of the United States, or any State thereof, and having a
combined capital and surplus of at least $100,000,000; (ii) a savings and loan
association or savings bank organized under the laws of the United States, or
any State thereof, and having a combined capital and surplus of at least
$250,000,000; (iii) a commercial bank organized under the laws of any other
country which is a member of the OECD, or has concluded special lending
arrangements with the International Monetary Fund associated with its General
Arrangements to Borrow, or a political subdivision of any such country, and
having a combined capital and surplus of at least $100,000,000, provided that
such bank is acting through a branch or agency located in the country in which
it is organized or another country described in this clause (iii); (iv) the
central bank of any country which is a member of the OECD; or (v) a finance
company, insurance company or other financial institution or fund organized
under the laws of the United States, or any State thereof, or under the laws of
any other country that is a member of the OECD, or a political subdivision of
any such country, which is engaged in making, purchasing or otherwise investing
in commercial loans in the ordinary course of its business and which has total
assets in excess of $100,000,000.
<PAGE> 18
11
"Eligible Fund" means any AIM Fund which is listed on Schedule
1.01A or which is designated as an Eligible Fund with the consent of the
Required Lenders under the B Share Credit Agreement.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Tranche
A Lender, the office of such Tranche A Lender specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Tranche A Lender (or, if no such
office is specified, its Domestic Lending Office), or such other office of such
Tranche A Lender as it may from time to time specify by notice to the Borrower
and the Lead Managing Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Loan comprising part of the same Tranche A Borrowing, an
interest rate per annum equal to the rate per annum obtained by dividing (i)
the average (rounded upward, if necessary, to the nearest whole multiple of
1/16 of 1% per annum) of the rates per annum at which deposits in U.S. Dollars
are offered by the principal office of each Reference Bank in London, England
to prime banks in the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurodollar Rate Loan comprising
part of such Tranche A Borrowing to be outstanding during such Interest Period
and for a period equal to such Interest Period by (ii) a percentage equal to
100% minus the Eurodollar Reserve Percentage for such Interest Period. The
Eurodollar Rate for each Interest Period for each Eurodollar Rate Loan
comprising part of the same Tranche A Borrowing shall be determined by the Lead
Managing Agent on the basis of applicable rates furnished to and received by
the Lead Managing Agent from the Reference Banks two Business Days before the
first day of such Interest Period.
"Eurodollar Rate Loans" means Tranche A Loans which bear
interest at the rate in the manner set forth in Section 4.01(a)(ii) and, if
applicable, Section 4.01(b).
"Eurodollar Reserve Percentage" for any Interest Period for
each Eurodollar Rate Loan comprising part of the same Tranche A Borrowing,
means the reserve percentage applicable two Business Days before the first day
of such Interest Period under regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve System
in New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities that
<PAGE> 19
12
includes deposits by reference to which the interest rate on Eurodollar Rate
Loans is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Existing Asset Purchase Agreement" means the Purchase and
Sale Agreement dated as of May 2, 1995 among the Borrower, Citibank, as
purchaser, and Citicorp North America, Inc., as program agent, as such
agreement may be amended, supplemented or otherwise modified.
"Existing Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Existing Debt" means Debt of the Borrower and its
Subsidiaries outstanding immediately prior to the Third Restatement Date and
described in Schedule 6.09.
"Existing Lenders" has the meaning specified in the
Preliminary Statements.
"Federal Bankruptcy Code" means the Bankruptcy Code of 1978,
as amended from time to time.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum (rounded upward if necessary, to the nearest 1/100th of
1%) equal for each day during such period to 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 for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day for such
transactions received by the Lead Managing Agent from three Federal funds
brokers of recognized standing selected by it.
"Fiscal Quarter" means, with respect to any Person, each
three-month period ending on March 31, June 30, September 30 or December 31 in
any calendar year.
"Fiscal Year" means, with respect to any Person, each
twelve-month period ending on December 31 in any calendar year.
"Fixed Charges" means, with reference to any period, the sum
of the following: (i) all Consolidated Cash Interest Expense of the Borrower
and its Subsidiaries;
<PAGE> 20
13
and (ii) the aggregate amount of all required or mandatory scheduled payments
or prepayments of principal paid or accrued by the Borrower and its
Subsidiaries on all Debt (including pursuant to Section 3.02(b) of the B Share
Credit Agreement but excluding (A) prepayments under Section 3.02(c) of the B
Share Credit Agreement, (B) optional prepayments under Section 3.03, (C)
optional prepayments under Section 3.03 of the B Share Credit Agreement and (D)
optional prepayments of the Senior Notes).
"Fund" means any Investment Company managed by the Borrower or
any Subsidiary for which the Borrower or any Subsidiary provides advisory,
administrative, supervisory, management, consulting, underwriting, transfer
agency, shareholder or share servicing or similar services.
"Fund Management Company" means Fund Management Company, a
Texas corporation, and a Wholly-Owned Subsidiary of the Borrower.
"GAAP" has the meaning specified in Section 1.04.
"Governmental Authority" shall mean any federation, nation,
state, sovereign, or government, any federal, supranational, regional, state,
local or political subdivision, any governmental or administrative body,
instrumentality, department or agency or any court, tribunal, administrative
hearing body, arbitration panel, commission or other similar dispute resolving
panel or body, and any other entity exercising executive, legislative,
judicial, regulatory or administrative functions of government.
"Guarantors" means AIM Advisors and any Subsidiary of the
Borrower that becomes a Guarantor pursuant to Section 7.21.
"Guaranty", as applied to any Person, means any direct or
indirect liability, contingent or otherwise, of such Person with respect to any
indebtedness, lease, dividend or other obligation of another, including any
such obligation directly or indirectly guaranteed, endorsed (other than for
collection or deposit in the ordinary course of business) or discounted or sold
with recourse by such Person (including pursuant to any permitted
Securitization Program), or in respect of which such Person is otherwise
directly or indirectly liable, including any such obligation in effect
guaranteed by such Person through any agreement (contingent or otherwise) to
purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise), or to maintain the solvency or any balance sheet or other
financial condition of the obligor of such obligation, or to make payment for
any products, materials or supplies or for any transportation or services
regardless of the nondelivery or nonfurnishing thereof, in any such case if the
purpose or intent of such agreement is to provide assurance that such
obligation will be paid or discharged, or that any agreements relating thereto
will be
<PAGE> 21
14
complied with, or that the holders of such obligation will be protected against
loss in respect thereof. The amount of any Guaranty shall be equal to the
outstanding principal amount of the obligation guaranteed (or in the case of
any AIM Guaranty, such lesser amount as to which the maximum exposure of the
Guarantor may have been specifically limited as provided in such AIM Guaranty).
"Highest Lawful Rate" has the meaning specified in Section
4.05(f).
"Indemnified Party" has the meaning specified in Section
10.04(b).
"Insurance Agency Subsidiary" means (i) a direct Subsidiary of
the Borrower, AIM Advisors or another Insurance Agency Subsidiary (but only to
the extent applicable law or the regulations or procedures of Governmental
Authorities having jurisdiction over such corporation's activity in the sale of
insurance would not permit direct ownership of such Corporation by the Borrower
or AIM Advisors) and (ii) any corporation in which the Borrower or AIM Advisors
owns shares of non-voting or preferred Capital Stock and an individual or
unrelated corporation holds the shares of voting Capital Stock as required by
applicable law or the regulations or procedures of Governmental Authorities
having jurisdiction over such corporation's activity in the sale of insurance,
which in each case were established to facilitate the distribution of shares of
the various series portfolios of AIM Variable Insurance Funds, Inc.
"Interest Expense" as applied to any Person means, for any
period, all interest charges (including amortization of debt discount and
expense and imputed interest on Capital Lease Obligations) properly charged or
chargeable to income of such Person during such period in accordance with GAAP.
"Interest Period" means, for each Eurodollar Rate Loan
comprising part of the same Tranche A Borrowing, the period commencing on the
date of such Eurodollar Rate Loan or the date of the Conversion of any Base
Rate Loan into such Eurodollar Rate Loan, and ending on the last day of the
period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below. The duration of
each such Interest Period shall be one, two, three or six months, as the
Borrower may, upon notice received by the Lead Managing Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the first
day of such Interest Period, select; provided that:
(a) the Borrower may not select any Interest Period
relating to a Eurodollar Rate Loan that extends beyond the date final
payment is due on such Eurodollar Rate Loan;
<PAGE> 22
15
(b) Interest Periods commencing on the same date for
Eurodollar Rate Loans comprising part of the same Tranche A Borrowing
shall be of the same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day unless such Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding
Business Day; and
(d) whenever the first day of any Interest Period occurs
on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds such
initial calendar month by the number of months in such Interest
Period, such Interest Period shall end on the last Business Day of
such succeeding calendar month.
"Interest Rate Protection Agreements" means interest rate
swap, cap or collar agreements, interest rate insurance and other similar
agreements.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Investment" means, with respect to any Person, directly or
indirectly, any advance, loan or other extension of credit or capital
contribution to any other Person (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase, acquisition or ownership by such Person of any
Capital Stock, bonds, notes, debentures or other securities issued or owned by
any other Person; provided that the term Investment shall not include any
Broker Commissions or other expenses incurred on behalf of any Person or trade
credit extended by such Person in the ordinary course of business.
"Investment Advisers Act" means the Investment Advisers Act of
1940, as amended from time to time, and the rules and regulations promulgated
thereunder.
"Investment Company" means an "investment company" as such
term is defined in the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, and the rules and regulations promulgated
thereunder.
"Key Shareholder Group" has the meaning specified in
Schedule 1.01B.
<PAGE> 23
16
"Lead Managing Agent" has the meaning specified in the first
paragraph of this Agreement.
"Lead Managing Agent's Account" means the account of the Lead
Managing Agent maintained with Citibank at its office at 399 Park Avenue, New
York, New York 10043, Acct No. 36852248, Attn: Bank Loan Syndications
(Reference: AIM Management).
"Lenders Asset Sale Allocation" means at any date of
determination, a fraction (i) the numerator of which is the outstanding
principal amount of the Tranche A Loans on such date and (ii) the denominator
of which is an amount equal to the sum of (A) the outstanding principal amount
of the Tranche A Loans on such date and (B) the outstanding principal amount of
the B Share Loans on such date.
"Lenders Asset Sale Percentage" means at any date of
determination, a fraction (i) the numerator of which is the sum of (A) the
outstanding principal amount of the Tranche A Loans on such date and (B) the
outstanding principal amount of the B Share Loans on such date and (ii) the
denominator of which is an amount equal to the sum of (A) the outstanding
principal amount of the Tranche A Loans on such date, (B) the outstanding
principal amount of the B Share Loans on such date and (C) the aggregate
principal amount of Senior Notes outstanding on such date.
"Leverage Ratio" means, with respect to the Borrower at any
date of determination, the ratio of (i) Consolidated Debt of the Borrower and
its Subsidiaries minus the amount of cash and Cash Equivalents of the Borrower
and its Subsidiaries to (ii) EBITDA, in each case determined as of the last day
of the most recently completed Rolling Period of the Borrower. Solely for
purposes of calculation of "Leverage Ratio," Consolidated Debt shall exclude
the aggregate principal amount of all Senior Notes held by the Borrower on such
date and the notional amount of all Interest Rate Protection Agreements and all
Currency Hedging Arrangements in effect on such date.
"Lien" as to any Person, means any mortgage, lien, pledge,
charge, security interest or other encumbrance in or on, or any interest or
title of any vendor, lessor, lender or other secured party to or of such Person
under any conditional sale or other title retention agreement or Capital Lease
with respect to, any property or asset owned or held by such Person, or the
signing or filing of a financing statement which names such Person as debtor,
or the signing of any security agreement authorizing any other party as the
secured party thereunder to file any financing statement.
"Loan Documents" means this Agreement, the Tranche A Notes and
the AIM Guaranties.
"Loan Parties" means the Borrower and each Guarantor.
<PAGE> 24
17
"Management Contract" means an agreement pursuant to which the
Borrower or any of its Subsidiaries provides investment advisory, management or
administrative services to an Eligible Fund or any Collateral Fund.
"Managing Agents" has the meaning specified in the first
paragraph of this Agreement.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means a material adverse change in
the business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower and its Subsidiaries taken as a whole
since any stated reference date or from and after the date of determination.
"Material Adverse Effect" means a material adverse effect on
(i) the business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower and its Subsidiaries taken as a whole,
(ii) the rights and remedies of the Lead Managing Agent, any Co-Managing Agent
or any Tranche A Lender under any Loan Document or (iii) the ability of the
Borrower and each of its Subsidiaries to perform its Obligations under any Loan
Document.
"Material Subsidiary" means, with respect to any Person, each
Subsidiary of such Person except (a) any Subsidiary of the U.S. Holding Company
which is not a U.S. Person and (b) any Insurance Agency Subsidiary; provided,
however, that any Insurance Agency Subsidiary shall be a "Material Subsidiary"
from and after any time in which (i) the total asset value of such Insurance
Agency Subsidiary is greater than 5% of the total asset value of the Borrower,
(ii) in any Fiscal Year in which the Borrower's net income is greater than or
equal to $1, such Insurance Agency Subsidiary has net income for such Fiscal
Year equal to or greater than 5% of the Borrower's net income for such Fiscal
Year, or (iii) in any Fiscal Year in which the Borrower's net income is less
than $1, such Insurance Agency Subsidiary has net income in an amount equal to
or greater than $1,000,000; and provided further that each Insurance Agency
Subsidiary shall be a "Material Subsidiary" from and after any time in which
(i) the total asset value of the Insurance Agency Subsidiaries at such time is
greater than 10% of the total asset value of the Borrower at such time or (ii)
in any Fiscal Year in which the Borrower's net income is greater than or equal
to $1, the Insurance Agency Subsidiaries have an aggregate net income for such
Fiscal Year equal to or greater than 10% of the Borrower's net income for such
Fiscal Year.
"Moody's" means Moody's Investors Service, Inc.
"NationsBank" has the meaning specified in the first paragraph
of this Agreement.
<PAGE> 25
18
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset of any Person, the aggregate amount
of cash or Cash Equivalents payable to such Person from time to time in
connection with such transaction, after deducting therefrom only (i) reasonable
and customary brokerage commissions, legal fees, investment bankers' fees,
finder's fees and other similar fees and commissions, (ii) the amount of taxes
payable by such Person in connection with or as a result of such transaction,
and (iii) the amount of any Debt secured by a Lien on such asset that, by the
terms of such transaction, is required to be repaid upon such disposition, in
each case to the extent, but only to the extent, that the amounts so deducted
are actually paid to a Person that is not an Affiliate and are properly
attributable to such transaction or to the asset that is the subject thereof.
"Net Income" means, with reference to any period, the net
income (or deficit) of the Borrower and its Subsidiaries for such period, all
determined in accordance with GAAP on a Consolidated basis after eliminating
all intercompany transactions, provided that there shall be excluded (i) the
income (or deficit) of any Person accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with the Borrower or a Subsidiary,
and (ii) the income (or deficit) of any Person (other than a Subsidiary) in
which the Borrower or any Subsidiary has an ownership interest, except to the
extent that any such income has been actually received by the Borrower or such
Subsidiary in the form of dividends or similar distributions.
"Non-U.S. Lender" means any Tranche A Lender that is not a
U.S. Person.
"Notice of Borrowing" has the meaning specified in Section
3.01(a).
"Obligation" means, with respect to any Person, any obligation
of such Person of any kind, including any liability of such Person on any
claim, whether or not the right of any creditor to payment in respect of such
claim is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured. Without
limiting the generality of the foregoing, the Obligations of each Loan Party
under the Loan Documents include (i) the obligation to pay principal, interest,
charges, expenses, fees, attorneys' fees and disbursements, indemnities and
other amounts payable by such Loan Party under any Loan Document, and (ii) the
obligation to reimburse any amount in respect of any of the foregoing that any
Tranche A Lender, in its sole discretion, may elect to pay or advance on behalf
of such Loan Party as permitted by any Loan Document.
"Operating Cash Flow" means, for any period, EBITDA for such
period, adjusted: (i) by adding thereto any net increase in deferred tax
liability for such period and any net decrease in deferred tax asset for such
period and (ii) by subtracting (A) income tax expense, (B) Capital Expenditures
of the Borrower and its Subsidiaries and (C) any net decrease in deferred tax
liability for such period and any net increase in deferred tax asset for such
period; provided that such net increase or decrease in deferred tax liability
or asset
<PAGE> 26
19
shall be taken into account only to the extent such deferred tax liability or
asset is attributable to temporary book-tax difference.
"Other Taxes" has the meaning specified in Section 4.07(b).
"Override Payments" means payments as compensation for
services earned for the distribution of shares of the various series portfolios
of AIM Variable Insurance Funds, Inc., the amount of which payments are based
on premiums received in connection with such distribution of shares.
"Pari Passu Debt" means any Debt of the Borrower that is pari
passu in right of payment to the Tranche A Loans.
"Permitted Deferred Load Amounts Securitization" means any
transaction (the "Transaction") among one or more of AIM Distributors, the
Borrower, any Subsidiaries of the foregoing (collectively, the "AIM
Participants") and other Persons who may include Citibank or Affiliates of
Citibank (the "Financing Participants"):
(a) which constitutes a sale of, or
securitization of, all or any portion of the Borrower's right,
title and interest in Deferred Load Amounts paid, payable or
to become payable with respect to one or more specified
classes of shares (the "Designated Shares") issued by
specified AIM Funds (the "Designated AIM Funds") on or after
the date of closing of the Transaction,
(b) in which the proceeds realized by the AIM
Participants are used primarily to fund the payment of
expenses and other costs incurred in connection with the
distribution of the Designated Shares of the Designated AIM
Funds,
(c) pursuant to which Transaction the Financing
Participants look primarily to the Deferred Load Amounts sold
or securitized to recover their principal or investment and
yield thereon,
(d) pursuant to which all Collections are
required, pursuant to the Securitization Program Allocation
Procedures, to be paid by the AIM Funds directly to the
Collection Account referred to in the B Share Credit Agreement
for disbursement to the Administrative Agent under the B Share
Credit Agreement, the AIM Participants and the Financing
Participants,
(e) in which the Transaction documentation does
not provide the Financing Participants any recourse against
the AIM Participants except in
<PAGE> 27
20
respect of claims, which shall not be secured by assets of
the AIM Participants other than Deferred Load Amounts sold or
securitized, arising out of Transaction documentation terms
which are customary in transactions of the type in question,
including, without limitation:
(A) representations and warranties such
as those relating to (I) the legal status of the AIM
Participants or any Person to whom any thereof
delegate their duties, or any Designated AIM Fund
(any thereof an "AIM Entity"), including, without
limitation, their legal status under the relevant
securities laws, (II) the power, authority and
ability of the AIM Participants and AIM Entities to
enter into and perform their obligations under the
Transaction documentation and related documentation,
(III) the AIM Participants' title to the Deferred
Load Amounts and the absence of adverse claims in
respect thereof, (IV) the legality, enforceability,
assignability, terms, and other relevant
characteristics of the Deferred Load Amounts and the
related distribution plans, distribution agreements,
sales charge arrangements or other agreements
relating to the distribution of shares of any
Designated AIM Fund, (V) the investment policies and
restrictions, share redemption and exchange policies
and experience, and management, advisory or service
agreements of the Designated AIM Funds, (VI) the
legality and enforceability of the Transaction
documentation and the effectiveness thereof to
transfer to the Financing Participants the right,
title and interest in the Deferred Load Amounts and
the products, proceeds and collections in respect
thereof intended to be transferred thereby and to
perfect the same, and (VII) the accuracy of
information provided by or on behalf of AIM Entities;
(B) covenants such as (I) undertakings
to act as servicer or agent for the collection of the
products, proceeds and collections in respect of the
Deferred Load Amounts and to perform reporting,
filing, perfection and auditing functions in
connection therewith, (II) undertakings to perform,
cause performance and assure capacity to perform by
the AIM Entities of their duties under the
Transaction documentation, applicable laws, the
distribution plans, distribution agreements,
management agreements, advisory agreements, or
service agreements and other agreements relating to
the Deferred Load Amounts, (III) undertakings to
maintain and use the position or authority of the AIM
Entities in respect of the Designated AIM Funds so as
to preserve and not adversely affect the Deferred
Load Amounts, (IV) undertakings to keep the interests
of the Financing Participants in the Deferred Load
Amounts and the proceeds, products and collections
<PAGE> 28
21
in respect thereof perfected and free and clear of
adverse claims, and (V) undertakings to bear expenses
of the Transaction and the administration and
enforcement of the Transaction documentation, to
provide financial information, to give notices of
important events, to maintain confidentiality, and
other undertakings customary in transactions similar
to the Transaction; and
(C) indemnifications for costs,
expenses, liabilities, losses attributable to
malfeasance, misfeasance, breach of covenants, or
misrepresentations by AIM Entities and certain other
negotiated occurrences arising out of the nature of
the Deferred Load Amounts being transferred or the
operations of the AIM Entities, including, without
limitation, (I) certain amendments, modifications or
terminations of any distribution plan, management
agreement, advisory agreement, distribution agreement
or other agreement relating to the distribution of
the shares of the Designated AIM Funds to the extent
responsibility for which is assigned to the AIM
Participants under the Transaction documentation,
(II) certain changes in the investment policies or
experience or Contingent Deferred Sales Charge
arrangements of any Designated AIM Fund or any other
agreement or arrangement relating to the Deferred
Load Amounts to the extent responsibility for which
is assigned to the AIM Participants under the
Transaction documentation, (III) any litigation,
investigations, or regulatory actions arising out of
the operations of any AIM Entity, and (IV) any
liquidation, reorganization or similar event relating
to any AIM Entity,
(f) in which customary assurances (including
legal opinions) are given to the Financing Participants and/or
rating agencies that such Transaction constitutes a "true
sale" for bankruptcy purposes to the Financing Participants of
the Deferred Load Amounts transferred, and
(g) solely with respect to (i) Permitted Deferred
Load Amount Securitizations not in existence on the Third
Restatement Date and (ii) any amendment, modification or
waiver of the terms of the Permitted Deferred Load Amount
Securitization in effect on the Third Restatement Date which
affect the allocation procedures or the Collection Agency
Agreement, with respect to which the B Share Lenders shall
have consented to the aspects described in the preceding
clause (d).
<PAGE> 29
22
"Permitted Investment" means:
(i) Investments in any Wholly-Owned Subsidiary
(including any Person that thereby becomes a Wholly-Owned
Subsidiary), provided that the aggregate amount of Investments
in Subsidiaries which are not are U.S. Persons shall not
exceed $25,000,000 at any time;
(ii) Investments in any of the Senior Notes;
(iii) Cash Equivalents;
(iv) Debt of any Subsidiary owing to the Borrower
or to another Subsidiary pursuant to Section 7.03(d);
(v) Investments set forth on Schedule 1.01C;
(vi) Investments in any securities issued by, or
to be held by, any Fund, acquired in the ordinary course of
business, provided that any such securities to be held by any
such Fund are transferred to such Fund as promptly as
practicable;
(vii) receivables owing to the Borrower or any
Subsidiary created in the ordinary course of business;
(viii) Investments acquired by the Borrower or any
Subsidiary in connection with Asset Sales permitted under
Section 7.06 to the extent such Investments are non-cash
proceeds as permitted under Section 7.06;
(ix) (A) Interest Rate Agreements designed to
protect the Borrower or any Subsidiary against fluctuations in
interest rates in respect of Debt of the Borrower or any of
its Subsidiaries, which obligations do not exceed the
aggregate nominal amount of such Debt and (B) Currency Hedging
Arrangements entered into by the Borrower or any of its
Subsidiaries designed to protect against fluctuations in
currency values;
(x) evidences of Debt, securities or other
property received from another Person by the Borrower or any
Subsidiary in connection with any bankruptcy proceeding or
other reorganization of such other Person in exchange for
evidences of Debt, securities or other property of such other
Person held by the Borrower or any Subsidiary in accordance
with the terms of this Agreement, or for other liabilities or
obligations of such other Person to the Borrower or any
Subsidiary;
<PAGE> 30
23
(xi) Investments in any Person to the extent
acquired in exchange for Qualified Capital Stock, provided
that the aggregate number of shares of Capital Stock of the
Borrower exchanged for such Investment does not exceed 25% of
the outstanding Capital Stock of the Borrower after giving
effect to such exchange;
(xii) advances to employees of the Borrower for
moving and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business;
(xiii) Investments related to the deferred
compensation of the Borrower's employees;
(xiv) Investments in Capital Stock of the Borrower
purchased from an employee of the Borrower upon the death or
termination of such employee; and
(xv) in addition to the Permitted Investments
described in the foregoing clauses (i) through (xiv),
Investments in any Person which derives a majority of its
revenues from businesses similar to those that the Borrower or
any Subsidiary participates in as of the Third Restatement
Date or in businesses reasonably related thereto in the
aggregate amount not to exceed $5,000,000 at any time
outstanding (valued at cost at the time of Investment).
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock company,
trust, unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"Qualified Capital Stock" of any Person means any and all
Capital Stock of such Person other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any Capital Stock that,
either by its terms, by the terms of any security into which it is convertible
or exchangeable or otherwise, is, or upon the happening of an event or passage
of time would be, required to be redeemed prior to the termination of all of
the Tranche A Commitments hereunder and the repayment of all Tranche A Loans
outstanding under this Agreement or is redeemable at the option of the holder
thereof at any time prior to such termination and repayment, or is convertible
into or exchangeable for debt securities (other than debt securities with a
maturity later than the date of the termination of all of the Tranche A
Commitments hereunder and the repayment of all Tranche A Loans outstanding
under this Agreement) at any time prior to such termination and repayment.
<PAGE> 31
24
"Reference Banks" means each of Citibank, Chemical Bank and
NationsBank.
"Register" has the meaning specified in Section 10.07(c).
"Registered Note" means a Tranche A Note that has been issued
in registered form pursuant to Section 2.02(b) of this Agreement.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Required Lenders" means at any time Tranche A Lenders owed or
holding in the aggregate at least 51% of the sum of (i) the then aggregate
unpaid principal amount of the Tranche A Loans and (ii) the then Unused Total
Tranche A Commitment; provided that for purposes of this definition neither (x)
the Borrower, nor any of its Affiliates, if a Tranche A Lender, nor (y) any
Tranche A Lender who has defaulted on any of its obligations hereunder, shall
be included in (A) the Tranche A Lenders owed such amount of the Tranche A
Loans (or holding such amount of the Total Tranche A Commitment) or (B)
determining the aggregate unpaid principal amount of the Tranche A Loans or the
Unused Total Tranche A Commitment.
"Requirement of Law" as to any Person, means any law, treaty,
rule, regulation, decree, judgment, injunction, order, writ or determination of
an arbitrator or a court or other 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.
"Responsible Officer" means the Chief Financial Officer or
Treasurer of the Borrower or any person serving in a similar capacity.
"Restricted Payment" has the meaning specified in Section
7.05(a).
"Rolling Period" means a period of four consecutive Fiscal
Quarters.
"Rule 2a-7" means Rule 2a-7 under the Investment Company Act,
as in effect from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
"Securities Act" means the Securities Act of 1933, as amended.
"Securitization Program" means any sale to a third-party
investor by the Borrower or any of its Subsidiaries of its rights to receive
Deferred Load Amounts pursuant
<PAGE> 32
25
to a securitization program having terms and conditions satisfactory to the
Required Lenders, provided that any Securitization Program that is a Permitted
Deferred Load Amounts Securitization shall, if approved by the required B Share
Lenders in the respects provided in clause (g) of the definition of "Permitted
Deferred Load Amounts Securitization", be deemed to be satisfactory to each
Tranche A Lender.
"Securitization Program Allocation Procedures" means the
procedures for allocating Deferred Load Amounts that are attached to the
Existing Asset Purchase Agreement.
"Securitization Program Collections" means all Collections
with respect to Deferred Load Amounts sold pursuant to any Securitization
Program and all other amounts defined as "collections" in the documentation for
such Securitization Program.
"Senior Note Asset Sale Percentage" means at any date of
determination, a fraction (i) the numerator of which is the aggregate principal
amount of Senior Notes outstanding on such date, and (ii) the denominator of
which is an amount equal to the sum of (A) the outstanding principal amount of
the Tranche A Loans as of such date, (B) the outstanding principal amount of
the B Share Loans as of such date and (C) the aggregate principal amount of
Senior Notes outstanding as of such date.
"Senior Notes" means the senior notes issued by the Borrower
on November 3, 1993.
"SIPA" means the Securities Investor Protection Act of 1970,
as amended from time to time.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (i) the fair value of the property of such
Person is greater than the total amount of its liabilities, including
contingent liabilities, (ii) the present fair salable 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, (iii) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond its ability to pay as such debts and
liabilities mature, and (iv) such Person is not engaged in a business or a
transaction, and is not about to engage in a business or a transaction, for
which its property would constitute an unreasonably small capital.
"Subsidiary" means any corporation at least a majority (by
number of votes) of the Voting Stock of which is at the time owned by the
Borrower or by one or more Subsidiaries or by the Borrower and one or more
Subsidiaries.
"TA Group" has the meaning specified in Schedule 1.01B.
<PAGE> 33
26
"Taxes" has the meaning specified in Section 4.07(a).
"Termination Date" means the earlier of November 30, 2000 and
the date of termination in whole of the Total Tranche A Commitment pursuant to
Section 2.04 or 8.01.
"Third Restatement Date" has the meaning specified in Section
5.01.
"Total Tranche A Commitment" means, on any date of
determination, the aggregate Tranche A Commitments of all the Tranche A Lenders
on such date.
"Tranche A Borrowing" means a borrowing consisting of
simultaneous Tranche A Loans of the same Type (and, in the case of Eurodollar
Rate Tranche A Loans, having the same Interest Period) made by the Tranche A
Lenders.
"Tranche A Commitment" means, in the case of each Tranche A
Lender at any time, the amount set forth opposite such Tranche A Lender's name
on Schedule I hereto under the heading "Tranche A Commitment" or, if such
Tranche A Lender has entered into one or more Assignments and Acceptances, the
amount set forth in the Register maintained by the Lead Managing Agent pursuant
to Section 10.07(c) as such Tranche A Lender's "Tranche A Commitment", as such
amount may be reduced at or prior to such time pursuant to Section 2.04.
"Tranche A Lender" means each Tranche A Lender listed on the
signature pages hereof and each Eligible Assignee that shall become a party
hereto pursuant to Section 10.07.
"Tranche A Loans" means the loans granted by the applicable
Tranche A Lenders to the Borrower pursuant to Section 2.01(b).
"Tranche A Note" has the meaning specified in Section 2.02.
"Type" refers to the distinction between Base Rate Loans and
Eurodollar Rate Loans.
"United States" and "U.S." each means United States of
America.
"Unused Total Tranche A Commitment" means on any date of
determination, with respect to all of the Tranche A Lenders, (a) the Total
Tranche A Commitment on such date, minus (b) the aggregate principal amount of
all Tranche A Loans outstanding on such date.
<PAGE> 34
27
"Unused Tranche A Commitment" means, with respect to any
Tranche A Lender at any time, such Tranche A Lender's Tranche A Commitment at
such time minus the aggregate principal amount of all Tranche A Loans made by
such Tranche A Lender and outstanding at such time.
"U.S. Dollars" and "$" means the lawful money of the United
States of America.
"U.S. Holding Company" means A I M Global Holdings, Inc., a
Delaware corporation and a Wholly-Owned Subsidiary of the Borrower.
"U.S. Person" means any Person that is created or organized
under the laws of the United States or of any State thereof, or any estate or
trust that is subject to United States Federal income taxation regardless of
the source of its income.
"U.S. Taxes" means any present or future tax, assessment or
other charge or levy imposed by or on behalf of the United States or any taxing
authority thereof.
"Voting Stock" means, with reference to any corporation, stock
of any class or classes (or equivalent interests), if the holders of the stock
of such class or classes (or equivalent interests) are ordinarily, in the
absence of contingencies, entitled to vote for the election of the directors
(or Persons performing similar functions) of such corporation, even though the
right so to vote has been suspended by the happening of such a contingency.
"Wholly-Owned" means, as applied to any Subsidiary, a
Subsidiary all the outstanding shares (other than directors' qualifying shares,
if required by law) of every class of stock of which are at the time owned by
the Borrower or by one or more Wholly-Owned Subsidiaries or by the Borrower and
one or more Wholly-Owned Subsidiaries.
Section 1.02. Certain Defined Terms Relating to ERISA. As
used in this Agreement, the following terms have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" of any Person means any other Person that
for purposes of Title IV of ERISA is a member of such Person's controlled
group, or under common control with such Person, within the meaning of Section
414 of the Internal Revenue Code.
"ERISA Event" means (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan; (ii) the
provision by the
<PAGE> 35
28
administrator of any Plan of a notice of intent to terminate such Plan,
pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect
to a plan amendment referred to in Section 4041(e) of ERISA); (iii) the
cessation of operations at a facility of the Borrower, any Subsidiary or any of
their respective ERISA Affiliates in the circumstances described in Section
4062(e) of ERISA; (iv) the withdrawal by the Borrower, any Subsidiary or any of
their respective ERISA Affiliates from a Multiple Employer Plan during a plan
year for which it was a substantial employer, as defined in Section 4001(a)(2)
of ERISA; (v) the failure by the Borrower, any Subsidiary or any of their
respective ERISA Affiliates to make a payment to a Plan required under Section
302(e) of ERISA; (vi) the adoption of an amendment to a Plan requiring the
provision of security to such Plan, pursuant to Section 307 of ERISA; (vii) the
institution by the PBGC of proceedings to terminate or to appoint a trustee or
administrator of a Plan, pursuant to Section 4042 of ERISA, or the occurrence
of any event or condition described in Section 4042 of ERISA that could
constitute grounds for the termination of, or the appointment of a trustee to
administer, any Plan; or (viii) the occurrence of any event or condition which
could result in a violation of Title I of ERISA or give rise to the imposition
of any liability pursuant to the penalty or excise tax provisions of the Code
relating to employee benefit plans.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18)
of ERISA.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower, any Subsidiary or any of
their respective ERISA Affiliates is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (i) is maintained for employees
of the Borrower, any Subsidiary or any of their respective ERISA Affiliates and
at least one other Person or (ii) was so maintained and in respect of which the
Borrower, any Subsidiary or any of their respective ERISA Affiliates could have
liability under Section 4064 or 4069 of ERISA in the event such plan has been
or were to be terminated.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor to any of its functions.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (i) is or has been established or
maintained for employees of the Borrower, any Subsidiary or any of their
respective ERISA Affiliates and no other Person or (ii) was so maintained and
in respect of which the Borrower, any Subsidiary or any of their
<PAGE> 36
29
respective ERISA Affiliates could have liability under Section 4069 of ERISA in
the event such plan has been or were to be terminated.
"Welfare Plan" means a welfare plan, as defined in Section
3(1) of ERISA, with respect to which the Borrower, any Subsidiary or any of
their respective ERISA Affiliates may have any liability.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
Section 1.03. Computation of Time Periods; Terms Generally.
(a) All references herein to Articles, Sections, Exhibits and Schedules shall
be deemed references to Articles and Sections of and Exhibits and Schedules to
this Agreement, unless the context shall otherwise require.
(b) The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation".
(c) Section, subsection, and other headings used in this
Agreement are for convenience only and shall not affect the construction
hereof.
Section 1.04. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States consistent with those
applied in the preparation of the financial statements of such Person as of
December 31, 1995 ("GAAP").
ARTICLE II
TRANCHE A LOANS
Section 2.01. The Tranche A Loans. (a) Each Tranche A
Lender severally agrees, on the terms and conditions hereof and upon the
request of the Borrower from time to time on any Business Day during the period
from the Third Restatement Date to the Termination Date, to hold and/or make
one or more Tranche A Loans in an aggregate principal amount at any time
outstanding not to exceed such Tranche A Lender's Tranche A Commitment as in
effect at such time (such Tranche A Commitment, as at the Third Restatement
Date, shall be the amount set forth opposite such Tranche A Lender's name under
the caption "Tranche A Commitment" on Schedule I); provided that the aggregate
principal amount of the Tranche A Loans outstanding at any time may not exceed
the Total Tranche A Commitment at such time.
<PAGE> 37
30
(b) The Tranche A Loans may consist of: (i) Base Rate
Loans; (ii) Eurodollar Rate Loans; or (iii) any combination of the foregoing,
as determined by the Borrower and notified to the Lead Managing Agent in
accordance with Section 3.01.
Section 2.02. The Tranche A Notes. (a) The Tranche A Loans
made by each Tranche A Lender shall be evidenced by a promissory note
(including, without limitation, a Registered Note) of the Borrower,
substantially in the form of Exhibit 2.02 hereto, with appropriate insertions
(individually, a "Tranche A Note"; collectively, the "Tranche A Notes"), each
payable to the order of such Tranche A Lender (except in the case of a
Registered Note which shall be legended on the face thereof and shall be made
payable to such Tranche A Lender or its registered assigns) and representing
the obligation of the Borrower to pay the aggregate unpaid principal amount of
the Tranche A Loans made by such Tranche A Lender with interest thereon as
prescribed in Section 4.01. Each Tranche A Note shall (i) if outstanding on
the Third Restatement Date, continue to be effective on and after such Date,
(ii) state that the Tranche A Loans evidenced thereby shall be payable on the
Termination Date, and (iii) bear interest for the period from the date thereof
until paid in full on the unpaid principal amount thereof from time to time
outstanding at the applicable interest rate per annum determined as provided
herein. Each Tranche A Lender is hereby authorized to record the date, Type
and amount of each Tranche A Loan made by such Tranche A Lender, each Interest
Period with respect thereto, the date and amount of each payment or prepayment
of principal thereof and the interest rate with respect thereto on the schedule
annexed to and constituting a part of its Tranche A Note and any such
recordation shall be presumptive as to the accuracy of the information so
recorded, provided that the failure by any Tranche A Lender to make any such
notations or the inaccuracy or incompleteness of any such notations shall not
affect the Obligations of the Borrower hereunder or under the Tranche A Notes.
(b) Any Non-U.S. Lender that could become completely
exempt from withholding of U.S. Taxes in respect of payment of the Obligations
due to such Non-U.S. Lender hereunder relating to its Tranche A Loans if its
Tranche A Loans were in registered form for United States Federal income tax
purposes, may request, in a notice to the Borrower and the Lead Managing Agent,
that the Borrower exchange such Non-U.S. Lender's Tranche A Note for a
Registered Note and the Borrower hereby agrees promptly thereafter to exchange
such Non-U.S. Lender's Tranche A Note evidencing its Tranche A Loans for a
Registered Note (which Registered Note shall be in substantially the form of
Exhibit 2.02 hereto, except that it shall be legended on the face thereof as a
"Registered Note" and shall be made payable to such Non-U.S. Lender or its
registered assigns). Registered Notes shall be deemed to be and shall be
Tranche A Notes for all purposes of this Agreement and the other Loan
Documents. Registered Notes may not be exchanged for Tranche A Notes that are
not in registered form.
<PAGE> 38
31
Section 2.03. Repayment. The Borrower shall repay to the
Lead Managing Agent for the ratable account of the Tranche A Lenders on the
Termination Date the aggregate principal amount of all Tranche A Loans
outstanding on such date. Within the limits of the Unused Total Tranche A
Commitment in effect from time to time, the Borrower may borrow, prepay
pursuant to Section 3.03 and reborrow under Section 3.01.
Section 2.04. Termination or Reduction of the Tranche A
Commitment. (a) Optional. The Borrower may, upon at least five Business
Days' notice to the Lead Managing Agent, terminate in whole or reduce ratably
in part the Unused Total Tranche A Commitment; provided, however, that each
partial reduction of the Unused Total Tranche A Commitment (A) shall be in an
aggregate amount of $1,000,000 or an integral multiple of $100,000 in excess
thereof and (B) shall be made ratably among the Tranche A Lenders in accordance
with their Tranche A Commitments.
(b) Mandatory. (i) The Total Tranche A Commitment shall
be automatically and permanently reduced on the date on which any prepayment is
required to be made pursuant to Section 3.02 by an amount equal to the greater
of:
(A) an amount equal to the aggregate amount of Net Cash
Proceeds required to be used to prepay Tranche A Loans under Section
3.02; and
(B) an amount equal to the aggregate amount of Net Cash
Proceeds the Borrower would have been required to use to prepay
Tranche A Loans under Section 3.02 if:
(1) "Lenders Asset Sale Allocation" was defined
as, at any date of determination, a fraction (i) the numerator
of which is the Total Tranche A Commitment on such date and
(ii) the denominator of which is an amount equal to the sum of
(A) the Total Tranche A Commitment on such date and (B) the
"Total Commitment" under the B Share Credit Agreement;
(2) "Lenders Asset Sale Percentage" was defined
as, at any date of determination, a fraction (a) the numerator
of which is the sum of (x) the Total Tranche A Commitment on
such date and (y) the "Total Commitment" under the B Share
Credit Agreement on such date and (b) the denominator of which
is an amount equal to the sum of (i) the Total Tranche A
Commitment on such date, (ii) the "Total Commitment" under the
B Share Credit Agreement on such date and (iii) the aggregate
principal amount of Senior Notes outstanding on such date; and
(3) "Senior Note Asset Sale Percentage" was
defined as, at any date of determination, a fraction (a) the
numerator of which is the aggregate
<PAGE> 39
32
principal amount of Senior Notes outstanding on such date, and
(b) the denominator of which is an amount equal to the sum of
(i) the Total Tranche A Commitment on such date, (ii) the
"Total Commitment" under the B Share Credit Agreement on such
date and (iii) the aggregate principal amount of Senior Notes
outstanding on such date.
(ii) The Total Tranche A Commitment shall terminate on the
Termination Date.
ARTICLE III
LOAN PROCEDURE AND PREPAYMENTS
Section 3.01. Loan Procedure. (a) Each Tranche A Borrowing
shall be made on notice, given by the Borrower to the Lead Managing Agent
(which shall give each Tranche A Lender prompt notice thereof by telex or
facsimile transmission) not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed Tranche A Borrowing in the
case of a Tranche A Borrowing consisting of Eurodollar Rate Loans and
10:00 A.M. (New York City time) on the day of the proposed Tranche A Borrowing
in the case of a Tranche A Borrowing consisting of Base Rate Loans. Each such
notice of a Tranche A Borrowing (a "Notice of Borrowing") shall be by telex or
facsimile transmission, confirmed immediately in writing, in substantially the
form of Exhibit 3.01, executed by a duly authorized officer of the Borrower
specifying therein (i) the date of such Tranche A Borrowing, (ii) the Type of
Tranche A Loans comprising such Tranche A Borrowing, (iii) the aggregate amount
of such Tranche A Borrowing and (iv) in the case of a Tranche A Borrowing
consisting of Eurodollar Rate Loans, the initial Interest Period for such
Tranche A Borrowing.
(b) Each Tranche A Lender shall, before 11:00 A.M. (New
York City time) on the date of each Tranche A Borrowing consisting of
Eurodollar Rate Loans and before 1:00 P.M. (New York City time) on the date of
each Tranche A Borrowing consisting of Base Rate Loans, make available for the
account of its Applicable Lending Office to the Lead Managing Agent at the Lead
Managing Agent's Account, in immediately available funds, such Tranche A
Lender's Tranche A Loan in the amount of its ratable portion (determined by
reference to the amount of such Tranche A Lender's Tranche A Commitment and the
Total Tranche A Commitment) of such Tranche A Borrowing. After the Lead
Managing Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article V, the Lead Managing Agent will make such funds
available to the Borrower by crediting the Borrower's Account.
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(c) Notwithstanding anything to the contrary in
subsection (a) above (i) no Tranche A Borrowing shall be in an amount less than
$1,000,000 (or if the Total Tranche A Commitment shall be less than $1,000,000,
such lesser amount) and (ii) no more than four Tranche A Borrowings shall be
outstanding at any one time.
(d) Each Notice of Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Tranche A Borrowing that the
related Notice of Borrowing specifies is to be comprised of Eurodollar Rate
Loans, the Borrower shall indemnify each Tranche A Lender against any loss,
cost or expense incurred by such Tranche A Lender as a result of any failure to
fulfill on or before the date specified in such Notice of Borrowing for such
Tranche A Borrowing the applicable conditions set forth in Article V or any
failure to borrow such Tranche A Loans on the date of the proposed Tranche A
Borrowing set forth in such Notice of Borrowing, including any loss, cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Tranche A Lender to fund the Tranche A Loan to be
made by such Tranche A Lender as part of such Tranche A Borrowing when such
Tranche A Loan, as a result of such failure, is not made on such date.
(e) Unless the Lead Managing Agent shall have received
notice from a Tranche A Lender prior to the date of any Tranche A Borrowing
that such Tranche A Lender will not make available to the Lead Managing Agent
such Tranche A Lender's ratable portion of such Tranche A Borrowing, the Lead
Managing Agent may assume that such Tranche A Lender has made such portion
available to the Lead Managing Agent on the date of such Tranche A Borrowing in
accordance with subsection (a) of this Section 3.01 and the Lead Managing Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Tranche A Lender
shall not have made such ratable portion available to the Lead Managing Agent,
such amount shall be deemed for all purposes to be a Tranche A Loan made by the
Lead Managing Agent, and such Tranche A Lender and the Borrower severally agree
to repay to the Lead Managing Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount
is made available to the Borrower until the date such amount is repaid to the
Lead Managing Agent, at (i) in the case of the Borrower, the interest rate
applicable at such time under Section 4.01 to the Tranche A Loans comprising
such Tranche A Borrowing, and (ii) in the case of such Tranche A Lender, the
Federal Funds Rate and, in the case of such Tranche A Lender, the costs
referred to in Section 10.04(c) (but only to the extent the Lead Managing Agent
has actually incurred such costs). If such Tranche A Lender shall repay to the
Lead Managing Agent such corresponding amount, such amount so repaid shall
constitute such Tranche A Lender's Tranche A Loan as part of such Tranche A
Borrowing for purposes of this Agreement.
(f) The failure of any Tranche A Lender to make the
Tranche A Loan to be made by it as part of any Tranche A Borrowing shall not
relieve any other Tranche A
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34
Lender of its obligation, if any, hereunder to make its Tranche A Loan on the
date of such Tranche A Borrowing, but no Tranche A Lender shall be responsible
for the failure of any other Tranche A Lender to make the Tranche A Loan to be
made by such other Tranche A Lender on the date of any Tranche A Borrowing.
Section 3.02. Mandatory Prepayments from Certain Asset Sales.
(a) If the Borrower or any Subsidiary shall make an Asset Sale (other than
pursuant to a Securitization Program or pursuant to an Asset Sale described on
Schedule 3.02), the Net Cash Proceeds of which equal or exceed $15,000,000,
within five Business Days after the consummation of such Asset Sale, the
Borrower shall: (A) prepay the Tranche A Loans in a principal amount equal to
the product of (1) the Lenders Asset Sale Percentage times (2) the Net Cash
Proceeds of such Asset Sale times (3) the Lenders Asset Sale Allocation, such
prepayment to be applied as set forth in clause (c) below; and (B) offer to
prepay without premium the Senior Notes then outstanding in a principal amount
equal to the product of (x) the Senior Note Asset Sale Percentage times (y) the
Net Cash Proceeds of such Asset Sale. If one or more holders of Senior Notes
rejects or does not respond to the Borrower's offer to prepay the Senior Notes
as provided in clause (B) above by the expiration of the period provided for
such offer in the trust indenture governing the Senior Notes, then the
Borrower, within five Business Days after the expiration of such period, shall
prepay the Tranche A Loans in a principal amount equal to the aggregate amount
that would have been payable to all such holders of Senior Notes that have
either rejected or failed to respond to such offer, such prepayment to be
applied as set forth in clause (c) below.
(b) If the Borrower or any Subsidiary shall make an Asset
Sale (other than pursuant to a Securitization Program or pursuant to an Asset
Sale described on Schedule 3.02), the Net Cash Proceeds of which are less than
$15,000,000, the Borrower shall make a prepayment in a principal amount equal
to the Net Cash Proceeds of such Asset Sale, provided that the Borrower and its
Subsidiaries may retain such Net Cash Proceeds in an aggregate amount equal to
$15,000,000 for use in the businesses conducted by the Borrower and its
Subsidiaries on the Third Restatement Date and other activities incidental or
related to such businesses.
(c) All prepayments of Tranche A Loans made pursuant to
this Section 3.02 shall be applied to the prepayment (without premium or
penalty) of the aggregate outstanding principal amount of the Tranche A Loans
and the Total Tranche A Commitment shall be permanently reduced as set forth in
Section 2.04(b)(i); together with, in each case, accrued interest on such
Tranche A Loans to the date of prepayment on the principal amount prepaid, and,
in the case of Eurodollar Rate Loans which are prepaid prior to the last day of
the Interest Period therefor, the amounts required by Section 10.04.
Section 3.03. Optional Prepayments. The Borrower may, upon
at least five Business Days' irrevocable notice to the Lead Managing Agent
stating the proposed date,
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aggregate principal amount of the prepayment, and the Tranche A Borrowings to
which such prepayment is to be applied, and, if such notice is given, the
Borrower shall, prepay (without premium or penalty) the principal amount to be
prepaid, ratably; together with accrued interest to the date of such prepayment
on the principal amount prepaid and, in the case of Eurodollar Rate Loans which
are prepaid prior to the last day of the Interest Period therefor, the amounts
required by Section 10.04; provided that each such prepayment shall be in an
aggregate principal amount of $1,000,000 or an integral multiple of $100,000 in
excess thereof. Prepaid Tranche A Loans may, at any time prior to the
Termination Date, be reborrowed, provided that the aggregate principal amount
of the Tranche A Loans outstanding at any time may not exceed the Total Tranche
A Commitment at such time, adjusted in accordance with Section 2.04.
ARTICLE IV
INTEREST, ETC.
Section 4.01. Interest. (a) Scheduled Interest. Subject to
Section 4.05(f), the Borrower shall pay interest on the unpaid principal amount
of each Tranche A Loan from the date of such Tranche A Loan until such
principal amount is paid in full, at the following rates per annum:
(i) Base Rate Loans. During such periods as such Tranche
A Loan is a Base Rate Loan, a rate per annum equal at all times to the
sum of (i) the Base Rate in effect from time to time plus (ii) the
Applicable Margin in effect from time to time, payable in arrears
quarterly on the last day of each calendar quarter commencing on the
first such date after the Third Restatement Date and on the date such
Base Rate Loan shall be Converted or paid in full.
(ii) Eurodollar Rate Loans. During such periods as such
Tranche A Loan is a Eurodollar Rate Loan, a rate per annum equal at
all times during each Interest Period for such Tranche A Loan to the
sum of (i) the Eurodollar Rate for such Interest Period for such
Tranche A Loan plus (ii) the Applicable Margin in effect from time to
time during such Interest Period, payable in arrears on the last day
of such Interest Period and, if such Interest Period has a duration of
more than three months, on each day that occurs during such Interest
Period every three months from the first day of such Interest Period.
(b) Default Interest. Subject to Section 4.05(f), upon
the occurrence and during the continuance of (i) an Event of Default, or (ii)
in the case of an Event of Default described in Section 8.01(a), a Default, the
Borrower shall pay interest on the aggregate outstanding principal amount of
each Tranche A Loan, whether or not due, and on the
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36
unpaid amount of all interest, fees and other amounts payable hereunder not
paid when due, payable in arrears on the dates referred to in clause (a)(i) or
(a)(ii) above and on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid on such Tranche A Loan
pursuant to clause (a)(i) or (a)(ii) above or, in the case of such other
amounts, 2% per annum above the rate per annum required to be paid on Base Rate
Loans pursuant to clause (a)(i) above.
Section 4.02. Fees. (a) The Borrower shall pay to the Lead
Managing Agent for the account of the Tranche A Lenders a commitment fee (the
"Commitment Fee") at a rate equal to the Applicable Margin in effect from time
to time on the average daily Unused Tranche A Commitment of such Tranche A
Lender from the Third Restatement Date, in the case of each Tranche A Lender
party to this Agreement from and after the Third Restatement Date, and from the
effective date specified in the Assignment and Acceptance pursuant to which it
became a Tranche A Lender, in the case of each Tranche A Lender that has
entered into an Assignment and Acceptance. The Commitment Fee shall be payable
in arrears on the last day of each calendar quarter, commencing on the first
such date after the Third Restatement Date, and on the Termination Date.
(b) The Borrower shall pay to the Lead Managing Agent,
for its own account, such other fees as may from time to time be agreed in
writing between the Borrower and the Lead Managing Agent.
Section 4.03. Conversion of Tranche A Loans. (a) Optional.
The Borrower may on any Business Day, upon notice given to the Lead Managing
Agent not later than 11:00 A.M. (New York City time) on the third Business Day
prior to the date of the proposed Conversion and subject to the provisions of
Sections 4.05 and 4.06, Convert all or any ratable portion of the Tranche A
Loans of one Type into Tranche A Loans of the other Type; provided that (i) any
Conversion of Eurodollar Rate Loans into Base Rate Loans shall be made only on
the last day of an Interest Period for such Eurodollar Rate Loans, (ii) any
Conversion of Base Rate Loans into Eurodollar Rate Loans shall be in an amount
not less than the minimum amount specified in Section 3.01(c) and (iii) no more
than four Tranche A Borrowings shall be at any one time outstanding. Each such
notice of Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Tranche A Loans to be Converted and
(iii) if such Conversion is into Eurodollar Rate Loans, the duration of the
initial Interest Period for such Tranche A Loans. Each notice of Conversion
shall be irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate
unpaid principal amount of Eurodollar Rate Loans comprising any Tranche A
Borrowing shall be reduced, by payment or prepayment or otherwise, to less than
$1,000,000, such Tranche A Loans shall automatically Convert into Base Rate
Loans and the Borrower shall pay any amounts required by Section 10.04.
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37
(ii) If the Borrower shall fail to select the duration of
any Interest Period for any Eurodollar Rate Loans in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
the Lead Managing Agent will forthwith so notify the Borrower and the Tranche A
Lenders, whereupon (A) each such Eurodollar Rate Loan will automatically, on
the last day of the then existing Interest Period therefor, Convert into a Base
Rate Loan, and (B) in the case of a Base Rate Loan that was to have been
Converted, remain a Base Rate Loan.
(iii) Upon the occurrence and during the continuance of any
Default, (i) each Eurodollar Rate Loan will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Loan and
(ii) the obligation of the Tranche A Lenders to make, or to Convert Tranche A
Loans into, Eurodollar Rate Loans shall be suspended.
Section 4.04. Interest Rate Determination. (a) Each
Reference Bank agrees to furnish to the Lead Managing Agent timely information
for the purpose of determining each Eurodollar Rate. If any one or more of the
Reference Banks does not furnish such timely information to the Lead Managing
Agent for the purpose of determining any such interest rate, the Lead Managing
Agent shall determine such interest rate on the basis of timely information
furnished by the remaining Reference Bank or, if none of such quotations are
available on a timely basis, the provisions of Section 4.05(c) shall apply.
(b) The Lead Managing Agent shall give prompt notice to
the Borrower and each Tranche A Lender of the applicable interest rate
determined by the Lead Managing Agent for purposes of Section 4.01(a)(i) or
(ii).
Section 4.05. Changes in Circumstances. (a) Increased
Costs. If, after the Third Restatement Date due to either (i) the introduction
of or any change in law, rule or regulation (except any law or regulation
addressed in Section 4.07) or any change in the interpretation or
administration thereof by any central bank, comparable agency or other
Governmental Authority or (ii) the compliance with any guideline, condition or
request from any central bank, comparable agency or other Governmental
Authority (whether or not having the force of law), (A) any Tranche A Lender
shall be subject to any tax of any kind whatsoever with respect to this
Agreement, any Tranche A Note or any Tranche A Loans made hereunder or there
shall be a change in the basis of taxation of payments to such Tranche A Lender
of principal, interest, fees or any other amount payable hereunder (other than
withholding tax imposed by the United States and other than any other tax that
is imposed on the overall net income of such Tranche A Lender by the
jurisdiction under the laws of which such Tranche A Lender is organized or in
which such Tranche A Lender has its principal executive office or its
Applicable Lending Office); or (B) there shall be any increase in the cost to
any Tranche A Lender (or its Applicable Lending Office) of agreeing to make or
making, funding or maintaining Eurodollar Rate Loans or reducing the amount of
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any sum received or receivable by such Tranche A Lenders (or its Applicable
Lending Office) under this Agreement or the Tranche A Notes, or there shall be
any imposition, modification or deemed application of any reserve (including
any reserve imposed by the Board of Governors of the Federal Reserve but
excluding any such requirement included in an applicable Eurodollar Reserve
Percentage), special deposit or similar requirement against assets of, deposits
with, or for the account of, or credit extended by, any Tranche A Lender (or
its Applicable Lending Office) then, from time to time, upon demand by such
Tranche A Lender, which demand shall be accompanied by a statement (which shall
be conclusive and binding for all purposes absent manifest error) showing the
additional amounts, calculated in accordance with such Tranche A Lender's
policies, sufficient to compensate such Tranche A Lender for such increased
cost (such additional amounts to be reduced by the amount, if any, by which the
interest rates on the Tranche A Loans made by such Tranche A Lender have been
increased to reflect such increased cost), with a copy to the Lead Managing
Agent, the Borrower shall pay to the Lead Managing Agent for the account of
such Tranche A Lender the amounts set forth on such statement.
(b) Capital Adequacy. If any Tranche A Lender shall have
determined that, after the Third Restatement Date, the adoption of any
applicable law, rule or regulation regarding capital adequacy, including any
law, rule, regulation or guideline adopted pursuant to or arising out of the
July 1988 report of the Basle Committee on Banking Regulations and Supervisory
Practices entitled "International Coverage Capital Measurement and Capital
Standards", or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
any request or directive regarding capital adequacy (whether or not having the
force of law) of any such Governmental Authority, central bank or comparable
agency has or would have the effect of reducing the rate of return on capital
of such Tranche A Lender (or any Person controlling such Tranche A Lender) as a
consequence of such Tranche A Lender's obligations hereunder to a level below
that which such Tranche A Lender (or such controlling Person) could have
achieved but for such adoption, change, request or directive (taking into
consideration its internal policies with respect to capital adequacy) by an
amount deemed by such Tranche A Lender to be material (such amount not to be
duplicative of any amounts due under Section 4.05(a)), then from time to time,
upon demand by such Tranche A Lender, which demand shall be accompanied by a
statement (which shall be conclusive and binding for all purposes absent
manifest error) setting forth the basis of such demand and the additional
amounts, calculated in accordance with such Tranche A Lender's policies,
sufficient to compensate such Tranche A Lender (or such controlling Person) for
such reduction (such additional amounts to be reduced by the amount, if any, by
which the interest rates on the Tranche A Loans made by such Tranche A Lender
have been increased to reflect such reduction), with a copy to the Lead
Managing Agent, the Borrower shall pay to the Lead Managing Agent for the
account of such Tranche A Lender the amounts set forth on such statement.
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(c) Market Disruption. If on or prior to the first day
of any Interest Period for any Eurodollar Rate Loan Borrowing:
(i) the Lead Managing Agent is advised by the Reference
Banks that deposits in dollars (in the applicable amounts) are not
being offered to the Reference Banks in the relevant market for such
Interest Period, or
(ii) the Required Lenders advise the Lead Managing Agent
that the Eurodollar Rate, as determined by the Lead Managing Agent,
will not adequately and fairly reflect the cost to such Tranche A
Lenders of funding their Eurodollar Rate Loans, for such Interest
Period,
the Lead Managing Agent shall forthwith give notice thereof to the Borrower and
the Tranche A Lenders, whereupon until the Lead Managing Agent notifies the
Borrower that the circumstances giving rise to such suspension no longer exist,
the obligations of the Tranche A Lenders to make Eurodollar Rate Loans shall be
suspended. Unless the Borrower notifies the Lead Managing Agent at least two
Business Days prior to the date of any Eurodollar Rate Loan for which a Notice
of Borrowing has previously been given that it elects not to borrow on such
date, such Tranche A Loan shall instead be made as a Base Rate Loan.
(d) Illegality. Notwithstanding any other provision of
this Agreement, if after the Third Restatement Date, the introduction of or any
change in or in the interpretation of any law or regulation shall make it
unlawful or impossible, or any central bank, comparable agency or other
Governmental Authority shall assert that it is unlawful, for any Tranche A
Lender or its Eurodollar Lending Office to perform its obligations hereunder to
make Eurodollar Rate Loans or to continue to fund or maintain Eurodollar Rate
Loans hereunder, then, on notice thereof and demand therefor by such Tranche A
Lender to the Borrower through the Lead Managing Agent, (i) each Eurodollar
Rate Loan made by such Tranche A Lender will automatically, upon such demand,
Convert into a Base Rate Loan and (ii) the obligation of such Tranche A Lender
to make, or to Convert Tranche A Loans into, Eurodollar Rate Loans shall be
suspended until the Lead Managing Agent shall notify the Borrower that such
Tranche A Lender has determined that the circumstances causing such suspension
no longer exist; provided that, before making any such demand, such Tranche A
Lender agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different Eurodollar
Lending Office if the making of such a designation would allow such Tranche A
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Loans or to continue to fund or maintain Eurodollar
Rate Loans and would not, in the judgment of such Tranche A Lender, be
otherwise disadvantageous to such Tranche A Lender.
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(e) Funding. Notwithstanding any provision of this
Agreement to the contrary, each Tranche A Lender shall be entitled to fund and
maintain its funding of all or any part of its Tranche A Loans in any manner it
sees fit, it being understood, however, that for the purposes of this Agreement
all determinations hereunder shall be made as if such Tranche A Lender had
actually funded and maintained each Eurodollar Rate Loan through the purchase
of deposits having a maturity corresponding to the Interest Period for such
Tranche A Loans and bearing an interest rate equal to the Eurodollar Rate for
such Interest Period.
(f) Limitation on Interest. Each provision in this
Agreement and each other Loan Document is expressly limited so that in no event
whatsoever shall the amount paid, or otherwise agreed to be paid, by the
Borrower for the use, forbearance or detention of the proceeds of the Tranche A
Loans made under this Agreement or any other Loan Document or otherwise
(including any sums paid as required by any covenant or obligation contained
herein or in any other Loan Document which are for the use, forbearance or
detention of such money), exceed that amount of money which would cause the
effective rate of interest to exceed the highest lawful rate permitted by
applicable law (the "Highest Lawful Rate"), and all amounts owed under this
Agreement and each other Loan Document shall be held to be subject to reduction
to the effect that such amounts so paid or agreed to be paid which are for the
use, forbearance or detention of money under this Agreement or such Loan
Document shall in no event exceed that amount of money which would cause the
effective rate of interest to exceed the Highest Lawful Rate. Notwithstanding
any provision in this Agreement or any other Loan Document to the contrary, if
the maturity of any of the Tranche A Loans is accelerated for any reason, or in
the event of any prepayment of all or any portion of the Tranche A Loans by the
Borrower or in any other event, earned interest on the Tranche A Loans may
never exceed the Highest Lawful Rate, and any unearned interest otherwise
payable under the Tranche A Notes that is in excess of the Highest Lawful Rate
shall be cancelled automatically as of the date of such acceleration or
prepayment or other such event and (if theretofore paid) shall, at the option
of the Tranche A Lender, be either refunded to the Borrower or credited to the
principal of the Tranche A Notes. In determining whether or not the interest
paid or payable, under any specific contingency, exceeds the Highest Lawful
Rate, the Borrower and the Tranche A Lenders shall, to the maximum extent
permitted by applicable law, amortize, prorate, allocate and spread, in equal
parts during the period of the actual term of this Agreement, all interest at
any time contracted for, charged, received or reserved in connection with this
Agreement.
Section 4.06. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Tranche A Notes not later than
12:00 P.M. (New York City time) on the day when due in U.S. Dollars to the Lead
Managing Agent at the Lead Managing Agent's Account in immediately available
funds. The Lead Managing Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal, interest or fees
ratably (other than amounts payable pursuant to Section 4.05(a),
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4.05(b), 4.07 or 10.04(c)) to the Tranche A Lenders for the account of their
Applicable Lending Offices, and like funds relating to the payment of any other
amount payable to any Tranche A Lender to such Tranche A Lender for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the Register
pursuant to Section 10.07(d), from and after the effective date of such
Assignment and Acceptance, the Lead Managing Agent shall make all payments
hereunder and under the Tranche A Notes in respect of the interest assigned
thereby to the Tranche A Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) All computations of interest based on the Base Rate
and fees shall be made by the Lead Managing Agent on the basis of a year of 365
days, and all computations of interest based on the Eurodollar Rate or the
Federal Funds Rate shall be made by the Lead Managing Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest and fees are payable. Each determination by the Lead Managing Agent
of an interest rate or fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Tranche A
Notes shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension
of time shall in such case be included in the computation of payment of
interest; provided that, if such extension would cause payment of interest on
or principal of Eurodollar Rate Loans to be made in the next following calendar
month, such payment shall be made on the next preceding Business Day.
(d) Unless the Lead Managing Agent shall have received
notice from the Borrower prior to the date on which any payment is due to any
Tranche A Lender hereunder that the Borrower will not make such payment in
full, the Lead Managing Agent may assume that the Borrower has made such
payment in full to the Lead Managing Agent on such date and the Lead Managing
Agent may, in reliance upon such assumption, cause to be distributed to each
such Tranche A Lender on such due date an amount equal to the amount then due
such Tranche A Lender. If and to the extent the Borrower shall not have so
made such payment in full to the Lead Managing Agent, each such Tranche A
Lender shall repay to the Lead Managing Agent forthwith on demand such amount
distributed to such Tranche A Lender together with interest thereon, for each
day from the date such amount is distributed to such Tranche A Lender until the
date such Tranche A Lender repays such amount to the Lead Managing Agent, at
the Federal Funds Rate.
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(e) To the fullest extent permitted by law, the Borrower
shall make all payments hereunder and under the Tranche A Notes regardless of
any defense or counterclaim, including any defense or counterclaim based on any
law, rule or policy which is now or hereafter promulgated by any Governmental
Authority and which may adversely affect the Borrower's obligation to make, or
the right of the holder of any Tranche A Note to receive, such payments.
Section 4.07. Taxes. (a) Any and all payments by the
Borrower hereunder or under the Tranche A Notes shall be made, in accordance
with Section 4.06, free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto (including any penalties and additions
thereto and interest thereon), excluding, in the case of each Tranche A Lender
and the Lead Managing Agent, respectively, taxes (including any penalties and
additions thereto and interest thereon) imposed on or measured by reference to
the net income of such Tranche A Lender or the Lead Managing Agent by the
jurisdiction under the laws of which the Lead Managing Agent or such Tranche A
Lender is organized, or in which such Tranche A Lender or the Lead Managing
Agent, respectively, has its principal executive office, or in which such
Tranche A Lender has its Domestic Lending Office or Eurodollar Lending Office
(all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct or withhold any Taxes from or in
respect of any sum payable hereunder or under any Tranche A Note to any Tranche
A Lender or the Lead Managing Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions or withholding
(including deductions or withholding applicable to additional sums payable
under this Section) such Tranche A Lender or the Lead Managing Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions or withholding been made, (ii) the Borrower shall make such
deductions or withholding and (iii) the Borrower shall timely pay the full
amount deducted or withheld to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present
or future stamp or documentary taxes or any other charges or similar levies
that arise from any payment made hereunder or under the Tranche A Notes or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement or the Tranche A Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify and hold harmless each
Tranche A Lender and the Lead Managing Agent from and against the full amount
of Taxes or Other Taxes (including without limitation Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section) paid by such
Tranche A Lender or the Lead Managing Agent (as the case may be) and any
liability (including penalties and additions to tax, interest on tax and
expenses) arising therefrom or with respect thereto. This indemnification
shall be
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made within 30 days from the date such Tranche A Lender or the Lead Managing
Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower will furnish to the Lead Managing Agent, at its address
referred to in Section 12.02, an official receipt (or a certified copy) or
other documentation reasonably acceptable to the Lead Managing Agent evidencing
payment thereof to the relevant taxation or other authority. In the case of
any payment hereunder or under the Tranche A Notes by or on behalf of the
Borrower through an account or branch outside the United States or by or on
behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Lead Managing Agent
at such address, an opinion of counsel acceptable to the Lead Managing Agent
stating that such payment is exempt from Taxes; provided however, that no such
opinion shall be required with respect to any exemption from Taxes imposed by
the United States. For purposes of this subsection (d) and the following
subsection (e), the terms "United States" and "United States person" shall have
the meaning specified in Section 7701 on the Internal Revenue Code.
(e) Each Tranche A Lender organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of this Agreement in the case of the Tranche A Lenders
listed in the signature pages hereof, and on the date of the Assignment and
Acceptance pursuant to which it became a Tranche A Lender in the case of each
other Tranche A Lender, and from time to time thereafter if requested in
writing by the Borrower (but only so long thereafter as such Tranche A Lender
remains lawfully able to do so), provide the Lead Managing Agent and the
Borrower with two original Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Tranche A Lender is entitled to benefits under an
income tax treaty to which the United States is a party that reduces the rate
of withholding tax on payments under this Agreement or the Tranche A Notes or
certifying that the income receivable pursuant to this Agreement or the Tranche
A Notes is effectively connected with the conduct of a trade or business in the
United States. If the form provided by a Tranche A Lender at the time such
Tranche A Lender first becomes a party to this Agreement indicates a United
States interest withholding tax rate in excess of zero, withholding tax at such
rate shall be considered excluded from Taxes unless and until such Tranche A
Lender provides the appropriate form certifying that a lesser rate applies,
whereupon withholding tax at such lesser rate only shall be considered excluded
from Taxes for periods governed by such form; provided that, if at the date of
the Assignment and Acceptance pursuant to which a Tranche A Lender assignee
becomes a party to this Agreement, the Tranche A Lender assignor was entitled
to payments under subsection (a) above in respect of United States withholding
tax with respect to interest paid at such date, then, to such extent, the term
Taxes shall include (in addition to withholding taxes that may be imposed in
the future or other amounts otherwise includable in Taxes) United States
<PAGE> 51
44
withholding tax, if any, applicable with respect to the Tranche A Lender
assignee on such date. As an alternative to delivering Internal Revenue
Service Form 1001 or 4224, a Non-U.S. Tranche A Lender holding Registered Notes
(a "Registered Noteholder") (or, if such Registered Noteholder is not the
beneficial owner thereof, such beneficial owner) may deliver to the Borrower
prior to or at the time such Non-U.S. Tranche A Lender becomes a Registered
Noteholder, an Internal Revenue Service Form W-8 (or such successor and related
forms as may from time to time be adopted by the relevant taxing authorities of
the United States), together with an annual certificate stating that such
Registered Noteholder or beneficial owner, as the case may be, is not any
person described in Section 871(h)(3) or Section 881(c)(3) of the United States
Internal Revenue Code. Each Registered Noteholder or beneficial owner, as the
case may be, agrees (x) to deliver to the Borrower a further duly completed
copy of any previously delivered Internal Revenue Service Form W-8 on or before
the earlier of the date that any such Form W-8 expires or becomes obsolete
under applicable United States Treasury regulations and the date such Form W-8
otherwise is required to be resubmitted as a condition to obtaining an
exemption from withholding from United States federal income tax and (y) to
notify the Borrower within thirty days after it determines that it is no longer
in a position to provide such Form W-8 or annual certificate to the Borrower.
(f) For any period with respect to which a Tranche A
Lender has failed to provide the Borrower with the appropriate form described
in subsection (e) above or any successor form (other than if such failure is
due to a change in law occurring after the date on which a form originally was
required to be provided or if such form otherwise is not required under
subsection (e)), such Tranche A Lender shall not be entitled to indemnification
under subsection (a) or (c) above with respect to Taxes imposed by the United
States unless such Taxes would have been imposed without regard to such Tranche
A Lender's failure to provide the appropriate form to the Borrower; provided
that should a Tranche A Lender become subject to Taxes because of its failure
to deliver a form required hereunder, the Borrower shall take at such Tranche A
Lender's expense such steps as such Tranche A Lender shall reasonably request
to assist such Tranche A Lender to recover such Taxes.
(g) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section shall survive the termination of this
Agreement, the payment in full of principal, interest and other amounts
hereunder and under the Tranche A Notes.
(h) Notwithstanding anything to the contrary in this
Section 4.07, the Borrower shall not be required to pay or indemnify for any
Tax or Other Tax to the extent such Tax or Other Tax would not have been
imposed but for the sale of participations by any Tranche A Lender in or to all
or a portion of its rights and obligations under this Agreement pursuant to
Section 10.07(e).
<PAGE> 52
45
Section 4.08. Sharing of Payments, Etc. If any Tranche A
Lender shall obtain any payment (whether voluntary or involuntary, through the
exercise of any right of set-off or otherwise) on account of the Tranche A
Loans owing to it (other than pursuant to Section 4.05(a), 4.05(b), 4.07 or
10.04(c)), or receive any guaranties therefor, in excess of its ratable share
of payments or guaranties on account of such Tranche A Loans obtained by all
the Tranche A Lenders of such Tranche A Loans, such Tranche A Lender shall
forthwith purchase from the other Tranche A Lenders such participations in such
Tranche A Loans owing to them, or shall provide such other Tranche A Lenders
with the benefits of any such guaranties as shall be necessary to cause such
purchasing Tranche A Lender to share the excess payment or guaranties ratably
with each of them; provided that if all or any portion of such excess payment
is thereafter recovered from such purchasing Tranche A Lender, such purchase
from each Tranche A Lender shall be rescinded and such Tranche A Lender shall
repay to the purchasing Tranche A Lender the purchase price to the extent of
such recovery together with an amount equal to such Tranche A Lender's ratable
share (according to the proportion of (i) the amount of such Tranche A Lender's
required repayment to (ii) the total amount so recovered from the purchasing
Tranche A Lender) of any interest or other amount paid or payable by the
purchasing Tranche A Lender in respect of the total amount so recovered. The
Borrower agrees that any Tranche A Lender so purchasing a participation from
another Tranche A Lender pursuant to this Section 4.08 may, to the fullest
extent permitted by law, exercise all its rights of payment (including the
right of set-off) with respect to such participation as fully as if such
Tranche A Lender were the direct creditor of the Borrower in the amount of such
participation.
Section 4.09. Use of Proceeds. The Borrower will apply the
proceeds of the Tranche A Loans to (a) pay transaction fees and expenses, (b)
provide working capital and funds for general corporate purposes for the
Borrower and its Subsidiaries and (c) for any other purpose not inconsistent
with the terms of this Agreement.
ARTICLE V
CONDITIONS OF LENDING
Section 5.01. Conditions to Third Restatement Date. The
obligations of the parties to this Agreement shall become effective from and
after the first date (the "Third Restatement Date") on which each of the
conditions precedent set forth in Section 5.02 and the following conditions
precedent shall have been satisfied or duly waived:
(a) Payments and Termination of Tranche C Commitments.
The Borrower shall have (i) paid to (x) each Existing Lender all
accrued fees (including, without limitation, Commitment Fees accrued
through the Third Restatement Date) and expenses owed to such Existing
Lender and (y) each existing "Tranche C Lender" (as
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46
defined in the Existing Credit Agreement), all outstanding "Tranche C
Loans" (as defined in the Existing Credit Agreement), together with
all accrued interest thereon and (ii) terminated in full the "Total
Tranche C Commitment" (as defined in the Existing Credit Agreement).
(b) No Material Adverse Change. Before giving effect to
the transactions contemplated by this Agreement, there shall have
occurred no Material Adverse Change since December 31, 1995.
(c) Representations and Warranties and No Default. The
Tranche A Lenders shall be satisfied that (i) each of the
representations and warranties made by the Loan Parties 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 and
(ii) no Default shall have occurred and be continuing on the Third
Restatement Date, or will result after giving effect to the closing.
(d) Release of Security Interest. The Tranche A Lenders
shall be satisfied that each of the Borrower and the Guarantor has
taken all actions (including, without limitation, the execution and
delivery of a termination agreement relating to all (other than the
Distribution Fee Purchase Agreement) of the "Collateral Documents" (as
defined in the Existing Credit Agreement) and the termination of all
recordings and filings of or with respect to the "Collateral" (as
defined in the Existing Credit Agreement) subject thereto) that may be
necessary or that the Lead Managing Agent may deem desirable in order
to release the liens and security interests relating to such
Collateral and created under such Collateral Documents.
(e) Fees. The Borrower shall have paid all accrued fees
and expenses of the Lead Managing Agent and the Tranche A Lenders
(including the accrued fees and expenses of counsel to the Lead
Managing Agent).
(f) Documentation. The Lead Managing Agent shall have
received on or before the Third Restatement Date the following, each
dated such day (unless otherwise specified), in form and substance
satisfactory to the Tranche A Lenders (unless otherwise specified) and
in sufficient copies for each Tranche A Lender:
(i) Certified copies of the resolutions of the
Board of Directors of the Borrower and each other Loan Party
approving this Agreement and each other document delivered
pursuant to this Section 5.01 to which it is or is to be a
party, and of all documents evidencing other necessary
corporate action and governmental and other third party
approvals and consents, if any, with respect to this Agreement
and each other document delivered pursuant to this Section
5.01.
<PAGE> 54
47
(ii) A certificate of the Secretary or an
Assistant Secretary of each Loan Party certifying the names
and true signatures of the officers of such Loan Party
authorized to sign this Agreement, the Tranche A Notes and the
other documents to be delivered hereunder to which it is or is
to be a party.
(iii) An amended and restated guaranty, in
substantially the form of Exhibit 7.21 hereto, duly executed
by AIM Advisors.
(iv) Certificates, signed by the chief financial
officer of each of the Borrower and AIM Advisors, in
substantially the form of Exhibit 5.01(f)(iv)-1 and Exhibit
7.01(f)(iv)-2 hereto, respectively, attesting to the solvency
of the Borrower and AIM Advisors, respectively.
(v) A favorable opinion of Carol F. Relihan,
general counsel for the Loan Parties, in substantially the
form of Exhibit 5.01(f)(v) hereto and as to such other matters
as any Tranche A Lender through the Lead Managing Agent may
reasonably request.
(vi) A favorable opinion of Ballard Spahr Andrews
& Ingersoll, special counsel for the Loan Parties, in
substantially the form of Exhibit 5.01(f)(vi) hereto and as to
such other matters as any Tranche A Lender through the Lead
Managing Agent may reasonably request.
(vii) A favorable opinion of Shearman & Sterling,
counsel for the Lead Managing Agent, in form and substance
satisfactory to the Lead Managing Agent.
Section 5.02. Conditions to Each Tranche A Loan. (a) The
agreement of each Tranche A Lender to make any Tranche A Loan requested to be
made by it on any date is subject to, on the date of the Tranche A Borrowing
and after giving effect thereto, the satisfaction of the following conditions
precedent:
(i) Notice of Borrowing. The Lead Managing Agent shall
have received a Notice of Borrowing from the Borrower in accordance
with Section 3.01(a).
(ii) Representations and Warranties. Each of the
representations and warranties made by the Loan Parties 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.
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48
(iii) No Default. No Default shall have occurred and be
continuing on such date, or will result after giving effect to the
Tranche A Loans requested to be made on such date.
(iv) Additional Matters. All corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Agreement and
the other Loan Documents shall be satisfactory in form and substance
to the Lead Managing Agent, and the Lead Managing Agent shall have
received such other documents and legal opinions in respect of any
aspect or consequence of the transactions contemplated hereby or
thereby as it shall reasonably request.
(b) Each delivery of a Notice of Borrowing by the
Borrower hereunder shall constitute a representation and warranty by the
Borrower and each Guarantor (acting through the Borrower pursuant to authority
granted in the applicable AIM Guaranty) as of the date of such Tranche A
Borrowing that the conditions contained in this Section 5.02 have been
satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
To induce the Tranche A Lenders to enter into this Agreement
and to make the Tranche A Loans hereunder (i) as of the date hereof, (ii) as of
the Third Restatement Date, and (iii) as to each date when representations and
warranties are deemed to be made pursuant to Section 5.02, the Borrower
represents to the Lead Managing Agent, each Co- Managing Agent and each Tranche
A Lender as follows:
Section 6.01. Organization, Etc. The Borrower (i) is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, (ii) is duly qualified or licensed and is in
good standing as a foreign corporation in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires it so
to qualify or be licensed, and (iii) has all requisite corporate power and
authority to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted. All of the
outstanding capital stock of the Borrower has been validly issued, is fully
paid and nonassessable.
Section 6.02. Subsidiaries. Set forth on Schedule 6.02 is an
organizational chart for the Borrower and each of its Subsidiaries, which
Schedule 6.02 is, as of the Third Restatement Date, complete and accurate and
shows (as to each such Subsidiary) the jurisdiction of its incorporation and
the percentage of the outstanding shares of each such
<PAGE> 56
49
class owned by the Borrower and any other Subsidiary and the number of shares
covered by all outstanding options, warrants, rights of conversion or purchase
and similar rights. All of the outstanding Capital Stock of each such
Subsidiary has been validly issued, is fully paid and non-assessable, and the
shares of Capital Stock owned by the Borrower or any other Subsidiary is owned
free and clear of all Liens. Each such Subsidiary (i) is a corporation duly
organized and validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified or licensed and is in
good standing as a foreign corporation in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires it so
to qualify or be licensed, and (iii) has all requisite corporate power and
authority to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted.
Section 6.03. Authorization, Etc. (a) The execution,
delivery and performance by the Borrower and each of its Subsidiaries of each
Loan Document to which it is or is to be a party, and the consummation of the
transactions contemplated hereby and thereby (including the power to use the
proceeds of the Tranche A Loans as permitted hereunder), are within the
Borrower's and each such Subsidiary's corporate powers, have been duly
authorized by all necessary corporate action, and do not (i) contravene, or
conflict with, the Borrower's or any Subsidiary's certificate of incorporation
or by-laws, (ii) violate any Requirement of Law (including Regulation X of the
Board of Governors of the Federal Reserve System), (iii) conflict with or
result in the breach of, constitute a default under, or cause or permit any
termination or any mandatory prepayment or acceleration of the maturity of, any
contract, loan agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting the Borrower, any of its Subsidiaries or any
of their properties, or (iv) result in or require the creation or imposition of
any Lien upon or with respect to any of the properties of the Borrower or any
of its Subsidiaries. Neither the Borrower nor any of its Subsidiaries is in
violation of any Requirement of Law or in breach of any such contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument, the
violation or breach of which could have a Material Adverse Effect.
(b) No consent or approval of the stockholders or
directors of the Borrower or any of its Subsidiaries or of any AIM Fund is
required as a condition to the validity or performance of, or exercise by the
Lead Managing Agent or the Tranche A Lenders of any of their rights or remedies
under, any of the Loan Documents.
(c) (i) AIM Advisors, AIM Capital Management and each
other Subsidiary of the Borrower engaged in advisory or management activities,
if any, is, and at all times will be, duly registered as an investment adviser
as, and to the extent required under, the Investment Advisers Act; (ii) AIM
Distributors, Fund Management Company and each other Subsidiary engaged in the
broker-dealer business, if any, is, and at all times will be, duly registered
as a broker-dealer as and to the extent required under the Securities Exchange
Act and, as and to the extent required is, and at all times will be, a member
in good standing of
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50
the National Association of Securities Dealers, Inc.; and (iii) the Borrower
and all of its Subsidiaries have all other permits, licenses, authorizations,
franchises and registrations needed to conduct their respective businesses as
now conducted other than permits, licenses, authorizations, franchises and
registrations the absence of which, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(d) Each Loan Document to which the Borrower or any of
its Subsidiaries is or is to be a party has been, or when delivered will have
been, duly executed and delivered by the Borrower or such Subsidiary. Each
Loan Document to which the Borrower or any of its Subsidiaries is or is to be a
party is, or when delivered will be, the legal, valid and binding obligation of
the Borrower or such Subsidiary, enforceable against the Borrower or such
Subsidiary in accordance with its terms subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and similar laws of general
applicability relating to creditors' rights and general equity principles
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
Section 6.04. Approvals. Except for the authorizations,
approvals, actions, notices and filings listed on Schedule 6.04, all of which
have been duly obtained, taken, given or made and are in full force and effect,
no authorization or approval or other action by, and no notice to or filing
with, any Governmental Authority or any other third party is required for (i)
the due execution, delivery, recordation, filing or performance by the Borrower
or any of its Subsidiaries or any Loan Document to which it is or is to be a
party, or for the consummation of the transactions contemplated hereby or
thereby or (ii) the exercise by the Lead Managing Agent, any Co-Managing Agent
or any Tranche A Lender of its rights under any Loan Documents to which the
Borrower or any of its Subsidiaries is a party.
Section 6.05. Financial Statements. The Consolidated balance
sheet of the Borrower and its Subsidiaries as at December 31, 1995, and the
related Consolidated statements of operations, cash flows and changes in
stockholders' equity of the Borrower and its Subsidiaries for the Fiscal Year
then ended, with the report thereon of KPMG Peat Marwick, independent public
accountants, and the Consolidated balance sheet of the Borrower and its
Subsidiaries as at March 31, 1996, and the related Consolidated statements of
operations of the Borrower and its Subsidiaries for the three months then
ended, duly certified by a Responsible Officer, copies of which have been
furnished to each Tranche A Lender, fairly present the Consolidated financial
position of the Borrower and its Subsidiaries as at such dates and the
Consolidated results of the operations of the Borrower and its Subsidiaries for
the periods ended on such dates, all in accordance with GAAP applied on a
consistent basis. There are no material liabilities, direct or indirect, fixed
or contingent, of the Borrower or any of its Subsidiaries as of the date
thereof which are not reflected in such financial statements or in the notes
thereto. Since December 31, 1995, there has been no Material Adverse Change.
<PAGE> 58
51
Section 6.06. Litigation. There is no action, suit,
investigation, litigation or proceeding affecting the Borrower or any of its
Subsidiaries pending or threatened before any court, Governmental Authority or
arbitrator (i) that, in any one proceeding or investigation or in the
aggregate, could have a Material Adverse Effect, (ii) that purports to affect
the legality, validity or enforceability of, any Loan Document or the
consummation of the transactions contemplated hereby or thereby or (iii) that
relates to or arises from any Management Contract or Distribution Agreement
that, in any one proceeding or investigation or in the aggregate could
reasonably be expected to have a Material Adverse Effect.
Section 6.07. Liens; Insurance; Intellectual Property. (a)
The Borrower and its Subsidiaries have good record and marketable title in fee
simple to, or a valid leasehold interest in, all their respective real property
and good title to all their respective other property and assets, and none of
the property or assets of the Borrower or any of its Subsidiaries is subject to
any Lien, except for Liens of the types permitted by Section 7.02.
(b) The Borrower maintains and causes each of its
Subsidiaries to maintain such insurance with respect to its properties and
business and the properties and business of its Subsidiaries as is required by
Section 7.11.
(c) The Borrower and each of its Subsidiaries owns or has
fully sufficient right to use, free from restrictions, all patents, trademarks,
service marks, trade names, copyrights, licenses and similar intellectual
property rights that are necessary for the operation of their respective
businesses as now conducted.
Section 6.08. Solvency. The Borrower is Solvent individually
and on a Consolidated basis with its Subsidiaries and each Guarantor is
Solvent.
Section 6.09. Existing Debt. Set forth on Schedule 6.09 is a
complete and accurate list of all Existing Debt as of the Third Restatement
Date, showing as of such date the outstanding principal amount thereof.
Section 6.10. Projections. Subject to (i) the uncertainties
and approximations inherent in any set of projections and forecasts, and (ii)
the cautionary statements with respect to the projections and forecasts
included in the Borrower Information, the projections and forecasts included in
the Borrower Information (A) have been prepared by management of the Borrower
in good faith on the basis of the assumptions included in the Borrower
Information, which management of the Borrower believes are reasonable, and (B)
represent the Borrower's reasonable estimate of its future financial
performance, in the light of business conditions existing on the date hereof.
Section 6.11. Accuracy of Information. Neither any Loan
Document nor any other document, nor any information furnished by the Borrower
or any of its Subsidiaries for
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52
inclusion in the Borrower Information (other than financial projections
included in the Borrower Information), nor any other document, certificate or
instrument delivered to the Tranche A Lenders by the Borrower or any of its
Subsidiaries or Persons authorized by the Borrower in connection with the
transactions contemplated by the Loan Documents contains any untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements contained in the Loan Documents, and in such other documents,
certificates or instruments not misleading. There is no fact known to the
Borrower that has had or in the future may (so far as it can now reasonably
foresee) have a Material Adverse Effect that has not been disclosed to the
Tranche A Lenders in writing by or on behalf of the Borrower specifically for
use in connection with the transactions contemplated by the Loan Documents.
Section 6.12. Taxes. The Borrower and each of its
Subsidiaries has filed or caused to be filed all tax returns required by law to
have been filed by them and has paid or provided or caused to be paid or
provided adequate reserves for all taxes thereby shown to be owing and all
taxes due on any assessments relating to such returns made against them or any
of their properties and all other taxes imposed upon them or any of their
properties, except any such taxes that are being diligently contested in good
faith by appropriate proceedings and for which adequate reserves have been
established and are being maintained in accordance with GAAP. Except as set
forth on Schedule 6.12, there is no ongoing audit or other governmental
investigation of any tax liability of the Borrower or any of its Subsidiaries
and there is no unresolved claim by a taxing authority concerning the
Borrower's or any Subsidiary's tax liability, for any period for which returns
have been filed or were due. The Consolidated liability stated for taxes for
the Borrower and its Subsidiaries as of March 31, 1996 in the financial
statements described in Section 6.05 is sufficient in all material respects for
all taxes as of such date.
Section 6.13. Compliance with ERISA. (i) Set forth on
Schedule 6.13 is a complete and accurate list of all Plans, Multiemployer Plans
and Welfare Plans and no such Plan is subject to the provisions of Title IV of
ERISA; (ii) no ERISA Event has occurred or is reasonably expected to occur with
respect to any Plan; (iii) neither the Borrower, any Subsidiary, nor any of
their respective ERISA Affiliates has incurred or is reasonably expected to
incur any Withdrawal Liability to any Multiemployer Plan; (iv) neither the
Borrower, any Subsidiary, nor any of their respective ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization, insolvent or has been terminated, within the meaning of
Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to be
in reorganization, insolvent or to be terminated, within the meaning of Title
IV of ERISA; (v) the aggregate annualized cost (including the cost of insurance
premiums) with respect to post-retirement benefits under Welfare Plans for
which the Borrower and its Subsidiaries are liable does not exceed $500,000,
and the Borrower and its Subsidiaries have no unfunded expected postretirement
benefit obligation; and (vi) neither the Borrower nor any of its Subsidiaries
has breached the
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53
fiduciary rules of ERISA or engaged in any prohibited transaction, and no such
breach or prohibited transaction has occurred, that could result in any direct
or indirect material liability (including as a result of an indemnification
obligation) of the Borrower or any of its Subsidiaries.
Section 6.14. Investment Company. Neither the Borrower 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. Neither the making of any Tranche A Loans, nor the
application of the proceeds or repayment thereof by the Borrower, nor the
consummation of the other transactions contemplated hereby, will violate any
provision of such Act or any rule, regulation or order of the Securities and
Exchange Commission thereunder.
Section 6.15. Public Utility Holding Company Act. Neither
the Borrower nor any of its Subsidiaries is a "holding company", or a
"subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
Section 6.16. Margin Regulations. No part of the proceeds of
any Tranche A Loan will be used to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying any margin
stock (within the meaning of Regulation G or Regulation U of the Board of
Governors of the Federal Reserve System). Neither the making of any Tranche A
Loan nor the use of proceeds thereof will violate or be inconsistent with the
provisions of Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System.
Section 6.17. Use of Proceeds. The Borrower will use the
proceeds of the Tranche A Loans solely as provided in Section 4.09.
ARTICLE VII
COVENANTS OF THE BORROWER
Section 7.01. Financial Covenants. (a) Maximum Leverage.
The Borrower will not permit the Leverage Ratio, determined as of the end of
its most recently completed Rolling Period, to be greater than 2.0 to 1.
(b) Minimum Interest Coverage. The Borrower will not
permit the ratio of (i) EBITDA to (ii) Consolidated Cash Interest Expense of
the Borrower and its Subsidiaries,
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54
determined as of the end of its most recently completed Rolling Period, to be
less than 4.5 to 1.
(c) Fixed Charge Coverage Ratio. The Borrower will not
permit the ratio of Operating Cash Flow to Consolidated Fixed Charges,
determined as of the end of its most recently completed Rolling Period, to be
less than 1.5 to 1.
Section 7.02. Liens, Etc. The Borrower will not, and will
not permit any Subsidiary to, directly or indirectly create, incur, assume or
permit to exist any Lien on or with respect to any property or asset (including
any document or instrument in respect of goods or accounts receivable) of the
Borrower or any Subsidiary, whether now owned or held or hereafter acquired, or
any revenues, income or profits therefrom, except:
(a) Liens for taxes, assessments or other governmental
charges being contested in good faith by appropriate proceedings
promptly initiated and diligently conducted and for which such
reserves or other appropriate provision, if any, as shall be required
by GAAP shall have been made and maintained in accordance GAAP and
past practices of the Borrower and its Subsidiaries therefor;
(b) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics and materialmen incurred in the ordinary
course of business for sums not yet due or being contested in good
faith by appropriate proceedings promptly initiated and diligently
conducted and for which such reserves or other appropriate provision,
if any, as shall be required by GAAP shall have been made therefor;
(c) Liens (other than any Lien imposed by ERISA) incurred
or deposits made in the ordinary course of business (i) in connection
with workers' compensation, unemployment insurance and other types of
social security, or (ii) to secure (or to obtain letters of credit
that secure) the performance of tenders, statutory obligations, surety
and appeal bonds, bids, leases, performance bonds, purchase,
construction or sales contracts and other similar obligations, in each
case not incurred or made in connection with the borrowing of money,
the obtaining of advances or credit or the payment of the deferred
purchase price of property;
(d) any attachment or judgment Lien, unless the judgment
it secures shall not, within 60 days after the entry thereof, have
been discharged or execution thereof stayed pending appeal, or shall
not have been discharged within 60 days after the expiration of any
such stay;
(e) leases or subleases granted to others, easements,
rights-of-way, restrictions and other similar charges or encumbrances,
in each case incidental to, and
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not interfering with, the ordinary conduct of the business of the Borrower or
any Subsidiary;
(f) Liens incurred to secure the B Share Loans;
(g) the Liens set forth on Schedule 7.02;
(h) Liens arising pursuant to one or more Securitization
Programs;
(i) purchase money Liens upon or in any real property or
equipment acquired or held by the Borrower or any Subsidiary in the
ordinary course of business to secure the purchase price of such
property or equipment or to secure Debt incurred solely for the
purpose of financing the acquisition of such property or equipment, or
Liens existing on such property or equipment at the time of its
acquisition (other than any such Liens created in contemplation of
such acquisition that were not incurred to finance the acquisition of
such property) or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, provided, however, that no
such Lien shall extend to or cover any properties of any character
other than the real property or equipment being acquired, and no such
extension, renewal or replacement shall extend to or cover any
properties not theretofore subject to the Lien being extended, renewed
or replaced; and provided furtherthat the aggregate principal amount
of the Debt secured by Liens permitted under this clause (i) shall not
exceed the amount permitted under Section 7.03(k) at any time to be
outstanding; and
(j) Liens arising in connection with Capital Leases
permitted under Section 7.03(k); provided that no such Lien shall
extend to or cover any assets other than the assets subject to such
Capital Lease.
Section 7.03. Debt. The Borrower will not, and will not
permit any Subsidiary to, directly or indirectly, create, incur, assume,
guarantee, or otherwise become or remain directly or indirectly liable with
respect to, any Debt, except that:
(a) the Borrower may become and remain liable with
respect to the Debt evidenced by the Tranche A Loans;
(b) the Borrower may become and remain liable with
respect to the Debt evidenced by the B Share Loans under the B Share
Credit Agreement as in effect on the Third Restatement Date;
(c) the Borrower may remain liable with respect to Debt
evidenced by the Senior Notes, provided that the aggregate principal
amount of the Senior Notes outstanding at any time shall not exceed
$110,000,000;
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56
(d) any Subsidiary may become and remain liable with
respect to Debt of such Subsidiary owing to the Borrower or another
Subsidiary and the Borrower may become and remain liable with respect
to Debt of the Borrower owing to a Wholly-Owned Subsidiary, provided
that (i) any Debt of the Borrower owing to a Wholly-Owned Subsidiary
is subordinated in right of payment from and after such time as any
Tranche A Loans shall become due and payable (whether at maturity,
acceleration or otherwise) to the payment and performance of the
Borrower's obligations under the Loan Documents, and (ii) in the case
of any Debt of any Guarantor owing to another Subsidiary, such Debt is
subordinated in right of payment from and after such time as any
obligations under the applicable Guaranty shall become due and payable
to the payment and performance of such Guarantor's obligations under
such Guaranty;
(e) the Guarantors may become and remain liable with
respect to the AIM Guaranties;
(f) the Guarantors may become and remain liable with
respect to Guaranties of the B Share Loans and the Senior Notes,
provided that such Guaranties shall contain no terms more favorable to
the beneficiaries thereof than those set forth in the AIM Guaranties;
(g) the Borrower may become and remain liable under any
(i) Interest Rate Protection Agreement designed to hedge against
fluctuations in interest rates and (ii) Currency Hedging Arrangement
designed to protect against the fluctuations in currency values;
(h) the Borrower and its Subsidiaries may remain liable
under those items of Existing Debt designated on Schedule 6.09 as
obligations that are to remain outstanding after the Third Restatement
Date;
(i) the Borrower or any of its Subsidiaries may become
and remain liable with respect to Debt in respect of one or more
Securitization Programs;
(j) the Borrower may become and remain liable with
respect to Guaranties of loans, in an aggregate principal amount not
to exceed $25,000,000 at any time outstanding, made by third-parties
to its employees for purposes of (i) funding the exercise of options
on the Capital Stock of Borrower and the payment of tax liabilities
associated therewith and (ii) financing purchases of personal
residences; and
(k) the Borrower and its Subsidiaries may become and
remain liable with respect to (i) unsecured Debt incurred in the
ordinary course of business, (ii) Debt secured by Liens permitted by
Section 7.02(i) and (iii) Capital Leases, in an aggregate
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principal amount outstanding under this Section 7.03(k) not to exceed
$10,000,000 at any time.
Section 7.04. Consolidation, Merger, Sale of Assets, Etc.
The Borrower will not, and will not permit any Subsidiary to, directly or
indirectly consolidate with or merge into any other Person or permit any other
Person to consolidate with or merge into it except that (i) any Wholly-Owned
Subsidiary of the Borrower may merge into any other Wholly-Owned Subsidiary of
the Borrower and (ii) the Borrower and any Wholly-Owned Subsidiary of the
Borrower may merge into or consolidate with any other Person or permit any
other Person to merge into or consolidate with it; provided that such merger
does not (A) result in a Default under any Loan Document, (B) result in the
termination or material amendment of any Distribution Agreement or Management
Contract, if such termination or material amendment could have a Material
Adverse Effect, (C) require any increase under the Exchange Act or the laws of
any State in the minimum net capital of any Subsidiary of the Borrower that is
a broker/dealer, if such increase could have a Material Adverse Effect; and
provided further that in the case of any merger or consolidation to which the
Borrower or any Wholly-Owned Subsidiary of the Borrower is a party, the
Borrower or, if the Borrower is not party to such merger or consolidation, such
Wholly-Owned Subsidiary (including, in any event, AIM Advisors), is the
surviving corporation.
Nothing in this Section 7.04 shall be construed to prohibit
one or more Securitization Programs.
Section 7.05. Limitation on Restricted Payments. (a) The
Borrower will not, and will not permit any Subsidiary to, directly or
indirectly:
(i) declare or pay any dividend on, or make any
distribution to holders of, any Capital Stock of the Borrower (other
than dividends or distributions payable solely in shares of Qualified
Capital Stock of the Borrower or options, warrants or other rights to
purchase Qualified Capital Stock of the Borrower);
(ii) purchase, redeem or otherwise acquire or retire for
value any Capital Stock of the Borrower or any Affiliate thereof
(other than any Wholly-Owned Subsidiary of the Borrower) or any
option, warrant or other right to acquire such Capital Stock;
(iii) declare or pay any dividend or distribution on any
Capital Stock of any Subsidiary to any Person (other than the Borrower
or any of its Wholly-Owned Subsidiaries) or purchase, redeem or
otherwise acquire or retire for value any Capital Stock of any
Subsidiary held by any Person (other than the Borrower or any of its
Wholly-Owned Subsidiaries);
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58
(iv) make any principal payment on, or repurchase, redeem,
defease, retire or otherwise acquire for value, prior to any scheduled
repayment, sinking fund payment or maturity, any Pari Passu Debt
(other than the B Share Loans or acquisitions of Senior Notes) or Debt
which is subordinate to the Tranche A Loans; or
(v) make any Investment (other than any Permitted
Investment) in any Person
(such payments described in clauses (i) through (v), collectively, "Restricted
Payments");
unless at the time of, and after giving effect to, the proposed Restricted
Payment (the amount of any such Restricted Payment, if other than cash, being
as determined by the Board of Directors of the Borrower, whose determination
shall be conclusive and evidenced by a Board Resolution), (1) no Default shall
have occurred and be continuing and such Restricted Payment shall not be an
event which is, or after notice or lapse of time or both would be, an "event of
default" under the terms of any Debt of the Borrower or any Subsidiary and (2)
the aggregate amount of all Restricted Payments, declared or made after the
Third Restatement Date, shall not exceed the sum of:
(A) $32,700,000;
(B) 50% of the aggregate cumulative Consolidated Net
Income of the Borrower accrued on a cumulative basis during the period
beginning on December 31, 1995 and ending on the last day of the
Borrower's last Fiscal Quarter ending prior to the date of such
proposed Restricted Payment (or, if such aggregate cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss);
(C) the aggregate Net Cash Proceeds received after the
Third Restatement Date by the Borrower as capital contributions to the
Borrower;
(D) the aggregate Net Cash Proceeds received after the
Third Restatement Date by the Borrower from the issuance or sale
(other than to any of its Subsidiaries) of shares of Qualified Capital
Stock of the Borrower or any options, warrants or rights to purchase
such shares of Qualified Capital Stock of the Borrower (except, in
each case, to the extent such proceeds are used to purchase, redeem or
otherwise retire Capital Stock or Debt as set forth in clauses (b)(ii)
and (b)(iii) of this Section 7.05);
(E) the aggregate Net Cash Proceeds received after the
Third Restatement Date by the Borrower (other than from any of its
Subsidiaries) upon the exercise of
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59
any options, warrants or rights to purchase shares of Qualified
Capital Stock of the Borrower; and
(F) the aggregate Net Cash Proceeds received after the
Third Restatement Date by the Borrower from debt securities or
Redeemable Capital Stock that have been converted into or exchanged
for Qualified Capital Stock of the Borrower to the extent of the
amount of cash or Cash Equivalents received from the sale of such debt
securities or Redeemable Capital Stock, including payments in respect
of deferred payment obligations when received in the form of, or
Capital Stock or other assets when disposed for, cash or Cash
Equivalents, plus the aggregate Net Cash Proceeds received by the
Borrower at the time of such conversion or exchange.
(b) Notwithstanding the foregoing and, in the case of
clauses (ii) and (iii) below, so long as there is no Default continuing, the
foregoing provisions shall not prohibit the following Restricted Payments
(clauses (ii) and (iii) being referred to as a "Permitted Payment"):
(i) dividends paid within 60 days after the date of
declaration, if at the date of declaration such payment would be
permitted by the provisions of paragraph (a) of this Section 7.05 and
such payment shall be deemed to have been paid on such date of
declaration for purposes of the calculation required by the provisions
of paragraph (a) of this Section 7.05;
(ii) the repurchase, redemption or other acquisition or
retirement of any shares of any class of Capital Stock of the Borrower
in exchange for (including any such exchange pursuant to the exercise
of a conversion right or privilege in connection with which cash is
paid in lieu of the issuance of fractional shares or scrip), or out of
the net proceeds of, a substantially concurrent issue and sale (other
than to a Subsidiary) of other shares of Qualified Capital Stock of
the Borrower; provided that the Net Cash Proceeds from the issuance of
such shares of Qualified Capital Stock are excluded from clause (2)(D)
of paragraph (a) above to the extent so applied to such repurchase,
redemption or other acquisition or retirement; and
(iii) the redemption, repayment, defeasance, repurchase,
acquisition or retirement for value of any Debt (other than Redeemable
Capital Stock) (a "refinancing") through the issuance of (A) new Debt
of the Borrower or (B) shares of Qualified Capital Stock of the
Borrower; provided that, with respect to clause (A), the terms of any
such new Debt (and of any agreement entered into and of any instrument
issued in connection therewith) are no less favorable to the Managing
Agents and the Tranche A Lenders than the terms of the Debt so
extended, refunded or refinanced and are otherwise expressly permitted
under the Loan Documents; provided further, however, that (1) the
aggregate principal amount of such extended, refunded or
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refinanced Debt shall not be increased above the outstanding principal
amount thereof immediately prior to such extension, refunding or
refinancing plus any premium, (2) no direct and contingent obligors
therefor shall be added as a result of or in connection with such
extension, refunding, replacement or refinancing and (3) immediately
before and immediately after giving pro forma effect to any such
extension, refunding or refinancing, no Default shall have occurred
and be continuing; and provided further that the Net Cash Proceeds
from the issuance of any such Qualified Capital Stock are excluded
from clause (2)(D) of paragraph (a) above to the extent so applied to
such refinancing.
Section 7.06. Sale of Assets. The Borrower will not, and
will not permit any Subsidiary to, directly or indirectly, sell, lease or
otherwise dispose of all or substantially all of its assets (including rights
or interests in any Distribution Agreement or any Management Contract);
provided, however, that: (y) any Subsidiary may sell, lease or otherwise
dispose of all or substantially all of its assets to the Borrower or a
Wholly-Owned Subsidiary; and (z) the Borrower and its Subsidiaries may (1) sell
any Cash Equivalents or any Investment referred to in clause (v) of the
definition of "Permitted Investment" so long as any use of the proceeds thereof
is in compliance with this Agreement and (2) engage in any Securitization
Program.
Section 7.07. Transactions with Affiliates. The Borrower
will not, and will not permit any Subsidiary to, directly or indirectly, engage
in any transaction (including the purchase, sale or exchange of assets or the
rendering of any service) with any Affiliate of the Borrower, except in the
ordinary course of and pursuant to the reasonable requirements of the
Borrower's or such Subsidiary's business and upon fair and reasonable terms
that are no less favorable to the Borrower or such Subsidiary, as the case may
be, than those which might be obtained, in the good faith judgment of the
Borrower, in an arm's-length transaction at the time from Persons which are not
such an Affiliate, provided that (i) the foregoing restrictions shall not apply
to any transaction between the Borrower and a Subsidiary or between one
Subsidiary and another Subsidiary, (ii) the Borrower may enter into an
agreement with the TA Group providing for the purchase by the Borrower from the
TA Group of the shares of capital stock of the Borrower held by the TA Group to
the extent permitted by Section 7.05 or after all of the Tranche A Loans have
been fully repaid and the Obligations of each Loan Party under the Loan
Documents have been discharged in full and (iii) the foregoing restrictions
shall not apply to any loan made by the Borrower or any of its Subsidiaries to
any of their respective employees for purposes of exercising stock options of
such employees and paying tax liabilities of such employees associated
therewith.
Section 7.08. Compliance with Laws. The Borrower will comply
and will cause each of its Subsidiaries to comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, any
federal, state, local or foreign governmental authority in respect of the
conduct of its business and the ownership of its
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properties with respect to which failure to comply, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 7.09. Corporate Existence, Etc.; Business. The
Borrower will at all times preserve and keep in full force and effect its
corporate existence, and rights and franchises deemed material to its business,
and those of each of its Subsidiaries, and the Borrower shall not, and shall
not permit any Subsidiary to liquidate or dissolve or adopt any plan with
respect thereto, except that the corporate existence of any Subsidiary (other
than any Guarantor that is a Material Subsidiary and other than AIM
Distributors if it shall not be a Guarantor) may be terminated and such
Subsidiary may dissolve or liquidate or adopt a plan with respect thereto if,
in the good faith judgment of the Board of Directors of the Borrower, such
termination is in the best interest of the Borrower and is not disadvantageous
to the Tranche A Lenders. The Borrower will not, and will not permit any
Subsidiary to, engage in any business other than the businesses conducted by
the Borrower and its Subsidiaries on the Third Restatement Date and other
activities incidental or related to such businesses. Without limiting the
generality of the foregoing, the Borrower will not permit (i) AIM Distributors
to engage in any business other than the business of underwriting and
distributing shares of AIM Funds and such activities as are related or
incidental thereto, (ii) any Subsidiary that is a broker-dealer that currently
conducts its business as a broker or dealer engaged in the sale of redeemable
shares of registered investment companies, which does not receive or hold
customer funds or securities, to engage in business as a broker or dealer that
clears customer or broker-dealer accounts or receives or holds funds or
securities for those Persons, (iii) any of its Subsidiaries other than AIM
Distributors to incur Distribution Expenses or (iv) any of its Subsidiaries
other than AIM Fund Services to receive Collections.
Section 7.10. Inspection. The Borrower will permit any
authorized representatives designated by any of the Tranche A Lenders, without
expense to the Borrower, to visit and inspect any of the properties of the
Borrower or any of its Subsidiaries, including its and their books of account,
and to make copies and take extracts therefrom, and to discuss its and their
affairs, finances and accounts with its and their officers and independent
public accountants, all at such reasonable times and as often as may be
reasonably requested.
Section 7.11. Insurance. The Borrower will maintain or cause
to be maintained, with financially sound and reputable insurers, insurance with
respect to its properties and business and the properties and business of its
Subsidiaries against loss or damage of the kinds customarily insured against by
corporations of established reputation engaged in the same or similar business
and similarly situated, of such types and in such amounts as are customarily
carried under similar circumstances by such other corporations. Such insurance
may be subject to co-insurance, deductibility or similar clauses which, in
effect, result in self-insurance of certain losses, provided that such
self-insurance is in accord
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with generally accepted practices of corporations similarly situated and
adequate insurance reserves are maintained in connection with such
self-insurance.
Section 7.12. Insurance Agency Subsidiaries. The Borrower
shall cause each Insurance Agency Subsidiary to dividend all payments with
respect to fees received by such Insurance Agency Subsidiary to the Borrower in
accordance with Section 7.20. The Borrower shall form one or more Insurance
Agency Subsidiaries in each jurisdiction in which Override Payments are to be
paid to receive such Override Payments to the full extent permitted by
applicable law and the regulations or procedures of Governmental Authorities
having jurisdiction over such Subsidiaries. The Borrower shall cause each
other Person who is not an Insurance Agency Subsidiary and who receives
Override Payments to enter into an agreement with the Borrower or a
Wholly-Owned Subsidiary providing in substance for payments to the Borrower or
a Wholly-Owned Subsidiary in lieu of Override Payments to the maximum extent
and in the maximum amount permitted by applicable law and the regulations and
procedures of Governmental Authorities having jurisdiction over such Persons.
Section 7.13. Fiscal Year. Without the prior written consent
of the Required Lenders, each of the Borrower and its Subsidiaries will not
change its Fiscal Year.
Section 7.14. Conduct of Business. The Borrower will, and
will cause each of its Subsidiaries to, (i) conduct its business in a regular
manner, in the ordinary course and consistent with past practice, provided that
nothing in this clause (i) shall be construed to prohibit one or more
Securitization Programs, (ii) perform and observe all of the terms, covenants
and conditions required to be performed and observed by it under any
Contractual Obligations except where the failure to observe such terms,
covenants and conditions, individually or in the aggregate would not have a
Material Adverse Effect, and (iii) pay and discharge all obligations on
customary terms except to the extent such obligations are being contested in
good faith.
Section 7.15. Payment of Taxes. The Borrower will, and will
cause each Subsidiary to, file on a timely basis all tax returns required to be
filed by them, and pay and discharge all taxes, assessments and governmental
charges or levies imposed upon it or any of its properties or assets or in
respect of any of its franchises, business, income or profits before any
penalty or interest accrues thereon, and all claims (including claims for
labor, services, materials and supplies) or sums which have become due and
payable and which by law have or might become a Lien upon any of its properties
or assets, provided that no such tax assessment, charge, or claim need be paid
if being contested in good faith by appropriate proceedings promptly initiated
and diligently conducted and if such reserves or other appropriate provision,
if any, as shall be required by GAAP shall have been made and maintained in
accordance with GAAP and past practices of the Borrower and its Subsidiaries
therefor.
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Section 7.16. Issuance of Stock By Subsidiaries. No
Subsidiary shall issue or sell any shares of its Capital Stock to any Person
other than the Borrower, AIM Advisors, AIM Capital Management (solely with
respect to shares of the U.S. Holding Company), the U.S. Holding Company
(solely with respect to Subsidiaries organized and existing outside of the
United States) or with respect to Insurance Agency Subsidiaries to other
Persons as may be required by applicable law or the regulations or procedures
of Governmental Authorities having jurisdiction over such Insurance Agency
Subsidiaries.
Section 7.17. Modification of Agreements; Delivery of
Opinions and Documents. The Borrower shall not, and shall not permit any
Subsidiary to (i) alter, amend, modify, rescind, terminate or waive any of its
rights under, or breach or cause an event of default to exist under, the
Distribution Fee Purchase Agreement, any Management Contract or Distribution
Agreement or any of its Contractual Obligations if the foregoing actions,
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect, or (ii) amend any of the documents relating to the B
Share Loans or the Senior Notes without the prior written consent of the
Required Lenders.
Section 7.18. Reporting Requirements. So long as any
Obligation under the Loan Documents shall remain outstanding or any Tranche A
Lender shall have any Tranche A Commitment hereunder, the Borrower will, unless
the Required Lenders shall otherwise consent in writing, furnish to the Tranche
A Lenders (except as otherwise noted below):
(a) Default Notice. As soon as possible and in any event
within five days after the occurrence of each Default continuing on
the date of such statement, a statement of the President of the
Borrower setting forth details of such Default and the action that the
Borrower has taken and proposes to take with respect thereto.
(b) Annual Financial Statements. Within 90 days after
the end of each Fiscal Year of the Borrower, Consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries as
at the end of such year and the related Consolidated (and, as to
statements of operations, consolidating) statements of operations,
cash flows and changes in stockholders' equity of the Borrower and its
Subsidiaries for such Fiscal Year, setting forth in each case in
comparative form the Consolidated figures for the previous Fiscal
Year, all in reasonable detail and (i) in the case of such
Consolidated financial statements, accompanied by a report thereon of
KPMG Peat Marwick or other independent public accountants of
recognized national standing selected by the Borrower (and reasonably
satisfactory to the Tranche A Lenders) which report shall state that
such Consolidated financial statements present fairly, in all material
respects, the financial position of the Borrower and its Subsidiaries
as at the dates indicated and the results of their operations and cash
flows for the periods indicated in conformity with GAAP (except as
otherwise specified in such report) and that the audit by such
accountants in connection with such Consolidated financial
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statements has been made in accordance with generally accepted
auditing standards and (ii) in the case of such consolidating
financial statements, certified by a Responsible Officer as presenting
fairly, in all material respects, in accordance with GAAP applied
(except as specifically set forth therein) on a basis consistent with
such prior fiscal periods, the information contained therein.
(c) Quarterly Financial Statements. Within 45 days after
the end of each of the first three Fiscal Quarters in each Fiscal Year
of the Borrower, Consolidated balance sheets of the Borrower and its
Subsidiaries as at the end of such period and the related Consolidated
statements of operations, cash flows and changes in stockholders'
equity of the Borrower and its Subsidiaries for such period and (in
the case of the second and third Fiscal Quarters) for the period from
the beginning of the current Fiscal Year to the end of such Fiscal
Quarter, setting forth in each case in comparative form the
Consolidated figures for the corresponding periods of the previous
Fiscal Year, all in reasonable detail as certified by a Responsible
Officer as presenting fairly, in all material respects, in accordance
with GAAP (except for the absence of notes thereto) applied (except as
specifically set forth therein) on a basis consistent with such prior
fiscal periods, the information contained therein, subject to changes
resulting from normal year-end audit adjustments.
(d) Compliance Certificates. Together with each delivery
of financial statements pursuant to subdivisions (b) and (c) of this
Section 7.18, an officer's certificate signed by a Responsible Officer
(i) stating that the signer has reviewed the terms of this Agreement
and of the Tranche A Notes and has made, or caused to be made under
his or her supervision, a review in reasonable detail of the
transactions and condition of the Borrower and its Subsidiaries during
the accounting period covered by such financial statements and that
such review has not disclosed the existence during or at the end of
such accounting period, and that the signer does not have knowledge of
the existence as at the date of such officers' certificate, of any
condition or event which constitutes a Default, or, if any such
condition or event existed or exists, specifying the nature and period
of existence thereof and what action the Borrower has taken or is
taking or proposes to take with respect thereto, and (ii) setting
forth computations demonstrating in reasonable detail compliance at
the end of such accounting period with the financial covenants
contained in Section 7.01.
(e) Annual Budget. On or before the last Business Day of
December of the then current Fiscal Year of the Borrower, a budget and
financial forecast for the upcoming Fiscal Year, in reasonable detail
and setting forth the principal assumptions upon which such forecast
and budget are based.
(f) ERISA. (i) Promptly and in any event within 10 days
after the Borrower, any Subsidiary or any of their respective ERISA
Affiliates knows or has
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reason to know that any ERISA Event with respect to the Borrower, any
Subsidiary or any of their respective ERISA Affiliates has occurred, a
statement of a Responsible Officer of the Borrower describing such
ERISA Event and the action, if any, that the Borrower, such Subsidiary
or such ERISA Affiliate has taken and proposes to take with respect
thereto, together with copies of any communications (or written
descriptions of any oral communications) received from or sent to the
Department of Labor, the Internal Revenue Service or the PBGC with
respect thereto; (ii) promptly and in any event within two Business
Days after receipt thereof by the Borrower, any Subsidiary or any of
their respective ERISA Affiliates, copies of each notice from the PBGC
stating its intention to terminate any Plan or to have a trustee
appointed to administer any Plan; (iii) promptly and in any event
within 30 days after the filing thereof with the Internal Revenue
Service, copies of each Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) with respect to each Plan; and (iv)
promptly and in any event within five Business Days after receipt
thereof by the Borrower, any Subsidiary or any of their respective
ERISA Affiliates from the sponsor of a Multiemployer Plan, copies of
each notice concerning (A) the imposition of Withdrawal Liability by
any such Multiemployer Plan, (B) the reorganization, insolvency or
termination, within the meaning of Title IV of ERISA, of any such
Multiemployer Plan, or (C) the amount of liability incurred, or that
may be incurred, by the Borrower, any Subsidiary or any of their
respective ERISA Affiliates in connection with any event described in
clause (A) or (B).
(g) Litigation. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and
proceedings before any Governmental Authority of the type described in
Section 6.06.
(h) Securities Reports. Promptly after the sending or
filing thereof, copies of all proxy statements, financial statements
and reports that any Loan Party sends to its stockholders, and copies
of all regular, periodic and special reports, and all registration
statements, that any Loan Party files with the Securities and Exchange
Commission or any other Governmental Authority that may be substituted
therefor, or with any national securities exchange.
(i) Creditor Reports. Promptly after the furnishing
thereof, copies of any statement or report furnished to any other
holder of the securities of any Loan Party pursuant to the terms of
any indenture, loan or credit or similar agreement and not otherwise
required to be furnished to the Tranche A Lenders pursuant to any
other clause of this Section 7.18.
(j) Revenue Agent Reports. Within ten days after receipt,
copies of all Revenue Agent Reports (Internal Revenue Service Form
886), or other written proposals of the Internal Revenue Service, that
propose, determine or otherwise set
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forth positive adjustments to the Federal income tax liability of any
affiliated group (within the meaning of Section 1504(a)(l) of the
Internal Revenue Code) for a taxable year in which the Borrower was a
member of such group aggregating $5,000,000 or more.
(k) Wholly-Owned Subsidiaries. Promptly after the
acquisition thereof, notice to the Lead Managing Agent of any Person
that becomes a direct Wholly-Owned Subsidiary after the date hereof in
accordance with clause (i) of the definition of "Permitted
Investment".
(l) Other Information. Such other information respecting
the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower or any of its
Subsidiaries as any Tranche A Lender through the Lead Managing Agent
may from time to time reasonably request.
Section 7.19. Descriptions of Loan Documents. The Borrower
shall not, and shall not permit any of its Subsidiaries to, file any public
document containing a description or summary of the terms and conditions of any
Loan Document without the Lead Managing Agent's prior review and approval (such
approval not to be unreasonably withheld)
Section 7.20. Dividends of Subsidiaries. The Borrower will
(i) cause each of its Subsidiaries duly and validly to declare and pay
dividends on its capital stock, at least quarterly, in the amount of the excess
of such Subsidiary's net income for the immediately preceding Fiscal Quarter
over net losses carried forward from previous Fiscal Quarters, subject to
applicable corporation and insolvency law and net capital and other applicable
legal or regulatory requirements, provided that in the case of AIM Distributors
and any other Subsidiary that is a registered broker-dealer, the amount of any
dividend shall not exceed the maximum amount permitted to be paid without the
consent of the National Association of Securities Dealers or other applicable
regulatory authority (the "Permitted Dividend Amount") unless (x) the amount of
any net income in excess of such Permitted Dividend Amount (including any such
excess net income carried forward from a prior Fiscal Quarter in which the
quarterly dividend paid by the affected Subsidiary was limited by the Permitted
Dividend Amount) shall exceed $1,000,000 or (y) the Borrower or the affected
Subsidiary shall not have applied for regulatory consent to a dividend in
excess of the Permitted Dividend Amount for two consecutive Fiscal Quarters, it
being understood that the affected Subsidiary will carry forward any net income
in excess of the Permitted Dividend Amount until such excess net income can be
paid as a dividend either (1) in a Fiscal Quarter when net income for such
Fiscal Quarter is commensurately less than the Permitted Dividend Amount or (2)
application is made (not less frequently than once in every three-month period
during which net income has accumulated without being paid as a dividend due to
the foregoing limitation) to the applicable regulatory authority for, and such
regulatory authority consents to payment of a dividend in excess of the
Permitted Dividend Amount, provided
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further that Subsidiaries of the U.S. Holding Company organized and existing
outside of the United States shall not be required to comply with this clause
7.20(i); and (ii) supply to the Lead Managing Agent, together with the
financial statements referred to in Section 7.18(c), a schedule showing the net
income of each such Subsidiary and the amount of dividends declared and paid
thereby for the immediately preceding Fiscal Quarter. For purposes of this
Section 7.20: "net income" shall mean, with respect to each such Subsidiary and
for a Fiscal Quarter, net income before the payment of dividends or other
distributions on its capital stock, as shown on the Fiscal Quarter income
statement for such Subsidiary for such Fiscal Quarter.
Section 7.21. Certain Guaranties. If the Securities and
Exchange Commission shall at any time require that any financial information
with respect to any Subsidiary (other than the summarized financial information
described in Rule 1-02(aa) of Regulation S-X, as amended from time to time and
other than financial information required to be filed by a broker-dealer
Subsidiary relating to net capital requirements under the Exchange Act), be
disclosed in any filing of the Borrower or any Subsidiary made under the
Securities Act or the Exchange Act, the Borrower shall promptly cause each such
Subsidiary for which such financial information is required to be disclosed to
enter into a Guaranty substantially in the form of Exhibit 7.21 hereto or
otherwise satisfactory to the Lead Managing Agent.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of
any Tranche A Loan (including any principal of any Tranche A Loan that
is required to be prepaid hereunder) when the same becomes due and
payable, (ii) the Borrower shall fail to pay any interest required to
be paid on any principal amount of any Tranche A Loan on the same date
such principal amount becomes due and payable, or (iii) the Borrower
shall fail to pay any other interest on any Tranche A Loan or any Loan
Party shall fail to make any other payment under any Loan Document
within two Business Days after such interest or payment becomes due
and payable; or
(b) any representation or warranty made by the Borrower
or any Material Subsidiary (or any of their respective officers) under
or in connection with any Loan Document, including any schedule,
certificate, financial statement, report, notice, or other writing
furnished by the Borrower or any Material Subsidiary to the Lead
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Managing Agent or any Tranche A Lender, shall prove to have been
incorrect in any material respect when made or deemed made; or
(c) the Borrower shall fail to perform or observe any
term, covenant or agreement contained in any of Sections 7.01 to 7.07,
inclusive, 7.09 or 7.18(a); or
(d) any of the Guarantors shall fail to perform or
observe any term, covenant or agreement contained in the AIM Guaranty
to which it is a party; or
(e) any Loan Party shall fail to perform any other term,
covenant or agreement contained in any Loan Document (other than the
AIM Guaranties referred to in clause (d)) on its part to be performed
or observed if such failure shall remain unremedied for 30 days after
an officer of any Loan Party shall first have knowledge thereof or
written notice thereof shall have been given to the Borrower by any
Managing Agent or any Tranche A Lender; or
(f) (i) the Borrower or any Subsidiary shall fail to pay
any principal of, premium or interest on or any other amount payable
in respect of any Debt that is outstanding in a principal or notional
amount of at least $1,000,000 in the aggregate (but excluding Debt
outstanding hereunder) of such Person when the same becomes due and
payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or (ii) any other event shall
occur or condition shall exist under any agreement or instrument
relating to any such Debt, if the effect of such event or condition is
to accelerate, or to permit the acceleration of, the maturity of such
Debt or otherwise to cause, or to permit the holder thereof to cause
such Debt to mature; or (iii) any such Debt shall be declared to be
due and payable or required to be prepaid or redeemed, purchased or
defeased, or be prepaid or redeemed, purchased or defeased or an offer
to prepay, redeem, purchase or defease such Debt shall be made, in
each case prior to the stated maturity thereof, except that the
Borrower may make an offer to prepay and prepay the Senior Notes
pursuant to Section 3.02 and may make Permitted Investments and may
make Restricted Payments pursuant to Section 7.05 so long as no
Default shall have occurred and be continuing or would occur after
giving effect to any such prepayment, Permitted Investments or
Restricted Payments; or
(g) the Borrower or any Material Subsidiary shall
generally not pay its debts as such debts become due, or shall admit
in writing its inability to pay its debts generally, or shall make an
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any such Person seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under, or to take
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advantage of, any law relating to bankruptcy, insolvency or
reorganization or relief of debtors (including SIPA), or seeking the
entry of an order for relief or the appointment of a receiver,
trustee, liquidator or other similar official for it or for any
substantial part of its property and, in the case of any such
proceeding instituted against it (other than a proceeding in which the
Borrower or any Material Subsidiary consents to the commencement of
any such proceeding or consents to (or files a petition or answer
seeking) reorganization or relief in any such proceeding), such
proceeding shall not have been dismissed within 60 days; or the
Borrower or any Material Subsidiary shall take any corporate action to
authorize any of the actions set forth above in this subsection; or
(h) one or more judgments or orders for the payment of
money, in the aggregate, in excess of $1,000,000 shall be rendered
against the Borrower or any Subsidiary and either (i) enforcement
proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of ten consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(i) any non-monetary judgment or order shall be rendered
against the Borrower or any Subsidiary that could have a Material
Adverse Effect, and there shall be any period of ten consecutive days
during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(j) there shall be one or more involuntary terminations
or suspensions, or any voluntary termination or suspension arising out
of a proceeding or investigation by any Governmental Authority, of any
Federal license or registration required for the Borrower or any of
its Subsidiaries to act as an investment advisor or broker-dealer; or
(k) the Securities Investor Protection Corporation (or
any successor) shall make an application asserting or seeking a decree
adjudicating that any customers of the Borrower or any of its
Subsidiaries are in need of protection under SIPA and the Borrower or
such Subsidiary shall fail duly to obtain a dismissal of such
application within 30 days of the filing thereof; or
(l) any provision of any Loan Document shall for any
reason (other than by its express terms) cease to be valid and binding
on or enforceable against the Borrower or any Material Subsidiary
party to it, or the Borrower or any Material Subsidiary shall
challenge the enforceability or validity of any such provision; or
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(m) any Governmental Authority shall have enacted,
issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order (whether
temporary, preliminary or permanent) which is in effect and which
prohibits, enjoins or otherwise restricts the Borrower or any of its
Subsidiaries in a manner that has a Material Adverse Effect; or
(n) the Borrower shall cease to own, directly or
indirectly, 100% of the outstanding shares of Capital Stock of each
Subsidiary, except directors' qualifying shares, if required by law
and shares of Capital Stock of Insurance Agency Subsidiaries which are
required to be held by another Person pursuant to applicable law or
the regulations or procedures of Governmental Authorities having
jurisdiction over such Insurance Agency Subsidiaries; or
(o) (i) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board
of Directors of the Borrower (together with any new directors whose
election to such Board or whose nomination for election by the
shareholders of the Borrower was approved by a vote of at least
66-2/3% of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of such Board of Directors then in
office; or (ii) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act and the rules and
regulations thereunder) other than any member of a Key Shareholder
Group shall at any time Beneficially Own a percentage of the
outstanding shares of Voting Stock of the Borrower equal to or greater
than 50% of the aggregate percentage of the outstanding shares of
Voting Stock of the Borrower Beneficially Owned by all Key Shareholder
Groups; or
(p) if at any time the Key Shareholder Groups or any one
or more of the members thereof shall cease to Beneficially Own in the
aggregate at least 20% of the outstanding Voting Stock of the
Borrower; or
(q) any change in Beneficial Ownership of the outstanding
shares of Voting Stock of the Borrower shall occur necessitating any
consent of the shareholders or directors of any Investment Company
under the Investment Advisers Act or the Investment Company Act and
such consent is not obtained in a timely manner, or with respect to
the Management Contracts, the consents relating to 90% thereof are not
obtained within the statutory period necessary to prevent termination
thereof; or
(r) any ERISA Event shall have occurred with respect to a
Plan of the Borrower, any Subsidiary or any of their respective ERISA
Affiliates and the sum (determined as of the date of occurrence of
such ERISA Event) of the Insufficiency of such Plan and the
Insufficiency of any and all other Plans of the Borrower, any
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Subsidiary and any of their respective ERISA Affiliates with respect
to which an ERISA Event shall have occurred and then exist (or the
liability of the Borrower, and its Subsidiaries and their respective
ERISA Affiliates related to such ERISA Event and any other ERISA
Event) exceeds $1,000,000; or
(s) there shall have been any Material Adverse Change
since December 31, 1995; or
(t) the Borrower, any Subsidiary or any of their
respective ERISA Affiliates shall have been notified by the sponsor of
a Multiemployer Plan that it has incurred Withdrawal Liability to such
Multiemployer Plan in an amount that, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Borrower,
any Subsidiary and any of their respective ERISA Affiliates as
Withdrawal Liability (determined as of the date of such notification),
exceeds $1,000,000 or requires payments exceeding $1,000,000 per
annum; or
(u) the Borrower, any Subsidiary or any of their
respective ERISA Affiliates shall have been notified by the sponsor of
a Multiemployer Plan that such Multiemployer Plan is in reorganization
or is being terminated, within the meaning of Title IV of ERISA, and
as a result of such reorganization or termination the aggregate annual
contributions of the Borrower, any Subsidiary and any of their
respective ERISA Affiliates to all Multiemployer Plans that are then
in reorganization or being terminated have been or will be increased
over the amounts contributed to such Multiemployer Plans for the plan
years of such Multiemployer Plans immediately preceding the plan year
in which such reorganization or termination occurs by an amount
exceeding $1,000,000;
then, and in any such event, the Lead Managing Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the obligation of each Tranche A Lender to make Tranche A Loans to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the Tranche A Notes, the Tranche A Loans, all interest
thereon and all other amounts payable under the Loan Documents to be forthwith
due and payable, whereupon the Tranche A Notes, the Tranche A Loans, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by the Borrower; provided that in the event
of an actual or deemed entry of an order for relief with respect to the
Borrower or any Material Subsidiary under the Federal Bankruptcy Code or any
similar order or adjudication under applicable law that would impose a
moratorium on or stay of creditor efforts to collect debts to become effective,
(x) the obligation of each Tranche A Lender to make Tranche A Loans shall
automatically be terminated and (y) the Tranche A Notes, the Tranche A Loans,
all such interest and all such
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amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
ARTICLE IX
THE LEAD MANAGING AGENT AND THE
CO-MANAGING AGENTS
Section 9.01. Authorization and Action. Each Tranche A
Lender hereby appoints and authorizes the Lead Managing Agent and the
Co-Managing Agents to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement and the other Loan Documents as
are delegated to the Lead Managing Agent and the Co-Managing Agents by the
terms hereof, together with such powers and discretion as are reasonably
incidental thereto. Without limiting the generality of the foregoing, each
Tranche A Lender hereby authorizes the Lead Managing Agent to execute and
deliver on behalf of the Tranche A Lenders such documents (including without
limitation UCC filings, amendments to existing UCC filings and the Collection
Agency Agreement) as may be required to carry out the intent and purpose of the
provisions of this Agreement and the other Loan Documents relating to
Securitization Programs. As to any matters not expressly provided for by the
Loan Documents (including enforcement or collection of the Tranche A Notes),
the Lead Managing Agent and the Co-Managing Agents shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all the Tranche A Lenders and all holders of
Tranche A Notes; provided that neither the Lead Managing Agent nor any
Co-Managing Agent shall be required to take any action that exposes the Lead
Managing Agent or such Co-Managing Agent to personal liability or that is
contrary to this Agreement or applicable law. The Lead Managing Agent and each
Co-Managing Agent agrees to give to each Tranche A Lender prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement.
Section 9.02. Duties and Reliance, Etc. (a) Neither the
Lead Managing Agent nor any Co-Managing Agent, nor any of their respective
directors, officers, shareholders, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the Lead
Managing Agent and each Co-Managing Agent: (i) may treat the payee of any
Tranche A Note as the holder thereof until the Lead Managing Agent receives and
accepts an Assignment and Acceptance entered into by the Tranche A Lender that
is the payee of such Tranche A Note, as assignor, and an Eligible Assignee, as
assignee, as provided in Section 10.07; (ii) may consult with legal counsel
(including counsel for the Borrower or any
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Subsidiary), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (iii) may perform any of its duties under this Agreement by or through
agents or attorneys-in-fact selected by it with reasonable care and shall not
be liable for any action taken or omitted to be taken by any such agent or
attorney-in-fact; (iv) shall have no duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Loan Document on the part of any Loan Party or to inspect the property
(including the books and records) of the Borrower or any Subsidiary; (v) shall
incur no liability under or in respect of any Loan Document by acting upon any
notice, consent, certificate or other instrument or writing (which may be by
telegram, telecopy, cable or telex) believed by it to be genuine and signed or
sent by the proper party or parties; (vi) makes no warranty or representation
to any Tranche A Lender and shall not be responsible to any Tranche A Lender
for the accuracy or completeness of the Borrower Information or for any other
statements, warranties or representations made in or in connection with the
Loan Documents; and (vii) shall not be responsible to any Tranche A Lender for
the due execution, legality, validity, enforceability, genuineness, sufficiency
or value of any Loan Document or any other instrument, document or filing
furnished or made pursuant hereto.
(b) The Co-Managing Agents, as such, shall have no duties
or obligations with respect to any Loan Document or any matter related thereto.
Section 9.03. Lead Managing Agent, Co-Managing Agents and
Affiliates. With respect to its Tranche A Commitments, the Tranche A Loans
made by it and the Tranche A Notes issued to it, the Lead Managing Agent and
each Co-Managing Agent shall have the same rights and powers under the Loan
Documents as any other Tranche A Lender and may exercise the same as though it
were not the Lead Managing Agent or a Co-Managing Agent; and the term "Tranche
A Lender" or "Tranche A Lenders" shall, unless otherwise expressly indicated,
include the Lead Managing Agent and each Co-Managing Agent in their respective
individual capacities as Tranche A Lenders. Citibank, Chemical Bank and
NationsBank and their respective Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from, enter into Securitization Programs with and generally engage
in any kind of business with the Borrower or any Subsidiary and any Person who
may do business with or own securities of the Borrower or any Subsidiary, all
as if Citibank were not the Lead Managing Agent and as if Chemical Bank and
NationsBank were not Co-Managing Agents, and without any duty to account
therefor to the Tranche A Lenders. Each Tranche A Lender may accept deposits
from, lend money to, act as trustee under indentures of, accept investment
banking engagements from, enter into Securitization Programs with and generally
engage in any kind of business with the Borrower or any Subsidiary and any
Person who may do business with or own securities of the Borrower or any
Subsidiary.
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Section 9.04. Tranche A Lender Credit Decision. Each Tranche
A Lender expressly acknowledges that neither the Lead Managing Agent, any
Co-Managing Agent nor any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates has made any representations or
warranties to it and that no act by the Lead Managing Agent or any Co-Managing
Agent hereafter taken, including any review of the affairs of the Borrower or
any of its Subsidiaries, shall be deemed to constitute any representation or
warranty by any of them to any Tranche A Lender. Each Tranche A Lender
acknowledges that it has, independently and without reliance upon the Lead
Managing Agent, any Co-Managing Agent or any other Tranche A Lender and based
on the financial statements referred to in Section 6.05 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Tranche A Lender also
acknowledges that it will, independently and without reliance upon the Lead
Managing Agent, any Co-Managing Agent or any other Tranche A Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement. Except for notices, reports and other documents expressly
required to be furnished to the Tranche A Lenders by the Lead Managing Agent
hereunder, neither the Lead Managing Agent nor any Co-Managing Agent shall have
any duty or responsibility to provide any Tranche A Lender with any credit or
other information concerning the business, condition (financial or otherwise),
operations, property, prospects or creditworthiness of the Borrower or any of
its Subsidiaries which may come into the possession of the Lead Managing Agent,
any Co-Managing Agent, or any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
Section 9.05. Indemnification. The Tranche A Lenders agree
to indemnify the Lead Managing Agent and each Co-Managing Agent (to the extent
not promptly reimbursed by the Borrower and the other Loan Parties), ratably
according to the principal amounts of the Tranche A Loans then held by each
Tranche A Lender (or if no Tranche A Loans are at the time outstanding, ratably
according to the amounts of their Tranche A Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by or asserted against the Lead
Managing Agent or any Co-Managing Agent in any way relating to or arising out
of the Loan Documents or the transactions contemplated thereby or any action
taken or omitted by the Lead Managing Agent or any Co-Managing Agent under the
Loan Documents; provided that no Tranche A Lender shall be liable for any
portion of any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements imposed on, incurred by or
asserted against the Lead Managing Agent or any Co-Managing Agent resulting
from such Agent's or Co-Managing Agent's gross negligence, bad faith or willful
misconduct. Without limitation of the foregoing, each Tranche A Lender agrees
to reimburse the Lead Managing Agent and each Co-Managing Agent promptly upon
demand for such Tranche A Lender's ratable share of any costs and expenses
payable by the
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Borrower under Section 10.04, to the extent that the Lead Managing Agent or
such Co-Managing Agent (as the case may be) is not promptly reimbursed for such
costs and expenses by the Borrower.
Section 9.06. Successor Agents. (a) The Lead Managing Agent
may resign at any time by giving written notice thereof to the Tranche A
Lenders and the Borrower and may be removed at any time with cause by the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Lead Managing Agent with the
consent of the Borrower (such consent not to be unreasonably withheld). If no
successor Lead Managing Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Lead Managing Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Lead Managing Agent, then the retiring Lead
Managing Agent may, on behalf of the Tranche A Lenders, appoint a successor
Lead Managing Agent, which shall be a commercial bank organized or licensed
under the laws of the United States or of any State thereof and having a
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Lead Managing Agent hereunder by a successor Lead Managing
Agent, such successor Lead Managing Agent shall succeed to and become vested
with all the rights, powers, discretion, privileges and duties of the retiring
Lead Managing Agent, and the retiring Lead Managing Agent shall be discharged
from its duties and obligations under the Loan Documents. After any retiring
Lead Managing Agent's resignation or removal hereunder as Lead Managing Agent,
the provisions of this Article IX shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Lead Managing Agent under this
Agreement.
(b) Any Co-Managing Agent may resign at any time by
giving written notice thereof to the Tranche A Lenders and the Borrower.
Section 9.07. Public Filings. The Lead Managing Agent agrees
to use reasonable efforts to provide to the Borrower any of this Agreement, any
other Loan Document and any amendments or supplements hereto or thereto in a
computer readable format if so requested by the Borrower in connection with its
public filings.
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments, Etc. No amendment or waiver of
any provision of this Agreement or the Tranche A Notes, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific
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instance and for the specific purpose for which given; provided that no
amendment, waiver or consent shall, unless in writing and signed by all the
Tranche A Lenders, do any of the following: (i) change the percentage of the
Tranche A Commitments or of the aggregate unpaid principal amount of the
Tranche A Loans that shall be required for the Tranche A Lenders or any of them
to take any action hereunder; (ii) amend this Section 10.01; (iii) increase the
Tranche A Commitments of the Tranche A Lenders or subject the Tranche A Lenders
to any additional obligations; (iv) reduce the principal of, or interest on,
the Tranche A Loans or any fees or other amounts payable hereunder; (v) release
any of the AIM Guaranties; or (vi) postpone any date fixed for any payment of
principal of, or interest on, the Tranche A Loans or any fees or other amounts
payable hereunder or amend Section 3.02; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the Lead
Managing Agent or any Co-Managing Agent (as the case may be) in addition to the
Tranche A Lenders required above to take such action, affect the rights or
duties of the Lead Managing Agent or such Co-Managing Agent under any Loan
Document.
Section 10.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, facsimile or telex communication) and mailed by registered or
certified mail, return receipt requested, faxed, telexed (if telex number is
available) or hand delivered, if to the Borrower, at its address at 11 Greenway
Plaza, Suite 1919, Houston, Texas 77046, Fax No.: (713) 993-9890, Attention:
President, together with a copy to the General Counsel of the Borrower at the
same address; if to any Tranche A Lender, at its Domestic Lending Office
specified under its name on the signature pages hereto or in the Assignment and
Acceptance pursuant to which it became a Tranche A Lender; and if to the Lead
Managing Agent, at its address at 399 Park Avenue, New York, New York 10043,
Fax No.: (212) 371-6309; Attention: Bank Loan Syndications (Reference: AIM
Management); or, as to the Borrower or the Lead Managing Agent, such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the Lead
Managing Agent. All such notices and communications shall be effective when
delivered, if hand delivered; five days after being deposited in the mails, if
mailed as set forth above; if transmitted by facsimile, when receipt is
acknowledged; if transmitted by telex, when confirmed by telex answerback; if
timely delivered to an overnight courier, the next Business Day; provided that
notices and communications to the Lead Managing Agent pursuant to Article II,
III, IV, V or IX shall not be effective until received by the Lead Managing
Agent.
Section 10.03. No Waiver; Remedies. No failure on the part
of any Tranche A Lender, the Lead Managing Agent or any Co-Managing Agent to
exercise, and no delay in exercising, any right hereunder or under any Tranche
A Note shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
<PAGE> 84
77
Section 10.04. Costs; Expenses and Indemnification. (a) The
Borrower agrees to pay on demand (i) all reasonable costs and expenses of the
Lead Managing Agent in connection with the preparation, execution, delivery,
administration, modification, amendment and enforcement of the Loan Documents
(including (A) all due diligence, transportation, appraisal, audit, insurance,
search, filing and recording fees and expenses and (B) the reasonable fees and
expenses of counsel for the Lead Managing Agent with respect thereto, with
respect to advising the Lead Managing Agent as to its rights and
responsibilities, or the perfection, protection or preservation of rights or
interests, under the Loan Documents, with respect to negotiations with the
Borrower or any Subsidiary or with other creditors of the Borrower or any
Subsidiary arising out of any Default or any events or circumstances that may
give rise to a Default and with respect to presenting claims in or otherwise
participating in or monitoring any bankruptcy, insolvency or other similar
proceeding involving creditors' rights generally and any proceeding ancillary
thereto) and (ii) all costs and expenses of the Lead Managing Agent, each
Co-Managing Agent and the Tranche A Lenders in connection with the enforcement
of the Loan Documents, whether in any action, suit or litigation, any
bankruptcy, insolvency or other similar proceeding affecting creditors' rights
generally or otherwise (including the reasonable fees and expenses of counsel
for the Lead Managing Agent, each Co-Managing Agent and each Tranche A Lender
with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless
the Lead Managing Agent, each Co-Managing Agent and each Tranche A Lender and
each of their Affiliates and their respective officers, directors, employees,
shareholders, agents and advisors (each, an "Indemnified Party") from and
against any and all claims, damages, losses, liabilities and expenses
(including reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of, or in connection with the preparation
for a defense of, any investigation, litigation or proceeding arising out of,
related to or in connection with the transactions contemplated by the Loan
Documents, in each case whether or not such investigation, litigation or
proceeding is brought by or on behalf of the Borrower or any Subsidiary or any
of their respective directors, shareholders, agents, advisors or creditors or
by or on behalf of an Indemnified Party or any Indemnified Party is otherwise a
party to such Loan Documents or transaction contemplated thereunder, and
whether or not the transactions contemplated hereby are consummated, except to
the extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
primarily from such Indemnified Party's gross negligence, bad faith or willful
misconduct.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Loan is made by the Borrower to or for the account of a Tranche
A Lender other than on the last day of the Interest Period for such Eurodollar
Rate Loan pursuant to any provision hereof or for any other reason, upon demand
by such Tranche A Lender, which demand
<PAGE> 85
78
shall be accompanied by a statement (which shall be conclusive and binding for
all purposes absent manifest error) setting forth the amounts required to
compensate such Tranche A Lender for any losses, costs or expenses that it may
incur as a result of such payment and any loss, cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by any Tranche A Lender to fund or maintain such Eurodollar Rate Loan, with a
copy of such demand and statement to the Lead Managing Agent, the Borrower
shall pay to the Lead Managing Agent for the account of such Tranche A Lender
the amounts set forth on such statement.
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including fees
and expenses of counsel and indemnities, such amount may be paid on behalf of
such Loan Party by the Lead Managing Agent, any Co-Managing Agent or any
Tranche A Lender, in its sole discretion.
Section 10.05. Right of Set-off. Upon the occurrence and
during the continuance of any Event of Default each Tranche A Lender shall have
at any time and from time to time, to the fullest extent permitted by law,
without presentment, demand, protest or other notice of any kind to any Loan
Party or any other Person, a right of set-off with respect to any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time held or owing by such Tranche A Lender
(including by branches and agencies of such Tranche A Lender wherever located)
to or for the credit or the account of the Borrower, irrespective of whether
such Tranche A Lender shall have made any demand under this Agreement or any
Loan Document and although such obligations may be contingent or unmatured.
Each Tranche A Lender agrees promptly to notify the Borrower after any such
set-off; provided that the failure to give such notice shall not affect the
validity of such set-off. The rights of each Tranche A Lender under this
Section 10.05 are in addition to other rights and remedies that such Tranche A
Lender may have.
Section 10.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the Lead
Managing Agent and when the Lead Managing Agent shall have been notified by
each Tranche A Lender that such Tranche A Lender has executed it and thereafter
shall be binding upon and inure to the benefit of the Borrower, the Lead
Managing Agent, each Co-Managing Agent and each Tranche A Lender and its
successors and permitted assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of all of the Tranche A Lenders.
Section 10.07. Assignments and Participations. (a) Each
Tranche A Lender may assign to one or more Eligible Assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Tranche A Commitment, the Tranche A Loans owing to it and all or a
portion of its interest in the Tranche A Note or Registered
<PAGE> 86
79
Note held by it); provided that (i) except in the case of (A) an assignment to
an Eligible Assignee that, immediately prior to such assignment, was a Tranche
A Lender, (B) an assignment of all of a Tranche A Lender's rights and
obligations under this Agreement, or (C) an assignment to an Eligible Assignee
that is an Affiliate of a Tranche A Lender, the amount of the Tranche A
Commitment of the assigning Tranche A Lender being assigned pursuant to each
such assignment (determined as of the date of the Assignment and Acceptance
with respect to such assignment) shall in no event be less than $5,000,000,
(ii) unless the assignment is to an existing Tranche A Lender or an Affiliate
of the assigning Tranche A Lender, the Borrower shall have notified the
assigning Tranche A Lender within five Business Days of the Borrower's receipt
of notice of such assignment of the Borrower's approval of such assignment
(such approval not to be unreasonably withheld) and if the Borrower has not
notified the assigning Tranche A Lender of its approval or disapproval of such
assignment by such date, the Borrower shall be deemed to have given its
approval, and (iii) the parties to each such assignment shall execute and
deliver to the Lead Managing Agent, for its acceptance and recording in the
Register (1) an Assignment and Acceptance, (2) if required by the first
sentence of Section 10.07(d), any Tranche A Note or Registered Note subject to
such assignment, and (3) a processing and recordation fee of $3,000. Upon such
execution, delivery, acceptance and recording, from and after the effective
date specified in such Assignment and Acceptance (which effective date shall
not be any earlier than the date on which the Lead Managing Agent accepts and
records such Assignment and Acceptance in the Register), (x) the assignee
thereunder shall be a party hereto and the Loan Documents to which the
assigning Tranche A Lender is a party on the effective date specified in such
Assignment and Acceptance and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment and Acceptance,
have the rights and obligations of a Tranche A Lender hereunder and thereunder,
and (y) the Tranche A Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement and such Loan Documents (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Tranche A Lender's rights and obligations under this Agreement, such
Tranche A Lender shall cease to be a party hereto and thereto).
(b) By executing and delivering an Assignment and
Acceptance, the Tranche A Lender assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such
assigning Tranche A Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with any Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Loan
Document, or any other instrument or document furnished pursuant hereto or
thereto; (ii) such assigning Tranche A Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or any Subsidiary or with respect to the
<PAGE> 87
80
performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement or any other Loan Document or any other
instrument or document furnished pursuant hereto or thereto; (iii) such
assignee confirms that it has received a copy of each Loan Document, together
with copies of the most recent financial statements delivered pursuant to
Sections 7.18(b) and 7.18(c) and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Lead Managing Agent, each Co-Managing Agent, such
assigning Tranche A Lender or any other Tranche A Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement; (v) such assignee appoints and authorizes the Lead Managing Agent
and each Co-Managing Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement and the other Loan
Documents as are delegated to the Lead Managing Agent and each Co-Managing
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; and (vi) such assignee agrees to be bound by the
terms of this Agreement to which it has become a party pursuant to this
Agreement and the Assignment and Acceptance.
(c) The Lead Managing Agent, acting for this purpose as
agent for the Borrower, shall maintain at its address referred to in Section
10.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Tranche A
Lenders and the Tranche A Commitment of, and principal amount of the Tranche A
Loans owing to, each Tranche A Lender from time to time (the "Register"). The
Lead Managing Agent shall incur no liability of any kind to the Borrower, any
Tranche A Lender or any other Person with respect to its maintenance of the
Register or the recordation of information therein. The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Lead Managing Agent, each Co-Managing Agent and
the Tranche A Lenders shall treat each Person whose name is recorded in the
Register as a Tranche A Lender hereunder (and, in the case of Registered Notes,
as the owner of the Registered Notes registered to it) for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or
any Tranche A Lender at any reasonable time and from time to time upon
reasonable prior notice. No assignment shall be effective unless the
Assignment and Acceptance has been accepted by the Lead Managing Agent and
registered in the Register. Further, no assignment of all or any part of a
Registered Note shall be registered in the Register unless such Registered Note
has been duly endorsed by (or accompanied by a written instrument of assignment
or transfer duly executed by) the assigning Tranche A Lender (as the registered
holder thereof) to the assignee and the assigning Tranche A Lender has
surrendered such Tranche A Note to the Lead Managing Agent pursuant to Section
10.07(d).
(d) Upon its receipt of (i) an Assignment and Acceptance
which has been completed and executed by an assigning Tranche A Lender and an
assignee representing that
<PAGE> 88
81
it is an Eligible Assignee and (ii) in the case of an assignment of (A) all of
such assigning Tranche A Lender's rights and obligations or (B) Registered Note
(which Registered Note shall be duly endorsed by, or accompanied by a written
instrument of assignment or transfer duly executed by, the assigning Tranche A
Lender, as the registered holder thereof, to the assignee), any Registered Note
subject to such assignment, the Lead Managing Agent shall (x) accept such
Assignment and Acceptance, (y) record the information contained therein in the
Register, and (z) give prompt notice thereof to the Borrower. Within five
Business Days after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Lead Managing Agent a new Tranche A
Note payable to the order of the assignee or a new Registered Note payable to
the assignee or its registered assigns, in an amount equal to the Tranche A
Loans and Tranche A Commitments assumed by it pursuant to such Assignment and
Acceptance and, in the case of a partial assignment of a Registered Note, a new
Registered Note payable to the assigning Tranche A Lender or its registered
assigns in an amount equal to the Tranche A Loans retained by it hereunder.
Such new Tranche A Note(s) or Registered Note(s) shall be dated the effective
date of such Assignment and Acceptance and shall otherwise be in substantially
the form of Exhibit 2.02 (except in the case of Registered Note(s) which shall
be legended on the face thereof and shall be made payable to the assignee or
its registered assigns). Such new Tranche A Note(s) or Registered Note(s), as
applicable, shall be exchanged for the Tranche A Note or Registered Note
surrendered by the assigning Tranche A Lender and the surrendered Tranche A
Note or Registered Note shall be cancelled and returned to the Borrower. The
Lead Managing Agent shall incur no liability of any kind to the Borrower, any
Tranche A Lender or any other Person with respect to the transfer, surrender,
cancellation or exchange of the Tranche A Notes or Registered Notes.
(e) Each Tranche A Lender may sell participations in or
to all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Tranche A Commitments, the Tranche A Loans
owing to it and the Tranche A Note held by it) to any Person; provided that (i)
such Tranche A Lender's obligations under this Agreement (including its Tranche
A Commitments) shall remain unchanged, (ii) such Tranche A Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Tranche A Lender shall remain the holder of any such
Tranche A Note for all purposes of this Agreement, (iv) the Borrower, the Lead
Managing Agent, the Co-Managing Agents and the other Tranche A Lenders shall
continue to deal solely and directly with such Tranche A Lender in connection
with such Tranche A Lender's rights and obligations under this Agreement, and
(v) no participant under any such participation shall have any right to approve
any amendment or waiver of any provision of any Loan Document, or any consent
to any departure by any Loan Party therefrom, except to the extent that such
amendment, waiver or consent would by its terms reduce the principal of, or
interest on, the Tranche A Notes or any fees or other amounts payable hereunder
or any other Loan Document, or postpone any date fixed for any payment of
principal of, or interest
<PAGE> 89
82
on, the Tranche A Notes or any fees or other amounts payable hereunder or any
other Loan Document.
(f) Any Tranche A Lender may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 10.07, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Borrower furnished to
such Tranche A Lender by or on behalf of the Borrower or any of its
Subsidiaries; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information received by it from such
Tranche A Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Tranche A Lender may at any time create a security interest in
all or any portion of its rights under this Agreement (including the Tranche A
Loans owing to it and the Tranche A Note held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
Section 10.08. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart of this Agreement.
Section 10.09. Confidentiality. Neither the Lead Managing
Agent, any Co-Managing Agent, nor any Tranche A Lender shall disclose any
Confidential Information to any Person without the consent of the Borrower,
other than (i) to the Lead Managing Agent's, such Co-Managing Agent's, or such
Tranche A Lender's Affiliates and their respective officers, directors,
employees, agents, counsel and advisors and to actual or prospective Eligible
Assignees and participants, and then only on a confidential basis, (ii) as
required by any law, rule or regulation or judicial process, and (iii) as
requested or required by any state, federal or foreign authority or examiner
regulating banks or banking.
Section 10.10. GOVERNING LAW. THIS AGREEMENT AND THE TRANCHE
A NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF.
Section 10.11. CONSENT TO JURISDICTION. (a) THE BORROWER
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL
COURT SITTING IN NEW YORK CITY AND ANY APPELLATE COURT FROM ANY THEREOF IN ANY
ACTION OR PROCEEDING ARISING OUT
<PAGE> 90
83
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT TO WHICH THE
BORROWER IS OR IS TO BECOME A PARTY, AND THE BORROWER HEREBY IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR IN SUCH FEDERAL COURT. THE BORROWER
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING. THE BORROWER HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS
AND HEREBY CONSENTS TO SERVICE OF PROCESS UPON IT BY CERTIFIED OR REGISTERED
MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS SPECIFIED IN ACCORDANCE WITH
SECTION 10.02 AND SERVICE SO MADE SHALL BE DEEMED COMPLETED ON THE FIFTH
BUSINESS DAY AFTER SUCH SERVICE IS DEPOSITED IN THE MAIL. THE BORROWER AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW.
(b) NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY
TRANCHE A LENDER, ANY CO-MANAGING AGENT OR THE LEAD MANAGING AGENT TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF ANY
TRANCHE A LENDER, ANY CO-MANAGING AGENT OR THE LEAD MANAGING AGENT TO BRING ANY
ACTION OR PROCEEDING AGAINST THE BORROWER OR ITS PROPERTY IN THE COURTS OF
OTHER JURISDICTIONS.
Section 10.12. WAIVER OF JURY TRIAL. EACH OF THE BORROWER,
THE LEAD MANAGING AGENT, CO-MANAGING AGENT AND THE TRANCHE A LENDERS HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE
TRANCHE A LOANS OR THE ACTIONS OF THE LEAD MANAGING AGENT, ANY CO-MANAGING
AGENT OR ANY TRANCHE A LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE
OR ENFORCEMENT THEREOF.
Section 10.13. No Third Party Beneficiary. The parties do
not intend the benefits of this Agreement or any other Loan Document to inure
to any third party. Notwithstanding anything contained herein or in the
Tranche A Notes, or in any other Loan Document, or any conduct or course of
conduct by any of the parties hereto, before or after signing this Agreement or
any other Loan Documents, neither this Agreement nor any other
<PAGE> 91
84
Loan Document shall be construed as creating any right, claim or cause of
action against the Lead Managing Agent or any Tranche A Lender, or any of their
respective officers, directors, shareholders, agents or employees, in favor of
any Person or entity (including any Affiliate of the Borrower) other than the
Borrower.
<PAGE> 92
85
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
BORROWER
A I M MANAGEMENT GROUP INC.
By /s/ ROBERT H. GRAHAM
-------------------------------------
Name: Robert H. Graham
Title: President
MANAGING AGENTS
CITIBANK, N.A.,
as Lead Managing Agent
By /s/ JOHN J. MACDONALD
-------------------------------------
Name: John J. MacDonald
Title: Attorney-In-Fact
CHEMICAL BANK,
as Co-Managing Agent
By /s/ HEATHER LINDSTROM
-------------------------------------
Name: Heather Lindstrom
Title: Vice President
NATIONSBANK, N.A. (SOUTH)
as Co-Managing Agent
By /s/ BETTY E. REID
-------------------------------------
Name: Betty E. Reid
Title: Senior Vice President
<PAGE> 93
86
TRANCHE A LENDERS
THE BANK OF NEW YORK
By /s/ ALEXANDER DUKA
-------------------------------------
Name: Alexander Duka
Title: AVP
CHEMICAL BANK
By /s/ HEATHER LINDSTROM
-------------------------------------
Name: Heather Lindstrom
Title: Vice President
CITIBANK, N.A.
By /s/ JOHN J. MACDONALD
-------------------------------------
Name: John J. MacDonald
Title: Attorney-In-Fact
FLEET NATIONAL BANK
By [ILLEGIBLE]
-------------------------------------
Name: [ILLEGIBLE]
Title: AVP
MELLON BANK
By /s/ PAULA A. MAMMARELLA
-------------------------------------
Name: Paula A. Mammarella
Title: Assistant Vice President
<PAGE> 94
87
NATIONSBANK, N.A. (SOUTH)
By /s/ BETTY E. REID
-------------------------------------
Name: Betty E. Reid
Title: Senior Vice President
STATE STREET BANK AND
TRUST COMPANY
By /s/ DAVID V. COX
-------------------------------------
Name: David V. Cox
Title: Vice President
<PAGE> 95
EXHIBIT 1.01
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated as of ___________, 199__
Reference is made to the Third Amended and Restated Credit Agreement
dated as of June ___, 1996 (as such Credit Agreement may be amended or
supplemented from time to time, the "Credit Agreement") amond A I M Management
Gorup Inc., a Delaware corporation (the "Borrower"), the Tranche A Lenders
identified on the signature pages thereof, Citibank, N.A., as Lead Managing
AGent (the "Lead Managing Agent"), and Chemical Bank and NationsBank, N.A.
(South), as Co-Managing Agents for the Tranceh A Lenders (the "Co-Managing
Agents"). Capitalized terms not otherwise defined herein are defined in the
Credit Agreement and are used herein with the same meanings.
____________ (the "Assignor") and _____________ (the "Assignee") agree
as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, without recourse to
the Assignor, for a purchase price of $______, a ___% interest in and to all of
the Assignor's rights and obligations under the Credit Agreement relating to
the Tranche A Loans as of the Effective Date (as defined in Paragraph 4 below)
(including, without limitation, such percentage interest in the Assignor's
Tranche A Committment as in effect on the Effective Date, the Tranche A Loans
owing to the Assignor on the Effective Date, and the Tranche A Note held by the
Assignor). Schedule I hereto sets forth the respective Tranche A Commitments
and Tranche A Loans of the Assignor and the Assignee immediately after giving
effect to this Assignment and Acceptance.
2. The Assignor: (a) represents and warrants that as of the date
hereof (i) without giving effect to assignments thereof which have not yet
become effective, its Tranche A Commitment is $_______, and the aggregate
outstanding principal amount ot the Tranche A Loans owing to it is $______ and
(ii) it is the legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse claim; (b)
makes no representation or warranty and assumes no responsibility with respect
to (i) any statement, warranties or representations made in or in connection
with any Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document or any other instrument
or document furnished pursuant thereto; or (ii) the financial condition of the
Borrower or any Guarantor or the performance or observance by the Borrower or
any Guarantor of any of its obligations under the Credit Agreement or any other
Loan Document or any other instrument or document furnished pursuant thereto;
and (c) attaches the Tranche A Note referred to in paragraph 1 above and
<PAGE> 96
requests that the Lead Managing Agent (i) exchange such Tranche A Note for a
new Tranche A Note dated __________, 199___ in the principal amount of $ _____,
payable to the order of the Assignee [and a new Tranche A Note dated ______,
199___, in the principal amount of $_____, payable to the order of the
Assignor] and (ii) cancel and return the attached Tranche A Note to the
Borrower.
3. The Assignee: (a) confirms that it has received a copy of each
Loan Document, together with copies of the most recent financial statements
delivered pursuant to Sections 7.18(b) and 7.18(c) of the Credit Agreement and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and Acceptance;
(b) agrees that it will, independently and without reliance upon the Lead
Managing Agent, any Co-Managing Agent, the Assignor or any other Tranche A
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement; (c) confirms that it is an Eligible
Assignee; (d) appoints and authorizes the Lead Managing Agent and each
Co-Managing Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement and the other Loan
Documents as are delegated to the Lead Managing Agent and each Co-Managing
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (e) agrees to be bound by the terms of the
Credit Agreement to which it is to become a party pursuant to the Credit
Agreement; and (f) specifies as its Domestic Lending Office (and address for
notices) and Eurodollar Lending Office the offices set forth beneath its name
on the signature pages hereof.
4. The effective date for this Assignment and Acceptance shall
be ___________ (the "Effective Date"). Following, and subject to, the consent
in writing by the Lead Managing Agent and the Borrower to such assignment and
the execution of this Assignment and Acceptance, this Assignment and Acceptance
will be delivered to the Lead Managing Agent, together with the processing and
recordation fee specified in Section 10.07(a) of the Credit Agreement, for
acceptance and recording by the Lead Managing Agent.
5. Upon execution, delivery, acceptance and recording of this
Assignment and Acceptance, from and after the Effective Date (a) the Assignee
shall be a party to the Credit Agreement and the Assignee shall have the rights
and obligations of a Tranche A Lender thereunder, and (b) the Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording, from and after the
Effective Date, the Lead Managing Agent shall make all payments under the Loan
Documents in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and fees with respect thereto)
to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Tranche A Note for
periods prior to the Effective Date directly between themselves.
2
<PAGE> 97
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to the conflicts of law provisions thereof.
[NAME OF ASSIGNOR]
By
-------------------------------------
Name:
Title:
[NAME OF ASSIGNEE]
By
-------------------------------------
Name:
Title:
Domestic Lending Office (and address
for notices):
[Address]
Eurodollar Lending Office:
[Address]
Accepted and consented
to this ____ day of
___________, _______
CITIBANK, N.A., as Lead Managing Agent
By
------------------------------------
Name:
Title:
3
<PAGE> 98
A I M MANAGEMENT GROUP INC. (1)
By
------------------------------------
Name:
Title:
- --------------------
(1) The signature of A I M Managment Group Inc. is not required if A I M
Management Group Inc. has not notified the Assignor of its objection
to this assignment within five business days of its receipt of notice
of this assignment.
4
<PAGE> 99
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
Assignor's Tranche A Commitment: $____________
Assignee's Tranche A Commitment: $____________
Aggregate Outstanding Principal
Amount of Tranche A Loans Owing to Assignor: $____________
Aggregate Outstanding Principal
Amount of Tranche A Loans Owing to Assignee: $____________
<PAGE> 100
EXHIBIT 2.02
FORM OF TRANCHE A NOTE
New York, New York
$_____________ _________,_______
For value received, A I M Management Group Inc., a Delaware
corporation (the "Borrower"), promises to pay to the order of _________ (the
"Tranche A Lender"), for the account of its Applicable Lending Office, the
principle sum of $_________ or, if less, the aggregate principal amount of the
Tranche A Loans made from time to time by the Tranche A Lender to the Borrower
pursuant to the Credit Agreement referred to below on the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount of
each Tranche A Loan, from the date of such Tranche A Loan until such principal
amount is paid in full, on the dates and at the rate or rates provided in the
Credit Agreement. All such payments of principal and interest shall be made in
U.S. Dollars in immediately available funds at the office of Citibank, N.A.,
399 Park Avenue, New York, New York 10043, Attention: Bank Loan Syndications.
The Tranche A Lender is authorized to record the principal amount,
types, interest rates, Interest Periods and assignments of the Tranche A Loan,
and the dates and amounts of all repayments or prepayments of the principal
thereof, on the schedule attached hereto, or on a continuation of such
schedule, which recordation shall constitute prima facie evidence of the
accuracy of the information recorded in the absence of manifest error, provided
that the failure of the Tranche A Lender to make any such recordation or the
inaccuracy or incompleteness of any such recordation shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This Tranche A Note is one of the Tranche A Notes referred to in, and
is entitled to the benefits of, the Third Amended and Restate Credit Agreement
dates as of June ____, 1996 (as such Credit Agreement may be amended, restated
or supplemented from time to time, the "Credit Agreement"; terms defined in the
Credit Agreement are used herein as therein defined), among the Borrower, the
Tranche A Lender and the other Tranche A Lenders listed on the signature pages
thereof, Citibank, N.A., as Lead Managing Agent for the Tranche A Lender and
the other Tranche A Lenders, and Chemical Bank and NationsBank, N.A. (South),
as Co-Managing Agents. The Credit Agreement, amond other things, (i) provides
for the making of Tranche A Loans by the Tranche A Lender to the Borrower from
time to time in an aggregate amount not to exceed at any time outstanding the
dollar amount first above mentioned, the indebtedness of the Borrower resulting
from such
<PAGE> 101
Tranche A Loan being evidenced by this Tranche A Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of
certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
THIS TRANCHE A NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
A I M MANAGEMENT GROUP INC.
By
---------------------------
Name:
Title:
2
<PAGE> 102
PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
================================================================================
Amount
Amount of Type Amount
of Tranche of of
Tranche A Loan Tranche Principal Interest Interest Notation
Date A Loan Assigned A Loan Repaid Period Rate Made By
<S> <C> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
<PAGE> 103
EXHIBIT 3.01
FORM OF NOTICE OF BORROWING
[DATE]
Citibank, N.A., as
Lead Managing Agent
for the Tranche A Lenders parties
to the Credit Agreement
referred to below,
399 Park Avenue
New York, New York 10043
Attention: __________
Ladies and Gentlemen:
The undersigned, A I M Management Group Inc., a Delaware corporation,
refers to the Third Amended and Restated Credit Agreement dated as of June
____, 1996 (as such Credit Agreement may be amended or supplemented from time
to time, the "Credit Agreement"), among the undersigned, the Tranche A Lenders
listed on the signature pages thereof, Citibank, N.A., as Lead Managing Agent
for the Tranche A Lenders, and Chemical Bank and NationsBank, N.A. (South), as
Co-Managing Agents. Capitalized terms not otherwise defined herein are defined
in the Credit Agreement and used herein with the same meanings. The
undersigned hereby gives notice pursuant to Section 3.01 of the Credit
Agreement that the undersigned hereby requests a Tranche A Borrowing under the
Credit Agreement, and in that connection sets forth below the information
relating to such Tranche A Borrowing (the "Proposed Borrowing") as required by
Section 3.01 of the Credit Agreement:
(i) the Business Day of the Proposed Borrowing is _________,
199___;
(ii) the Type of Tranche A Loans comprising the Proposed Borrowing
is [Base Rate] [Eurodollar Rate] Loans;
(iii) the aggregate amount of the Proposed Borrowing is $_________;
(iv) the Interest Period for each Eurodollar Rate Loan made as part
of the Proposed Borrowing is _______ month[s].
<PAGE> 104
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) each of the representations and warranties contained in
Article VI of the Credit Agreement are true and correct, before and after
giving effect to the Proposed Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date, except to the
extent they were expressly made as of the Third Restatement Date or
expressly relate to a prior date, provided, that Section 6.05 (other than
the last sentence thereof) shall be deemed to apply to the most recent
financial statements delivered to the Tranche A Lenders pursuant to
Sections 7.18(b) and 7.18(c) of the Credit Agreement;
(B) no Default exists or will result from such Proposed Borrowing;
(C) the outstanding aggregate principal amount of all Tranche A
Loans, after giving effect to the Proposed Borrowing, will not exceed the
aggregate amount of all Tranche A Commitments in effect as of the date of
such Proposed Borrowing; and
(D) the undersigned certifies that it has performed in all
respects all agreements and satisfied all conditions under the Credit
Agreement to be performed by it on or before the date hereof.
Very truly yours,
A I M MANAGEMENT GROUP INC.
By
-------------------------------------
Name:
Title:
2
<PAGE> 105
EXHIBIT 5.01(d)
CITIBANK, N.A.
399 Park Avenue
New York, NY 10043
June 27, 1996
A I M Management Group Inc.
11 Greenway Plaza, Suite 1919
Houston, TX 77046-1173
Attn: President
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Credit
Agreement dated as of November 30, 1995, (the "Existing Credit Agreement"),
among A I M Management Group Inc., a Delaware corporation, Citibank, N.A., as
Lead Managing Agent, Chemical Bank and NationsBank of Georgia, N.A., as
Co-Managing Agents, and the lenders named on the signatures pages thereof (such
lenders, together with any successor or assigns, the "Existing Lenders").
Unless otherwise defined herein, capitalized terms are used herein as therein
defined.
The Borrower has requested that the Tranche A Lenders amend
and restate the Existing Credit Agreement to, among other things, terminate the
Tranche C Commitments and to permit the Tranche A Loans to become unsecured.
The Tranche A Lenders have agreed to amend and restate the Existing Credit
Agreement, on the terms and conditions set forth in the Third Amended and
Restated Credit Agreement dated as of June 26, 1996 among Citibank, N.A., as
lead managing agent, and Chemical Bank and NationsBank, N.A. (South), as
co-managing agents.
You have requested that we, as Lead Managing Agent under the
Existing Credit Agreement, provide you with the pay-off amount which we must
receive in order to pay in full any and all Tranche C Loans owing under the
Existing Credit Agreement, and as a condition to the Lead Managing Agent
releasing the security interests in all collateral securing indebtedness under
the Existing Credit Agreement.
The balance of the Tranche C Loans owed to the Existing
Lenders under the Credit Agreement, together with all indebtedness and other
amounts of the Loan Parties owing under the Credit Agreement in respect of the
Tranche C Loans (the "Pay-Off Amount") as of June 27, 1996 is the following:
<TABLE>
<CAPTION>
U.S. Dollar Amount
------------------
<S> <C>
Outstanding Principal Balance
of Tranche C Loans: $37,037,130.00
</TABLE>
<PAGE> 106
2
<TABLE>
<S> <C>
Accrued Interest on Tranche C Loans
as of June 27, 1996: $247,290.47
Breakage costs (estimate): $ 0
Pay-Off Amount as of
June 26, 1996 (estimate): $37,284,420.47
</TABLE>
By signing in the acknowledgement space below, you hereby
instruct Citibank, N.A. to apply the proceeds of Loans made under the B Share
Credit Agreement dated as of June 26, 1996 among you, the lenders parties and
co-agents identified on the signature pages thereof and Citibank, N.A., as
administrative agent, on June 27, 1996 to the payment in full of the Pay-Off
Amount.
By signing in the acknowledgement space below, each Loan Party
hereby (i) terminates all Tranche C Commitments and obligations of the Existing
Lenders, the Lead Managing Agent and the Co-Managing Agents in respect thereof
and (ii) terminates the obligations of the Collateral Agent and the 12b-1
Collateral Agent under or in connection with the Pledge and Security Agreement,
the 12b-1 Collateral Agreement, and the other Loan Documents to which it is a
party.
Upon satisfaction of the conditions set forth in the paragraph
below, we will execute and deliver to your counsel in Philadelphia,
Pennsylvania the UCC-3 Termination Statements. In addition, upon satisfaction
of the conditions set forth below, we will deliver to your counsel in Houston,
Texas the pledged collateral described on Exhibit A hereto and the Tranche C
Notes issued pursuant to the terms of the Existing Credit Agreement.
Thereafter, at the request and expense of the Borrower, we will execute such
further releases and similar documentation as may be reasonably requested to
effect the termination of the pledges, assignments and security interests
granted pursuant to the terms of Pledge and Security Agreement and the 12b-1
Collateral Agreement.
In order for us to execute and deliver to you the documents
listed in the immediately preceding paragraph, you must satisfy the following
conditions prior to 2:00 P.M. New York City time on June 27, 1996:
1. Receipt by us of payment in full of the Pay-Off
Amount; and
<PAGE> 107
3
2. Receipt by us of a copy of this letter, executed by
each Loan Party in the acknowledgement space
provided below.
Very truly yours,
CITIBANK, N.A., as Lead Managing
Agent
By:
----------------------------------
Title: Attorney-in-Fact
ACKNOWLEDGED AND AGREED:
A I M MANAGEMENT GROUP INC.,
as Borrower
By
---------------------------------
Title: President
A I M ADVISORS, INC.
as Guarantor
By
---------------------------------
Title: Vice President and
Secretary
<PAGE> 108
EXHIBIT 5.01(f)(iv)-1
A I M MANAGEMENT GROUP INC.
SOLVENCY CERTIFICATE
I, Dawn M. Hawley, do hereby certify that I am the Vice President and
Chief Financial Officer of A I M Management Group Inc., a Delaware corporation
(the "Borrower"), and that, as such: (a) I am duly authorized to execute and
deliver this certificate on behalf of the Borrower pursuant to Section
5.01(f)(iv) of the Third Amended and Restated Credit Agreement dated as of June
26, 1996 (the "Credit Agreement"; capitalized terms used in this certificate
without definition herein are used as defined in the Credit Agreement), among
the Borrower, the Tranche A Lenders identified on the signature page thereof,
Citibank, N.A., as Lead Managing Agent, and Chemical Bank and NationsBank of
Georgia, N.A., as Co-Managing Agents; and (b) after giving effect to the
Tranche A Borrowings on the Third Restatement Date contemplated under the
Credit Agreement:
(i) the fair value of the property of the Borrower and its
Subsidiaries is greater than the total amount of all of their
liabilities, including contingent, subordinated, absolute,
fixed, matured or unmatured and liquidated or unliquidated
liabilities;
(ii) the present fair salable value of the assets of the Borrower
and its Subsidiaries are not less than the amount that will be
required to pay their liabilities on their debts as they
become absolute and matured;
(iii) the Borrower and its Subsidiaries are able to realize upon
their assets and pay their debts, other liabilities and other
commitments as they mature in the normal course of business;
(iv) the Borrower and its Subsidiaries do not intend to, and do not
believe that they will, incur debts or liabilities (including
contingent, subordinated, absolute, fixed, matured or
unmatured and liquidated or unliquidated liabilities) beyond
their ability to pay such debts and liabilities as they
mature; and
(v) the Borrower and its Subsidiaries are not engaged in business
or any transaction, and are not about to engage in business or
any transaction, for which the Borrower's property and that of
its Subsidiaries would constitute unreasonably small capital
after giving due consideration to the prevailing practice in
the industry in which the Borrower or any of its Subsidiaries
are engaged.
IN WITNESS WHEREOF, I have hereunto set my hand this 27th day of June,
1996.
--------------------------------------
Name: Dawn M. Hawley
Title: Vice President and
Chief Financial Officer
<PAGE> 109
EXHIBIT 5.01(f)(iv)-2
A I M ADVISORS, INC.
SOLVENCY CERTIFICATE
I, John J. Arthur, do hereby certify that I am the Senior Vice
President and Treasurer of A I M Advisors, Inc., a Delaware corporation (the
"Company"), and that, as such: (a) I am duly authorized to execute and deliver
this certificate on behalf of the Company pursuant to Section 5.01(f)(iv) of
the Third Amended and Restated Credit Agreement dated as of June 26, 1996 (the
"Credit Agreement"; capitalized terms used in this certificate without
definition herein are used as defined in the Credit Agreement), among A I M
Management Group Inc., a Delaware corporation, the Tranche A Lenders identified
on the signature page thereof, Citibank, N.A., as Lead Managing Agent, and
Chemical Bank and NationsBank, N.A. (South), as Co-Managing Agents; and (b)
after giving effect to the Tranche A Borrowings on the Third Restatement Date
contemplated under the Credit Agreement:
(i) the fair value of the property of the Company and its
Subsidiaries is greater than the total amount of all of their
liabilities, including contingent, subordinated, absolute,
fixed, matured or unmatured and liquidated or unliquidated
liabilities;
(ii) the present fair salable value of the assets of the Company
and its Subsidiaries are not less than the amount that will be
required to pay their liabilities on their debts as they
become absolute and matured;
(iii) the Company and its Subsidiaries are able to realize upon
their assets and pay their debts, other liabilities and other
commitments as they mature in the normal course of business;
(iv) the Company and its Subsidiaries do not intend to, and do not
believe that they will, incur debts or liabilities (including
contingent, subordinated, absolute, fixed, matured or
unmatured and liquidated or unliquidated liabilities) beyond
their ability to pay such debts and liabilities as they
mature; and
(v) the Company and its Subsidiaries are not engaged in business
or a transaction, and are not about to engage in business or a
transaction, for which the Company's property and that of its
Subsidiaries would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the
industry in which the company or any of its Subsidiaries are
engaged.
IN WITNESS WHEREOF, I have hereunto set my hand this 27th day of June,
1996.
--------------------------------------
Name: John J. Arthur
Title: Senior Vice President and
Treasurer
<PAGE> 110
[AIM MANAGEMENT GROUP INC. GENERAL COUNSEL LETTERHEAD]
EXHIBIT 5.01(f)(v)
June 27, 1996
To the Lenders Named on Annex I Hereto
c/o Citibank, N.A., as Lead Managing Agent
399 Park Avenue
New York, NY 10043
Ladies and Gentlemen:
I, Carol F. Relihan, am general counsel for A I M Management Group Inc., a
Delaware corporation (the "Borrower") and A I M Advisors, Inc., a Delaware
corporation and a direct wholly-owned subsidiary of the Borrower ("AIM
Advisors"), and I am rendering this opinion in connection with the execution
and delivery of (i) the Third Amended and Restated Credit Agreement dated as of
June 26, 1996 (the "Credit Agreement") among the Borrower, each of the lenders
identified on the signature pages thereof (the "Lenders"), Citibank, N.A., as
Lead Managing Agent (in such capacity, the "Lead Managing Agent"), and Chemical
Bank and NationsBank of Georgia, N.A., as Co-Managing Agents and (ii) the
Amended and Restated Guaranty dated as of June 26, 1996 (the "Guaranty") made
by AIM Advisors (the Credit Agreement, the Guaranty are collectively referred
to as the "Loan Documents").
This opinion is delivered to you pursuant to subsection 5.01(f)(v) of the
Credit Agreement. Unless defined in this opinion, capitalized terms are used
herein as defined in the Credit Agreement.
In connection with this opinion, I have examined the originals, or copies
certified or otherwise identified to my satisfaction, of such corporate
records, agreements and other documents, and of certificates or comparable
documents of public officials and of officers and representatives of the
Borrower and AIM Advisors and have made such examinations of law as I have
deemed necessary for purposes of this opinion.
I have assumed the genuineness of all signatures of all persons signing the
Loan Documents on behalf of the parties thereto other than the Borrower and AIM
Advisors, the authenticity of all documents submitted to me as originals and
the conformity to original documents of documents submitted to me as certified,
conformed or photostatic copies. I have also assumed the legal capacity of
each natural person who has executed any document.
I have also assumed, without verification (i) that the parties to the Loan
Documents, other than the Borrower and AIM Advisors, have the power (including,
without limitation, corporate power where applicable) and authority to enter
into and perform the Loan Documents, (ii) the due authorization, execution and
delivery by such other parties of each Loan Document, and (iii) that the Loan
Documents constitute legal, valid and binding obligations of each such other
party, enforceable against such other party in accordance with their respective
terms.
<PAGE> 111
To the Lenders Named on Annex I Hereto
June 27, 1996
Page 2
Based on the foregoing, and subject to the qualifications set forth herein, I
am of the opinion that:
1. The Credit Agreement has been duly executed and delivered on behalf of
the Borrower, and constitutes the legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms.
2. The Guaranty has been duly executed and delivered on behalf of AIM
Advisors, and constitutes the legal, valid and binding obligation of AIM
Advisors, enforceable against AIM Advisors in accordance with its terms.
3. Each of the Borrower and AIM Advisors is duly qualified as a foreign
corporation in good standing in each jurisdiction in the United States where
failure to qualify would have a Material Adverse Effect.
4. The Loan Documents provide that they are governed by New York law. If
a state or federal court sitting in Texas were to hold that the Loan Documents
are governed by, and are to be construed in accordance with, the law of the
State of Texas, each of the Loan Documents would be, under the law of the State
of Texas, the legal, valid and binding obligation of each Loan Party thereto,
enforceable against such Loan Party in accordance with its terms.
I confirm to you that to my knowledge no litigation or governmental proceeding
is pending or threatened in writing against the Borrower or any of its
Subsidiaries (i) with respect to the Loan Documents or (ii) which individually
seeks in excess of $1,000,000.
The foregoing opinions are subject to the following exceptions, limitations and
qualifications:
(a) The foregoing opinions set forth in paragraphs 1, 2 and 4 are subject
to (i) the effect of applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer, fraudulent conveyance or similar laws
affecting creditors' rights and remedies generally; (ii) general principles of
equity, including without limitation, concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and (iii) limitations on
enforceability of rights to indemnification by federal or state securities laws
or regulations or by public policy.
(b) I express no opinion as to the application or requirements of state
or federal securities, patent, trademark, copyright, antitrust and unfair
competition, pension or employee benefit or tax laws in respect of the
transactions contemplated by or referred to in the Loan Documents.
<PAGE> 112
To the Lenders Named on Annex I Hereto
June 27, 1996
Page 3
(c) I express no opinion as to the validity or enforceability of any
provision of the Loan Documents which (i) permits the Lenders to increase the
rate of interest or to collect a late charge in the event of delinquency or
default, (ii) purports to be a waiver by the Borrower or AIM Advisors of any
right or benefit except to the extent permitted by applicable law, (iii)
purports to require that waivers must be in writing to the extent that an oral
agreement modifying provisions of the Loan Documents has been performed, (iv)
purports to be a waiver of the right to a jury trial, (v) purports to be a
waiver of the obligations of good faith, fair dealing, diligence, mitigation of
damages or commercial reasonableness, or (vi) purports to exculpate any Lender
from its own negligent acts or limit any Lender from certain liabilities.
(d) I express no opinion as to the enforceability of the choice of law of
choice or forum provisions contained in the Loan Documents.
(e) I express no opinion as to Texas usury law.
I express no opinion herein as to the law of any jurisdiction other than the
Federal law of the United States, the law of the State of Texas and the General
Corporation Law of the State of Delaware. My opinion is given as if the laws
of the State of Texas governed the Loan Documents.
A copy of this opinion may be delivered by you to each financial institution
that may become a Lender under the Credit Agreement, and such Persons may rely
on this opinion as if it were addressed to them and had been delivered to them
on the date hereof. Subject to the foregoing, this opinion may be relied upon
by you only in connection with the consummation of the transactions described
herein and may not be used or relied upon by you or any other person for any
other purpose, without in each instance my prior written consent.
This opinion is limited to the matters expressly stated herein. No implied
opinion may be inferred to extend this opinion beyond the matters expressly
stated herein. I do not undertake to advise you or anyone else of any changes
in the opinions expressed herein resulting from changes in law, changes in
facts or any other matters that hereafter might occur or be brought to my
attention.
Very truly yours,
<PAGE> 113
ANNEX I
Lenders:
- --------
The Bank of New York
Citibank, N.A.
Chemical Bank
Fleet Bank of Massachusetts
Mellon Bank
NationsBank of Georgia, N.A.
State Street Bank and Trust Company
<PAGE> 114
EXHIBIT 5.01(f)(vi)
[BALLARD SPAHR ANDREWS & INGERSOLL LETTERHEAD]
June 27, 1996
To the Lenders Named on Annex I Hereto
and to Citibank, N.A., as Lead Managing Agent
399 Park Avenue
New York, New York 10043
Ladies and Gentlemen:
We have acted as special counsel for A I M Management Group
Inc., a Delaware corporation (the "Borrower"), and A I M Advisors, Inc., a
Delaware corporation ("AIM Advisors"), in connection with the execution and
delivery of (i) the Third Amended and Restated Credit Agreement dated as of
June 26, 1996 (the "Credit Agreement") among the Borrower, each of the lenders
identified on the signature pages thereof (the "Lenders"), Citibank, N.A., as
Lead Managing Agent (in such capacity, the "Lead Managing Agent"), and Chemical
Bank and NationsBank, N.A. (South), as Co-Managing Agents, and (ii) the
Amended and Restated Guaranty dated as of June 26, 1996 made by AIM Advisors
(the "Guaranty"; and the Credit Agreement and the Guaranty, are collectively
referred to as the "Loan Documents").
This opinion is delivered to you pursuant to Section
5.01(f)(vii) of the Credit Agreement. Unless defined in this opinion,
capitalized terms are used herein as defined in the Credit Agreement.
In so acting, we have examined the originals, or copies
certified or otherwise identified to our satisfaction, of such corporate
records, agreements and other documents, and of certificates or comparable
documents of public officials and of officers and representatives of the
Borrower and AIM Advisors and have made such examinations of law as we have
deemed necessary in connection with the opinions set forth below.
We have assumed the genuineness of all signatures of all
persons signing the Loan Documents, the authenticity of all documents submitted
to us as originals and the conformity to
<PAGE> 115
To the Lenders Named
on Annex I Hereto
June 27, 1996
Page 2
original documents of documents submitted to us as certified, conformed or
photostatic copies. We have also assumed the legal capacity of each natural
person who has executed any document.
We have also assumed, without verification (i) that the
parties to the Loan Documents, other than the Borrower and AIM Advisors, have
the power (including, without limitation, corporate power where applicable) and
authority to enter into and perform the Loan Documents, (ii) the due
authorization, execution and delivery by such other parties of each Loan
Document, and (iii) that the Loan Documents constitute legal, valid and binding
obligations of each such other party, enforceable against such other party in
accordance with their respective terms.
Based on the foregoing, and subject to the qualifications set
forth herein, we are of the opinion that:
1. Each of the Borrower and AIM Advisors is duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, and has the corporate power to own or lease its properties and to
conduct the business in which it is currently engaged.
2. Each of the Borrower and AIM Advisors (i) has all
necessary corporate power and authority to execute, deliver and perform its
obligations under each Loan Document to which it is a party, and (ii) has taken
all necessary corporate action (including shareholder approvals to the extent
necessary) to authorize such execution, delivery and performance.
3. The Credit Agreement has been duly executed and
delivered on behalf of the Borrower, and constitutes the legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms.
4. The Guaranty has been duly executed and delivered on
behalf of AIM Advisors, and constitutes the legal, valid and binding obligation
of AIM Advisors, enforceable against AIM Advisors in accordance with its terms.
5. The execution, delivery and performance by the
Borrower and AIM Advisors of each Loan Document to which it is a party do not
and will not conflict with or result in a breach or violation of, or constitute
a default under, or permit any termination or any mandatory prepayment or
acceleration of the maturity of, or result in or require the creation or
imposition of any Lien upon or with respect to any of the properties of the
Borrower or AIM Advisors under (i) the Borrower's or AIM
<PAGE> 116
To the Lenders Named
on Annex I Hereto
June 27, 1996
Page 3
Advisors' certificate of incorporation or by-laws, (ii) any Management Contract
or Distribution Contract, any contract, loan or credit agreement listed in
Schedule 6.09 to the Credit Agreement, the Purchase and Sale Agreement dated as
of April 22, 1992 between the Borrower and CIGNA Investments, Inc. or the
Guarantee dated August 9, 1993 of AIM Advisors with respect thereto or the
Purchase and Sale Agreement dated as of May 2, 1995, as amended, among the
Borrower, AIM Distributors, Citibank, N.A., as purchaser, and Citicorp North
America, Inc., as program agent, as consented to and agreed to by AIM Advisors
(the "Purchase Agreement") or the B Share Credit Agreement or the Guaranty of
AIM Advisors dated as of June 26, 1996, executed in connection therewith or
(iii) any statutory law or regulation of the United States or the Commonwealth
of Pennsylvania or the General Corporation Law of the State of Delaware. When
used in this opinion, the phrase "conflict with" shall comprehend obligations
or options to take action under the Loan Documents which, if performed today,
would constitute a breach or default under, or result in the creation or
imposition of any Lien on the Borrower's or AIM Advisors' property under, or
constitute a default or event of default under, or result in any requirement
for mandatory prepayment or purchase of debt or in a resetting of interest
rates under, any document listed in clause (ii) of this paragraph 5. The
opinion expressed in clause (ii) of this paragraph 5 assumes, without
investigation, that the transactions contemplated by the Loan Documents will
not result in a violation of covenants containing financial ratios or any other
provisions in the agreements to which the Borrower or AIM Advisors are a party
that are based upon the financial statements or the financial condition of the
Borrower or AIM Advisors.
6. No authorization, approval, consent, waiver or
license of any federal or state governmental or administrative body of the
United States or of the State of Delaware under the General Corporation Law of
the State of Delaware, or any third party that is party to any of the
agreements and instruments listed in Schedule 6.09 to the Credit Agreement or
to the Purchase Agreement or the B Share Credit Agreement is necessary in
connection with the due authorization, execution, delivery and performance by
the Borrower and AIM Advisors of each Loan Document to which it is a party and
the consummation today of the transactions contemplated thereby. No consent or
approval of the shareholders of the Borrower, AIM Advisors or any AIM Fund is
required as a condition to the validity or performance or the exercise by the
Lead Managing Agent or the Lenders of any of their rights or remedies under any
of the Loan Documents, that has not been obtained and is not in full force and
effect.
<PAGE> 117
To the Lenders Named
on Annex I Hereto
June 27, 1996
Page 4
We confirm to you that to our knowledge, after inquiry of each
lawyer who is the current primary contact for the Borrower and AIM Advisors or
who has devoted substantive attention to matters on behalf of the Borrower and
AIM Advisors during the preceding twelve months and who is still currently
employed by or a member of this firm, no litigation or governmental proceeding
is pending or threatened in writing against the Borrower or any of its
Subsidiaries (i) with respect to any Loan Document or (ii) which individually
seeks in excess of $1,000,000.
The foregoing opinions are subject to the following
exceptions, limitations and qualifications:
(a) Our opinions in paragraphs 3 and 4 are subject to (i)
the effect of applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer, fraudulent conveyance or similar laws
affecting creditors' rights and remedies generally; (ii) general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless
of whether such enforceability is considered in a proceeding in equity
or at law); and (iii) limitations on enforceability of rights to
indemnification by federal or state securities laws or regulations or
by public policy.
(b) We express no opinion as to the application or
requirements of federal or state securities, patent, trademark,
copyright, antitrust and unfair competition, pension or employee
benefit or tax laws in respect of the transactions contemplated by or
referred to in the Loan Documents.
(c) We express no opinion as to the validity or
enforceability of any provision of the Loan Documents which (i)
permits the Lenders to increase the rate of interest or to collect a
late charge in the event of delinquency or default, (ii) purports to
be a waiver by the Borrower or AIM Advisors of any right or benefit
except to the extent permitted by applicable law, (iii) purports to
require that waivers must be in writing to the extent that an oral
agreement modifying provisions of the Loan Documents has been
performed, (iv) purports to be a waiver of the right to a jury trial,
(v) purports to be a waiver of the obligations of good faith, fair
dealing, diligence, mitigation of damages or commercial
reasonableness, or (vi) purports to exculpate any Lender from its own
negligent acts or limits any Lender from certain liabilities.
<PAGE> 118
To the Lenders Named
on Annex I Hereto
June 27, 1996
Page 5
(d) We express no opinion as to the enforceability of
choice of law or choice of forum provisions contained in the Loan
Documents.
We express no opinion herein as to the law of any jurisdiction
other than the Federal law of the United States, the law of the Commonwealth of
Pennsylvania and the General Corporation Law of the State of Delaware. Our
opinion is given as if the laws of the Commonwealth of Pennsylvania governed
the Loan Documents.
A copy of this opinion may be delivered by you to each
financial institution that may become a Lender under the Credit Agreement, and
such Persons may rely on this opinion as if it were addressed to them and had
been delivered to them on the date hereof. Subject to the foregoing, this
opinion may be relied upon by you only in connection with the consummation of
the transactions described herein and may not be used or relied upon by you or
any other person for any other purpose, without in each instance our prior
written consent.
This opinion is limited to the matters expressly stated
herein. No implied opinion may be inferred to extend this opinion beyond the
matters expressly stated herein. We do not undertake to advise you or anyone
else of any changes in the opinions expressed herein resulting from changes in
law, changes in facts or any other matters that hereafter might occur or be
brought to our attention.
Very truly yours,
<PAGE> 119
ANNEX I
Lenders:
The Bank of New York
Citibank, N.A.
Chemical Bank
Fleet Bank of Massachusetts
Mellon Bank
NationsBank, N.A. (South)
State Street Bank and Trust Company
<PAGE> 120
EXHIBIT 7.21
AMENDED AND RESTATED GUARANTY
Dated June 26, 1996
From
A I M ADVISORS, INC.
as Guarantor
------------
in favor of
THE GUARANTEED PARTIES PARTIES TO
THE CREDIT AGREEMENT REFERRED TO HEREIN
<PAGE> 121
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
SECTION PAGE
<S><C> <C>
1. Guaranty; Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Guaranty Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Waivers and Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. Payments Free and Clear of Taxes, Etc. . . . . . . . . . . . . . . . . . . . . . 4
6. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
11. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
12. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
13. Continuing Guaranty; Assignments under the Credit Agreement . . . . . . . . . . 8
14. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. . . . . . . . . . . . . 9
</TABLE>
<PAGE> 122
GUARANTY
AMENDED AND RESTATED GUARANTY ("Guaranty") dated June 26, 1996
made by A I M ADVISORS, INC., a Delaware corporation (the "Guarantor"), in
favor of the Guaranteed Parties (as defined below).
PRELIMINARY STATEMENT. The Tranche A Lenders, Citibank, N.A.,
as lead managing agent (the "Lead Managing Agent") for the Tranche A Lenders,
and Chemical Bank and NationsBank, N.A. (South), as co-managing agents (the
"Co-Managing Agents", and, together with the Tranche A Lenders and the Lead
Managing Agent, the "Guaranteed Parties"), are parties to a Third Amended and
Restated Credit Agreement dated as of June 26, 1996 (said Agreement, as it may
hereafter be amended, supplemented or otherwise modified from time to time,
being the "Credit Agreement"; the terms defined therein and not otherwise
defined herein being used herein as therein defined) with A I M Management
Group Inc., a Delaware corporation (the "Borrower"). The Guarantor may receive
a portion of the proceeds of the Tranche A Loans under the Credit Agreement and
will derive substantial direct and indirect benefit from the transactions
contemplated by the Credit Agreement. It is a condition precedent to the
making of Tranche A Loans by the Tranche A Lenders under the Credit Agreement
that the Guarantor shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Tranche A Lenders to make Tranche A Loans from time to time, the
Guarantor hereby agrees as follows:
Section 1. Guaranty; Limitation of Liability. (a) The
Guarantor hereby unconditionally and irrevocably guarantees the punctual
payment when due, whether at stated maturity, by acceleration or otherwise, of
all Obligations of the Borrower now or hereafter existing under the Loan
Documents, whether for principal, interest, fees, expenses or otherwise (such
Obligations being the "Guaranteed Obligations"), and agrees to pay any and all
expenses (including counsel fees and expenses) incurred by the Lead Managing
Agent or any other Guaranteed Party in enforcing any rights under this
Guaranty. Without limiting the generality of the foregoing, the Guarantor's
liability shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by the Borrower to the Lead Managing Agent or any
other Guaranteed Party under the Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Borrower.
(b) The liability of the Guarantor under this Guaranty
shall not exceed the greater of (i) the net benefit realized by the Guarantor
from the proceeds of the Tranche A Loans made from time to time by the Borrower
to the Guarantor or any Subsidiary of the Guarantor and (ii) the greater of (x)
95% of the Adjusted Net Assets of the Guarantor on the date of delivery hereof
and (y) 95% of the Adjusted Net Assets of the Guarantor on the date of any
payment hereunder. "Adjusted Net Assets" of the Guarantor at any date means
the lesser of
<PAGE> 123
2
(x) the amount by which the fair value of the property of the Guarantor exceeds
the total amount of liabilities, including, without limitation, contingent
liabilities, but excluding liabilities under this Guaranty, of the Guarantor at
such date and (y) the amount by which the present fair salable value of the
assets of the Guarantor at such date exceeds the amount that will be required
to pay the probable liability of the Guarantor on its debts, excluding debt in
respect of this Guaranty, as they become absolute and matured.
Section 2. Guaranty Absolute. The Guarantor guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms
of the Loan Documents, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Lead Managing Agent or any other Guaranteed Party with respect
thereto. The Obligations of the Guarantor under this Guaranty are independent
of the Guaranteed Obligations or any other Obligations of any other Loan Party
under the Loan Documents, and a separate action or actions may be brought and
prosecuted against the Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Borrower or any other Loan Party or
whether the Borrower or any other Loan Party is joined in any such action or
actions. The liability of the Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and the Guarantor
hereby irrevocably waives any defenses it may now or hereafter have in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan
Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Guaranteed Obligations
or any other Obligations of any other Loan Party under the Loan
Documents, or any other amendment or waiver of or any consent to
departure from any Loan Document, including, without limitation, any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to the Borrower or any of its Subsidiaries or
otherwise;
(c) any taking, exchange, release or non-perfection of
any collateral, or any taking, release or amendment or waiver of or
consent to departure from any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of collateral or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Guaranteed Obligations or any other Obligations of any other Loan
Party under the Loan Documents, or any other assets of the Borrower or
any of its Subsidiaries;
<PAGE> 124
3
(e) any change, restructuring or termination of the
corporate structure or existence of the Borrower or any of its
Subsidiaries;
(f) any failure of any Guaranteed Party to disclose to
the Borrower or the Guarantor any information relating to the
financial condition, operations, properties or prospects of any other
Loan Party now or in the future known to any Guaranteed Party (the
Guarantor waiving any duty on the part of the Guaranteed Parties to
disclose such information); or
(g) any other circumstance or any existence of or
reliance on any representation by the Lead Managing Agent or any other
Guaranteed Party that might otherwise constitute a defense available
to, or a discharge of, the Borrower, the Guarantor or any other
guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by any Guaranteed Party or any other
Person upon the insolvency, bankruptcy or reorganization of the Borrower or any
other Loan Party or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) The Guarantor
hereby waives promptness, diligence, notice of acceptance and any other notice
with respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that the Lead Managing Agent or any other Guaranteed Party protect,
secure, perfect or insure any Lien or any property subject thereto or exhaust
any right or take any action against the Borrower or any other Person or any
collateral.
(b) The Guarantor hereby waives any right to revoke this
Guaranty, and acknowledges that this Guaranty is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in the future.
(c) The Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in this
Section 3 are knowingly made in contemplation of such benefits.
Section 4. Subrogation. The Guarantor will not exercise any
rights that it may now or hereafter acquire against the Borrower or any other
insider guarantor that arise from the existence, payment, performance or
enforcement of the Guarantor's Obligations under this Guaranty or any other
Loan Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Lead Managing Agent or any other
Guaranteed Party against the Borrower or any other insider guarantor, whether
or not such claim, remedy or right arises in
<PAGE> 125
4
equity or under contract, statute or common law, including, without limitation,
the right to take or receive from the Borrower or any other insider guarantor,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim, remedy or right, unless
and until all of the Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash and the Tranche A Commitments
shall have expired or terminated. If any amount shall be paid to the Guarantor
in violation of the preceding sentence at any time prior to the later of the
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty and the Termination Date, such amount shall be
held in trust for the benefit of the Lead Managing Agent and the other
Guaranteed Parties and shall forthwith be paid to the Lead Managing Agent to be
credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of the Loan Documents, or to be held as collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter arising.
If (i) the Guarantor shall make payment to the Lead Managing Agent or any other
Guaranteed Party of all or any part of the Guaranteed Obligations, (ii) all of
the Guaranteed Obligations and all other amounts payable under this Guaranty
shall be paid in full in cash and (iii) the Termination Date shall have
occurred, the Lead Managing Agent and the other Guaranteed Parties will, at the
Guarantor's request and expense, execute and deliver to the Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Guarantor of an
interest in the Guaranteed Obligations resulting from such payment by the
Guarantor.
Section 5. Payments Free and Clear of Taxes, Etc. (a) Any
and all payments made by the Guarantor hereunder shall be made free and clear
of and without deduction for any and all present or future Taxes. If the
Guarantor shall be required by law to deduct or withhold any Taxes from or in
respect of any sum payable hereunder to the Lead Managing Agent or any other
Guaranteed Party, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions or withholding (including deductions
or withholding applicable to additional sums payable under this Section) the
Lead Managing Agent or such other Guaranteed Party (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions or withholding been made, (ii) the Guarantor shall make such
deductions or withholding and (iii) the Guarantor shall timely pay the full
amount deducted or withheld to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Guarantor agrees to pay any present
or future Other Taxes.
(c) The Guarantor will indemnify and hold harmless the
Lead Managing Agent and each other Guaranteed Party from and against the full
amount of Taxes or Other Taxes (including, without limitation, Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Section) paid
by the Lead Managing Agent or such other Guaranteed Party (as the case may be)
and any liability (including penalties, additions to tax, interest on tax and
expenses) arising therefrom or with respect thereto. This indemnification
shall be made within
<PAGE> 126
5
30 days from the date the Lead Managing Agent or such other Guaranteed Party
(as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes
by or on behalf of the Guarantor, the Guarantor will furnish to the Lead
Managing Agent, at its address referred to in the Credit Agreement, an official
receipt (or a certified copy) or other documentation reasonably acceptable to
the Lead Managing Agent evidencing payment thereof to the relevant taxation or
other authority. In the case of any payment hereunder by or on behalf of the
Guarantor through an account or branch outside the United States or by or on
behalf of the Guarantor by a payor that is not a United States person, if the
Guarantor determines that no Taxes are payable in respect thereof, the
Guarantor shall furnish, or shall cause such payor to furnish, to the Lead
Managing Agent at such address, an opinion of counsel acceptable to the Lead
Managing Agent stating that such payment is exempt from Taxes; provided
however, that no such opinion shall be required with respect to any exemption
from Taxes imposed by the United States. For purposes of this subsection (d)
and the following subsection (e), the terms "United States" and "United States
person" shall have the meaning specified in Section 7701 on the Internal
Revenue Code.
(e) Each Guaranteed Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of the Credit Agreement in the case of each Guaranteed
Party listed on the signature pages thereof, and on the date of the Assignment
and Acceptance pursuant to which it became a Guaranteed Party in the case of
each other Guaranteed Party, and from time to time thereafter if requested in
writing by the Guarantor (but only so long thereafter as such Guaranteed Party
remains lawfully able to do so), provide the Lead Managing Agent and the
Guarantor with two original Internal Revenue Service Forms 1001 or 4224, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Guaranteed Party is entitled to benefits under an
income tax treaty to which the United States is a party that reduces the rate
of withholding tax on payments under this Guaranty or certifying that the
income receivable pursuant to this Guaranty is effectively connected with the
conduct of a trade or business in the United States. If the form provided by a
Guaranteed Party at the time such Guaranteed Party first becomes a party to the
Credit Agreement indicates a United States interest withholding tax rate in
excess of zero, withholding tax at such rate shall be considered excluded from
Taxes unless and until such Guaranteed Party provides the appropriate form
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
form; provided, that, if at the date of the Assignment and Acceptance pursuant
to which a Guaranteed Party assignee becomes a party to the Credit Agreement,
the Guaranteed Party assignor was entitled to payments under subsection (a) in
respect of United States withholding tax with respect to interest paid at such
date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any,
<PAGE> 127
6
applicable with respect to the Guaranteed Party assignee on such date. As an
alternative to delivering Internal Revenue Service Form 1001 or 4224, a
Non-U.S. Guaranteed Party holding Registered Notes (a "Registered Noteholder")
(or, if such Registered Noteholder is not the beneficial owner thereof, such
beneficial owner) may deliver to the Guarantor prior to or at the time such
Non-U.S. Guaranteed Party becomes a Registered Noteholder, an Internal Revenue
Service Form W-8 (or such successor and related forms as may from time to time
be adopted by the relevant taxing authorities of the United States), together
with an annual certificate stating that such Registered Noteholder or
beneficial owner, as the case may be, is not any person described in Section
871(h)(3) or Section 881(c)(3) of the United States Internal Revenue Code.
Each Registered Noteholder or beneficial owner, as the case may be, agrees (x)
to deliver to the Guarantor a further duly completed copy of any previously
delivered Internal Revenue Service Form W-8 on or before the earlier of the
date that any such Form W-8 expires or becomes obsolete under applicable United
States Treasury regulations and the date such Form W-8 otherwise is required to
be resubmitted as a condition to obtaining an exemption from withholding from
United States federal income tax and (y) to notify the Guarantor within thirty
days after it determines that it is no longer in a position to provide such
Form W-8 or annual certificate to the Guarantor.
(f) For any period with respect to which a Guaranteed
Party has failed to provide the Guarantor with the appropriate form described
in subsection (e) above or any successor form (other than if such failure is
due to a change in law occurring after the date on which a form originally was
required to be provided or if such form otherwise is not required under
subsection (e)), such Guaranteed Party shall not be entitled to indemnification
under subsection (a) or (c) with respect to Taxes imposed by the United States
unless such Taxes would have been imposed without regard to such Guaranteed
Party's failure to provide the appropriate form to the Borrower; provided, that
should a Guaranteed Party become subject to Taxes because of its failure to
deliver a form required hereunder, the Guarantor shall take at such Guaranteed
Party's expense such steps as such Guaranteed Party shall reasonably request to
assist such Guaranteed Party to recover such Taxes.
(g) Without prejudice to the survival of any other
agreement of the Guarantor hereunder, the agreements and obligations of the
Guarantor contained in this Section 5 shall survive the termination of the
Credit Agreement, payment in full of the Guaranteed Obligations and all other
amounts payable under this Guaranty.
(h) Notwithstanding anything to the contrary in this
Section 5, the Guarantor shall not be required to pay or indemnify for any Tax
or Other Tax to the extent such Tax or Other Tax would not have been imposed
but for the sale of participations by any Guaranteed Party in or to all or a
portion of its rights and obligations under this Agreement pursuant to Section
10.07(e) of the Credit Agreement.
<PAGE> 128
7
Section 6. Representations and Warranties. The Guarantor
hereby represents and warrants as follows:
(a) The Guarantor (i) is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
(ii) is duly qualified or licensed and is in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property or
in which the conduct of its business requires it so to qualify or be licensed,
and (iii) has all requisite corporate power and authority to own or lease and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted. All of the outstanding capital stock of the Guarantor
has been validly issued, is fully paid and nonassessable.
(b) There are no conditions precedent to the
effectiveness of this Guaranty that have not been satisfied or waived.
(c) The Guarantor has, independently and without reliance
upon the Lead Managing Agent or any other Guaranteed Party and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Guaranty, and the Guarantor has
established adequate means of obtaining from any other Loan Parties on a
continuing basis information pertaining to, and is now and on a continuing
basis will be completely familiar with, the financial condition, operations,
properties and prospects of such other Loan Parties.
Section 7. Covenants. The Guarantor covenants and agrees
that, so long as any part of the Guaranteed Obligations shall remain unpaid or
any Tranche A Lender shall have any Tranche A Commitment, the Guarantor will,
unless the Required Tranche A Lenders shall otherwise consent in writing,
perform or observe all of the terms, covenants and agreements that the Loan
Documents state that the Borrower is to cause the Guarantor to perform or
observe.
Section 8. Amendments, Etc. No amendment or waiver of any
provision of this Guaranty and no consent to any departure by the Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Lead Managing Agent and the Required Tranche A Lenders, and
then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by all of the
Guaranteed Parties (other than any Tranche A Lender that is, at such time, a
Defaulting Tranche A Lender), (a) limit the liability of the Guarantor
hereunder, (b) postpone any date fixed for payment hereunder or (c) change the
number of Guaranteed Parties required to take any action hereunder.
Section 9. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed,
telecopied, telexed or delivered to it, if to the Guarantor, addressed to it
<PAGE> 129
8
at 11 Greenway Plaza, Suite 1919, Houston, Texas 77946, Fax No.: (718)
993-9890, Attention: President, together with a copy to the General Counsel of
the Guarantor at the same address, if to the Lead Managing Agent or any
Guaranteed Party, at its address specified in the Credit Agreement, or as to
any party at such other address as shall be designated by such party in a
written notice to each other party. All such notices and other communications
shall, when mailed, telegraphed, telecopied or telexed, be effective when
deposited in the mails, delivered to the telegraph company, transmitted by
telecopier or confirmed by telex answerback, respectively.
Section 10. No Waiver; Remedies. No failure on the part of
the Lead Managing Agent or any other Guaranteed Party to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
Section 11. Right of Set-off. Upon the occurrence and during
the continuance of any Event of Default, each Guaranteed Party shall have at
any time and from time to time, to the fullest extent permitted by law, without
presentment, demand, protest or other notice of any kind to any Loan Party or
any other Person a right of set off with respect to any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Guaranteed Party (including by
branches and Agencies of such Guaranteed Party, wherever located) to or for the
credit or the account of the Guarantor irrespective of whether or not such
Guaranteed Party shall have made any demand under this Guaranty and although
such Obligations may be contingent or unmatured. Each Guaranteed Party agrees
promptly to notify the Guarantor after any such set-off; provided, that the
failure to give such notice shall not affect the validity of such set-off. The
rights of each Guaranteed Party under this Section are in addition to other
rights and remedies that such Guaranteed Party may have.
Section 12. Indemnification. Without limitation on any
other Obligations of the Guarantor or remedies of the Guaranteed Parties under
this Guaranty, the Guarantor shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless each Guaranteed Party from and
against, and shall pay on demand, any and all losses, liabilities, damages,
costs, expenses and charges (including the fees and disbursements of such
Guaranteed Party's legal counsel) suffered or incurred by such Guaranteed Party
as a result of any failure of any Guaranteed Obligations to be the legal, valid
and binding obligations of the Borrower enforceable against the Borrower in
accordance with their terms provided, that the amounts payable by the Guarantor
pursuant to this Section 12 shall not exceed, in the aggregate, the amount of
the Guaranteed Obligations.
Section 13. Continuing Guaranty; Assignments under the Credit
Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the later of
<PAGE> 130
9
the payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty and the Termination Date, (b) be binding upon the
Guarantor, its successors and assigns and (c) inure to the benefit of and be
enforceable by the Lead Managing Agent and the other Guaranteed Parties and
their successors, transferees and assigns. Without limiting the generality of
the foregoing clause (c), any Guaranteed Party may assign or otherwise transfer
all or any portion of its rights and obligations under the Credit Agreement
(including, without limitation, all or any portion of its Tranche A Commitment,
the Tranche A Loans owing to it and the Tranche A Note held by it) to any other
Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Guaranteed Party herein or
otherwise, in each case as and to the extent provided in Section 10.07 of the
Credit Agreement.
Section 14. Governing Law; Jurisdiction; Waiver of Jury
Trial, Etc. (a) This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to the
conflict of law provisions thereof.
(b) The Guarantor hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting
in New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Guaranty or any of the other Loan
Documents to which it is or is to be a party, or for recognition or enforcement
of any judgment, and the Guarantor hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in any such New York State court or, to the extent permitted by
law, in such federal court. The Guarantor agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(c) Nothing in this Section shall affect the right of any
Guaranteed Party to serve legal process in any other manner permitted by law or
affect the right of any Guaranteed Party to bring any action or proceeding
against the Guarantor or its property in the courts of other jurisdictions.
(d) The Guarantor hereby irrevocably waives, to the
fullest extent permitted by law, all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to any of the Loan Documents, the transactions
contemplated thereby or the actions of the Lead Managing Agent or any other
Guaranteed Party in the negotiation, administration, performance or enforcement
thereof.
<PAGE> 131
10
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
A I M ADVISORS, INC.
By
____________________________________
Title: President
<PAGE> 132
SCHEDULE I
TRANCHE A COMMITMENTS AND APPLICABLE LENDING OFFICES
<TABLE>
<CAPTION>
Tranche A Lender Tranche A Domestic Eurodollar
---------------- Commitment Lending Office Lending Office
---------- -------------- --------------
<S> <C> <C> <C>
The Bank of New York $ 6,127,346.96 One Wall Street One Wall Street
New York, NY 10286 New York, NY 10286
Attn: Joann Barton Attn: Joann Barton
Fax: (212) 809-6615 Fax: (212) 809-6615
Chemical Bank $ 6,862,628.59 270 Park Avenue 270 Park Avenue
New York, NY 10017 New York, NY 10017
Attn: Richard Klein Attn: Richard Klein
Fax: (212) 270-5222 Fax: (212) 270-5222
Citibank, N.A. $ 6,944,258.52 399 Park Avenue 399 Park Avenue
New York, NY 10043 New York, NY 10043
Attn: John J. MacDonald Attn: John J. MacDonald
Fax: (212) 371-6309 Fax: (212) 371-6309
Fleet National Bank $ 4,901,877.57 CT MO 0250 CT MO 0250
777 Main Street 777 Main Street
Hartford, CT 06475 Hartford, CT 06475
Attn: David Wilkie Attn: David Wilkie
Fax: (860) 936-1264 Fax: (860) 936-1264
Mellon Bank N.A. $ 6,862,628.59 One Mellon Bank Center One Mellon Bank Center
Room 370 Room 370
Pittsburgh, PA 15259 Pittsburgh, PA 15259
Attn: Paula A. Mammarella Attn: Paula A. Mammarella
Fax: (412) 234-8087 Fax: (412) 234-8087
NationsBank, N.A. $ 6,127,346.96 101 North Tryon Street 101 North Tryon Street
(South) Charlotte, NC 28255 Charlotte, NC 28255
Attn: Judy Dudley Attn: Judy Dudley
Fax: (704) 386-8694 Fax: (704) 386-8694
State Street Bank and $ 6,862,628.59 225 Franklin Street 225 Franklin Street
Trust Company Boston, MA 02101 Boston, MA 02101
Attn: Attn: Lynn Downing
Fax: (617) 654-3767 Fax: (617) 654-3767
Total Commitments $44,688,715.78
</TABLE>
<PAGE> 133
SCHEDULE 1.01A
ELIGIBLE FUNDS
Eligible Funds
--------------
AIM Balanced Fund
AIM Charter Fund
AIM Global Aggressive Growth Fund
AIM Global Growth Fund
AIM Global Income Fund
AIM Intermediate Government Fund
AIM Growth Fund
AIM High Yield Fund
AIM Income Fund
AIM International Equity Fund
AIM Money Market Fund
AIM Municipal Bond Fund
AIM Global Utilities Fund
AIM Value Fund
AIM Weingarten Fund
<PAGE> 134
SCHEDULE 1.01B
KEY SHAREHOLDERS
The Key Shareholders are collectively:
(a) (i) Charles T. Bauer ("Bauer"), (ii) Bauer's spouse and lineal
descendants (including persons lawfully adopted by Bauer or any of
Bauer's lineal descendants) (each such person, together with Bauer, the
"Bauer Family"), (iii) any trust of which (1) each trustee is a member
of the Bauer Family or a sibling of Bauer, or Graham or Crum or (2)
each beneficiary is a member of the Bauer Family, (iv) any limited
partnership of which the general partner is a member of the Bauer
Family or a sibling of Bauer, or Graham or Crum, and each limited
partner is a member of the Bauer Family, (v) any limited liability
company of which each member is a member of the Bauer Family, or (vi)
any similar arrangement where the beneficial ownership of the shares of
Capital Stock of the Borrower remains in the Bauer Family, provided
that Bauer (or after Bauer's death, one or more members of the Bauer
Family, the trustee or general partner, as the case may be) retains
sole control over the voting and disposition of any Capital Stock of
the Borrower (each such entity together with the Bauer Family, the
"Bauer Group");
(b) (i) Robert H. Graham ("Graham), (ii) Graham's spouse and lineal
descendants (including persons lawfully adopted by Graham or any of
Graham's lineal descendants) (each such person together with Graham,
the "Graham Family"), (iii) any trust of which (1) each trustee is a
member of the Graham Family or (2) each beneficiary is a member of the
Graham Family (each such trust being a "Graham Trust"), (iv) any
limited partnership of which the general partner is a member of the
Graham Family or a Graham Trust, and each limited partner is a member
of the Graham Family or a Graham Trust, (v) any limited liability
company of which each member is a member of the Graham Family or a
Graham Trust, or (vi) any similar arrangement where the beneficial
ownership of the shares of Capital Stock of the Borrower remains in the
Graham Family, provided that Graham (or after Graham's death, one or
more members of the Graham Family, the trustee or general partner, as
the case may be) retains sole control over the voting and disposition
of any Capital Stock of the Borrower (each such entity together with
the Graham Family, the "Graham Group");
(c) (i) Gary T. Crum ("Crum), (ii) Crum's spouse and lineal descendants
(including persons lawfully adopted by Crum or any of Crum's lineal
descendants) (each such person together with Crum, the "Crum Family"),
(iii) any trust of which (1) each trustee is a member of the Crum
Family or a sibling of Crum, or Graham or Bauer or (2) each beneficiary
is a member of the Crum Family, (iv) any limited partnership of which
the general partner is a member of the Crum Family or a sibling of
Crum, or Bauer or Graham, and each limited partner is a member of the
Crum Family, (v) any limited liability company of which each member is
a member of the Crum Family, or (vi) any similar arrangement where the
beneficial ownership of the shares of Capital Stock of the Borrower
remains in the Crum Family, provided that Crum (or after Crum's death,
one or more members of the Crum Family, the trustee or general
1
<PAGE> 135
partner, as the case may be) retains sole control over the voting and
disposition of any Capital Stock of the Borrower (each such entity
together with the Crum Family, the "Crum Group");
(d) (i) Jeffrey T. Chambers, Michael C. Child, Brian J. Conway,
Katherine S. Cromwell, Robert W. Daly, Stephen J. Gaal, Donald J.
Kramer, C. Kevin Landry, P. Andrews McLane, Jacqueline C. Morby and
Richard D. Tadler (collectively, the "TA Partners"), (ii) the limited
partnerships that are parties to the TA Purchase Agreement (the "TA
Purchasers"), and (iii) any limited partnership of which each general
partner is (1) a TA Partner or (2) a limited partnership of which each
general partner is a TA Partner (each such limited partnership together
with the TA Partners and the TA Purchasers, the "TA Group").
Each of the TA Group, the Bauer Group, the Graham Group, and the Crum
Group are referred to as a "Key Shareholder Group."
2
<PAGE> 136
SCHEDULE 1.01C
DISTRIBUTION EXPENSES
---------------------
Distribution Expenses
---------------------
CDSC Shares Brokerage Commission: 3.75% of purchase amount
Prepaid Service Fee: .25% of purchase amount
Distribution Fee: .75% of the average
daily net assets attributable
to CDSC Shares payable under
the Distribution Plan
Contingent Deferred Sales Charge
--------------------------------
Contingent Deferred Sales
Charge as a % of Net Asset
Year Since Purchase Made Value of Shares Redeemed
------------------------ ------------------------
First 5%
Second 4%
Third 3%
Fourth 3%
Fifth 2%
Sixth 1%
Seventh and Following None
In determining whether a contingent deferred sales charge is applicable,
it will be assumed that a redemption is made first of any shares held in the
shareholder's account that are not subject to such charge; second, of shares
derived from reinvestment of dividends and distributions; third, of shares held
for more than six years from the date such shares were purchased; and fourth,
of shares held less than six years from the date such shares were purchased.
The applicable sales charge will be applied against the lesser of the current
market value of shares redeemed or their original cost.
Contingent deferred sales charges on CDSC Shares will be waived on
redemptions (1) following the death or disability of a shareholder (provided
AIM Distributors is notified of the shareholder's death or disability at the
time of the redemption request and is provided with satisfactory evidence of
such death or disability), (2) in connection with certain distributions from
individual retirement accounts and custodian accounts maintained pursuant to
Section 403(b)(7) of the Code, deferred compensation plans qualified under
Section 457 of the Code and plans qualified under Section 401 of the Code
(collectively, "Retirement Plans"), (3) pursuant to a Systematic Withdrawal
Plan, provided that amounts withdrawn under such plan do not exceed on an
annual basis 12% of the market value of the shareholder's investment in CDSC
Shares at the time the shareholder elects to participate in the Systematic
Withdrawal Plan, (4) effected pursuant to the right of a Dual Class Fund to
liquidate a shareholder's account if the aggregate net asset value of shares
held in the account is less than the designated minimum account size described
in the prospectus of such Dual Class Fund and (5) effected by AIM of its
investment in a Dual Class Fund.
<PAGE> 137
SCHEDULE 1.01D
INVESTMENTS
-----------
1) Life Partners Group, Inc., 62,182 shares (proposed to be exchanged for
shares of Conseco, Inc. stock).
2) ICI Mutual Insurance Company Reserve Premium.
3) Assets of a trust established to comply with Rule 27d-1 of the
Investment Company Act of 1940 in connection with Summit Investors
Plans. The Company is prohibited from using the assets of such trust.
The amounts vary as required by Rule 27d-1. As of May 31, 1996, an
aggregate amount in trust of approximately $400,000 is currently
invested in:
(a) Federal National Mortgage Association Note. Face
Value $300,000. Matures July 19, 1996. Held through
Merrill Lynch Acct. No. 581-07452; and
(b) Segregated Trust Savings Account at State Street Bank
& Trust Co.
4) Investment in ABAMCO Limited, a management company owned and operated
by a joint venture between A I M Management Group Inc., a Pakistani
broker-dealer, a privately owned Pakistani bank and the International
Finance Corporation.
<PAGE> 138
SCHEDULE 3.02
EXCLUDED ASSET SALES
--------------------
1. Liquidation of seed money contributed to funds advised by A I M
Advisors, Inc. or A I M Capital Management, Inc. from time to time.
2. Exchanges of shares of Life Partners Group, Inc. stock for shares of
Conseco, Inc. stock and subsequent sales of shares of Conseco, Inc.
stock from time to time.
<PAGE> 139
SCHEDULE 6.02
SUBSIDIARIES
<TABLE>
<S> <C>
----------------------------
A I M Management Group, Inc.
(Delaware)
----------------------------
| 100%
--------------------
A I M Advisors, Inc.
(Delaware)
--------------------
|
=====================================================================================================================_
100% | 100% | 100% | 100% | 100% | 100% | |
- ------------------------- ------------------- --------------- -------------- ------------------- --------------- |
A I M Capital Management, A I M Distributors, Fund Management A I M Fund A I M Institutional A I M Insurance |
Inc. Inc. Company Services, Inc. Fund Services, Inc. Agency of |
(Texas) (Delaware) (Texas) (Delaware) (Delaware) Alabama, Inc. |
- ------------------------- ------------------- --------------- -------------- ------------------- (Alabama) |
| --------------- |
| =============================================================
100% | 100% | 100% |
- ------------------------- ----------------------- ----------------------
AIM Global Holdings, Inc. A I M Insurance Agency, A I M Insurance Agency
(Delaware) Inc. of New Mexico, Inc.
- ------------------------- (Delaware) (New Mexico)
| ----------------------- ----------------------
|=============================================================================
100% | 100% | 100% | 100% |
- ----------------------- ----------------------- ------------------------ -------------------
AIM Global Ventures Co. A I M Global Management A I M Global Associates, AIM Global Advisors
(Cayman Islands) Company Limited Inc. Limited
- ----------------------- (Ireland) (Delaware) (United Kingdom)
----------------------- ------------------------ -------------------
</TABLE>
<PAGE> 140
SCHEDULE 6.04
APPROVALS
---------
Filing of UCC Financing Statements:
-Texas Secretary of State
<PAGE> 141
SCHEDULE 6.09
EXISTING DEBT
-------------
1. Irrevocable Standby Letter of Credit issued by NationsBank Corporation
for the benefit of ICI Mutual Insurance Company in the amount of
$394,809.
2. Capital Lease Agreement among A I M Advisors, Inc. and A I M Fund
Services, Inc., as Co-Lessees, and Unisys Leasing Corporation for cash
processing equipment in the amount of $92,455.
3. 9% Senior Secured Notes due 2003
<PAGE> 142
SCHEDULE 6.12
TAXES
-----
Federal Income Tax Audit
- ------------------------
A I M Management Group Inc. and subsidiaries:
The federal tax return on Form 1120 for 1992 is currently under audit.
Status is unknown.
Texas Franchise Tax Audits
- --------------------------
A I M Management Group Inc.
Audit presently covers 1991-1994 tax years (i.e. privilege periods
1992-1995). Status is unknown.
A I M Capital Management, Inc.
Audit presently covers 1991-1993 tax years (i.e., privilege periods
1992-1994). Status is unknown.
<PAGE> 143
SCHEDULE 6.13
ERISA
-----
Plans
- -----
None
Multiemployer Plans
- -------------------
None
Welfare Plans
- -------------
1. AIM Flexible Benefits Plan/A I M Management Group Inc. Section 125 Program
a. Massachusetts Mutual Life Insurance Company Medical, Life
Insurance and Accidental Death & Dismemberment Program
b. DentiCare, Inc. Dental Program
c. UniLife Insurance Company Dental Program
2. A I M Management Group Inc. Long-Term Disability Income Benefit Plan
3. A I M Management Group Inc. Short-Term Disability Income Benefit Plan
4. A I M Management Group Inc. Travel Accident Policy
5. A I M Management Group Inc. Plan 21 (Employee Assistance Plan)
6. A I M Management Group Inc. Profit Sharing Plan
7. A I M Management Group Inc. Life & Accidental Death & Dismemberment
Insurance
<PAGE> 144
SCHEDULE 7.02
LIENS
-----
None
<PAGE> 1
EXHIBIT 10.5
AMENDED AND RESTATED GUARANTY
Dated June 26, 1996
From
A I M ADVISORS, INC.
as Guarantor
------------
in favor of
THE GUARANTEED PARTIES PARTIES TO
THE CREDIT AGREEMENT REFERRED TO HEREIN
<PAGE> 2
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
SECTION PAGE
<S><C> <C>
1. Guaranty; Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Guaranty Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Waivers and Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. Payments Free and Clear of Taxes, Etc. . . . . . . . . . . . . . . . . . . . . . 4
6. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
11. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
12. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
13. Continuing Guaranty; Assignments under the Credit Agreement . . . . . . . . . . 8
14. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. . . . . . . . . . . . . 9
</TABLE>
<PAGE> 3
GUARANTY
AMENDED AND RESTATED GUARANTY ("Guaranty") dated June 26, 1996
made by A I M ADVISORS, INC., a Delaware corporation (the "Guarantor"), in
favor of the Guaranteed Parties (as defined below).
PRELIMINARY STATEMENT. The Tranche A Lenders, Citibank, N.A.,
as lead managing agent (the "Lead Managing Agent") for the Tranche A Lenders,
and Chemical Bank and NationsBank, N.A. (South), as co-managing agents (the
"Co-Managing Agents", and, together with the Tranche A Lenders and the Lead
Managing Agent, the "Guaranteed Parties"), are parties to a Third Amended and
Restated Credit Agreement dated as of June 26, 1996 (said Agreement, as it may
hereafter be amended, supplemented or otherwise modified from time to time,
being the "Credit Agreement"; the terms defined therein and not otherwise
defined herein being used herein as therein defined) with A I M Management
Group Inc., a Delaware corporation (the "Borrower"). The Guarantor may receive
a portion of the proceeds of the Tranche A Loans under the Credit Agreement and
will derive substantial direct and indirect benefit from the transactions
contemplated by the Credit Agreement. It is a condition precedent to the
making of Tranche A Loans by the Tranche A Lenders under the Credit Agreement
that the Guarantor shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Tranche A Lenders to make Tranche A Loans from time to time, the
Guarantor hereby agrees as follows:
Section 1. Guaranty; Limitation of Liability. (a) The
Guarantor hereby unconditionally and irrevocably guarantees the punctual
payment when due, whether at stated maturity, by acceleration or otherwise, of
all Obligations of the Borrower now or hereafter existing under the Loan
Documents, whether for principal, interest, fees, expenses or otherwise (such
Obligations being the "Guaranteed Obligations"), and agrees to pay any and all
expenses (including counsel fees and expenses) incurred by the Lead Managing
Agent or any other Guaranteed Party in enforcing any rights under this
Guaranty. Without limiting the generality of the foregoing, the Guarantor's
liability shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by the Borrower to the Lead Managing Agent or any
other Guaranteed Party under the Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Borrower.
(b) The liability of the Guarantor under this Guaranty
shall not exceed the greater of (i) the net benefit realized by the Guarantor
from the proceeds of the Tranche A Loans made from time to time by the Borrower
to the Guarantor or any Subsidiary of the Guarantor and (ii) the greater of (x)
95% of the Adjusted Net Assets of the Guarantor on the date of delivery hereof
and (y) 95% of the Adjusted Net Assets of the Guarantor on the date of any
payment hereunder. "Adjusted Net Assets" of the Guarantor at any date means
the lesser of
<PAGE> 4
2
(x) the amount by which the fair value of the property of the Guarantor exceeds
the total amount of liabilities, including, without limitation, contingent
liabilities, but excluding liabilities under this Guaranty, of the Guarantor at
such date and (y) the amount by which the present fair salable value of the
assets of the Guarantor at such date exceeds the amount that will be required
to pay the probable liability of the Guarantor on its debts, excluding debt in
respect of this Guaranty, as they become absolute and matured.
Section 2. Guaranty Absolute. The Guarantor guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms
of the Loan Documents, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Lead Managing Agent or any other Guaranteed Party with respect
thereto. The Obligations of the Guarantor under this Guaranty are independent
of the Guaranteed Obligations or any other Obligations of any other Loan Party
under the Loan Documents, and a separate action or actions may be brought and
prosecuted against the Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Borrower or any other Loan Party or
whether the Borrower or any other Loan Party is joined in any such action or
actions. The liability of the Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and the Guarantor
hereby irrevocably waives any defenses it may now or hereafter have in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan
Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Guaranteed Obligations
or any other Obligations of any other Loan Party under the Loan
Documents, or any other amendment or waiver of or any consent to
departure from any Loan Document, including, without limitation, any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to the Borrower or any of its Subsidiaries or
otherwise;
(c) any taking, exchange, release or non-perfection of
any collateral, or any taking, release or amendment or waiver of or
consent to departure from any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of collateral or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Guaranteed Obligations or any other Obligations of any other Loan
Party under the Loan Documents, or any other assets of the Borrower or
any of its Subsidiaries;
<PAGE> 5
3
(e) any change, restructuring or termination of the
corporate structure or existence of the Borrower or any of its
Subsidiaries;
(f) any failure of any Guaranteed Party to disclose to
the Borrower or the Guarantor any information relating to the
financial condition, operations, properties or prospects of any other
Loan Party now or in the future known to any Guaranteed Party (the
Guarantor waiving any duty on the part of the Guaranteed Parties to
disclose such information); or
(g) any other circumstance or any existence of or
reliance on any representation by the Lead Managing Agent or any other
Guaranteed Party that might otherwise constitute a defense available
to, or a discharge of, the Borrower, the Guarantor or any other
guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by any Guaranteed Party or any other
Person upon the insolvency, bankruptcy or reorganization of the Borrower or any
other Loan Party or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) The Guarantor
hereby waives promptness, diligence, notice of acceptance and any other notice
with respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that the Lead Managing Agent or any other Guaranteed Party protect,
secure, perfect or insure any Lien or any property subject thereto or exhaust
any right or take any action against the Borrower or any other Person or any
collateral.
(b) The Guarantor hereby waives any right to revoke this
Guaranty, and acknowledges that this Guaranty is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in the future.
(c) The Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in this
Section 3 are knowingly made in contemplation of such benefits.
Section 4. Subrogation. The Guarantor will not exercise any
rights that it may now or hereafter acquire against the Borrower or any other
insider guarantor that arise from the existence, payment, performance or
enforcement of the Guarantor's Obligations under this Guaranty or any other
Loan Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Lead Managing Agent or any other
Guaranteed Party against the Borrower or any other insider guarantor, whether
or not such claim, remedy or right arises in
<PAGE> 6
4
equity or under contract, statute or common law, including, without limitation,
the right to take or receive from the Borrower or any other insider guarantor,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim, remedy or right, unless
and until all of the Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash and the Tranche A Commitments
shall have expired or terminated. If any amount shall be paid to the Guarantor
in violation of the preceding sentence at any time prior to the later of the
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty and the Termination Date, such amount shall be
held in trust for the benefit of the Lead Managing Agent and the other
Guaranteed Parties and shall forthwith be paid to the Lead Managing Agent to be
credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of the Loan Documents, or to be held as collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter arising.
If (i) the Guarantor shall make payment to the Lead Managing Agent or any other
Guaranteed Party of all or any part of the Guaranteed Obligations, (ii) all of
the Guaranteed Obligations and all other amounts payable under this Guaranty
shall be paid in full in cash and (iii) the Termination Date shall have
occurred, the Lead Managing Agent and the other Guaranteed Parties will, at the
Guarantor's request and expense, execute and deliver to the Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Guarantor of an
interest in the Guaranteed Obligations resulting from such payment by the
Guarantor.
Section 5. Payments Free and Clear of Taxes, Etc. (a) Any
and all payments made by the Guarantor hereunder shall be made free and clear
of and without deduction for any and all present or future Taxes. If the
Guarantor shall be required by law to deduct or withhold any Taxes from or in
respect of any sum payable hereunder to the Lead Managing Agent or any other
Guaranteed Party, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions or withholding (including deductions
or withholding applicable to additional sums payable under this Section) the
Lead Managing Agent or such other Guaranteed Party (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions or withholding been made, (ii) the Guarantor shall make such
deductions or withholding and (iii) the Guarantor shall timely pay the full
amount deducted or withheld to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Guarantor agrees to pay any present
or future Other Taxes.
(c) The Guarantor will indemnify and hold harmless the
Lead Managing Agent and each other Guaranteed Party from and against the full
amount of Taxes or Other Taxes (including, without limitation, Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Section) paid
by the Lead Managing Agent or such other Guaranteed Party (as the case may be)
and any liability (including penalties, additions to tax, interest on tax and
expenses) arising therefrom or with respect thereto. This indemnification
shall be made within
<PAGE> 7
5
30 days from the date the Lead Managing Agent or such other Guaranteed Party
(as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes
by or on behalf of the Guarantor, the Guarantor will furnish to the Lead
Managing Agent, at its address referred to in the Credit Agreement, an official
receipt (or a certified copy) or other documentation reasonably acceptable to
the Lead Managing Agent evidencing payment thereof to the relevant taxation or
other authority. In the case of any payment hereunder by or on behalf of the
Guarantor through an account or branch outside the United States or by or on
behalf of the Guarantor by a payor that is not a United States person, if the
Guarantor determines that no Taxes are payable in respect thereof, the
Guarantor shall furnish, or shall cause such payor to furnish, to the Lead
Managing Agent at such address, an opinion of counsel acceptable to the Lead
Managing Agent stating that such payment is exempt from Taxes; provided
however, that no such opinion shall be required with respect to any exemption
from Taxes imposed by the United States. For purposes of this subsection (d)
and the following subsection (e), the terms "United States" and "United States
person" shall have the meaning specified in Section 7701 on the Internal
Revenue Code.
(e) Each Guaranteed Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of the Credit Agreement in the case of each Guaranteed
Party listed on the signature pages thereof, and on the date of the Assignment
and Acceptance pursuant to which it became a Guaranteed Party in the case of
each other Guaranteed Party, and from time to time thereafter if requested in
writing by the Guarantor (but only so long thereafter as such Guaranteed Party
remains lawfully able to do so), provide the Lead Managing Agent and the
Guarantor with two original Internal Revenue Service Forms 1001 or 4224, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Guaranteed Party is entitled to benefits under an
income tax treaty to which the United States is a party that reduces the rate
of withholding tax on payments under this Guaranty or certifying that the
income receivable pursuant to this Guaranty is effectively connected with the
conduct of a trade or business in the United States. If the form provided by a
Guaranteed Party at the time such Guaranteed Party first becomes a party to the
Credit Agreement indicates a United States interest withholding tax rate in
excess of zero, withholding tax at such rate shall be considered excluded from
Taxes unless and until such Guaranteed Party provides the appropriate form
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
form; provided, that, if at the date of the Assignment and Acceptance pursuant
to which a Guaranteed Party assignee becomes a party to the Credit Agreement,
the Guaranteed Party assignor was entitled to payments under subsection (a) in
respect of United States withholding tax with respect to interest paid at such
date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any,
<PAGE> 8
6
applicable with respect to the Guaranteed Party assignee on such date. As an
alternative to delivering Internal Revenue Service Form 1001 or 4224, a
Non-U.S. Guaranteed Party holding Registered Notes (a "Registered Noteholder")
(or, if such Registered Noteholder is not the beneficial owner thereof, such
beneficial owner) may deliver to the Guarantor prior to or at the time such
Non-U.S. Guaranteed Party becomes a Registered Noteholder, an Internal Revenue
Service Form W-8 (or such successor and related forms as may from time to time
be adopted by the relevant taxing authorities of the United States), together
with an annual certificate stating that such Registered Noteholder or
beneficial owner, as the case may be, is not any person described in Section
871(h)(3) or Section 881(c)(3) of the United States Internal Revenue Code.
Each Registered Noteholder or beneficial owner, as the case may be, agrees (x)
to deliver to the Guarantor a further duly completed copy of any previously
delivered Internal Revenue Service Form W-8 on or before the earlier of the
date that any such Form W-8 expires or becomes obsolete under applicable United
States Treasury regulations and the date such Form W-8 otherwise is required to
be resubmitted as a condition to obtaining an exemption from withholding from
United States federal income tax and (y) to notify the Guarantor within thirty
days after it determines that it is no longer in a position to provide such
Form W-8 or annual certificate to the Guarantor.
(f) For any period with respect to which a Guaranteed
Party has failed to provide the Guarantor with the appropriate form described
in subsection (e) above or any successor form (other than if such failure is
due to a change in law occurring after the date on which a form originally was
required to be provided or if such form otherwise is not required under
subsection (e)), such Guaranteed Party shall not be entitled to indemnification
under subsection (a) or (c) with respect to Taxes imposed by the United States
unless such Taxes would have been imposed without regard to such Guaranteed
Party's failure to provide the appropriate form to the Borrower; provided, that
should a Guaranteed Party become subject to Taxes because of its failure to
deliver a form required hereunder, the Guarantor shall take at such Guaranteed
Party's expense such steps as such Guaranteed Party shall reasonably request to
assist such Guaranteed Party to recover such Taxes.
(g) Without prejudice to the survival of any other
agreement of the Guarantor hereunder, the agreements and obligations of the
Guarantor contained in this Section 5 shall survive the termination of the
Credit Agreement, payment in full of the Guaranteed Obligations and all other
amounts payable under this Guaranty.
(h) Notwithstanding anything to the contrary in this
Section 5, the Guarantor shall not be required to pay or indemnify for any Tax
or Other Tax to the extent such Tax or Other Tax would not have been imposed
but for the sale of participations by any Guaranteed Party in or to all or a
portion of its rights and obligations under this Agreement pursuant to Section
10.07(e) of the Credit Agreement.
<PAGE> 9
7
Section 6. Representations and Warranties. The Guarantor
hereby represents and warrants as follows:
(a) The Guarantor (i) is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
(ii) is duly qualified or licensed and is in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property or
in which the conduct of its business requires it so to qualify or be licensed,
and (iii) has all requisite corporate power and authority to own or lease and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted. All of the outstanding capital stock of the Guarantor
has been validly issued, is fully paid and nonassessable.
(b) There are no conditions precedent to the
effectiveness of this Guaranty that have not been satisfied or waived.
(c) The Guarantor has, independently and without reliance
upon the Lead Managing Agent or any other Guaranteed Party and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Guaranty, and the Guarantor has
established adequate means of obtaining from any other Loan Parties on a
continuing basis information pertaining to, and is now and on a continuing
basis will be completely familiar with, the financial condition, operations,
properties and prospects of such other Loan Parties.
Section 7. Covenants. The Guarantor covenants and agrees
that, so long as any part of the Guaranteed Obligations shall remain unpaid or
any Tranche A Lender shall have any Tranche A Commitment, the Guarantor will,
unless the Required Tranche A Lenders shall otherwise consent in writing,
perform or observe all of the terms, covenants and agreements that the Loan
Documents state that the Borrower is to cause the Guarantor to perform or
observe.
Section 8. Amendments, Etc. No amendment or waiver of any
provision of this Guaranty and no consent to any departure by the Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Lead Managing Agent and the Required Tranche A Lenders, and
then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by all of the
Guaranteed Parties (other than any Tranche A Lender that is, at such time, a
Defaulting Tranche A Lender), (a) limit the liability of the Guarantor
hereunder, (b) postpone any date fixed for payment hereunder or (c) change the
number of Guaranteed Parties required to take any action hereunder.
Section 9. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed,
telecopied, telexed or delivered to it, if to the Guarantor, addressed to it
<PAGE> 10
8
at 11 Greenway Plaza, Suite 1919, Houston, Texas 77946, Fax No.: (718)
993-9890, Attention: President, together with a copy to the General Counsel of
the Guarantor at the same address, if to the Lead Managing Agent or any
Guaranteed Party, at its address specified in the Credit Agreement, or as to
any party at such other address as shall be designated by such party in a
written notice to each other party. All such notices and other communications
shall, when mailed, telegraphed, telecopied or telexed, be effective when
deposited in the mails, delivered to the telegraph company, transmitted by
telecopier or confirmed by telex answerback, respectively.
Section 10. No Waiver; Remedies. No failure on the part of
the Lead Managing Agent or any other Guaranteed Party to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
Section 11. Right of Set-off. Upon the occurrence and during
the continuance of any Event of Default, each Guaranteed Party shall have at
any time and from time to time, to the fullest extent permitted by law, without
presentment, demand, protest or other notice of any kind to any Loan Party or
any other Person a right of set off with respect to any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Guaranteed Party (including by
branches and Agencies of such Guaranteed Party, wherever located) to or for the
credit or the account of the Guarantor irrespective of whether or not such
Guaranteed Party shall have made any demand under this Guaranty and although
such Obligations may be contingent or unmatured. Each Guaranteed Party agrees
promptly to notify the Guarantor after any such set-off; provided, that the
failure to give such notice shall not affect the validity of such set-off. The
rights of each Guaranteed Party under this Section are in addition to other
rights and remedies that such Guaranteed Party may have.
Section 12. Indemnification. Without limitation on any
other Obligations of the Guarantor or remedies of the Guaranteed Parties under
this Guaranty, the Guarantor shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless each Guaranteed Party from and
against, and shall pay on demand, any and all losses, liabilities, damages,
costs, expenses and charges (including the fees and disbursements of such
Guaranteed Party's legal counsel) suffered or incurred by such Guaranteed Party
as a result of any failure of any Guaranteed Obligations to be the legal, valid
and binding obligations of the Borrower enforceable against the Borrower in
accordance with their terms provided, that the amounts payable by the Guarantor
pursuant to this Section 12 shall not exceed, in the aggregate, the amount of
the Guaranteed Obligations.
Section 13. Continuing Guaranty; Assignments under the Credit
Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the later of
<PAGE> 11
9
the payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty and the Termination Date, (b) be binding upon the
Guarantor, its successors and assigns and (c) inure to the benefit of and be
enforceable by the Lead Managing Agent and the other Guaranteed Parties and
their successors, transferees and assigns. Without limiting the generality of
the foregoing clause (c), any Guaranteed Party may assign or otherwise transfer
all or any portion of its rights and obligations under the Credit Agreement
(including, without limitation, all or any portion of its Tranche A Commitment,
the Tranche A Loans owing to it and the Tranche A Note held by it) to any other
Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Guaranteed Party herein or
otherwise, in each case as and to the extent provided in Section 10.07 of the
Credit Agreement.
Section 14. Governing Law; Jurisdiction; Waiver of Jury
Trial, Etc. (a) This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to the
conflict of law provisions thereof.
(b) The Guarantor hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting
in New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Guaranty or any of the other Loan
Documents to which it is or is to be a party, or for recognition or enforcement
of any judgment, and the Guarantor hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in any such New York State court or, to the extent permitted by
law, in such federal court. The Guarantor agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(c) Nothing in this Section shall affect the right of any
Guaranteed Party to serve legal process in any other manner permitted by law or
affect the right of any Guaranteed Party to bring any action or proceeding
against the Guarantor or its property in the courts of other jurisdictions.
(d) The Guarantor hereby irrevocably waives, to the
fullest extent permitted by law, all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to any of the Loan Documents, the transactions
contemplated thereby or the actions of the Lead Managing Agent or any other
Guaranteed Party in the negotiation, administration, performance or enforcement
thereof.
<PAGE> 12
10
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
A I M ADVISORS, INC.
By /s/ ROBERT H. GRAHAM
____________________________________
Title: President
<PAGE> 1
EXHIBIT 10.6
B SHARE CREDIT AGREEMENT
Dated as of June 26, 1996
Among
A I M MANAGEMENT GROUP INC.
as Borrower
and
THE LENDERS NAMED HEREIN
and
CITIBANK, N.A.
as Administrative Agent
THE BANK OF NEW YORK,
BANQUE NATIONALE DE PARIS,
CHEMICAL BANK,
CREDIT LYONNAIS, SAN FRANCISCO BRANCH,
DEUTSCHE BANK A.G., NEW YORK BRANCH,
THE FIRST NATIONAL BANK OF BOSTON,
FLEET NATIONAL BANK,
MELLON BANK, N.A.,
NATIONSBANK, N.A. (SOUTH),
STATE STREET BANK AND TRUST COMPANY
and
UNION BANK OF CALIFORNIA, N.A.
as Co-Agents
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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<S> <C>
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms . . . . . . . . . . 2
Section 1.02. Certain Defined Terms Relating to
ERISA . . . . . . . . . . . . . . . . . . 27
Section 1.03. Computation of Time Periods; Terms
Generally . . . . . . . . . . . . . . . . 29
Section 1.04. Accounting Terms . . . . . . . . . . . . 29
ARTICLE II
THE LOANS
Section 2.01. The Loans . . . . . . . . . . . . . . . . 30
Section 2.02. The Notes . . . . . . . . . . . . . . . . 30
Section 2.03. Repayment . . . . . . . . . . . . . . . . 31
Section 2.04. Termination, Reduction or Increase of
the Commitments . . . . . . . . . . . . . 34
ARTICLE III
LOAN PROCEDURE AND PREPAYMENTS
Section 3.01. Loan Procedure . . . . . . . . . . . . . 37
Section 3.02. Mandatory Prepayments . . . . . . . . . . 38
Section 3.03. Optional Prepayments . . . . . . . . . . 40
ARTICLE IV
INTEREST, ETC.
Section 4.01. Interest . . . . . . . . . . . . . . . . 40
Section 4.02. Fees . . . . . . . . . . . . . . . . . . 41
Section 4.03. Conversion of Loans . . . . . . . . . . . 41
Section 4.04. Interest Rate Determination . . . . . . . 42
Section 4.05. Changes in Circumstances . . . . . . . . 42
Section 4.06. Payments and Computations . . . . . . . . 46
Section 4.07. Taxes . . . . . . . . . . . . . . . . . . 47
Section 4.08. Sharing of Payments, Etc. . . . . . . . . 50
Section 4.09. Use of Proceeds . . . . . . . . . . . . . 50
ARTICLE V
</TABLE>
<PAGE> 3
ii
<TABLE>
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CONDITIONS OF LENDING
Section 5.01. Conditions to Effective Date . . . . . . 50
Section 5.02. Conditions to Each Loan . . . . . . . . . 53
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01. Organization, Etc. . . . . . . . . . . . 56
Section 6.02. Subsidiaries . . . . . . . . . . . . . . 56
Section 6.03. Authorization, Etc. . . . . . . . . . . . 57
Section 6.04. Approvals . . . . . . . . . . . . . . . . 58
Section 6.05. Financial Statements . . . . . . . . . . 58
Section 6.06. Litigation . . . . . . . . . . . . . . . 59
Section 6.07. Liens; Insurance; Intellectual Property . 59
Section 6.08. Solvency . . . . . . . . . . . . . . . . 59
Section 6.09. Existing Debt . . . . . . . . . . . . . . 59
Section 6.10. Projections . . . . . . . . . . . . . . . 59
Section 6.11. Accuracy of Information . . . . . . . . . 60
Section 6.12. Taxes . . . . . . . . . . . . . . . . . . 60
Section 6.13. Compliance with ERISA . . . . . . . . . . 60
Section 6.14. Investment Company . . . . . . . . . . . 61
Section 6.15. Public Utility Holding Company Act . . . 61
Section 6.16. Margin Regulations . . . . . . . . . . . 61
Section 6.17. Use of Proceeds . . . . . . . . . . . . . 61
Section 6.18. Contingent Deferred Sales Charge . . . . 61
Section 6.19. Distribution Fees . . . . . . . . . . . . 62
ARTICLE VII
COVENANTS OF THE BORROWER
Section 7.01. Financial Covenants . . . . . . . . . . . 62
Section 7.02. Liens, Etc. . . . . . . . . . . . . . . . 62
Section 7.03. Debt . . . . . . . . . . . . . . . . . . 64
Section 7.04. Consolidation, Merger, Etc. . . . . . . . 65
Section 7.05. Limitation on Restricted Payments . . . . 66
Section 7.06. Sale of Assets . . . . . . . . . . . . . 68
Section 7.07. Transactions with Affiliates . . . . . . 69
Section 7.08. Compliance with Laws . . . . . . . . . . 69
</TABLE>
<PAGE> 4
iii
<TABLE>
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<S> <C>
Section 7.09. Corporate Existence, Etc.; Business . . . 69
Section 7.10. Inspection . . . . . . . . . . . . . . . 70
Section 7.11. Insurance . . . . . . . . . . . . . . . . 70
Section 7.12. Insurance Agency Subsidiaries . . . . . . 70
Section 7.13. Fiscal Year . . . . . . . . . . . . . . . 70
Section 7.14. Conduct of Business . . . . . . . . . . . 70
Section 7.15. Payment of Taxes . . . . . . . . . . . . 71
Section 7.16. Issuance of Stock By Subsidiaries . . . . 71
Section 7.17. Modification of Agreements; Delivery of
Opinions and Documents . . . . . . . . . 71
Section 7.18. Reporting Requirements . . . . . . . . . 71
Section 7.19. Descriptions of Loan Documents . . . . . 75
Section 7.20. Dividends of Subsidiaries . . . . . . . . 75
Section 7.21. Certain Guaranties . . . . . . . . . . . 75
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01. Events of Default . . . . . . . . . . . . 76
ARTICLE IX
THE ADMINISTRATIVE AGENT AND THE
CO-AGENTS
Section 9.01. Authorization and Action . . . . . . . . 81
Section 9.02. Duties and Reliance, Etc. . . . . . . . . 81
Section 9.03. Administrative Agent, Co-Agents and
Affiliates . . . . . . . . . . . . . . . 82
Section 9.04. Lender Credit Decision . . . . . . . . . 82
Section 9.05. Indemnification . . . . . . . . . . . . . 83
Section 9.06. Successor Agents . . . . . . . . . . . . 83
Section 9.07. Public Filings . . . . . . . . . . . . . 84
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments, Etc. . . . . . . . . . . . . 84
Section 10.02. Notices, Etc. . . . . . . . . . . . . . 85
Section 10.03. No Waiver; Remedies . . . . . . . . . . 85
</TABLE>
<PAGE> 5
iv
<TABLE>
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Section 10.04. Costs; Expenses and Indemnification . . 85
Section 10.05. Right of Set-off . . . . . . . . . . . . 87
Section 10.06. Binding Effect . . . . . . . . . . . . . 87
Section 10.07. Assignments and Participations . . . . . 87
Section 10.08. Execution in Counterparts . . . . . . . 90
Section 10.09. Confidentiality . . . . . . . . . . . . 91
Section 10.10. GOVERNING LAW . . . . . . . . . . . . . 91
Section 10.11. CONSENT TO JURISDICTION . . . . . . . . 91
Section 10.12. WAIVER OF JURY TRIAL . . . . . . . . . . 92
Section 10.13. No Third Party Beneficiary . . . . . . . 92
</TABLE>
<PAGE> 6
v
EXHIBITS
--------
<TABLE>
<S> <C>
Exhibit 1.01A - Form of Assignment and
Acceptance
Exhibit 1.01B - Form of Assumption Agreement
Exhibit 1.01C - Form of Second Amended and
Restated Distribution Fee
Purchase Agreement
Exhibit 2.02 - Form of Note
Exhibit 3.01 - Form of Notice of Borrowing
Exhibit 5.01(l)(v) - Form of B Share Collateral
Agreement
Exhibit 5.01(l)(vii)-1 - Form of Borrower's Solvency
Certificate
Exhibit 5.01(l)(vii)-2 - Form of Guarantor's Solvency
Certificate
Exhibit 5.01(l)(viii) - Form of Opinion of Carol F.
Relihan, general counsel to
the Loan Parties
Exhibit 5.01(l)(ix) - Form of Opinion of Ballard
Spahr Andrews & Ingersoll,
special counsel to the Loan
Parties
Exhibit 7.21 - Form of Guaranty
</TABLE>
<PAGE> 7
vi
SCHEDULES
---------
<TABLE>
<S> <C>
Schedule I - Commitments and Applicable Lending
Offices
Schedule 1.01A - Eligible Funds
Schedule 1.01B - Key Shareholders
Schedule 1.01C - Distribution Expenses
Schedule 1.01D - Investments
Schedule 3.02(a) - Excluded Asset Sales
Schedule 3.02(b) - Collections Settlement Statement
Schedule 6.02 - Subsidiaries
Schedule 6.04 - Approvals
Schedule 6.09 - Existing Debt
Schedule 6.12 - Taxes
Schedule 6.13 - ERISA
Schedule 7.02 - Liens
</TABLE>
<PAGE> 8
B SHARE CREDIT AGREEMENT
DATED AS OF JUNE 26, 1996
B SHARE CREDIT AGREEMENT, dated as of June 26, 1996, among A I M
Management Group Inc., a Delaware corporation (the "Borrower"), the lenders
listed on the signature pages hereof (the "Lenders"), Citibank, N.A.
("Citibank"), as administrative agent (the "Administrative Agent", such term to
include any successor Administrative Agent appointed pursuant to Article IX)
for the Lenders hereunder, the co-agents listed on the signature pages hereof,
as Co-Agents (the "Co-Agents" and, together with the Administrative Agent, the
"Agents").
PRELIMINARY STATEMENTS:
(1) The Borrower entered into a Purchase and Sale Agreement dated
as of May 2, 1995 (as amended, supplemented or otherwise modified, the
"Existing Asset Purchase Agreement") with Citibank, as purchaser, and Citicorp
North America, Inc. ("Citicorp"), as program agent.
(2) The Borrower entered into a Third Amended and Restated Credit
Agreement dated as of June 26, 1996 (as further amended, supplemented or
otherwise modified, the "Tranche A Credit Agreement") with the banks (the
"Tranche A Lenders") parties thereto, Citibank, as the lead managing agent for
the Tranche A Lenders, and Chemical Bank and NationsBank, N.A. (South), as
co-managing agents.
(3) The Borrower has requested that the Lenders hereunder agree to
lend to the Borrower from time to time up to U.S.$200,000,000 (subject to
increase as herein provided, up to U.S.$250,000,000) at any time outstanding in
order to repay in full all amounts owing under "Tranche C" of the Second
Amended and Restated Credit Agreement dated as of November 30, 1995 (as amended
prior to the date hereof, the "Existing Credit Agreement") with the banks (the
"Existing Lenders") parties thereto, Citibank, as lead managing agent for such
banks, and Chemical Bank and NationsBank, N.A. (South) as co-managing agents,
and to finance payments by the Borrower to AIM Distributors (as defined herein)
in order to fund the payment from time to time of Distribution Expenses (as
defined herein) by AIM Distributors. The Lenders hereunder have indicated
their willingness to lend such amounts on the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
<PAGE> 9
2
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. As used in this Agreement,
the following terms have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained with Citibank at its office at 399 Park Avenue,
New York, New York 10043, Acct No. 36852248, Attn: Bank Loan Syndications
(Reference: AIM B Share).
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling", "controlled
by" and "under common control with") of a Person means the possession, direct
or indirect, of the power to vote 10% or more of the Voting Stock of such
Person or to direct or cause the direction of the management and policies of
such Person, whether through the ownership of Voting Stock, by contract or
otherwise.
"Agents" has the meaning specified in the recital of parties to this
Agreement.
"Agreement" means this B Share Credit Agreement, as the same may be
amended, modified or supplemented from time to time.
"AIM Advisors" means A I M Advisors, Inc., a Delaware corporation
and a Wholly-Owned Subsidiary of the Borrower.
"AIM Advisors Guaranty" means the guaranty by AIM Advisors, dated as
of the date hereof, as the same may be amended, modified or supplemented from
time to time.
"AIM Capital Management" means A I M Capital Management, Inc., a
Texas corporation and a Wholly-Owned Subsidiary of the Borrower.
"AIM Distributors" means A I M Distributors, Inc., a Delaware
corporation and a Wholly-Owned Subsidiary of the Borrower.
<PAGE> 10
3
"AIM Entities" has the meaning specified in the definition of
"Permitted Deferred Load Amounts Securitization".
"AIM Fund Services" means A I M Fund Services, Inc., a Delaware
corporation and a Wholly-Owned Subsidiary of the Borrower.
"AIM Funds" means all open-end mutual funds (and every series
thereof) sponsored by the Borrower or any of its Subsidiaries or for which the
Borrower or any of its Subsidiaries provides investment advisory, management,
administrative, supervisory, consulting, underwriting or similar services from
time to time, including such funds which are now existing and which may
hereafter be organized.
"AIM Guaranties" means the AIM Advisors Guaranty and any Guaranty
granted pursuant to Section 7.21, in each case as the same may be amended,
modified or supplemented from time to time.
"AIM Money Market Fund" means any open-end AIM Fund that (i)
complies with paragraphs (c)(2), (c)(3) and (c)(4) of Rule 2a-7, and (ii) uses
the "Amortized Cost Method" (as such term is defined in Rule 2a-7) of
calculating such AIM Fund's net asset value.
"AIM Participants" has the meaning specified in the definition of
"Permitted Deferred Load Amounts Securitization".
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Loan and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Loan.
"Applicable Margin" means, with respect to Base Rate Loans,
Eurodollar Loans and Commitment Fees, in each case at any time and from time to
time thereafter, a percentage per annum equal to the applicable percentage
determined by reference to the Leverage Ratio as set forth below:
<TABLE>
<CAPTION>
------------------------------------------------------------------------------
Leverage Base Rate Eurodollar Commitment
Ratio Loan Rate Loan Fee
------------------------------------------------------------------------------
<S> <C> <C> <C>
Less than 0.50:1 0.00% 0.500% 0.150%
------------------------------------------------------------------------------
0.50-1.50:1 0.00% 0.625% 0.175%
------------------------------------------------------------------------------
Greater than 1.50:1 0.00% 0.875% 0.225%
------------------------------------------------------------------------------
</TABLE>
<PAGE> 11
4
The Applicable Margin shall be determined on the date of delivery of each
compliance certificate referred to in Section 7.18(d) by reference to the
Leverage Ratio as of the last day of the most recently ended Fiscal Quarter of
the Borrower as reported in such compliance certificate.
"Asset Sale" means any sale, lease, transfer or other
disposition in a transaction or a series of related transactions of (i) any
tangible or intangible asset (including shares of Capital Stock other than
shares of Capital Stock issued by the Borrower) owned by the Borrower or any of
its Subsidiaries other than in the ordinary course of business or (ii) any
right or interest of the Borrower or any of its Subsidiaries in any Management
Contract or any other contract with, or with respect to, any AIM Fund.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent and the Borrower, in accordance with Section 10.07 and in
substantially the form of Exhibit 1.01A.
"Assuming Lender" means an Eligible Assignee not previously a
Lender that becomes a Lender pursuant to Section 2.04(c).
"Assumption Agreement" means an agreement in substantially the
form of Exhibit 1.01B hereto by which an Eligible Assignee agrees to become a
Lender hereunder pursuant to Section 2.04(c), in each case agreeing to be bound
by all obligations of a Lender hereunder.
"B Share Collateral Agreement" has the meaning specified in
Section 5.01(l)(v).
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be equal to
the highest of:
(a) the rate of interest announced publicly by Citibank
in New York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i)
1/2 of 1% per annum, plus (ii) the rate obtained by dividing (A) the
latest three-week moving average of secondary market morning offering
rates in the United States for three-month certificates of deposit of
major United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal
<PAGE> 12
5
Reserve Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for Citibank with
respect to liabilities consisting of or including (among other
liabilities) three-month U.S. dollar non-personal time deposits in the
United States, plus (iii) the average during such three-week period of
the annual assessment rates reasonably estimated by Citibank for
determining the then current annual assessment payable by Citibank to
the Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds
Rate.
"Base Rate Loans" means Loans which bear interest at the rate
in the manner set forth in Section 4.01(a)(i) and, if applicable, Section
4.01(b).
"Beneficial Ownership" and "Beneficially Own" have the
meanings ascribed to such terms in the Securities Exchange Act and Rules 13d-3
and 13d-5 thereunder.
"Borrower" has the meaning specified in the recital of parties
to this Agreement.
"Borrower Information" means the written information provided
by or on behalf of the Borrower to the Administrative Agent and the Co-Agents
in connection with the syndication of this Agreement (including any written
materials, financial statements and financial projections and any amendments,
supplements, schedules and exhibits thereto).
"Borrower's Account" means the account designated by the
Borrower in writing to the Administrative Agent from time to time.
"Borrowing" means a borrowing consisting of simultaneous Loans
of the same Type (and, in the case of Eurodollar Rate Loans, having the same
Interest Period) made by the Lenders.
"Broker Commissions" means the amounts paid by the Borrower or
any Subsidiary to unaffiliated broker- dealers or other distributors in
connection with the distribution by such broker-dealers or other distributors
of mutual funds sponsored by the Borrower and its Subsidiaries.
<PAGE> 13
6
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Loans, on which dealings are
carried on in the London interbank market.
"Capital Expenditure" means any expenditure in respect of the
purchase or other acquisition of fixed or capital assets (excluding any such
asset acquired in connection with normal replacement and maintenance charged to
current operations) capitalized in accordance with GAAP.
"Capital Lease" as applied to any Person means any lease of
any property (whether real, personal or mixed) by such Person as lessee which
would, in accordance with GAAP, be required to be classified and accounted for
as a capital lease on a balance sheet of such Person, other than, in the case
of the Borrower or a Subsidiary, any such lease under which the Borrower or a
Subsidiary is the lessor.
"Capital Lease Obligations" means, with respect to any Capital
Lease, the amount of the obligation of the lessee thereunder which would, in
accordance with GAAP, appear on a balance sheet of such lessee in respect of
such Capital Lease.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of such
Person's capital stock.
"Cash Equivalent" means (A) any evidence of Debt, maturing not
more than one year after the date of acquisition, issued or guaranteed by the
United States of America, or an instrumentality or agency thereof or guaranteed
fully as to principal, premium, if any, and interest by the United States, (B)
marketable direct obligations issued or guaranteed by any state of the United
States or any political subdivision of any such state or public instrumentality
thereof maturing within one year from the date of acquisition thereof and
having as at any date of determination the highest rating obtainable from
either S&P or Moody's, (C) any certificate of deposit, maturing not more than
one year after the date of acquisition, issued by, or time deposit of, a
commercial banking institution that is a member of the Federal Reserve System
and that has combined capital and surplus and undivided profits of not less
than $500,000,000, whose debt has a rating, at the time as of which any
investment therein is made, of "P-1" (or higher) according to Moody's or any
successor rating agency, or "A-1" (or higher) according to S&P or any successor
rating agency, (D) commercial paper, maturing not more than one year after the
date of acquisition, issued by a corporation (other than an Affiliate or
Subsidiary of the Borrower) organized and existing under the laws of the United
States with a rating, at the time as of which any investment therein is made,
of "P-1" (or higher) according to Moody's or any successor rating agency, or
"A-1" (or higher) according to S&P or any successor rating agency, (E) any
money market deposit accounts issued or offered by a domestic commercial bank
having capital and surplus in excess of $500,000,000; provided the debt of such
domestic commercial bank has
<PAGE> 14
7
a rating, at the time of investment, of "P-1" (or higher) according to Moody's
or any successor rating agency, or "A-1" (or higher) according to S&P or any
successor rating agency, (F) repurchase obligations with a term of not more
than 14 days for underlying securities of the types described in clauses (A),
(B), (C) and (D) above, entered into with any financial institution designated
as a "Primary Dealer" by the Federal Reserve Bank of New York, or any
commercial banking institution that satisfies the criteria set forth in clause
(C) above as a counterparty, and (G) the securities of any AIM Money Market
Fund.
"Cash Interest Expense" as applied to any Person means, for
any period, all cash interest charges (including imputed interest on Capital
Lease Obligations) paid or accrued by such Person (but excluding amortization
of debt discount or debt issuances and excluding overdue interest).
"CDSC Shares" means any shares (or class of shares) of
beneficial interest or capital stock of any AIM Fund, which (i) are offered at
net asset value without an initial sales charge, (ii) are subject to a
Contingent Deferred Sales Charge upon the redemption of such shares for six
years from the initial purchase of such shares and (iii) as to which
Distribution Fees are payable in connection with the distribution thereof.
"Citibank" has the meaning specified in the recital of parties
to this Agreement.
"Citicorp" has the meaning specified in the Preliminary
Statements.
"Co-Agents" has the meaning specified in the recital of
parties to this Agreement.
"Collateral" means all "Collateral" as defined the Collateral
Documents.
"Collateral Documents" means the B Share Collateral Agreement,
the Distribution Fee Purchase Agreement, the Control Agreement dated as of June
26, 1996 among the Borrower, the Administrative Agent and A I M Funds Group, a
Delaware business trust, on behalf of A I M Money Market Fund, the related UCC
financing statements and any similar instrument.
"Collateral Fund" means an AIM Fund into which CDSC Shares
initially issued by an Eligible Fund may be exchanged without the payment of a
Contingent Deferred Sales Charge.
"Collection Account" means the account into which all
Collections are deposited.
<PAGE> 15
8
"Collection Agency Agreement" means the Collection Agency
Agreement, dated as of May 2, 1995, among Citibank, Citicorp, as program agent,
the Borrower, the Administrative Agent and Bankers Trust Company, as collection
agent, as it may be amended, modified or supplemented from time to time.
"Collections" means the sum, without duplication, of:
(a) with respect to any Deferred Load Amounts, all funds
which are received in any period by or for the benefit of the Borrower
from the relevant AIM Fund and/or from any of the shareholders of such
AIM Fund in payment of any amounts owed in respect of such Deferred
Load Amounts minus (i) amounts (not exceeding 0.25% per annum of the
net asset value from time to time of all CDSC Shares) paid to the
Borrower or any of its Subsidiaries by an AIM Fund as "Service Fees",
as such term is defined in the applicable Rules of Fair Practice of
the National Association of Securities Dealers; and
(b) the Securitization Program Collections.
"Commitment" means, in the case of any Lender at any time (i)
the amount set forth opposite such Lender's name on Schedule I hereto under the
heading "Commitment", (ii) if such Lender has become a Lender hereunder
pursuant to an Assumption Agreement, the amount set forth as its "Commitment"
in such Assumption Agreement or (iii) if such Lender has entered into one or
more Assignments and Acceptances, the amount set forth in the Register
maintained by the Administrative Agent pursuant to Section 10.07(c) as such
Lender's "Commitment", as such amount may be increased, terminated or reduced,
as the case may be, prior to such time pursuant to Section 2.04.
"Commitment Date" has the meaning specified in Section
2.04(c)(i).
"Commitment Fee" has the meaning specified in Section 4.02(a).
"Commitment Increase" has the meaning specified in Section
2.04(c)(i).
"Confidential Information" means information that the Borrower
or an Affiliate of the Borrower furnishes to the Administrative Agent or any
Lender, but does not include any such information that is or becomes generally
available to the public other than as a result of a breach by the
Administrative Agent or any Lender of its obligations hereunder or that is or
becomes available to the Administrative Agent or such Lender from a Person
other than the Borrower or an Affiliate of the Borrower, which Person is not
known by the Administrative Agent or such Lender, as the case may be, to be
subject to a confidentiality restriction.
<PAGE> 16
9
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Contingent Deferred Sales Charge" means the amount payable by
a shareholder of any AIM Fund on redemption of such shareholder's CDSC Shares
in such AIM Fund prior to the end of the holding period specified from time to
time in such AIM Fund's prospectus, the proceeds of which charge are payable to
or for the benefit of the Borrower.
"Contractual Obligation" of any Person means any obligation,
agreement, undertaking or similar provision in any security issued by such
Person or in any agreement, undertaking, contract, lease, indenture, mortgage,
deed of trust or other instrument to which such Person is a party or by which
it or any of its properties is bound.
"Conversion", "Convert" and "Converted" each refers to a
conversion of Loans of one Type into Loans of the other Type pursuant to
Section 4.03.
"Currency Hedging Arrangements" means one or more of the
following agreements which shall be entered into by one or more financial
institutions: foreign exchange contracts, currency swap agreements or other
similar agreements.
"Debt" as applied to any Person (without duplication), means:
(a) any indebtedness for borrowed money which such Person
has directly or indirectly created, incurred or assumed;
(b) any indebtedness, whether or not for borrowed money,
secured by any Lien in respect of property owned by such Person,
whether or not such Person has assumed or become liable for the
payment of such indebtedness;
(c) any indebtedness, whether or not for borrowed money,
with respect to which such Person has become directly or indirectly
liable and which represents or has been incurred to finance the
purchase price (or a portion thereof) of any property or services
(except for accounts payable and other current liabilities arising in
the ordinary course of business and payable on customary terms) or
business acquired by such Person, whether by purchase, consolidation,
merger or otherwise;
(d) any Interest Rate Protection Agreement or Currency
Hedging Arrangement;
(e) any Capital Lease Obligation of such Person;
<PAGE> 17
10
(f) any indebtedness of the character referred to in
clause (a), (b), (c), (d) or (e) of this definition deemed to be
extinguished under GAAP but for which such Person remains legally
liable; and
(g) any indebtedness of any other Person of the character
referred to in clause (a), (b), (c), (d), (e) or (f) of this
definition with respect to which the Person whose Debt is being
determined has become liable by way of a Guaranty.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given or
time elapse, or both.
"Deferred Load Amounts" means all amounts payable or that
become payable to or for the benefit of the Borrower by any AIM Fund which is
an Eligible Fund, a Collateral Fund or a Designated AIM Fund and/or any
shareholder of such an AIM Fund from time to time in respect of all
Distribution Fees and all Contingent Deferred Sales Charges.
"Designated AIM Fund" has the meaning specified in the
definition of Permitted Deferred Load Amounts Securitization.
"Distribution Agreement" means any underwriting agreement and
any plan or related agreement as contemplated by Rule 12b-1 under the
Investment Company Act in connection with the distribution of shares of any
Eligible Fund and any Collateral Fund.
"Distribution Expenses" means the amounts paid by AIM
Distributors (or any Subsidiary successor thereto) in respect of Broker
Commissions and prepaid service fees in connection with the distribution of
CDSC Shares of an Eligible Fund in amounts no greater than the amounts set
forth on Schedule 1.01C hereto, but only if such expenses are covered by a
Distribution Plan providing for Distribution Fees and Contingent Deferred Sales
Charges no less than those set forth on Schedule 1.01C. Distribution Expenses
does not include any other marketing or other distribution-related costs or
service fees payable to brokers.
"Distribution Fee Purchase Agreement" means the Second Amended
and Restated Distribution Fee Purchase Agreement, dated as of June 26, 1996,
between the Borrower and AIM Distributors in substantially the form of Exhibit
1.01C hereto, as such agreement may be further amended, supplemented or
otherwise modified from time to time.
"Distribution Fees" means all fees payable to or for the
benefit of the Borrower by any AIM Fund pursuant to a Distribution Plan with
respect to CDSC Shares.
<PAGE> 18
11
"Distribution Plan" means any plan adopted (as amended from
time to time) by an Eligible Fund or any Collateral Fund and any related
agreements, as contemplated by Rule 12b-1 under the Investment Company Act, in
connection with the distribution of CDSC Shares of such Eligible Fund (or any
Collateral Fund).
"Domestic Lending Office" means, with respect to any Lender
listed on the signature pages of this Agreement, the office of such Lender
specified as its "Domestic Lending Office" opposite its name on Schedule I
hereto and, with respect to any other Lender, the office of such Lender
specified as its "Domestic Lending Office" in the Assumption Agreement or in
the Assignment and Acceptance pursuant to which it became a Lender, or such
other office of such Lender as it may from time to time specify by notice to
the Borrower and the Administrative Agent.
"EBITDA" means, for any period, Consolidated Net Income for
such period, adjusted (i) by adding thereto the sum of (A) Consolidated
Interest Expense of the Borrower and its Subsidiaries, (B) depreciation
expense, (C) amortization expense, (D) income tax expense, (E) extraordinary
losses and other losses on Asset Sales not included in extraordinary losses and
(F) Contingent Deferred Sales Charges to the extent not recognized as revenue
for such period, and (ii) by subtracting therefrom extraordinary gains and
other gains on Asset Sales not included in extraordinary gains; in each case
(other than clause (F) above) to the extent such amounts were included in
arriving at Consolidated Net Income for such period.
"Effective Date" has the meaning specified in Section 5.01.
"Eligible Assignee" means (i) a commercial bank organized
under the laws of the United States, or any State thereof, and having a
combined capital and surplus of at least $100,000,000; (ii) a savings and loan
association or savings bank organized under the laws of the United States, or
any State thereof, and having a combined capital and surplus of at least
$250,000,000; (iii) a commercial bank organized under the laws of any other
country which is a member of the OECD, or has concluded special lending
arrangements with the International Monetary Fund associated with its General
Arrangements to Borrow, or a political subdivision of any such country, and
having a combined capital and surplus of at least $100,000,000, provided that
such bank is acting through a branch or agency located in the country in which
it is organized or another country described in this clause (iii); (iv) the
central bank of any country which is a member of the OECD; or (v) a finance
company, insurance company or other financial institution or fund organized
under the laws of the United States, or any State thereof, or under the laws of
any other country that is a member of the OECD, or a political subdivision of
any such country, which is engaged in making, purchasing or otherwise investing
in commercial loans in the ordinary course of its business and which has total
assets in excess of $100,000,000.
<PAGE> 19
12
"Eligible Fund" means any AIM Fund which is listed on Schedule
1.01A or which is designated as an Eligible Fund with the consent of the
Required Lenders.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender
listed on the signature pages to this Agreement, the office of such Lender
specified as its "Eurodollar Lending Office" opposite its name on Schedule I
hereto and, with respect to any other Lender, the office of such Lender
specified as its "Eurodollar Lending Office" in the Assumption Agreement or in
the Assignment and Acceptance pursuant to which it became a Lender (or, if no
such office is specified, its Domestic Lending Office), or such other office of
such Lender as it may from time to time specify by notice to the Borrower and
the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Loan comprising part of the same Borrowing, an interest rate
per annum equal to the rate per annum obtained by dividing (i) the average
(rounded upward, if necessary, to the nearest whole multiple of 1/16 of 1% per
annum) of the rates per annum at which deposits in U.S. Dollars are offered by
the principal office of each Reference Bank in London, England to prime banks
in the London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially equal
to such Reference Bank's Eurodollar Rate Loan comprising part of such Borrowing
to be outstanding during such Interest Period and for a period equal to such
Interest Period by (ii) a percentage equal to 100% minus the Eurodollar Reserve
Percentage for such Interest Period. The Eurodollar Rate for each Interest
Period for each Eurodollar Rate Loan comprising part of the same Borrowing
shall be determined by the Administrative Agent on the basis of applicable
rates furnished to and received by the Administrative Agent from the Reference
Banks two Business Days before the first day of such Interest Period.
"Eurodollar Rate Loans" means Loans which bear interest at the
rate in the manner set forth in Section 4.01(a)(ii) and, if applicable, Section
4.01(b).
"Eurodollar Reserve Percentage" for any Interest Period for
each Eurodollar Rate Loan comprising part of the same Borrowing, means the
reserve percentage applicable two Business Days before the first day of such
Interest Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve System
in New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by
<PAGE> 20
13
reference to which the interest rate on Eurodollar Rate Loans is determined)
having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Existing Asset Purchase Agreement" has the meaning specified
in the Preliminary Statements.
"Existing Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Existing Debt" means Debt of the Borrower and its
Subsidiaries outstanding immediately prior to the Effective Date and described
in Schedule 6.09.
"Existing Lenders" has the meaning specified in the
Preliminary Statements.
"Facility Collections" means all Collections other than
Securitization Program Collections and the amounts, if any, included on the
reports provided pursuant to Section 7.18(l) as "CDSC's payable to AIM", "ABSC
payable to AIM" and "AIM's portion of Net Investment Earnings."
"Federal Bankruptcy Code" means the Bankruptcy Code of 1978,
as amended from time to time.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum (rounded upward if necessary, to the nearest 1/100th of
1%) equal for each day during such period to 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 for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fiscal Quarter" means, with respect to any Person, each
three-month period ending on March 31, June 30, September 30 or December 31 in
any calendar year.
"Fiscal Year" means, with respect to any Person, each
twelve-month period ending on December 31 in any calendar year.
<PAGE> 21
14
"Fixed Charges" means, with reference to any period, the sum
of the following: (i) all Consolidated Cash Interest Expense of the Borrower
and its Subsidiaries; and (ii) the aggregate amount of all required or
mandatory scheduled payments or prepayments of principal paid or accrued by the
Borrower and its Subsidiaries on all Debt (including pursuant to Section
3.02(b) but excluding (A) prepayments under Section 3.02(c), (B) optional
prepayments under Section 3.03, (C) optional prepayments under Section 3.03 of
the Tranche A Credit Agreement and (D) optional prepayments of the Senior
Notes).
"Fund" means any Investment Company managed by the Borrower or
any Subsidiary for which the Borrower or any Subsidiary provides advisory,
administrative, supervisory, management, consulting, underwriting, transfer
agency, shareholder or share servicing or similar services.
"Fund Management Company" means Fund Management Company, a
Texas corporation, and a Wholly-Owned Subsidiary of the Borrower.
"GAAP" has the meaning specified in Section 1.04.
"Governmental Authority" shall mean any federation, nation,
state, sovereign, or government, any federal, supranational, regional, state,
local or political subdivision, any governmental or administrative body,
instrumentality, department or agency or any court, tribunal, administrative
hearing body, arbitration panel, commission or other similar dispute resolving
panel or body, and any other entity exercising executive, legislative,
judicial, regulatory or administrative functions of government.
"Guarantors" means AIM Advisors and any Subsidiary of the
Borrower that becomes a Guarantor pursuant to Section 7.21.
"Guaranty", as applied to any Person, means any direct or
indirect liability, contingent or otherwise, of such Person with respect to any
indebtedness, lease, dividend or other obligation of another, including any
such obligation directly or indirectly guaranteed, endorsed (other than for
collection or deposit in the ordinary course of business) or discounted or sold
with recourse by such Person (including pursuant to any permitted
Securitization Program), or in respect of which such Person is otherwise
directly or indirectly liable, including any such obligation in effect
guaranteed by such Person through any agreement (contingent or otherwise) to
purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise), or to maintain the solvency or any balance sheet or other
financial condition of the obligor of such obligation, or to make payment for
any products, materials or supplies or for any transportation or services
regardless of the nondelivery or nonfurnishing thereof, in any such case if the
purpose or intent of such agreement is to provide assurance that such
<PAGE> 22
15
obligation will be paid or discharged, or that any agreements relating thereto
will be complied with, or that the holders of such obligation will be protected
against loss in respect thereof. The amount of any Guaranty shall be equal to
the outstanding principal amount of the obligation guaranteed (or in the case
of any AIM Guaranty, such lesser amount as to which the maximum exposure of the
Guarantor may have been specifically limited as provided in such AIM Guaranty).
"Highest Lawful Rate" has the meaning specified in Section
4.05(f).
"Increase Date" has the meaning specified in Section
2.04(c)(i).
"Increasing Lender" has the meaning specified in Section
2.04(c)(i).
"Indemnified Party" has the meaning specified in Section
10.04(b).
"Insurance Agency Subsidiary" means (i) a direct Subsidiary of
the Borrower, AIM Advisors or another Insurance Agency Subsidiary (but only to
the extent applicable law or the regulations or procedures of Governmental
Authorities having jurisdiction over such corporation's activity in the sale of
insurance would not permit direct ownership of such Corporation by the Borrower
or AIM Advisors) and (ii) any corporation in which the Borrower or AIM Advisors
owns shares of non-voting or preferred Capital Stock and an individual or
unrelated corporation holds the shares of voting Capital Stock as required by
applicable law or the regulations or procedures of Governmental Authorities
having jurisdiction over such corporation's activity in the sale of insurance,
which in each case were established to facilitate the distribution of shares of
the various series portfolios of AIM Variable Insurance Funds, Inc.
"Interest Expense" as applied to any Person means, for any
period, all interest charges (including amortization of debt discount and
expense and imputed interest on Capital Lease Obligations) properly charged or
chargeable to income of such Person during such period in accordance with GAAP.
"Interest Period" means, for each Eurodollar Rate Loan
comprising part of the same Borrowing, the period commencing on the date of
such Eurodollar Rate Loan or the date of the Conversion of any Base Rate Loan
into such Eurodollar Rate Loan, and ending on the last day of the period
selected by the Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each such Interest
Period shall be one, two, three or six months, as the Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the first day of such Interest Period,
select; provided that:
<PAGE> 23
16
(a) the Borrower may not select any Interest Period
relating to a Eurodollar Rate Loan that extends beyond the date final
payment is due on such Loan;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Loans comprising part of the same Borrowing shall be
of the same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day unless such Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding
Business Day; and
(d) whenever the first day of any Interest Period occurs
on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds such
initial calendar month by the number of months in such Interest
Period, such Interest Period shall end on the last Business Day of
such succeeding calendar month.
"Interest Rate Protection Agreements" means interest rate
swap, cap or collar agreements, interest rate insurance and other similar
agreements.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Investment" means, with respect to any Person, directly or
indirectly, any advance, loan or other extension of credit or capital
contribution to any other Person (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase, acquisition or ownership by such Person of any
Capital Stock, bonds, notes, debentures or other securities issued or owned by
any other Person; provided that the term Investment shall not include any
Broker Commissions or other expenses incurred on behalf of any Person or trade
credit extended by such Person in the ordinary course of business.
"Investment Advisers Act" means the Investment Advisers Act of
1940, as amended from time to time, and the rules and regulations promulgated
thereunder.
"Investment Company" means an "investment company" as such
term is defined in the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, and the rules and regulations promulgated
thereunder.
<PAGE> 24
17
"Key Shareholder Group" has the meaning specified in Schedule
1.01B.
"Lender" means each Lender listed on the signature pages
hereof, each Assuming Lender that shall become a party hereto pursuant to
Section 2.04(c) and each Eligible Assignee that shall become a party hereto
pursuant to Section 10.07.
"Lenders Asset Sale Allocation" means at any date of
determination, a fraction (i) the numerator of which is the outstanding
principal amount of the Loans on such date, and (ii) the denominator of which
is an amount equal to the sum of (A) the outstanding principal amount of the
Loans on such date and (B) the outstanding principal amount of the "Tranche A
Loans" under the Tranche A Credit Agreement on such date.
"Lenders Asset Sale Percentage" means at any date of
determination, a fraction (i) the numerator of which is the sum of (A) the
outstanding principal amount of the Loans on such date and (B) the outstanding
principal amount of the "Tranche A Loans" under the Tranche A Credit Agreement
on such date, and (ii) the denominator of which is an amount equal to the sum
of (A) the outstanding principal amount of the Loans on such date, (B) the
outstanding principal amount of the "Tranche A Loans" under the Tranche A
Credit Agreement on such date and (C) the aggregate principal amount of Senior
Notes outstanding on such date.
"Leverage Ratio" means, with respect to the Borrower at any
date of determination, the ratio of (i) Consolidated Debt of the Borrower and
its Subsidiaries minus the amount of cash and Cash Equivalents of the Borrower
and its Subsidiaries to (ii) EBITDA, in each case determined as of the last day
of the most recently completed Rolling Period of the Borrower. Solely for
purposes of calculation of "Leverage Ratio", Consolidated Debt shall exclude
the aggregate principal amount of all Senior Notes held by the Borrower on such
date and the notional amount of all Interest Rate Protection Agreements and all
Currency Hedging Arrangements in effect on such date.
"Lien" as to any Person, means any mortgage, lien, pledge,
charge, security interest or other encumbrance in or on, or any interest or
title of any vendor, lessor, lender or other secured party to or of such Person
under any conditional sale or other title retention agreement or Capital Lease
with respect to, any property or asset owned or held by such Person, or the
signing or filing of a financing statement which names such Person as debtor,
or the signing of any security agreement authorizing any other party as the
secured party thereunder to file any financing statement.
"Loan Documents" means this Agreement, the Notes, the AIM
Guaranties and the Collateral Documents.
"Loan Parties" means the Borrower and each Guarantor.
<PAGE> 25
18
"Loans" means the loans granted by the applicable Lenders to
the Borrower pursuant to Section 2.01(b).
"Management Contract" means an agreement pursuant to which the
Borrower or any of its Subsidiaries provides investment advisory, management or
administrative services to an Eligible Fund or any Collateral Fund.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means a material adverse change in
the business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower and its Subsidiaries taken as a whole
since any stated reference date or from and after the date of determination.
"Material Adverse Effect" means a material adverse effect on
(i) the business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower and its Subsidiaries taken as a whole,
(ii) the rights and remedies of the Administrative Agent, any Co-Agent or any
Lender under any Loan Document or (iii) the ability of the Borrower and each of
its Subsidiaries to perform its Obligations under any Loan Document.
"Material Subsidiary" means, with respect to any Person, each
Subsidiary of such Person except (a) any Subsidiary of the U.S. Holding Company
which is not a U.S. Person and (b) any Insurance Agency Subsidiary; provided,
however, that any Insurance Agency Subsidiary shall be a "Material Subsidiary"
from and after any time in which (i) the total asset value of such Insurance
Agency Subsidiary is greater than 5% of the total asset value of the Borrower,
(ii) in any Fiscal Year in which the Borrower's net income is greater than or
equal to $1, such Insurance Agency Subsidiary has net income for such Fiscal
Year equal to or greater than 5% of the Borrower's net income for such Fiscal
Year, or (iii) in any Fiscal Year in which the Borrower's net income is less
than $1, such Insurance Agency Subsidiary has net income in an amount equal to
or greater than $1,000,000; and provided further that each Insurance Agency
Subsidiary shall be a "Material Subsidiary" from and after any time in which
(i) the total asset value of the Insurance Agency Subsidiaries at such time is
greater than 10% of the total asset value of the Borrower at such time or (ii)
in any Fiscal Year in which the Borrower's net income is greater than or equal
to $1, the Insurance Agency Subsidiaries have an aggregate net income for such
Fiscal Year equal to or greater than 10% of the Borrower's net income for such
Fiscal Year.
"Moody's" means Moody's Investors Service, Inc.
<PAGE> 26
19
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset of any Person, the aggregate amount
of cash or Cash Equivalents payable to such Person from time to time in
connection with such transaction, after deducting therefrom only (i) reasonable
and customary brokerage commissions, legal fees, investment bankers' fees,
finder's fees and other similar fees and commissions, (ii) the amount of taxes
payable by such Person in connection with or as a result of such transaction,
and (iii) the amount of any Debt secured by a Lien on such asset that, by the
terms of such transaction, is required to be repaid upon such disposition, in
each case to the extent, but only to the extent, that the amounts so deducted
are actually paid to a Person that is not an Affiliate and are properly
attributable to such transaction or to the asset that is the subject thereof.
"Net Income" means, with reference to any period, the net
income (or deficit) of the Borrower and its Subsidiaries for such period, all
determined in accordance with GAAP on a Consolidated basis after eliminating
all intercompany transactions, provided that there shall be excluded (i) the
income (or deficit) of any Person accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with the Borrower or a Subsidiary,
and (ii) the income (or deficit) of any Person (other than a Subsidiary) in
which the Borrower or any Subsidiary has an ownership interest, except to the
extent that any such income has been actually received by the Borrower or such
Subsidiary in the form of dividends or similar distributions.
"Non-U.S. Lender" means any Lender that is not a U.S. Person.
"Notes" has the meaning specified in Section 2.02.
"Notice of Borrowing" has the meaning specified in Section
3.01(a).
"Obligation" means, with respect to any Person, any obligation
of such Person of any kind, including any liability of such Person on any
claim, whether or not the right of any creditor to payment in respect of such
claim is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured. Without
limiting the generality of the foregoing, the Obligations of each Loan Party
under the Loan Documents include (i) the obligation to pay principal, interest,
charges, expenses, fees, attorneys' fees and disbursements, indemnities and
other amounts payable by such Loan Party under any Loan Document, and (ii) the
obligation to reimburse any amount in respect of any of the foregoing that any
Lender, in its sole discretion, may elect to pay or advance on behalf of such
Loan Party as permitted by any Loan Document.
"Operating Cash Flow" means, for any period, EBITDA for such
period, adjusted: (i) by adding thereto any net increase in deferred tax
liability for such period and any net decrease in deferred tax asset for such
period and (ii) by subtracting (A) income tax expense, (B) Capital Expenditures
of the Borrower and its Subsidiaries and (C) any net
<PAGE> 27
20
decrease in deferred tax liability for such period and any net increase in
deferred tax asset for such period; provided that such net increase or decrease
in deferred tax liability or asset shall be taken into account only to the
extent such deferred tax liability or asset is attributable to temporary
book-tax difference.
"Other Taxes" has the meaning specified in Section 4.07(b).
"Override Payments" means payments as compensation for
services earned for the distribution of shares of the various series portfolios
of AIM Variable Insurance Funds, Inc., the amount of which payments are based
on premiums received in connection with such distribution of shares.
"Pari Passu Debt" means any Debt of the Borrower that is pari
passu in right of payment to the Loans.
"Permitted Deferred Load Amounts Securitization" means any
transaction (the "Transaction") among one or more of AIM Distributors, the
Borrower, any Subsidiaries of the foregoing (collectively, the "AIM
Participants") and other Persons who may include Citibank or Affiliates of
Citibank (the "Financing Participants"):
(a) which constitutes a sale of, or securitization of,
all or any portion of the Borrower's right, title and interest in
Deferred Load Amounts paid, payable or to become payable with respect
to one or more specified classes of shares (the "Designated Shares")
issued by specified AIM Funds (the "Designated AIM Funds") on or after
the date of closing of the Transaction,
(b) in which the proceeds realized by the AIM
Participants are used primarily to fund the payment of expenses and
other costs incurred in connection with the distribution of the
Designated Shares of the Designated AIM Funds,
(c) pursuant to which Transaction the Financing
Participants look primarily to the Deferred Load Amounts sold or
securitized to recover their principal or investment and yield
thereon,
(d) pursuant to which all Collections are required,
pursuant to the Securitization Program Allocation Procedures, to be
paid by the AIM Funds directly to the Collection Account for
disbursement to the Administrative Agent, the AIM Participants and the
Financing Participants,
(e) in which the Transaction documentation does not
provide the Financing Participants any recourse against the AIM
Participants except in respect of claims, which shall not be secured
by assets of the AIM Participants other than Deferred
<PAGE> 28
21
Load Amounts sold or securitized, arising out of Transaction
documentation terms which are customary in transactions of the type in
question including, without limitation:
(A) representations and warranties such as those
relating to (I) the legal status of the AIM Participants or
any Person to whom any thereof delegate their duties, or any
Designated AIM Fund (any thereof an "AIM Entity"), including,
without limitation, their legal status under the relevant
securities laws, (II) the power, authority and ability of the
AIM Participants and AIM Entities to enter into and perform
their obligations under the Transaction documentation and
related documentation, (III) the AIM Participants' title to
the Deferred Load Amounts and the absence of adverse claims in
respect thereof, (IV) the legality, enforceability,
assignability, terms, and other relevant characteristics of
the Deferred Load Amounts and the related distribution plans,
distribution agreements, sales charge arrangements or other
agreements relating to the distribution of shares of any
Designated AIM Fund, (V) the investment policies and
restrictions, share redemption and exchange policies and
experience, and management, advisory or service agreements of
the Designated AIM Funds, (VI) the legality and enforceability
of the Transaction documentation and the effectiveness thereof
to transfer to the Financing Participants the right, title and
interest in the Deferred Load Amounts and the products,
proceeds and collections in respect thereof intended to be
transferred thereby and to perfect the same, and (VII) the
accuracy of information provided by or on behalf of AIM
Entities;
(B) covenants such as (I) undertakings to act as
servicer or agent for the collection of the products, proceeds
and collections in respect of the Deferred Load Amounts and to
perform reporting, filing, perfection and auditing functions
in connection therewith, (II) undertakings to perform, cause
performance and assure capacity to perform by the AIM Entities
of their duties under the Transaction documentation,
applicable laws, the distribution plans, distribution
agreements, management agreements, advisory agreements, or
service agreements and other agreements relating to the
Deferred Load Amounts, (III) undertakings to maintain and use
the position or authority of the AIM Entities in respect of
the Designated AIM Funds so as to preserve and not adversely
affect the Deferred Load Amounts, (IV) undertakings to keep
the interests of the Financing Participants in the Deferred
Load Amounts and the proceeds, products and collections in
respect thereof perfected and free and clear of adverse
claims, and (V) undertakings to bear expenses of the
Transaction and the administration and enforcement of the
Transaction documentation, to provide financial information,
to give notices of important
<PAGE> 29
22
events, to maintain confidentiality, and other undertakings
customary in transactions similar to the Transaction; and
(C) indemnifications for costs, expenses,
liabilities, losses attributable to malfeasance, misfeasance,
breach of covenants, or misrepresentations by AIM Entities and
certain other negotiated occurrences arising out of the nature
of the Deferred Load Amounts being transferred or the
operations of the AIM Entities, including, without limitation,
(I) certain amendments, modifications or terminations of any
distribution plan, management agreement, advisory agreement,
distribution agreement or other agreement relating to the
distribution of the shares of the Designated AIM Funds to the
extent responsibility for which is assigned to the AIM
Participants under the Transaction documentation, (II) certain
changes in the investment policies or experience or Contingent
Deferred Sales Charge arrangements of any Designated AIM Fund
or any other agreement or arrangement relating to the Deferred
Load Amounts to the extent responsibility for which is
assigned to the AIM Participants under the Transaction
documentation, (III) any litigation, investigations, or
regulatory actions arising out of the operations of any AIM
Entity, and (IV) any liquidation, reorganization or similar
event relating to any AIM Entity,
(f) in which customary assurances (including legal
opinions) are given to the Financing Participants and/or rating
agencies that such Transaction constitutes a "true sale" for
bankruptcy purposes to the Financing Participants of the Deferred Load
Amounts transferred, and
(g) solely with respect to (i) Permitted Deferred Load
Amount Securitizations not in existence on the Effective Date and (ii)
any amendment, modification or waiver of the terms of the Permitted
Deferred Load Amount Securitization in effect on the Effective Date
which affects the allocation procedures or the Collection Agency
Agreement, with respect to which the Required Lenders shall have
consented to the aspects described in the preceding clause (d).
"Permitted Investment" means:
(i) Investments in any Wholly-Owned Subsidiary (including
any Person that thereby becomes a Wholly-Owned Subsidiary), provided
that the aggregate amount of Investments in Subsidiaries which are not
are U.S. Persons shall not exceed $25,000,000 at any time;
(ii) Investments in any of the Senior Notes;
<PAGE> 30
23
(iii) Cash Equivalents;
(iv) Debt of any Subsidiary owing to the Borrower or to
another Subsidiary pursuant to Section 7.03(d);
(v) Investments set forth on Schedule 1.01D;
(vi) Investments in any securities issued by, or to be
held by, any Fund, acquired in the ordinary course of business,
provided that any such securities to be held by any such Fund are
transferred to such Fund as promptly as practicable;
(vii) receivables owing to the Borrower or any Subsidiary
created in the ordinary course of business;
(viii) Investments acquired by the Borrower or any
Subsidiary in connection with Asset Sales permitted under Section 7.06
to the extent such Investments are non-cash proceeds as permitted
under Section 7.06;
(ix) (A) Interest Rate Agreements designed to protect the
Borrower or any Subsidiary against fluctuations in interest rates in
respect of Debt of the Borrower or any of its Subsidiaries, which
obligations do not exceed the aggregate nominal amount of such Debt
and (B) Currency Hedging Arrangements entered into by the Borrower or
any of its Subsidiaries designed to protect against fluctuations in
currency values;
(x) evidences of Debt, securities or other property
received from another Person by the Borrower or any Subsidiary in
connection with any bankruptcy proceeding or other reorganization of
such other Person in exchange for evidences of Debt, securities or
other property of such other Person held by the Borrower or any
Subsidiary in accordance with the terms of this Agreement, or for
other liabilities or obligations of such other Person to the Borrower
or any Subsidiary;
(xi) Investments in any Person to the extent acquired in
exchange for Qualified Capital Stock, provided that the aggregate
number of shares of Capital Stock of the Borrower exchanged for such
Investment does not exceed 25% of the outstanding Capital Stock of the
Borrower after giving effect to such exchange;
(xii) advances to employees of the Borrower for moving and
travel expenses, drawing accounts and similar expenditures in the
ordinary course of business;
(xiii) Investments related to the deferred compensation of
the Borrower's employees;
<PAGE> 31
24
(xiv) Investments in Capital Stock of the Borrower
purchased from an employee of the Borrower upon the death or
termination of such employee; and
(xv) in addition to the Permitted Investments described in
the foregoing clauses (i) through (xiv), Investments in any Person
which derives a majority of its revenues from businesses similar to
those that the Borrower or any Subsidiary participates in as of the
Effective Date or in businesses reasonably related thereto in the
aggregate amount not to exceed $5,000,000 at any time outstanding
(valued at cost at the time of Investment).
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock company,
trust, unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"Qualified Capital Stock" of any Person means any and all
Capital Stock of such Person other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any Capital Stock that,
either by its terms, by the terms of any security into which it is convertible
or exchangeable or otherwise, is, or upon the happening of an event or passage
of time would be, required to be redeemed prior to the termination of all of
the Commitments hereunder and the repayment of all Loans outstanding under this
Agreement or is redeemable at the option of the holder thereof at any time
prior to such termination and repayment, or is convertible into or exchangeable
for debt securities (other than debt securities with a maturity later than the
date of the termination of all of the Commitments hereunder and the repayment
of all Loans outstanding under this Agreement) at any time prior to such
termination and repayment.
"Reference Banks" means each of Citibank, Chemical Bank and
NationsBank.
"Register" has the meaning specified in Section 10.07(c).
"Registered Note" means a Note that has been issued in
registered form pursuant to Section 2.02(b) of this Agreement.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Required Lenders" means at any time Lenders owed or holding
in the aggregate at least 51% of the sum of (i) the then aggregate unpaid
principal amount of the Loans and (ii) the then Unused Total Commitment;
provided that for purposes of this definition neither (x) the Borrower, nor any
of its Affiliates, if a Lender, nor (y) any Lender who has defaulted on any of
its obligations hereunder, shall be included in (A) the Lenders
<PAGE> 32
25
owed such amount of the Loans (or holding such amount of the Total Commitment)
or (B) determining the aggregate unpaid principal amount of the Loans or the
Unused Total Commitment.
"Requirement of Law" as to any Person, means any law, treaty,
rule, regulation, decree, judgment, injunction, order, writ or determination of
an arbitrator or a court or other 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.
"Responsible Officer" means the Chief Financial Officer or
Treasurer of the Borrower or any person serving in a similar capacity.
"Restricted Payment" has the meaning specified in Section
7.05(a).
"Rolling Period" means a period of four consecutive Fiscal
Quarters.
"Rule 2a-7" means Rule 2a-7 under the Investment Company Act,
as in effect from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
"Securities Act" means the Securities Act of 1933, as amended.
"Securitization Program" means any sale to a third-party
investor by the Borrower or any of its Subsidiaries of its rights to receive
Deferred Load Amounts pursuant to a securitization program having terms and
conditions satisfactory to the Required Lenders, provided that any
Securitization Program that is a Permitted Deferred Load Amounts Securitization
shall, if approved by the Required Lenders in the respects provided in clause
(g) of the definition of "Permitted Deferred Load Amounts Securitization", be
deemed to be satisfactory to each Lender.
"Securitization Program Allocation Procedures" means the
procedures for allocating Deferred Load Amounts that are attached to the
Existing Asset Purchase Agreement.
"Securitization Program Collections" means all Collections
with respect to Deferred Load Amounts sold pursuant to any Securitization
Program and all other amounts defined as "collections" in the documentation for
such Securitization Program.
"Senior Note Asset Sale Percentage" means at any date of
determination, a fraction (i) the numerator of which is the aggregate principal
amount of Senior Notes
<PAGE> 33
26
outstanding on such date, and (ii) the denominator of which is an amount equal
to the sum of (A) the outstanding principal amount of the Loans as of such
date, (B) the outstanding principal amount of the "Tranche A Loans" under the
Tranche A Credit Agreement as of such date and (C) the aggregate principal
amount of Senior Notes outstanding as of such date.
"Senior Notes" means the senior notes issued by the Borrower
on November 3, 1993.
"SIPA" means the Securities Investor Protection Act of 1970,
as amended from time to time.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (i) the fair value of the property of such
Person is greater than the total amount of its liabilities, including
contingent liabilities, (ii) the present fair salable 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, (iii) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond its ability to pay as such debts and
liabilities mature, and (iv) such Person is not engaged in a business or a
transaction, and is not about to engage in a business or a transaction, for
which its property would constitute an unreasonably small capital.
"Subsidiary" means any corporation at least a majority (by
number of votes) of the Voting Stock of which is at the time owned by the
Borrower or by one or more Subsidiaries or by the Borrower and one or more
Subsidiaries.
"TA Group" has the meaning specified in Schedule 1.01B.
"Taxes" has the meaning specified in Section 4.07(a).
"Tranche A Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Tranche A Lenders " has the meaning specified in the
Preliminary Statements.
"Termination Date" means the earlier of June 25, 2001 and the
date of termination in whole of the Total Commitment pursuant to Section 2.04
or 8.01.
"Total Commitment" means, on any date of determination, the
aggregate Commitments of all the Lenders on such date.
<PAGE> 34
27
"Type" refers to the distinction between Base Rate Loans and
Eurodollar Rate Loans.
"United States" and "U.S." each means United States of
America.
"Unused Commitment" means, with respect to any Lender at any
time, such Lender's Commitment at such time minus the aggregate principal
amount of all Loans made by such Lender and outstanding at such time.
"Unused Total Commitment" means on any date of determination,
with respect to all of the Lenders, (a) the Total Commitment on such date,
minus (b) the aggregate principal amount of all Loans outstanding on such date.
"U.S. Dollars" and "$" means the lawful money of the United
States of America.
"U.S. Holding Company" means A I M Global Holdings, Inc., a
Delaware corporation and a Wholly-Owned Subsidiary of the Borrower.
"U.S. Person" means any Person that is created or organized
under the laws of the United States or of any State thereof, or any estate or
trust that is subject to United States Federal income taxation regardless of
the source of its income.
"U.S. Taxes" means any present or future tax, assessment or
other charge or levy imposed by or on behalf of the United States or any taxing
authority thereof.
"Voting Stock" means, with reference to any corporation, stock
of any class or classes (or equivalent interests), if the holders of the stock
of such class or classes (or equivalent interests) are ordinarily, in the
absence of contingencies, entitled to vote for the election of the directors
(or Persons performing similar functions) of such corporation, even though the
right so to vote has been suspended by the happening of such a contingency.
"Wholly-Owned" means, as applied to any Subsidiary, a
Subsidiary all the outstanding shares (other than directors' qualifying shares,
if required by law) of every class of stock of which are at the time owned by
the Borrower or by one or more Wholly-Owned Subsidiaries or by the Borrower and
one or more Wholly-Owned Subsidiaries.
Section 1.02. Certain Defined Terms Relating to ERISA. As
used in this Agreement, the following terms have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):
<PAGE> 35
28
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" of any Person means any other Person that
for purposes of Title IV of ERISA is a member of such Person's controlled
group, or under common control with such Person, within the meaning of Section
414 of the Internal Revenue Code.
"ERISA Event" means (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan; (ii) the
provision by the administrator of any Plan of a notice of intent to terminate
such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice
with respect to a plan amendment referred to in Section 4041(e) of ERISA);
(iii) the cessation of operations at a facility of the Borrower, any Subsidiary
or any of their respective ERISA Affiliates in the circumstances described in
Section 4062(e) of ERISA; (iv) the withdrawal by the Borrower, any Subsidiary
or any of their respective ERISA Affiliates from a Multiple Employer Plan
during a plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (v) the failure by the Borrower, any Subsidiary or
any of their respective ERISA Affiliates to make a payment to a Plan required
under Section 302(e) of ERISA; (vi) the adoption of an amendment to a Plan
requiring the provision of security to such Plan, pursuant to Section 307 of
ERISA; (vii) the institution by the PBGC of proceedings to terminate or to
appoint a trustee or administrator of a Plan, pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described in Section 4042 of
ERISA that could constitute grounds for the termination of, or the appointment
of a trustee to administer, any Plan; or (viii) the occurrence of any event or
condition which could result in a violation of Title I of ERISA or give rise to
the imposition of any liability pursuant to the penalty or excise tax
provisions of the Code relating to employee benefit plans.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18)
of ERISA.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower, any Subsidiary or any of
their respective ERISA Affiliates is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (i) is maintained for employees
of the Borrower, any Subsidiary or any of their respective ERISA Affiliates and
at least one other Person or (ii) was so maintained and in respect of which the
Borrower, any Subsidiary or any of their respective ERISA Affiliates could have
liability under Section 4064 or 4069 of ERISA in the event such plan has been
or were to be terminated.
<PAGE> 36
29
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor to any of its functions.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (i) is or has been established or
maintained for employees of the Borrower, any Subsidiary or any of their
respective ERISA Affiliates and no other Person or (ii) was so maintained and
in respect of which the Borrower, any Subsidiary or any of their respective
ERISA Affiliates could have liability under Section 4069 of ERISA in the event
such plan has been or were to be terminated.
"Welfare Plan" means a welfare plan, as defined in Section
3(1) of ERISA, with respect to which the Borrower, any Subsidiary or any of
their respective ERISA Affiliates may have any liability.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
Section 1.03. Computation of Time Periods; Terms Generally.
(a) All references herein to Articles, Sections, Exhibits and Schedules shall
be deemed references to Articles and Sections of and Exhibits and Schedules to
this Agreement, unless the context shall otherwise require.
(b) The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation".
(c) Section, subsection, and other headings used in this
Agreement are for convenience only and shall not affect the construction
hereof.
Section 1.04. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States consistent with those
applied in the preparation of the financial statements of such Person as of
December 31, 1995 ("GAAP").
<PAGE> 37
30
ARTICLE II
THE LOANS
Section 2.01. The Loans. (a) Each Lender severally agrees,
on the terms and conditions hereof and upon the request of the Borrower from
time to time on any Business Day during the period from the Effective Date to
the Termination Date, to make one or more Loans in an aggregate principal
amount at any time outstanding not to exceed its Commitment as in effect at
such time.
(b) The Loans may consist of: (i) Base Rate Loans; (ii)
Eurodollar Rate Loans; or (iii) any combination of the foregoing, as determined
by the Borrower and notified to the Administrative Agent in accordance with
Section 3.01.
Section 2.02. The Notes. (a) The Loans made by each Lender
shall be evidenced by a promissory note (including, without limitation, a
Registered Note) of the Borrower, substantially in the form of Exhibit 2.02
hereto, with appropriate insertions (individually, a "Note"; collectively, the
"Notes"), payable to the order of such Lender (except in the case of a
Registered Note which shall be legended on the face thereof and shall be made
payable to such Lender or its registered assigns) and representing the
obligation of the Borrower to pay the aggregate unpaid principal amount of the
Loans made by such Lender with interest thereon as prescribed in Section 4.01.
Each Note shall (i) be dated the Effective Date, (ii) state that the Loans
evidenced thereby shall be payable on the Termination Date, and (iii) bear
interest for the period from the date thereof until paid in full on the unpaid
principal amount thereof from time to time outstanding at the applicable
interest rate per annum determined as provided herein. Each Lender is hereby
authorized to record the date, Type and amount of each Loan made by such
Lender, each Interest Period with respect thereto, the date and amount of each
payment or prepayment of principal thereof and the interest rate with respect
thereto on the schedule annexed to and constituting a part of its Note, and any
such recordation shall be presumptive as to the accuracy of the information so
recorded, provided that the failure by any Lender to make any such notations or
the inaccuracy or incompleteness of any such notations shall not affect the
Obligations of the Borrower hereunder or under the Notes.
(b) Any Non-U.S. Lender that could become completely
exempt from withholding of U.S. Taxes in respect of payment of the Obligations
due to such Non-U.S. Lender hereunder relating to its Loans if its Loans were
in registered form for United States Federal income tax purposes, may request,
in a notice to the Borrower and the Administrative Agent, that the Borrower
exchange such Non-U.S. Lender's Note for a Registered Note and the Borrower
hereby agrees promptly thereafter to exchange such Non-U.S. Lender's Note
evidencing its Loans for a Registered Note (which Registered Note shall be in
substantially the form of Exhibit 2.02 hereto, except that it shall be legended
on the
<PAGE> 38
31
face thereof as a "Registered Note" and shall be made payable to such Non-U.S.
Lender or its registered assigns). Registered Notes shall be deemed to be and
shall be Notes for all purposes of this Agreement and the other Loan Documents.
Registered Notes may not be exchanged for Notes that are not in registered
form.
Section 2.03. Repayment. (a) The Borrower shall repay to
the Administrative Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of all Loans outstanding on
such date. Within the limits of the Unused Total Commitment in effect from
time to time, the Borrower may borrow, prepay pursuant to Section 3.03 and
reborrow under Section 3.01.
(b) Maximum Outstanding Principal Amounts. The Borrower
shall repay or prepay, on or before the settlement date next following each
determination date set forth below, the Loans then outstanding in an amount
such that the aggregate principal amount of Loans outstanding on each such
determination date shall not exceed an amount equal to the sum of (i) the
amount set opposite such determination date:
<TABLE>
<CAPTION>
Determination Date Amount
<S> <C>
9/30/96 $40,500,000
12/31/96 40,500,000
3/31/97 40,500,000
6/30/97 40,500,000
9/30/97 29,800,000
12/31/97 29,800,000
3/31/98 29,800,000
6/30/98 29,800,000
9/30/98 14,900,000
12/31/98 14,900,000
3/31/99 and thereafter 0
</TABLE>
plus (ii) an amount equal to the result of the following calculation for such
determination date:
A(a) + B(b) + C(c) + D(d)+ E(e) + F(f) and so on
where each capital letter represents the principal amount of Loans advanced
during a Fiscal Quarter ended on or prior to such determination date and each
lower case letter represents the percentage set forth opposite each such Fiscal
Quarter under such determination date in the table immediately following this
sentence, provided that, if at any time the Loans advanced during any Fiscal
Quarter are required to be repaid in full in accordance with Section 3.02(c),
the percentages under each date of determination related to such Fiscal
<PAGE> 39
32
Quarter shall be 0%. Nothing in this Section 2.03(b) shall limit the
Borrower's ablility to reborrow any amounts repaid or prepaid hereunder.
<PAGE> 40
33
<TABLE>
<CAPTION>
FISCAL
QUARTER DETERMINATION DATES
-------------------------------------------------------------------------------------------------------
9/30/96 12/31/96 3/31/97 6/30/97 9/30/97 12/31/97 3/31/98 6/30/98 9/30/98 12/31/98
-------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Effective Date -
9/30/96 100% 100% 100% 90% 90% 90% 90% 75% 75% 75%
10/1/96-12/31/96 100% 100% 100% 90% 90% 90% 90% 75% 75%
1/1/97-3/31/97 100% 100% 100% 90% 90% 90% 90% 75%
4/1/97-6/30/97 100% 100% 100% 90% 90% 90% 90%
7/1/97-9/30/97 100% 100% 100% 90% 90% 90%
10/1/97-12/31/97 100% 100% 100% 90% 90%
1/1/98-3/31/98 100% 100% 100% 90%
4/1/98-6/30/98 100% 100% 100%
7/1/98-9/30/98 100% 100%
10/1/98-12/31/98 100%
1/1/99-3/31/99
4/1/99-6/30/99
7/1/99-9/30/99
10/1/99-12/31/99
1/1/00-3/31/00
4/1/00-6/30/00
7/1/00-9/30/00
10/1/00-12/31/00
1/31/01-3/31/01
4/1/01-6/30/01
<CAPTION>
FISCAL
QUARTER DETERMINATION DATES
--------------------------------------------------------------------------------------------------------
3/31/99 6/30/99 9/30/99 12/31/99 3/31/00 6/30/00 9/30/00 12/31/01 3/31/01 6/30/01
--------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Effective Date -
9/30/96 75% 55% 55% 55% 55% 40% 40% 40% 40% 20%
10/1/96-12/31/96 75% 75% 55% 55% 55% 55% 40% 40% 40% 40%
1/1/97-3/31/97 75% 75% 75% 55% 55% 55% 55% 40% 40% 40%
4/1/97-6/30/97 75% 75% 75% 75% 55% 55% 55% 55% 40% 40%
7/1/97-9/30/97 90% 75% 75% 75% 75% 55% 55% 55% 55% 40%
10/1/97-12/31/97 90% 90% 75% 75% 75% 75% 55% 55% 55% 55%
1/1/98-3/31/98 90% 90% 90% 75% 75% 75% 75% 55% 55% 55%
4/1/98-6/30/98 90% 90% 90% 90% 75% 75% 75% 75% 55% 55%
7/1/98-9/30/98 100% 90% 90% 90% 90% 75% 75% 75% 75% 55%
10/1/98-12/31/98 100% 100% 90% 90% 90% 90% 85% 75% 75% 75%
1/1/99-3/31/99 100% 100% 100% 90% 90% 90% 90% 75% 75% 75%
4/1/99-6/30/99 100% 100% 100% 90% 90% 90% 90% 75% 75%
7/1/99-9/30/99 100% 100% 100% 90% 90% 90% 90% 75%
10/1/99-12/31/99 100% 100% 100% 90% 90% 90% 90%
1/1/00-3/31/00 100% 100% 100% 90% 90% 90%
4/1/00-6/30/00 100% 100% 100% 90% 90%
7/1/00-9/30/00 100% 100% 90% 90%
10/1/00-12/31/00 100% 100% 100%
1/31/01-3/31/01 100% 100%
4/1/01-6/30/01 100%
</TABLE>
<PAGE> 41
34
Section 2.04. Termination, Reduction or Increase of the
Commitments. (a) Optional. The Borrower may, upon at least five Business
Days' notice to the Administrative Agent, terminate in whole or reduce ratably
in part the Unused Total Commitment; provided, however, that each partial
reduction of the Unused Total Commitment (i) shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and (ii)
shall be made ratably among the Lenders in accordance with their Commitments.
(b) Mandatory. (i) The Total Commitment shall be
automatically and permanently reduced on the date on which any prepayment is
required to be made pursuant to Section 3.02(a) by an amount equal to the
greater of:
(A) an amount equal to the aggregate amount of Net Cash
Proceeds required to be used to prepay Loans under Section 3.02(a);
and
(B) an amount equal to the aggregate amount of Net Cash
Proceeds the Borrower would have been required to use to prepay Loans
under Section 3.02(a) if:
(1) "Lenders Asset Sale Allocation" was defined
as, at any date of determination, a fraction (i) the numerator
of which is the Total Commitment on such date and (ii) the
denominator of which is an amount equal to the sum of (A) the
Total Commitment on such date and (B) the "Total Tranche A
Commitment" under the Tranche A Credit Agreement on such date;
(2) "Lenders Asset Sale Percentage" was defined
as, at any date of determination, a fraction (a) the numerator
of which is the sum of (x) the Total Commitment on such date
and (y) the "Total Tranche A Commitment" under the Tranche A
Credit Agreement on such date, and (b) the denominator of
which is an amount equal to the sum of (i) the Total
Commitment on such date, (ii) the "Total Tranche A Commitment"
under the Tranche A Credit Agreement on such date and (iii)
the aggregate principal amount of Senior Notes outstanding on
such date; and
(3) "Senior Note Asset Sale Percentage" was
defined as, at any date of determination, a fraction (a) the
numerator of which is the aggregate principal amount of Senior
Notes outstanding on such date, and (b) the denominator of
which is an amount equal to the sum of (i) the Total
Commitment on such date, (ii) the "Total Tranche A Commitment"
under the Tranche A Credit Agreement on such date and (iii)
the aggregate principal amount of Senior Notes outstanding on
such date.
(ii) The Total Commitment shall terminate on the
Termination Date.
<PAGE> 42
35
(c) Increase in the Total Commitments. (i) The Borrower
may at any time, by notice to the Administrative Agent, propose that the Total
Commitment be increased (such aggregate amount being, a "Commitment Increase")
up to $250,000,000, effective as at a date prior to the Termination Date (the
"Increase Date") as to which agreement is to be reached by an earlier date
specified in such notice (the "Commitment Date"); provided, however, that (A)
the Borrower may not propose more than one Commitment Increase in any year, (B)
the minimum proposed Commitment Increase per notice shall be $25,000,000 or an
integral multiple of $5,000,000 in excess thereof, or, if less, the remaining
amount available for a Commitment Increase hereunder, (C) in no event shall the
Total Commitment at any time exceed $250,000,000 and (D) no Default shall have
occurred and be continuing on such Increase Date. The Administrative Agent
shall notify the Lenders thereof promptly upon its receipt of any such notice.
The Administrative Agent agrees that it will cooperate with the Borrower in
discussions with the Lenders and other Eligible Assignees with a view to
arranging the proposed Commitment Increase through the increase of the
Commitments of one or more of the Lenders (each such Lender that is willing to
increase its Commitment hereunder being, an "Increasing Lender") and the
addition of one or more other Eligible Assignees as Assuming Lenders and as
parties to this Agreement; provided, however, that it shall be in each Lender's
sole discretion whether to increase its Commitment hereunder in connection with
the proposed Commitment Increase; and provided further that the minimum
Commitment of each such Assuming Lender that becomes a party to this Agreement
pursuant to this Section 2.04(c) shall be at least equal to $10,000,000. If
agreement is reached on or prior to the Commitment Date with any Increasing
Lenders and Assuming Lenders as to a Commitment Increase (which may be less
than but not greater than specified in the applicable notice from the
Borrower), such agreement to be evidenced by a notice in reasonable detail from
the Borrower to the Administrative Agent on or prior to the Commitment Date,
such Assuming Lenders, if any, shall become Lenders hereunder as of the
Increase Date and the Commitments of such Increasing Lenders and such Assuming
Lenders shall become or be, as the case may be, as of the Increase Date, the
amounts specified in such notice; provided that:
(x) the Administrative Agent shall have received (with
copies for each Lender, including each such Assuming Lender) by no
later than 10:00 A.M. (New York City time) on the Increase Date a copy
of the resolutions adopted by the Board of Directors of the Borrower
authorizing such Commitment Increase certified on the Increase Date by
the Secretary, an Assistant Secretary or a comparable official of the
Borrower as being duly adopted and not revoked or superseded;
(y) each such Assuming Lender shall have delivered to the
Administrative Agent, by no later than 10:00 A.M. (New York City time)
on the Increase Date, an appropriate Assumption Agreement in
substantially the form of Exhibit 1.01B hereto, duly executed by such
Assuming Lender and the Borrower; and
<PAGE> 43
36
(z) each such Increasing Lender shall have delivered to
the Administrative Agent by, no later than 10:00 A.M. (New York City
time) on the Increase Date, (A) its existing Note and (B) confirmation
in writing satisfactory to the Agent as to its increased Commitment.
(ii) In the event that the Administrative Agent shall have
received notice from the Borrower as to its agreement to a Commitment Increase
on or prior to the Commitment Date and each of the actions provided for in
clauses (x) through (z) above shall have occurred prior to 10:00 A.M. (New York
City time) on the Increase Date to the satisfaction of the Administrative
Agent, the Administrative Agent shall notify the Lenders (including any
Assuming Lenders) and the Borrower of the occurrence of such Commitment
Increase by telecopier, telex or cable promptly and in any event no later than
1:00 P.M. (New York City time) on the Increase Date and shall record in the
Register the relevant information with respect to each Increasing Lender and
Assuming Lender. Each Increasing Lender and each Assuming Lender shall, before
2:00 P.M. (New York City time) on the Increase Date, make available for the
account of its Applicable Lending Office to the Agent at the Agent's Account,
in same day funds, in the case of such Assuming Lender, an amount equal to such
Assuming Lender's ratable portion of the Loans then outstanding (calculated
based on its Commitment as a percentage of the Total Commitment outstanding
after giving effect to the relevant Commitment Increase) and, in the case of
such Increasing Lender, an amount equal to the excess of (i) such Increasing
Lender's ratable portion of the Loans then outstanding (calculated based on its
Commitment as a percentage of the Total Commitment outstanding after giving
effect to the relevant Commitment Increase) over (ii) such Increasing Lender's
ratable portion of the Loans then outstanding (calculated based on its
Commitment (without giving effect to the relevant Commitment Increase) as a
percentage of the Total Commitment (without giving effect to the relevant
Commitment Increase). After the Administrative Agent's receipt of such funds
from each such Increasing Lender and each such Assuming Lender, the
Administrative Agent will promptly thereafter cause to be distributed like
funds to the other Lenders for the account of their respective Applicable
Lending Offices in an amount to each other Lender such that the aggregate
amount of the outstanding Loans owing to each Lender after giving effect to
such distribution equals such Lender's ratable portion of the Loans then
outstanding (calculated based on its Commitment as a percentage of the Total
Commitment outstanding after giving effect to the relevant Commitment
Increase). Within five Business Days after the Borrower receives notice from
the Administrative Agent, the Borrower, at its own expense, shall execute and
deliver to the Administrative Agent Notes payable to the order of each Assuming
Lender, if any, and, each Increasing Lender, dated as of the Increase Date, in
a principal amount equal to such Lender's Commitment after giving effect to the
relevant Commitment Increase, and substantially in the form of Exhibit 2.02
hereto. The Administrative Agent, upon receipt of such Notes, shall promptly
deliver such Notes to the respective Assuming Lenders and Increasing Lenders
and shall return the existing Notes that are being replaced to the Borrower.
<PAGE> 44
37
(iii) In the event that the Administrative Agent shall not
have received notice from the Borrower as to such agreement on or prior to the
Commitment Date or the Borrower shall, by notice to the Administrative Agent
prior to the Increase Date, withdraw its proposal for a Commitment Increase or
any of the actions provided for above in clauses (i)(x) through (i)(z) shall
not have occurred by 10:00 A.M. (New York City time) on the Increase Date, such
proposal by the Borrower shall be deemed not to have been made. In such event,
any actions theretofore taken under clauses (i)(x) through (i)(z) above shall
be deemed to be of no effect and all the rights and obligations of the parties
shall continue as if no such proposal had been made.
ARTICLE III
LOAN PROCEDURE AND PREPAYMENTS
Section 3.01. Loan Procedure. (a) Each Borrowing shall be
made on notice, given by the Borrower to the Administrative Agent (which shall
give each Lender prompt notice thereof by telex or facsimile transmission) not
later than (x) 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Borrowing in the case of a Borrowing consisting of
Eurodollar Rate Loans and (y) 10:00 A.M. (New York City time) on the day of the
proposed Borrowing in the case of a Borrowing consisting of Base Rate Loans.
Each such notice of a Borrowing (a "Notice of Borrowing") shall be by telex or
facsimile transmission, confirmed immediately in writing, in substantially the
form of Exhibit 3.01, executed by a duly authorized officer of the Borrower
specifying therein (i) the date of such Borrowing, (ii) the Type of Loans
comprising such Borrowing, (iii) the aggregate amount of such Borrowing and
(iv) in the case of a Borrowing consisting of Eurodollar Rate Loans, the
initial Interest Period for such Borrowing.
(b) Each Lender shall, before 11:00 A.M. (New York City
time) on the date of each Borrowing consisting of Eurodollar Rate Loans and
before 1:00 P.M. (New York City time) on the date of each Borrowing consisting
of Base Rate Loans, make available for the account of its Applicable Lending
Office to the Administrative Agent at the Administrative Agent's Account, in
immediately available funds, such Lender's Loan in the amount of its ratable
portion (determined by reference to the amount of such Lender's Commitment and
the Total Commitment) of such Borrowing. After the Administrative Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article V, the Administrative Agent will make such funds available to
the Borrower by crediting the Borrower's Account.
(c) Notwithstanding anything to the contrary in
subsection (a) above (i) each Borrowing shall be in an aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof (or if the
Total Commitment shall be less than $1,000,000,
<PAGE> 45
38
such lesser amount) and (ii) no more than ten Borrowings shall be outstanding
at any one time.
(d) Each Notice of Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Borrowing that the related Notice
of Borrowing specifies is to be comprised of Eurodollar Rate Loans, the
Borrower shall indemnify each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article V or any failure to borrow such Loans on the
date of the proposed Borrowing set forth in such Notice of Borrowing, including
any loss, cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the Loan to be made
by such Lender as part of such Borrowing when such Loan, as a result of such
failure, is not made on such date.
(e) Unless the Administrative Agent shall have received
notice from a Lender prior to the date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's ratable portion of
such Borrowing, the Administrative Agent may assume that such Lender has made
such portion available to the Administrative Agent on the date of such
Borrowing in accordance with subsection (a) of this Section 3.01 and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that
such Lender shall not have made such ratable portion available to the
Administrative Agent, such amount shall be deemed for all purposes to be a Loan
made by the Administrative Agent, and such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of the Borrower, the
interest rate applicable at such time under Section 4.01 to the Loans
comprising such Borrowing, and (ii) in the case of such Lender, the Federal
Funds Rate and, in the case of such Lender, the costs referred to in Section
10.04(c) (but only to the extent the Administrative Agent has actually incurred
such costs). If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Lender's Loan
as part of such Borrowing for purposes of this Agreement.
(f) The failure of any Lender to make the Loan to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Loan on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Loan to be made by such other Lender on the date of any Borrowing.
Section 3.02. Mandatory Prepayments. (a) From Certain Asset
Sales. (i) In addition to any other mandatory prepayments required by this
Section 3.02, if the Borrower
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39
or any Subsidiary shall make an Asset Sale (other than pursuant to a
Securitization Program or pursuant to an Asset Sale described on Schedule
3.02(a)), the Net Cash Proceeds of which equal or exceed $15,000,000, within
five Business Days after the consummation of such Asset Sale, the Borrower
shall: (A) prepay the Loans in a principal amount equal to the product of (1)
the Lenders Asset Sale Percentage times (2) the Net Cash Proceeds of such Asset
Sale times (3) the Lenders Asset Sale Allocation, such prepayment to be applied
as set forth in clause (ii) below; and (B) offer to prepay without premium the
Senior Notes then outstanding in a principal amount equal to the product of (x)
the Senior Note Asset Sale Percentage times (y) the Net Cash Proceeds of such
Asset Sale.
(ii) All prepayments of Loans made pursuant to this
Section 3.02(a) shall be applied to the prepayment (without premium or penalty)
of the aggregate outstanding principal amount of the Loans and the Total
Commitment shall be permanently reduced as set forth in Section 2.04(b)(i);
together with, in each case, accrued interest on such Loans to the date of
prepayment on the principal amount prepaid, and, in the case of Eurodollar Rate
Loans which are prepaid prior to the last day of the Interest Period therefor,
the amounts required by Section 10.04.
(b) From Collections. In addition to any other mandatory
prepayments required by this Section 3.02, on the 20th day of each calendar
month, the Borrower shall make a prepayment in a principal amount equal to the
amount of Facility Collections received by the Borrower during the preceding
calendar month less the amount of interest paid during such period on Loans,
such prepayment to be applied to the prepayment (without premium or penalty) of
the outstanding principal amount of the Loans, together with accrued interest
on such Loans to the date of prepayment on the principal amount prepaid, and,
in the case of Eurodollar Rate Loans which are prepaid prior to the last day of
the Interest Period therefor, the amounts required by Section 10.04, provided
that if there is an overpayment or underpayment of Facility Collections under
this Section 3.02(b) solely as a result of a mistake in the calculation made
pursuant to the Securitization Program Allocation Procedures, such overpayment
or underpayment will not be a Default so long as (A) such overpayment or
underpayment is corrected on or before the Monthly Settlement Date (as defined
in the Collection Agency Agreement) immediately following the date of such
overpayment or underpayment, (B) the Responsible Officer of the Borrower
delivers a written notification to the Administrative Agent immediately upon
the Borrower's becoming aware of such overpayment or underpayment which
describes in reasonable detail the mistake made in such calculation, and (C) if
any underpayment exceeds $1,000,000, the Borrower will, simultaneously with the
delivery of the notification described in clause (B), pay, or cause to be paid,
to the Administrative Agent the amount of such underpayment, it being
understood that in the event of any such payment by the Borrower, the
Administrative Agent will release to the Borrower, upon receipt, any amount
subsequently received from the Collection Agent (as defined in the Collection
Agency Agreement) under the Securitization Program Allocation Procedures by way
of compensation for such previous underpayment and
<PAGE> 47
40
expressly stated to be such. The Borrower will deliver to the Administrative
Agent together with each prepayment made pursuant to this Section 3.02(b) a
settlement schedule substantially in the form of Schedule 3.02(b) executed by a
Responsible Officer of the Borrower.
(c) From Securitization Programs. In addition to any
other mandatory prepayments required by this Section 3.02, the Borrower shall
make a prepayment in a principal amount equal to the amount of the Net Cash
Proceeds from the sale of assets of the Borrower and its Subsidiaries pursuant
to a Securitization Program with respect to the sale of Deferred Load Amounts
arising from CDSC Shares the Distribution Expenses of which were financed with
proceeds of the Loans advanced during one or more Fiscal Quarters of the
Borrower, such prepayment to be applied to the prepayment (without premium or
penalty) of the outstanding principal amount of the Loans advanced during each
such respective Fiscal Quarter, together with accrued interest on such Loans to
the date of prepayment on the principal amount prepaid, and, in the case of
Eurodollar Rate Loans which are prepaid prior to the last day of the Interest
Period therefor, the amounts required by Section 10.04.
Section 3.03. Optional Prepayments. The Borrower may, upon
at least five Business Days' irrevocable notice to the Administrative Agent
stating the proposed date, aggregate principal amount of the prepayment, and
the Borrowings to which such prepayment is to be applied, and, if such notice
is given, the Borrower shall, prepay (without premium or penalty) the principal
amount to be prepaid, ratably; together with accrued interest to the date of
such prepayment on the principal amount prepaid and, in the case of Eurodollar
Rate Loans which are prepaid prior to the last day of the Interest Period
therefor, the amounts required by Section 10.04; provided that each such
prepayment shall be in an aggregate principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof. Prepaid Loans may, at any
time prior to the Termination Date, be reborrowed, provided that the aggregate
principal amount of the Loans outstanding at any time may not exceed the Total
Commitment at such time, adjusted in accordance with Section 2.04.
ARTICLE IV
INTEREST, ETC.
Section 4.01. Interest. (a) Scheduled Interest. Subject to
Section 4.05(f), the Borrower shall pay interest on the unpaid principal amount
of each Loan from the date of such Loan until such principal amount is paid in
full, at the following rates per annum:
(i) Base Rate Loans. During such periods as such Loan is
a Base Rate Loan, a rate per annum equal at all times to the sum of
(i) the Base Rate in effect from time to time plus (ii) the Applicable
Margin in effect from time to time, payable
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41
in arrears monthly on the 20th day of each calendar month, commencing
on the first such date after the Effective Date and on the date such
Base Rate Loan shall be Converted or paid in full.
(ii) Eurodollar Rate Loans. During such periods as such
Loan is a Eurodollar Rate Loan, a rate per annum equal at all times
during each Interest Period for such Loan to the sum of (i) the
Eurodollar Rate for such Interest Period for such Loan plus (ii) the
Applicable Margin in effect from time to time during such Interest
Period, payable in arrears on the last day of such Interest Period
and, if such Interest Period has a duration of more than three months,
on each day that occurs during such Interest Period every three months
from the first day of such Interest Period.
(b) Default Interest. Subject to Section 4.05(f), upon
the occurrence and during the continuance of (i) an Event of Default, or (ii)
in the case of an Event of Default described in Section 8.01(a), a Default, the
Borrower shall pay interest on the aggregate outstanding principal amount of
each Loan, whether or not due, and on the unpaid amount of all interest, fees
and other amounts payable hereunder not paid when due, payable in arrears on
the dates referred to in clause (a)(i) or (a)(ii) above and on demand, at a
rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Loan pursuant to clause (a)(i) or (a)(ii) above or,
in the case of such other amounts, 2% per annum above the rate per annum
required to be paid on Base Rate Loans pursuant to clause (a)(i) above.
Section 4.02. Fees. (a) The Borrower shall pay to the
Administrative Agent for the account of the Lenders a commitment fee (the
"Commitment Fee") at a rate equal to the Applicable Margin in effect from time
to time on the average daily Unused Commitment of such Lender from the
Effective Date, in the case of each Lender party to this Agreement from and
after the Effective Date, and from the effective date specified in the
Assumption Agreement or the Assignment and Acceptance, as the case may be,
pursuant to which it became a Lender, in the case of each other Lender. The
Commitment Fee shall be payable in arrears on the last day of each calendar
quarter, commencing on the first such date after the Effective Date, and on the
Termination Date.
(b) The Borrower shall pay to the Administrative Agent,
for its own account, such other fees as may from time to time be agreed in
writing between the Borrower and the Administrative Agent.
Section 4.03. Conversion of Loans. (a) Optional. The
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of
Sections 4.05 and 4.06, Convert all or any ratable portion of the Loans of one
Type into Loans of the other Type; provided that (i) any
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Conversion of Eurodollar Rate Loans into Base Rate Loans shall be made only on
the last day of an Interest Period for such Eurodollar Rate Loans, (ii) any
Conversion of Base Rate Loans into Eurodollar Rate Loans shall be in an amount
not less than the minimum amount specified in Section 3.01(c), and (iii) no
more than ten Borrowings shall be at any one time outstanding. Each such
notice of Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Loans to be Converted and (iii) if
such Conversion is into Eurodollar Rate Loans, the duration of the initial
Interest Period for such Loans. Each notice of Conversion shall be irrevocable
and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate
unpaid principal amount of Eurodollar Rate Loans comprising any Borrowing shall
be reduced, by payment or prepayment or otherwise, to less than $1,000,000,
such Loans shall automatically Convert into Base Rate Loans and the Borrower
shall pay any amounts required by Section 10.04.
(ii) If the Borrower shall fail to select the duration of
any Interest Period for any Eurodollar Rate Loans in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
the Administrative Agent will forthwith so notify the Borrower and the Lenders,
whereupon (A) each such Eurodollar Rate Loan will automatically, on the last
day of the then existing Interest Period therefor, Convert into a Base Rate
Loan, and (B) in the case of a Base Rate Loan that was to have been Converted,
remain a Base Rate Loan.
(iii) Upon the occurrence and during the continuance of any
Default, (i) each Eurodollar Rate Loan will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Loan and
(ii) the obligation of the Lenders to make, or to Convert Loans into,
Eurodollar Rate Loans shall be suspended.
Section 4.04. Interest Rate Determination. (a) Each
Reference Bank agrees to furnish to the Administrative Agent timely information
for the purpose of determining each Eurodollar Rate. If any one or more of the
Reference Banks does not furnish such timely information to the Administrative
Agent for the purpose of determining any such interest rate, the Administrative
Agent shall determine such interest rate on the basis of timely information
furnished by the remaining Reference Bank or, if none of such quotations are
available on a timely basis, the provisions of Section 4.05(c) shall apply.
(b) The Administrative Agent shall give prompt notice to
the Borrower and each Lender of the applicable interest rate determined by the
Administrative Agent for purposes of Section 4.01(a)(i) or (ii).
Section 4.05. Changes in Circumstances. (a) Increased
Costs. If, after the Effective Date due to either (i) the introduction of or
any change in law, rule or regulation (except any law or regulation addressed
in Section 4.07) or any change in the interpretation
<PAGE> 50
43
or administration thereof by any central bank, comparable agency or other
Governmental Authority or (ii) the compliance with any guideline, condition or
request from any central bank, comparable agency or other Governmental
Authority (whether or not having the force of law), (A) any Lender shall be
subject to any tax of any kind whatsoever with respect to this Agreement, any
Note or any Loans made hereunder or there shall be a change in the basis of
taxation of payments to such Lender of principal, interest, fees or any other
amount payable hereunder (other than withholding tax imposed by the United
States and other than any other tax that is imposed on the overall net income
of such Lender by the jurisdiction under the laws of which such Lender is
organized or in which such Lender has its principal executive office or its
Applicable Lending Office); or (B) there shall be any increase in the cost to
any Lender (or its Applicable Lending Office) of agreeing to make or making,
funding or maintaining Eurodollar Rate Loans or reducing the amount of any sum
received or receivable by such Lenders (or its Applicable Lending Office) under
this Agreement or the Notes, or there shall be any imposition, modification or
deemed application of any reserve (including any reserve imposed by the Board
of Governors of the Federal Reserve but excluding any such requirement included
in an applicable Eurodollar Reserve Percentage), special deposit or similar
requirement against assets of, deposits with, or for the account of, or credit
extended by, any Lender (or its Applicable Lending Office) then, from time to
time, upon demand by such Lender, which demand shall be accompanied by a
statement (which shall be conclusive and binding for all purposes absent
manifest error) showing the additional amounts, calculated in accordance with
such Lender's policies, sufficient to compensate such Lender for such increased
cost (such additional amounts to be reduced by the amount, if any, by which the
interest rates on the Loans made by such Lender have been increased to reflect
such increased cost), with a copy to the Administrative Agent, the Borrower
shall pay to the Administrative Agent for the account of such Lender the
amounts set forth on such statement.
(b) Capital Adequacy. If any Lender shall have
determined that, after the Effective Date, the adoption of any applicable law,
rule or regulation regarding capital adequacy, including any law, rule,
regulation or guideline adopted pursuant to or arising out of the July 1988
report of the Basle Committee on Banking Regulations and Supervisory Practices
entitled "International Coverage Capital Measurement and Capital Standards", or
any change therein, or any change in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having the force of law)
of any such Governmental Authority, central bank or comparable agency has or
would have the effect of reducing the rate of return on capital of such Lender
(or any Person controlling such Lender) as a consequence of such Lender's
obligations hereunder to a level below that which such Lender (or such
controlling Person) could have achieved but for such adoption, change, request
or directive (taking into consideration its internal policies with respect to
capital adequacy) by an amount deemed by such Lender to be material (such
amount not to be duplicative of any amounts due under
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Section 4.05(a)), then from time to time, upon demand by such Lender, which
demand shall be accompanied by a statement (which shall be conclusive and
binding for all purposes absent manifest error) setting forth the basis of such
demand and the additional amounts, calculated in accordance with such Lender's
policies, sufficient to compensate such Lender (or such controlling Person) for
such reduction (such additional amounts to be reduced by the amount, if any, by
which the interest rates on the Loans made by such Lender have been increased
to reflect such reduction), with a copy to the Administrative Agent, the
Borrower shall pay to the Administrative Agent for the account of such Lender
the amounts set forth on such statement.
(c) Market Disruption. If on or prior to the first day
of any Interest Period for any Eurodollar Rate Loan Borrowing:
(i) the Administrative Agent is advised by the Reference
Banks that deposits in dollars (in the applicable amounts) are not
being offered to the Reference Banks in the relevant market for such
Interest Period, or
(ii) the Required Lenders advise the Administrative Agent
that the Eurodollar Rate, as determined by the Administrative Agent,
will not adequately and fairly reflect the cost to such Lenders of
funding their Eurodollar Rate Loans, for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower
and the Lenders, whereupon until the Administrative Agent notifies the Borrower
that the circumstances giving rise to such suspension no longer exist, the
obligations of the Lenders to make Eurodollar Rate Loans shall be suspended.
Unless the Borrower notifies the Administrative Agent at least two Business
Days prior to the date of any Eurodollar Rate Loan for which a Notice of
Borrowing has previously been given that it elects not to borrow on such date,
such Loan shall instead be made as a Base Rate Loan.
(d) Illegality. Notwithstanding any other provision of
this Agreement, if after the Effective Date, the introduction of or any change
in or in the interpretation of any law or regulation shall make it unlawful or
impossible, or any central bank, comparable agency or other Governmental
Authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Loans or to continue to fund or maintain Eurodollar Rate Loans hereunder, then,
on notice thereof and demand therefor by such Lender to the Borrower through
the Administrative Agent, (i) each Eurodollar Rate Loan made by such Lender
will automatically, upon such demand, Convert into a Base Rate Loan and (ii)
the obligation of such Lender to make, or to Convert Loans into, Eurodollar
Rate Loans shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist; provided that, before making any such demand, such
Lender
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agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Eurodollar Lending Office
if the making of such a designation would allow such Lender or its Eurodollar
Lending Office to continue to perform its obligations to make Eurodollar Rate
Loans or to continue to fund or maintain Eurodollar Rate Loans and would not,
in the judgment of such Lender, be otherwise disadvantageous to such Lender.
(e) Funding. Notwithstanding any provision of this
Agreement to the contrary, each Lender shall be entitled to fund and maintain
its funding of all or any part of its Loans in any manner it sees fit, it being
understood, however, that for the purposes of this Agreement all determinations
hereunder shall be made as if such Lender had actually funded and maintained
each Eurodollar Rate Loan through the purchase of deposits having a maturity
corresponding to the Interest Period for such Loans and bearing an interest
rate equal to the Eurodollar Rate for such Interest Period.
(f) Limitation on Interest. Each provision in this
Agreement and each other Loan Document is expressly limited so that in no event
whatsoever shall the amount paid, or otherwise agreed to be paid, by the
Borrower for the use, forbearance or detention of the proceeds of the Loans
made under this Agreement or any other Loan Document or otherwise (including
any sums paid as required by any covenant or obligation contained herein or in
any other Loan Document which are for the use, forbearance or detention of such
money), exceed that amount of money which would cause the effective rate of
interest to exceed the highest lawful rate permitted by applicable law (the
"Highest Lawful Rate"), and all amounts owed under this Agreement and each
other Loan Document shall be held to be subject to reduction to the effect that
such amounts so paid or agreed to be paid which are for the use, forbearance or
detention of money under this Agreement or such Loan Document shall in no event
exceed that amount of money which would cause the effective rate of interest to
exceed the Highest Lawful Rate. Notwithstanding any provision in this
Agreement or any other Loan Document to the contrary, if the maturity of any of
the Loans is accelerated for any reason, or in the event of any prepayment of
all or any portion of the Loans by the Borrower or in any other event, earned
interest on the Loans may never exceed the Highest Lawful Rate, and any
unearned interest otherwise payable under the Notes that is in excess of the
Highest Lawful Rate shall be cancelled automatically as of the date of such
acceleration or prepayment or other such event and (if theretofore paid) shall,
at the option of the Lender, be either refunded to the Borrower or credited to
the principal of the Notes. In determining whether or not the interest paid or
payable, under any specific contingency, exceeds the Highest Lawful Rate, the
Borrower and the Lenders shall, to the maximum extent permitted by applicable
law, amortize, prorate, allocate and spread, in equal parts during the period
of the actual term of this Agreement, all interest at any time contracted for,
charged, received or reserved in connection with this Agreement.
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Section 4.06. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later than 12:00 P.M.
(New York City time) on the day when due in U.S. Dollars to the Administrative
Agent at the Administrative Agent's Account in immediately available funds.
The Administrative Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal, interest or fees ratably (other
than amounts payable pursuant to Section 4.05(a), 4.05(b), 4.07 or 10.04(c)) to
the Lenders for the account of their Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 10.07(d), from and after the effective date
of such Assignment and Acceptance, the Administrative Agent shall make all
payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such Assignment
and Acceptance shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves. Upon any
Assuming Lender becoming a Lender hereunder as a result of the effectiveness of
a Commitment Increase pursuant to Section 2.04(c) and upon the Administrative
Agent's receipt of such Lender's Assumption Agreement and recording the
information contained therein in the Register, from and after the Increase
Date, the Administrative Agent shall make all payments hereunder and under the
Notes in respect of the interest assumed thereby to the Assuming Lender.
(b) All computations of interest based on the Base Rate
and fees shall be made by the Administrative Agent on the basis of a year of
365 days, and all computations of interest based on the Eurodollar Rate or the
Federal Funds Rate shall be made by the Administrative Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest and fees are payable. Each determination by the Administrative Agent
of an interest rate or fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest;
provided that, if such extension would cause payment of interest on or
principal of Eurodollar Rate Loans to be made in the next following calendar
month, such payment shall be made on the next preceding Business Day.
(d) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to any
Lender hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the
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Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each such Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent the Borrower shall not have so made
such payment in full to the Administrative Agent, each such Lender shall repay
to the Administrative Agent forthwith on demand such amount distributed to such
Lender together with interest thereon, for each day from the date such amount
is distributed to such Lender until the date such Lender repays such amount to
the Administrative Agent, at the Federal Funds Rate.
(e) To the fullest extent permitted by law, the Borrower
shall make all payments hereunder and under the Notes regardless of any defense
or counterclaim, including any defense or counterclaim based on any law, rule
or policy which is now or hereafter promulgated by any Governmental Authority
and which may adversely affect the Borrower's obligation to make, or the right
of the holder of any Note to receive, such payments.
Section 4.07. Taxes. (a) Any and all payments by the
Borrower hereunder or under the Notes shall be made, in accordance with Section
4.06, free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto (including any penalties and additions thereto
and interest thereon), excluding, in the case of each Lender and the
Administrative Agent, respectively, taxes (including any penalties and
additions thereto and interest thereon) imposed on or measured by reference to
the net income of such Lender or the Administrative Agent by the jurisdiction
under the laws of which the Administrative Agent or such Lender is organized,
or in which such Lender or the Administrative Agent, respectively, has its
principal executive office, or in which such Lender has its Domestic Lending
Office or Eurodollar Lending Office (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If the Borrower shall be required by law to deduct or
withhold any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender or the Administrative Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions or
withholding (including deductions or withholding applicable to additional sums
payable under this Section) such Lender or the Administrative Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions or withholding been made, (ii) the Borrower shall make such
deductions or withholding and (iii) the Borrower shall timely pay the full
amount deducted or withheld to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present
or future stamp or documentary taxes or any other charges or similar levies
that arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or the Notes (hereinafter referred to as "Other Taxes").
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(c) The Borrower will indemnify and hold harmless each
Lender and the Administrative Agent from and against the full amount of Taxes
or Other Taxes (including without limitation Taxes or Other Taxes imposed by
any jurisdiction on amounts payable under this Section) paid by such Lender or
the Administrative Agent (as the case may be) and any liability (including
penalties and additions to tax, interest on tax and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 30 days
from the date such Lender or the Administrative Agent (as the case may be)
makes written demand therefor.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower will furnish to the Administrative Agent, at its address
referred to in Section 10.02, an official receipt (or a certified copy) or
other documentation reasonably acceptable to the Administrative Agent
evidencing payment thereof to the relevant taxation or other authority. In the
case of any payment hereunder or under the Notes by or on behalf of the
Borrower through an account or branch outside the United States or by or on
behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent at such address, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes; provided, however, that
no such opinion shall be required with respect to any exemption from Taxes
imposed by the United States. For purposes of this subsection (d) and the
following subsection (e), the terms "United States" and "United States person"
shall have the meaning specified in Section 7701 on the Internal Revenue Code.
(e) Each Lender organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of this Agreement in the case of the Lenders listed in
the signature pages hereof, and on the date of the Assignment and Acceptance or
the Assumption Agreement, as the case may be, pursuant to which it became a
Lender in the case of each other Lender, and from time to time thereafter if
requested in writing by the Borrower (but only so long thereafter as such
Lender remains lawfully able to do so), provide the Administrative Agent and
the Borrower with two original Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Lender is entitled to benefits under an income
tax treaty to which the United States is a party that reduces the rate of
withholding tax on payments under this Agreement or the Notes or certifying
that the income receivable pursuant to this Agreement or the Notes is
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Lender at the time such Lender first becomes
a party to this Agreement indicates a United States interest withholding tax
rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Lender provides the appropriate form
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
form; provided that, if at the
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date of the Assignment and Acceptance or the Assumption Agreement, as the case
may be, pursuant to which a Lender assignee becomes a party to this Agreement,
the Lender assignor was entitled to payments under subsection (a) above in
respect of United States withholding tax with respect to interest paid at such
date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender assignee on such date. As an alternative to delivering
Internal Revenue Service Form 1001 or 4224, a Non-U.S. Lender holding
Registered Notes (a "Registered Noteholder") (or, if such Registered Noteholder
is not the beneficial owner thereof, such beneficial owner) may deliver to the
Borrower prior to or at the time such Non-U.S. Lender becomes a Registered
Noteholder, an Internal Revenue Service Form W-8 (or such successor and related
forms as may from time to time be adopted by the relevant taxing authorities of
the United States), together with an annual certificate stating that such
Registered Noteholder or beneficial owner, as the case may be, is not any
person described in Section 871(h)(3) or Section 881(c)(3) of the United States
Internal Revenue Code. Each Registered Noteholder or beneficial owner, as the
case may be, agrees (x) to deliver to the Borrower a further duly completed
copy of any previously delivered Internal Revenue Service Form W-8 on or before
the earlier of the date that any such Form W-8 expires or becomes obsolete
under applicable United States Treasury regulations and the date such Form W-8
otherwise is required to be resubmitted as a condition to obtaining an
exemption from withholding from United States federal income tax and (y) to
notify the Borrower within thirty days after it determines that it is no longer
in a position to provide such Form W-8 or annual certificate to the Borrower.
(f) For any period with respect to which a Lender has
failed to provide the Borrower with the appropriate form described in
subsection (e) above or any successor form (other than if such failure is due
to a change in law occurring after the date on which a form originally was
required to be provided or if such form otherwise is not required under
subsection (e)), such Lender shall not be entitled to indemnification under
subsection (a) or (c) above with respect to Taxes imposed by the United States
unless such Taxes would have been imposed without regard to such Lender's
failure to provide the appropriate form to the Borrower; provided that should a
Lender become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrower shall take at such Lender's expense such steps
as such Lender shall reasonably request to assist such Lender to recover such
Taxes.
(g) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section shall survive the termination of this
Agreement, the payment in full of principal, interest and other amounts
hereunder and under the Notes.
(h) Notwithstanding anything to the contrary in this
Section 4.07, the Borrower shall not be required to pay or indemnify for any
Tax or Other Tax to the extent such Tax or Other Tax would not have been
imposed but for the sale of participations by any
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50
Lender in or to all or a portion of its rights and obligations under this
Agreement pursuant to Section 10.07(e).
Section 4.08. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, or involuntary, through the exercise of
any right of set-off, or otherwise) on account of the Loans owing to it (other
than pursuant to Section 4.05(a), 4.05(b), 4.07 or 10.04(c)), or receive any
collateral or guaranties therefor, in excess of its ratable share of payments,
collateral or guaranties on account of such Loans obtained by all the Lenders
of such Loans, such Lender shall forthwith purchase from the other Lenders such
participations in such Loans owing to them, or shall provide such other Lenders
with the benefits of any such collateral and guaranties as shall be necessary
to cause such purchasing Lender to share the excess payment, collateral or
guaranties ratably with each of them; provided that if all or any portion of
such excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 4.08 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation.
Section 4.09. Use of Proceeds. The Borrower will apply the
proceeds of the Loans to (i) refinance the "Tranche C Loans" outstanding under
the Existing Credit Agreement and (ii) finance Distribution Expenses of the
Borrower and its Subsidiaries from time to time.
ARTICLE V
CONDITIONS OF LENDING
Section 5.01. Conditions to Effective Date. Section 2.01
shall become effective from and after the first date (the "Effective Date") on
which each of the conditions precedent set forth in Section 5.02 and the
following conditions precedent shall have been satisfied or duly waived:
(a) No Material Adverse Change. Before giving effect to
the transactions contemplated by this Agreement, there shall have
occurred no Material Adverse Change since December 31, 1995.
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51
(b) Representations and Warranties and No Default. The
Lenders shall be satisfied that (i) each of the representations and
warranties made by the Loan Parties 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 and (ii) no Default
shall have occurred and be continuing on the Effective Date, or will
result after giving effect to the Loans requested to be made on such
date.
(c) Security Interest. The Lenders shall be satisfied
that the Borrower has taken all actions (including, without
limitation, the completion of all recordings and filings of or with
respect to the B Share Collateral Agreement) that may be necessary or
that the Administrative Agent may deem desirable in order to create,
maintain and protect the first priority liens and security interests
created under the B Share Collateral Agreement.
(d) Fees. The Borrower shall have paid all accrued fees
and expenses of the Administrative Agent and the Lenders (including
the accrued fees and expenses of counsel to the Administrative Agent).
(e) Termination of Tranche A Security. All action
required to be taken to release the security interest of the Existing
Lenders in all of the collateral under the Existing Credit Agreement
and related documentation and the holders of the Senior Notes under
the Senior Note Indenture and related documentation shall have been
taken.
(f) Litigation. There shall exist no action, suit,
investigation, litigation or proceeding pending or threatened in any
court or before any arbitrator or governmental instrumentality that
(i) could have a Material Adverse Effect or (ii) purports to affect
the legality, validity or enforceability of any Loan Document.
(g) Consents. All governmental and third party consents
and approvals necessary in connection with the consummation of the
transactions contemplated by the Loan Documents shall have been
obtained (without the imposition of any conditions that are not
acceptable to the Lenders) and shall remain in effect; all applicable
waiting periods shall have expired without any action being taken by
any competent authority; and no law or regulation shall be applicable
in the judgment of the Lenders that restrains, prevents or imposes
materially adverse conditions upon the consummation of the
transactions contemplated by the Loan Documents.
(h) Margin Regulations. All Loans made by the Lenders to
the Borrower shall be in full compliance with the Federal Reserve's
Margin Regulations.
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52
(i) Collection Agency Agreement. The Borrower and the
other parties to the Collection Agency Agreement shall have executed
and delivered to the Lenders such amendments to such agreement as the
Lenders may reasonably require, on terms and conditions satisfactory
to the Lenders, the Borrower and Citibank, as the program agent under
the Permitted Deferred Load Amounts Securitization in existence on the
Effective Date.
(j) Certain Amendments. The Borrower and its
Subsidiaries shall have delivered certified copies of amendments and
amended and restated agreements, as the case may be, related to the
Tranche A Credit Agreement and each Securitization Program, which
shall reflect the changes as may be appropriate to facilitate the
consummation of the transactions contemplated by the Loan Documents.
The terms and conditions of all documentation related to the Tranche A
Credit Agreement and the Securitization Program shall be satisfactory
to the Lenders.
(k) Schedules. The Administrative Agent shall have
received a schedule, with a copy for each Lender, as of a recent date,
in form and substance satisfactory to the Administrative Agent of (i)
all Management Contracts relating to the Eligible Funds, specifying
the fees, term, termination date and amount of assets under management
for each Management Contract, and (ii) all Distribution Agreements
relating to the Eligible Funds, specifying the parties, term,
termination date, if any, and all brokerage commissions and prepaid
service fees payable in connection with the sale of CDSC Shares by the
Borrower or any subsidiary to a distributor of shares of an Eligible
Fund.
(l) Documentation. The Administrative Agent shall have
received on or before the Effective Date the following, each dated
such day (unless otherwise specified), in form and substance
satisfactory to the Lenders (unless otherwise specified) and (except
for the Notes) in sufficient copies for each Lender:
(i) The Notes payable to the order of the
Lenders.
(ii) Certified copies of the resolutions of the
Board of Directors of the Borrower and each other Loan Party
approving this Agreement, the Notes and each other document
delivered pursuant to this Section 5.01 to which it is or is
to be a party, and of all documents evidencing other necessary
corporate action and governmental and other third party
approvals and consents, if any, with respect to this
Agreement, the Notes and each other document delivered
pursuant to this Section 5.01.
(iii) A certificate of the Secretary or an
Assistant Secretary of each Loan Party certifying the names
and true signatures of the officers of such
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53
Loan Party authorized to sign this Agreement, the Notes and
the other documents to be delivered hereunder to which it is
or is to be a party.
(iv) A guaranty, in substantially the form of
Exhibit 7.21 hereto, duly executed by AIM Advisors.
(v) A pledge and security agreement, in
substantially the form of Exhibit 5.01(l)(v) (as amended,
supplemented or otherwise modified from time to time, the "B
Share Collateral Agreement"), duly executed by the Borrower.
(vi) A certified copy of the Distribution Fee
Purchase Agreement.
(vii) Certificates, signed by the chief financial
officer of each of the Borrower and AIM Advisors, in
substantially the form of Exhibit 5.01(l)(vii)-1 and Exhibit
5.01(l)(vii)-2 hereto, respectively, attesting to the solvency
of the Borrower and AIM Advisors, respectively.
(viii) A favorable opinion of Carol F. Relihan,
general counsel for the Loan Parties, in substantially the
form of Exhibit 5.01(l)(viii) hereto and as to such other
matters as any Lender through the Administrative Agent may
reasonably request.
(ix) A favorable opinion of Ballard Spahr Andrews
& Ingersoll, special counsel for the Loan Parties, in
substantially the form of Exhibit 5.01(l)(ix) hereto and as to
such other matters as any Lender through the Administrative
Agent may reasonably request.
(x) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
Section 5.02. Conditions to Each Loan. (a) The agreement of
each Lender to make any Loan requested to be made by it on any date (including
its initial Loans) is subject to, on the date of the Borrowing and after giving
effect thereto, the satisfaction of the following conditions precedent:
(i) Notice of Borrowing. The Administrative Agent shall
have received a Notice of Borrowing from the Borrower in accordance
with Section 3.01(a).
(ii) Representations and Warranties. Each of the
representations and warranties made by the Loan Parties 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
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54
such date (except to the extent such representations and warranties
relate solely to an earlier date).
(iii) No Default. No Default shall have occurred and be
continuing on such date, or will result after giving effect to the
Loans requested to be made on such date.
(iv) Distribution Plan. Each Eligible Fund shall have
adopted a Distribution Plan with respect to Distribution Expenses
which are to be financed by Loans.
(v) Consents and Approvals. The Borrower and its
Subsidiaries shall have duly obtained all consents and approvals of,
and shall have given or made all notices to or filings with, all
Governmental Authorities required for (A) the issuance of CDSC Shares
by any Eligible Fund or by any Collateral Fund or (B) the
implementation of a Distribution Plan (including any necessary
exemptive order of the Securities and Exchange Commission).
(vi) Use of Proceeds. Documentation evidencing the
obligation of AIM Distributors (or any Subsidiary successor thereto)
to pay, or evidencing the payment of, Distribution Expenses, which
Distribution Expenses are in accordance with amounts set forth on
Schedule 1.01C hereto.
(vii) Modification of Distribution Plans. The Distribution
Plans with respect to which Distribution Expenses have been or (as
evidenced by such Notice of Borrowing) are to be financed by Loans
shall not have been terminated or modified by any party thereto,
except for modifications which are made in order to comply with
changes in regulations of the Securities and Exchange Commission or
National Association of Securities Dealers from time to time, or to
add other types of service agreements, in each case as long as such
changes and additions do not affect (A) the Distribution Fees or the
Contingent Deferred Sales Charge with respect to shares distributed
pursuant to such Distribution Plan or (B) the obligations of the
Borrower and its Subsidiaries under the Loan Documents.
(viii) Distribution Agreements. No Distribution Agreement
relating to CDSC Shares of an Eligible Fund or any Collateral Fund for
which Distribution Expenses have been or are to be financed by Loans
shall have been canceled or terminated.
(ix) Regulatory Restrictions. No legal or regulatory
restriction shall exist or shall be enacted or proposed by the
Securities and Exchange Commission or any other Governmental Authority
or the National Association of Securities Dealers (including any
modification or termination of Rule 12b-1 under the Investment Company
Act and including the Rules of Fair Practice of the National
Association of
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55
Securities Dealers) which would limit or prevent the payment of any
Deferred Load Amounts.
(x) Suspension of Distributions. No Eligible Fund shall
be required by any order of any Governmental Authority to suspend the
sale of CDSC Shares except to the extent such suspension could not
have a Material Adverse Effect.
(xi) Broker/Dealer Registration. The Securities and
Exchange Commission shall not have revoked the broker/dealer
registration of AIM Distributors, and the National Association of
Securities Dealers shall not have suspended or revoked AIM
Distributors' membership as a member organization of the National
Association of Securities Dealers.
(xii) Minimum Capital Requirements. AIM Distributors shall
not have failed to meet the minimum capital requirements prescribed
from time to time by the Securities and Exchange Commission pursuant
to Rule 15c3-1 under the Exchange Act.
(xiii) Liquidation or Dissolution. No Eligible Fund shall
have adopted a plan of liquidation or dissolution which will have the
effect of amending, cancelling or terminating any Distribution Plan,
the Distribution Agreement or any other agreement in respect of which
Distribution Expenses have been or are to be financed by Loans, which
amendment, cancellation or termination (A) could have a Material
Adverse Effect or (B) could adversely affect the Borrower's right to
receive Distribution Fees or the Contingent Deferred Sales Charge with
respect to shares distributed pursuant to any Distribution Plan.
(xiv) Merger. No Eligible Fund shall have merged or
proposed to merge with another AIM Fund that is not an Eligible Fund
if the effect of such merger or proposed merger would be to amend,
cancel or terminate any Distribution Plan, the Distribution Agreement
or any other agreement in respect of which Distribution Expenses have
been or are to be financed by Loans, which amendment, cancellation or
termination (A) could have a Material Adverse Effect or (B) could
adversely affect the Borrower's right to receive Distribution Fees or
the Contingent Deferred Sales Charge with respect to shares
distributed pursuant to any Distribution Plan.
(xv) Additional Matters. All corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Agreement and
the other Loan Documents shall be satisfactory in form and substance
to the Administrative Agent, and the Administrative Agent shall have
received such other documents and legal opinions in respect of any
aspect
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56
or consequence of the transactions contemplated hereby or thereby as
it shall reasonably request.
(b) Each delivery of a Notice of Borrowing by the
Borrower hereunder shall constitute a representation and warranty by the
Borrower and each Guarantor (acting through the Borrower pursuant to authority
granted in the applicable AIM Guaranty) as of the date of such Borrowing that
the conditions contained in this Section 5.02 have been satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make
the Loans hereunder (i) as of the date hereof, (ii) as of the Effective Date,
and (iii) as to each date when representations and warranties are deemed to be
made pursuant to Section 5.02, the Borrower represents to the Administrative
Agent, each Co-Agent and each Lender as follows:
Section 6.01. Organization, Etc. The Borrower (i) is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, (ii) is duly qualified or licensed and is in
good standing as a foreign corporation in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires it so
to qualify or be licensed, and (iii) has all requisite corporate power and
authority to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted. All of the
outstanding capital stock of the Borrower has been validly issued, is fully
paid and nonassessable.
Section 6.02. Subsidiaries. Set forth on Schedule 6.02 is an
organizational chart for the Borrower and each of its Subsidiaries, which
Schedule 6.02 is, as of the Effective Date, complete and accurate and shows (as
to each such Subsidiary) the jurisdiction of its incorporation and the
percentage of the outstanding shares of each such class owned by the Borrower
and any other Subsidiary and the number of shares covered by all outstanding
options, warrants, rights of conversion or purchase and similar rights. All of
the outstanding Capital Stock of each such Subsidiary has been validly issued,
is fully paid and non-assessable, and the shares of Capital Stock owned by the
Borrower or any other Subsidiary is owned free and clear of all Liens. Each
such Subsidiary (i) is a corporation duly organized and validly existing and in
good standing under the laws of the jurisdiction of its incorporation, (ii) is
duly qualified or licensed and is in good standing as a foreign corporation in
each other jurisdiction in which it owns or leases property or in which the
conduct of its business requires it so to qualify or be licensed, and (iii) has
all requisite
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57
corporate power and authority to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be conducted.
Section 6.03. Authorization, Etc. (a) The execution,
delivery and performance by the Borrower and each of its Subsidiaries of each
Loan Document to which it is or is to be a party, and the consummation of the
transactions contemplated hereby and thereby (including the power to grant the
Liens described in the Collateral Documents and the power to use the proceeds
of the Loans as permitted hereunder), are within the Borrower's and each such
Subsidiary's corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene, or conflict with, the Borrower's
or any Subsidiary's certificate of incorporation or by-laws, (ii) violate any
Requirement of Law (including Regulation X of the Board of Governors of the
Federal Reserve System), (iii) conflict with or result in the breach of,
constitute a default under, or cause or permit any termination or any mandatory
prepayment or acceleration of the maturity of, any contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument binding on or
affecting the Borrower, any of its Subsidiaries or any of their properties, or
(iv) except for the Liens created by the Collateral Documents, result in or
require the creation or imposition of any Lien upon or with respect to any of
the properties of the Borrower or any of its Subsidiaries. Neither the
Borrower nor any of its Subsidiaries is in violation of any Requirement of Law
or in breach of any such contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument, the violation or breach of which could have a
Material Adverse Effect.
(b) No consent or approval of the stockholders or
directors of the Borrower or any of its Subsidiaries or of any AIM Fund is
required as a condition to the validity or performance of, or exercise by the
Administrative Agent or the Lenders of any of their rights or remedies under,
any of the Loan Documents.
(c) The provisions of each of the Collateral Documents
are effective to create in favor of the Administrative Agent a valid, binding
and enforceable security interest in all right, title and interest of the
Borrower in the Collateral described therein, which upon the filing of
financing statements and the taking of the other actions specified in the
Collateral Documents, will constitute a fully-perfected first and prior
security interest superior to any other Liens except as otherwise provided in
such Collateral Documents.
(d) (i) AIM Advisors, AIM Capital Management and each
other Subsidiary of the Borrower engaged in advisory or management activities,
if any, is, and at all times will be, duly registered as an investment adviser
as, and to the extent required under, the Investment Advisers Act; (ii) AIM
Distributors, Fund Management Company and each other Subsidiary engaged in the
broker-dealer business, if any, is, and at all times will be, duly registered
as a broker-dealer as and to the extent required under the Securities Exchange
Act and, as and to the extent required is, and at all times will be, a member
in good standing of
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58
the National Association of Securities Dealers, Inc.; and (iii) the Borrower
and all of its Subsidiaries have all other permits, licenses, authorizations,
franchises and registrations needed to conduct their respective businesses as
now conducted other than permits, licenses, authorizations, franchises and
registrations the absence of which, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(e) Each Loan Document to which the Borrower or any of
its Subsidiaries is or is to be a party has been, or when delivered will have
been, duly executed and delivered by the Borrower or such Subsidiary. Each
Loan Document to which the Borrower or any of its Subsidiaries is or is to be a
party is, or when delivered will be, the legal, valid and binding obligation of
the Borrower or such Subsidiary, enforceable against the Borrower or such
Subsidiary in accordance with its terms subject, as to enforcement, to
bankruptcy, insolvency, reorganization, moratorium and similar laws of general
applicability relating to creditors' rights and general equity principles
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
Section 6.04. Approvals. Except for the authorizations,
approvals, actions, notices and filings listed on Schedule 6.04, all of which
have been duly obtained, taken, given or made and are in full force and effect,
no authorization or approval or other action by, and no notice to or filing
with, any Governmental Authority or any other third party is required for (i)
the due execution, delivery, recordation, filing or performance by the Borrower
or any of its Subsidiaries or any Loan Document to which it is or is to be a
party, or for the consummation of the transactions contemplated hereby or
thereby, (ii) the grant by the Borrower of the Liens granted by it pursuant to
the Collateral Documents, (iii) the perfection or maintenance of the Liens
created by the Collateral Documents (including the first priority nature
thereof) or (iv) the exercise by the Administrative Agent, any Co-Agent or any
Lender of its rights under any Loan Documents to which the Borrower or any of
its Subsidiaries is a party or the remedies in respect of the Collateral
pursuant to the Collateral Documents.
Section 6.05. Financial Statements. The Consolidated balance
sheet of the Borrower and its Subsidiaries as at December 31, 1995, and the
related Consolidated statements of operations, cash flows and changes in
stockholders' equity of the Borrower and its Subsidiaries for the Fiscal Year
then ended, with the report thereon of KPMG Peat Marwick, independent public
accountants, and the Consolidated balance sheet of the Borrower and its
Subsidiaries as at March 31, 1996, and the related Consolidated statements of
operations of the Borrower and its Subsidiaries for the three months then
ended, duly certified by a Responsible Officer, copies of which have been
furnished to each Lender, fairly present the Consolidated financial position of
the Borrower and its Subsidiaries as at such dates and the Consolidated results
of the operations of the Borrower and its Subsidiaries for the periods ended on
such dates, all in accordance with GAAP applied on a consistent basis. There
are no material liabilities, direct or indirect, fixed or contingent, of the
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59
Borrower or any of its Subsidiaries as of the date thereof which are not
reflected in such financial statements or in the notes thereto. Since December
31, 1995, there has been no Material Adverse Change.
Section 6.06. Litigation. There is no action, suit,
investigation, litigation or proceeding affecting the Borrower or any of its
Subsidiaries pending or threatened before any court, Governmental Authority or
arbitrator (i) that, in any one proceeding or investigation or in the
aggregate, could have a Material Adverse Effect, (ii) that purports to affect
the legality, validity or enforceability of, any Loan Document or the
consummation of the transactions contemplated hereby or thereby or (iii) that
relates to or arises from any Management Contract or Distribution Agreement
that, in any one proceeding or investigation or in the aggregate could
reasonably be expected to have a Material Adverse Effect.
Section 6.07. Liens; Insurance; Intellectual Property. (a)
The Borrower and its Subsidiaries have good record and marketable title in fee
simple to, or a valid leasehold interest in, all their respective real property
and good title to all their respective other property and assets, and none of
the property or assets of the Borrower or any of its Subsidiaries is subject to
any Lien, except for Liens created by the Collateral Documents and Liens of the
types permitted by Section 7.02.
(b) The Borrower maintains and causes each of its
Subsidiaries to maintain such insurance with respect to its properties and
business and the properties and business of its Subsidiaries as is required by
Section 7.11.
(c) The Borrower and each of its Subsidiaries owns or has
fully sufficient right to use, free from restrictions, all patents, trademarks,
service marks, trade names, copyrights, licenses and similar intellectual
property rights that are necessary for the operation of their respective
businesses as now conducted.
Section 6.08. Solvency. The Borrower is Solvent individually
and on a Consolidated basis with its Subsidiaries and each Guarantor is
Solvent.
Section 6.09. Existing Debt. Set forth on Schedule 6.09 is a
complete and accurate list of all Existing Debt as of the Effective Date,
showing as of such date the outstanding principal amount thereof.
Section 6.10. Projections. Subject to (i) the uncertainties
and approximations inherent in any set of projections and forecasts, and (ii)
the cautionary statements with respect to the projections and forecasts
included in the Borrower Information, the projections and forecasts included in
the Borrower Information (A) have been prepared by management of the Borrower
in good faith on the basis of the assumptions included in the Borrower
Information, which management of the Borrower believes are reasonable, and (B)
represent
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the Borrower's reasonable estimate of its future financial performance, in the
light of business conditions existing on the date hereof.
Section 6.11. Accuracy of Information. Neither any Loan
Document nor any other document, nor any information furnished by the Borrower
or any of its Subsidiaries for inclusion in the Borrower Information (other
than financial projections included in the Borrower Information), nor any other
document, certificate or instrument delivered to the Lenders by the Borrower or
any of its Subsidiaries or Persons authorized by the Borrower in connection
with the transactions contemplated by the Loan Documents contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained in the Loan Documents, and in such other
documents, certificates or instruments not misleading. There is no fact known
to the Borrower that has had or in the future may (so far as it can now
reasonably foresee) have a Material Adverse Effect that has not been disclosed
to the Lenders in writing by or on behalf of the Borrower specifically for use
in connection with the transactions contemplated by the Loan Documents.
Section 6.12. Taxes. The Borrower and each of its
Subsidiaries has filed or caused to be filed all tax returns required by law to
have been filed by them and has paid or provided or caused to be paid or
provided adequate reserves for all taxes thereby shown to be owing and all
taxes due on any assessments relating to such returns made against them or any
of their properties and all other taxes imposed upon them or any of their
properties, except any such taxes that are being diligently contested in good
faith by appropriate proceedings and for which adequate reserves have been
established and are being maintained in accordance with GAAP. Except as set
forth on Schedule 6.12, there is no ongoing audit or other governmental
investigation of any tax liability of the Borrower or any of its Subsidiaries
and there is no unresolved claim by a taxing authority concerning the
Borrower's or any Subsidiary's tax liability, for any period for which returns
have been filed or were due. The Consolidated liability stated for taxes for
the Borrower and its Subsidiaries as of March 31, 1996 in the financial
statements described in Section 6.05 is sufficient in all material respects for
all taxes as of such date.
Section 6.13. Compliance with ERISA. (i) Set forth on
Schedule 6.13 is a complete and accurate list of all Plans, Multiemployer Plans
and Welfare Plans and no such Plan is subject to the provisions of Title IV of
ERISA; (ii) no ERISA Event has occurred or is reasonably expected to occur with
respect to any Plan; (iii) neither the Borrower, any Subsidiary, nor any of
their respective ERISA Affiliates has incurred or is reasonably expected to
incur any Withdrawal Liability to any Multiemployer Plan; (iv) neither the
Borrower, any Subsidiary, nor any of their respective ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization, insolvent or has been terminated, within the meaning of
Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to be
in reorganization, insolvent or to be terminated, within the meaning of Title
IV of ERISA; (v) the aggregate annualized cost
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(including the cost of insurance premiums) with respect to post-retirement
benefits under Welfare Plans for which the Borrower and its Subsidiaries are
liable does not exceed $500,000, and the Borrower and its Subsidiaries have no
unfunded expected postretirement benefit obligation; and (vi) neither the
Borrower nor any of its Subsidiaries has breached the fiduciary rules of ERISA
or engaged in any prohibited transaction, and no such breach or prohibited
transaction has occurred, that could result in any direct or indirect material
liability (including as a result of an indemnification obligation) of the
Borrower or any of its Subsidiaries.
Section 6.14. Investment Company. Neither the Borrower 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. Neither the making of any Loans, nor the application of the
proceeds or repayment thereof by the Borrower, nor the consummation of the
other transactions contemplated hereby, will violate any provision of such Act
or any rule, regulation or order of the Securities and Exchange Commission
thereunder.
Section 6.15. Public Utility Holding Company Act. Neither
the Borrower nor any of its Subsidiaries is a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
Section 6.16. Margin Regulations. No part of the proceeds of
any Loan will be used to purchase or carry any margin stock or to extend credit
to others for the purpose of purchasing or carrying any margin stock (within
the meaning of Regulation G or Regulation U of the Board of Governors of the
Federal Reserve System). Neither the making of any Loan nor the use of
proceeds thereof will violate or be inconsistent with the provisions of
Regulation G, T, U or X of the Board of Governors of the Federal Reserve
System.
Section 6.17. Use of Proceeds. The Borrower will use the
proceeds of the Loans solely as provided in Section 4.09.
Section 6.18. Contingent Deferred Sales Charge. Each current
prospectus (which term shall include any related statement of additional
information) relating to each Eligible Fund and relating to each Collateral
Fund provides that a Contingent Deferred Sales Charge shall be payable upon the
redemption of such CDSC Shares of such Eligible Fund or such Collateral Fund
for six (6) years from the initial purchase of such CDSC Shares (unless waived
in specified circumstances pursuant to the terms of the prospectus under which
such shares are offered).
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Section 6.19. Distribution Fees. Each Distribution Agreement
and Distribution Plan relating to (i) each Eligible Fund pursuant to which CDSC
Shares are sold and (ii) each Collateral Fund, provides that Distribution Fees
shall be payable, except under the circumstances set forth (with the approval
of the Required Lenders) in the Distribution Agreements and Distribution Plans
under which such Distribution Fees are not payable.
ARTICLE VII
COVENANTS OF THE BORROWER
Section 7.01. Financial Covenants. (a) Maximum Leverage.
The Borrower will not permit the Leverage Ratio, determined as of the end of
its most recently completed Rolling Period, to be greater than 2.0 to 1.0.
(b) Minimum Interest Coverage. The Borrower will not
permit the ratio of (i) EBITDA to (ii) Consolidated Cash Interest Expense of
the Borrower and its Subsidiaries, determined as of the end of its most
recently completed Rolling Period, to be less than 4.5 to 1.0.
(c) Fixed Charge Coverage Ratio. The Borrower will not
permit the ratio of Operating Cash Flow to Consolidated Fixed Charges,
determined as of the end of its most recently completed Rolling Period, to be
less than 1.5 to 1.0.
Section 7.02. Liens, Etc. The Borrower will not, and will
not permit any Subsidiary to, directly or indirectly create, incur, assume or
permit to exist any Lien on or with respect to any property or asset (including
any document or instrument in respect of goods or accounts receivable) of the
Borrower or any Subsidiary, whether now owned or held or hereafter acquired, or
any revenues, income or profits therefrom, except:
(a) Liens for taxes, assessments or other governmental
charges being contested in good faith by appropriate proceedings
promptly initiated and diligently conducted and for which such
reserves or other appropriate provision, if any, as shall be required
by GAAP shall have been made and maintained in accordance GAAP and
past practices of the Borrower and its Subsidiaries therefor;
(b) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics and materialmen incurred in the ordinary
course of business for sums not yet due or being contested in good
faith by appropriate proceedings promptly initiated and diligently
conducted and for which such reserves or other appropriate provision,
if any, as shall be required by GAAP shall have been made therefor;
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(c) Liens (other than any Lien imposed by ERISA) incurred
or deposits made in the ordinary course of business (i) in connection
with workers' compensation, unemployment insurance and other types of
social security, or (ii) to secure (or to obtain letters of credit
that secure) the performance of tenders, statutory obligations, surety
and appeal bonds, bids, leases, performance bonds, purchase,
construction or sales contracts and other similar obligations, in each
case not incurred or made in connection with the borrowing of money,
the obtaining of advances or credit or the payment of the deferred
purchase price of property;
(d) any attachment or judgment Lien, unless the judgment
it secures shall not, within 60 days after the entry thereof, have
been discharged or execution thereof stayed pending appeal, or shall
not have been discharged within 60 days after the expiration of any
such stay;
(e) leases or subleases granted to others, easements,
rights-of-way, restrictions and other similar charges or encumbrances,
in each case incidental to, and not interfering with, the ordinary
conduct of the business of the Borrower or any Subsidiary;
(f) Liens incurred to secure the Loans hereunder;
(g) the Liens set forth on Schedule 7.02;
(h) Liens arising pursuant to one or more Securitization
programs;
(i) purchase money Liens upon or in any real property or
equipment acquired or held by the Borrower or any Subsidiary in the
ordinary course of business to secure the purchase price of such
property or equipment or to secure Debt incurred solely for the
purpose of financing the acquisition of such property or equipment, or
Liens existing on such property or equipment at the time of its
acquisition (other than any such Liens created in contemplation of
such acquisition that were not incurred to finance the acquisition of
such property) or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, provided, however, that no
such Lien shall extend to or cover any properties of any character
other than the real property or equipment being acquired, and no such
extension, renewal or replacement shall extend to or cover any
properties not theretofore subject to the Lien being extended, renewed
or replaced; and provided furtherthat the aggregate principal amount
of the Debt secured by Liens permitted under this clause (i) shall not
exceed the amount permitted under Section 7.03(k) at any time to be
outstanding; and
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(j) Liens arising in connection with Capital Leases
permitted under Section 7.03(k); provided that no such Lien shall
extend to or cover any assets other than the assets subject to such
Capital Lease.
Section 7.03. Debt. The Borrower will not, and will not
permit any Subsidiary to, directly or indirectly, create, incur, assume,
guarantee, or otherwise become or remain directly or indirectly liable with
respect to, any Debt, except that:
(a) the Borrower may become and remain liable with
respect to the Debt evidenced by the Loans;
(b) the Borrower may become and remain liable with
respect to the Debt evidenced by the "Tranche A Loans" under the
Tranche A Credit Agreement as in effect on the Effective Date;
(c) the Borrower may remain liable with respect to Debt
evidenced by the Senior Notes, provided that the aggregate principal
amount of the Senior Notes outstanding at any time shall not exceed
$110,000,000;
(d) any Subsidiary may become and remain liable with
respect to Debt of such Subsidiary owing to the Borrower or another
Subsidiary and the Borrower may become and remain liable with respect
to Debt of the Borrower owing to a Wholly-Owned Subsidiary, provided
that (i) any Debt of the Borrower owing to a Wholly-Owned Subsidiary
is subordinated in right of payment from and after such time as any
Loans shall become due and payable (whether at maturity, acceleration
or otherwise) to the payment and performance of the Borrower's
obligations under the Loan Documents, and (ii) in the case of any Debt
of any Guarantor owing to another Subsidiary, such Debt is
subordinated in right of payment from and after such time as any
obligations under the applicable Guaranty shall become due and payable
to the payment and performance of such Guarantor's obligations under
such Guaranty;
(e) the Guarantors may become and remain liable with
respect to the AIM Guaranties;
(f) the Guarantors may become and remain liable with
respect to Guaranties of the "Tranche A Loans" under the Tranche A
Credit Agreement and the Senior Notes, provided that such Guaranties
shall contain no terms more favorable to the beneficiaries thereof
than those set forth in the AIM Guaranties;
(g) the Borrower may become and remain liable under any
(i) Interest Rate Protection Agreement designed to hedge against
fluctuations in interest rates and (ii)
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Currency Hedging Arrangement designed to protect against the
fluctuations in currency values;
(h) the Borrower and its Subsidiaries may remain liable
under those items of Existing Debt designated on Schedule 6.09 as
obligations that are to remain outstanding after the Effective Date;
(i) the Borrower or any of its Subsidiaries may become
and remain liable with respect to Debt in respect of one or more
Securitization Programs;
(j) the Borrower may become and remain liable with
respect to Guaranties of loans, in an aggregate principal amount not
to exceed $25,000,000 at any time outstanding, made by third-parties
to its employees for purposes of (i) funding the exercise of options
on the Capital Stock of Borrower and the payment of tax liabilities
associated therewith and (ii) financing purchases of personal
residences; and
(k) the Borrower and its Subsidiaries may become and
remain liable with respect to (i) unsecured Debt incurred in the
ordinary course of business, (ii) Debt secured by Liens permitted by
Section 7.02(i) and (iii) Capital Leases, in an aggregate principal
amount outstanding under this Section 7.03(k) not to exceed
$10,000,000 at any time.
Section 7.04. Consolidation, Merger, Etc. The Borrower will
not, and will not permit any Subsidiary to, directly or indirectly, consolidate
with or merge into any other Person or permit any other Person to consolidate
with or merge into it except that (i) any Wholly-Owned Subsidiary of the
Borrower may merge into any other Wholly-Owned Subsidiary of the Borrower and
(ii) the Borrower and any Wholly-Owned Subsidiary of the Borrower may merge
into or consolidate with any other Person or permit any other Person to merge
into or consolidate with it; provided that such merger does not (A) result in a
Default under any Loan Document, (B) result in the termination or material
amendment of any Distribution Agreement or Management Contract, if such
termination or material amendment (x) could have a Material Adverse Effect or
(y) could adversely affect the Borrower's right to receive Distribution Fees or
the Contingent Deferred Sales Charges with respect to shares distributed
pursuant to any Distribution Plan, (C) require any increase under the Exchange
Act or the laws of any State in the minimum net capital of any Subsidiary of
the Borrower that is a broker/dealer, if such increase could have a Material
Adverse Effect; and provided further that in the case of any merger or
consolidation to which the Borrower or any Wholly-Owned Subsidiary of the
Borrower is a party, the Borrower or, if the Borrower is not party to such
merger or consolidation, such Wholly-Owned Subsidiary (including, in any event,
AIM Advisors), is the surviving corporation.
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Nothing in this Section 7.04 shall be construed to prohibit
one or more Securitization Programs.
Section 7.05. Limitation on Restricted Payments. (a) The
Borrower will not, and will not permit any Subsidiary to, directly or
indirectly:
(i) declare or pay any dividend on, or make any
distribution to holders of, any Capital Stock of the Borrower (other
than dividends or distributions payable solely in shares of Qualified
Capital Stock of the Borrower or options, warrants or other rights to
purchase Qualified Capital Stock of the Borrower);
(ii) purchase, redeem or otherwise acquire or retire for
value any Capital Stock of the Borrower or any Affiliate thereof
(other than any Wholly-Owned Subsidiary of the Borrower) or any
option, warrant or other right to acquire such Capital Stock;
(iii) declare or pay any dividend or distribution on any
Capital Stock of any Subsidiary to any Person (other than the Borrower
or any of its Wholly-Owned Subsidiaries) or purchase, redeem or
otherwise acquire or retire for value any Capital Stock of any
Subsidiary held by any Person (other than the Borrower or any of its
Wholly-Owned Subsidiaries);
(iv) make any principal payment on, or repurchase, redeem,
defease, retire or otherwise acquire for value, prior to any scheduled
repayment, sinking fund payment or maturity, any Pari Passu Debt
(other than "Tranche A Loans" under the Tranche A Credit Agreement or
acquisitions of Senior Notes) or Debt which is subordinate to the
Loans; or
(v) make any Investment (other than any Permitted
Investment) in any Person
(such payments described in clauses (i) through (v), collectively, "Restricted
Payments"); unless at the time of, and after giving effect to, the proposed
Restricted Payment (the amount of any such Restricted Payment, if other than
cash, being as determined by the Board of Directors of the Borrower, whose
determination shall be conclusive and evidenced by a Board Resolution), (1) no
Default shall have occurred and be continuing and such Restricted Payment shall
not be an event which is, or after notice or lapse of time or both would be, an
"event of default" under the terms of any Debt of the Borrower or any
Subsidiary and (2) the aggregate amount of all Restricted Payments, declared or
made after the Effective Date, shall not exceed the sum of:
(A) $32,700,000;
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(B) 50% of the aggregate cumulative Consolidated Net
Income of the Borrower accrued on a cumulative basis during the period
beginning on December 31, 1995 and ending on the last day of the
Borrower's last Fiscal Quarter ending prior to the date of such
proposed Restricted Payment (or, if such aggregate cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss);
(C) the aggregate Net Cash Proceeds received after the
Effective Date by the Borrower as capital contributions to the
Borrower;
(D) the aggregate Net Cash Proceeds received after the
Effective Date by the Borrower from the issuance or sale (other than
to any of its Subsidiaries) of shares of Qualified Capital Stock of
the Borrower or any options, warrants or rights to purchase such
shares of Qualified Capital Stock of the Borrower (except, in each
case, to the extent such proceeds are used to purchase, redeem or
otherwise retire Capital Stock or Debt as set forth in clauses (b)(ii)
and (b)(iii) of this Section 7.05);
(E) the aggregate Net Cash Proceeds received after the
Effective Date by the Borrower (other than from any of its
Subsidiaries) upon the exercise of any options, warrants or rights to
purchase shares of Qualified Capital Stock of the Borrower; and
(F) the aggregate Net Cash Proceeds received after the
Effective Date by the Borrower from debt securities or Redeemable
Capital Stock that have been converted into or exchanged for Qualified
Capital Stock of the Borrower to the extent of the amount of cash or
Cash Equivalents received from the sale of such debt securities or
Redeemable Capital Stock, including payments in respect of deferred
payment obligations when received in the form of, or Capital Stock or
other assets when disposed for, cash or Cash Equivalents, plus the
aggregate Net Cash Proceeds received by the Borrower at the time of
such conversion or exchange.
(b) Notwithstanding the foregoing and, in the case of
clauses (ii) and (iii) below, so long as there is no Default continuing, the
foregoing provisions shall not prohibit the following Restricted Payments
(clauses (ii) and (iii) being referred to as a "Permitted Payment"):
(i) dividends paid within 60 days after the date of
declaration, if at the date of declaration such payment would be
permitted by the provisions of paragraph (a) of this Section 7.05 and
such payment shall be deemed to have been paid on such date of
declaration for purposes of the calculation required by the provisions
of paragraph (a) of this Section 7.05;
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(ii) the repurchase, redemption or other acquisition or
retirement of any shares of any class of Capital Stock of the Borrower
in exchange for (including any such exchange pursuant to the exercise
of a conversion right or privilege in connection with which cash is
paid in lieu of the issuance of fractional shares or scrip), or out of
the net proceeds of, a substantially concurrent issue and sale (other
than to a Subsidiary) of other shares of Qualified Capital Stock of
the Borrower; provided that the Net Cash Proceeds from the issuance of
such shares of Qualified Capital Stock are excluded from clause (2)(D)
of paragraph (a) above to the extent so applied to such repurchase,
redemption or other acquisition or retirement; and
(iii) the redemption, repayment, defeasance, repurchase,
acquisition or retirement for value of any Debt (other than Redeemable
Capital Stock) (a "refinancing") through the issuance of (A) new Debt
of the Borrower or (B) shares of Qualified Capital Stock of the
Borrower;, provided that, with respect to clause (A), the terms of any
such new Debt (and of any agreement entered into and of any instrument
issued in connection therewith) are no less favorable to the Agents
and the Lenders than the terms of the Debt so extended, refunded or
refinanced and are otherwise expressly permitted under the Loan
Documents; provided further, however, that (1) the aggregate principal
amount of such extended, refunded or refinanced Debt shall not be
increased above the outstanding principal amount thereof immediately
prior to such extension, refunding or refinancing plus any premium,
(2) no direct and contingent obligors therefor shall be added as a
result of or in connection with such extension, refunding, replacement
or refinancing and (3) immediately before and immediately after giving
pro forma effect to any such extension, refunding or refinancing, no
Default shall have occurred and be continuing; and provided further
that the Net Cash Proceeds from the issuance of any such Qualified
Capital Stock are excluded from clause (2)(D) of paragraph (a) above
to the extent so applied to such refinancing.
Section 7.06. Sale of Assets. The Borrower will not, and
will not permit any Subsidiary to, directly or indirectly, sell, lease or
otherwise dispose of (i) all or substantially all of its assets (including
rights or interests in any Distribution Agreement or any Management Contract)
or (ii) assets the sale of which could adversely affect the Borrower's right to
receive the Distribution Fees or the Contingent Deferred Sales Charge with
respect to shares distributed pursuant to any Distribution Plan; provided,
however, that: (y) any Subsidiary may sell, lease or otherwise dispose of all
or substantially all of its assets to the Borrower or a Wholly-Owned
Subsidiary; and (z) the Borrower and its Subsidiaries may (1) sell any Cash
Equivalents or any Investment referred to in clause (v) of the definition of
"Permitted Investment" so long as any use of the proceeds thereof is in
compliance with this Agreement and (2) subject to Section 3.03, engage in any
Securitization Program.
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Section 7.07. Transactions with Affiliates. The Borrower
will not, and will not permit any Subsidiary to, directly or indirectly, engage
in any transaction (including the purchase, sale or exchange of assets or the
rendering of any service) with any Affiliate of the Borrower, except in the
ordinary course of and pursuant to the reasonable requirements of the
Borrower's or such Subsidiary's business and upon fair and reasonable terms
that are no less favorable to the Borrower or such Subsidiary, as the case may
be, than those which might be obtained, in the good faith judgment of the
Borrower, in an arm's-length transaction at the time from Persons which are not
such an Affiliate, provided that (i) the foregoing restrictions shall not apply
to any transaction between the Borrower and a Subsidiary or between one
Subsidiary and another Subsidiary, (ii) the Borrower may enter into an
agreement with the TA Group providing for the purchase by the Borrower from the
TA Group of the shares of capital stock of the Borrower held by the TA Group to
the extent permitted under Section 7.05 or after all of the Loans have been
fully repaid and the Obligations of each Loan Party under the Loan Documents
have been discharged in full and (iii) the foregoing restrictions shall not
apply to any loan made by the Borrower or any of its Subsidiaries to any of
their respective employees for purposes of exercising stock options of such
employees and paying tax liabilities of such employees associated therewith.
Section 7.08. Compliance with Laws. The Borrower will comply
and will cause each of its Subsidiaries to comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, any
federal, state, local or foreign governmental authority in respect of the
conduct of its business and the ownership of its properties with respect to
which failure to comply, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
Section 7.09. Corporate Existence, Etc.; Business. The
Borrower will at all times preserve and keep in full force and effect its
corporate existence, and rights and franchises deemed material to its business,
and those of each of its Subsidiaries, and the Borrower shall not, and shall
not permit any Subsidiary to liquidate or dissolve or adopt any plan with
respect thereto, except that the corporate existence of any Subsidiary (other
than any Guarantor that is a Material Subsidiary and other than AIM
Distributors if it shall not be a Guarantor) may be terminated and such
Subsidiary may dissolve or liquidate or adopt a plan with respect thereto if,
in the good faith judgment of the Board of Directors of the Borrower, such
termination is in the best interest of the Borrower and is not disadvantageous
to the Lenders. The Borrower will not, and will not permit any Subsidiary to,
engage in any business other than the businesses conducted by the Borrower and
its Subsidiaries on the Effective Date and other activities incidental or
related to such businesses. Without limiting the generality of the foregoing,
the Borrower will not permit (i) AIM Distributors to engage in any business
other than the business of underwriting and distributing shares of AIM Funds
and such activities as are related or incidental thereto, (ii) any Subsidiary
that is a broker-dealer that currently conducts its business as a broker or
dealer engaged in the sale of redeemable shares of registered investment
companies, which does not receive or hold
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customer funds or securities, to engage in business as a broker or dealer that
clears customer or broker-dealer accounts or receives or holds funds or
securities for those Persons, (iii) any of its Subsidiaries other than AIM
Distributors to incur Distribution Expenses or (iv) any of its Subsidiaries
other than AIM Fund Services to receive Collections.
Section 7.10. Inspection. The Borrower will permit any
authorized representatives designated by any of the Lenders, without expense to
the Borrower, to visit and inspect any of the properties of the Borrower or any
of its Subsidiaries, including its and their books of account, and to make
copies and take extracts therefrom, and to discuss its and their affairs,
finances and accounts with its and their officers and independent public
accountants, all at such reasonable times and as often as may be reasonably
requested.
Section 7.11. Insurance. The Borrower will maintain or cause
to be maintained, with financially sound and reputable insurers, insurance with
respect to its properties and business and the properties and business of its
Subsidiaries against loss or damage of the kinds customarily insured against by
corporations of established reputation engaged in the same or similar business
and similarly situated, of such types and in such amounts as are customarily
carried under similar circumstances by such other corporations. Such insurance
may be subject to co-insurance, deductibility or similar clauses which, in
effect, result in self-insurance of certain losses, provided that such
self-insurance is in accord with generally accepted practices of corporations
similarly situated and adequate insurance reserves are maintained in connection
with such self-insurance.
Section 7.12. Insurance Agency Subsidiaries. The Borrower
shall cause each Insurance Agency Subsidiary to dividend all payments with
respect to fees received by such Insurance Agency Subsidiary to the Borrower in
accordance with Section 7.20. The Borrower shall form one or more Insurance
Agency Subsidiaries in each jurisdiction in which Override Payments are to be
paid to receive such Override Payments to the full extent permitted by
applicable law and the regulations or procedures of Governmental Authorities
having jurisdiction over such Subsidiaries. The Borrower shall cause each
other Person who is not an Insurance Agency Subsidiary and who receives
Override Payments to enter into an agreement with the Borrower or a
Wholly-Owned Subsidiary providing in substance for payments to the Borrower or
a Wholly-Owned Subsidiary in lieu of Override Payments to the maximum extent
and in the maximum amount permitted by applicable law and the regulations and
procedures of Governmental Authorities having jurisdiction over such Persons.
Section 7.13. Fiscal Year. Without the prior written consent
of the Required Lenders, each of the Borrower and its Subsidiaries will not
change its Fiscal Year.
Section 7.14. Conduct of Business. The Borrower will, and
will cause each of its Subsidiaries to, (i) conduct its business in a regular
manner, in the ordinary course and consistent with past practice, provided that
nothing in this clause (i) shall be construed to
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prohibit one or more Securitization Programs, (ii) perform and observe all of
the terms, covenants and conditions required to be performed and observed by it
under any Contractual Obligations except where the failure to observe such
terms, covenants and conditions, individually or in the aggregate would not
have a Material Adverse Effect, and (iii) pay and discharge all obligations on
customary terms except to the extent such obligations are being contested in
good faith.
Section 7.15. Payment of Taxes. The Borrower will, and will
cause each Subsidiary to, file on a timely basis all tax returns required to be
filed by them, and pay and discharge all taxes, assessments and governmental
charges or levies imposed upon it or any of its properties or assets or in
respect of any of its franchises, business, income or profits before any
penalty or interest accrues thereon, and all claims (including claims for
labor, services, materials and supplies) or sums which have become due and
payable and which by law have or might become a Lien upon any of its properties
or assets, provided that no such tax assessment, charge, or claim need be paid
if being contested in good faith by appropriate proceedings promptly initiated
and diligently conducted and if such reserves or other appropriate provision,
if any, as shall be required by GAAP shall have been made and maintained in
accordance with GAAP and past practices of the Borrower and its Subsidiaries
therefor.
Section 7.16. Issuance of Stock By Subsidiaries. No
Subsidiary shall issue or sell any shares of its Capital Stock to any Person
other than the Borrower, AIM Advisors, AIM Capital Management (solely with
respect to shares of the U.S. Holding Company), the U.S. Holding Company
(solely with respect to Subsidiaries organized and existing outside of the
United States) or with respect to Insurance Agency Subsidiaries to other
Persons as may be required by applicable law or the regulations or procedures
of Governmental Authorities having jurisdiction over such Insurance Agency
Subsidiaries.
Section 7.17. Modification of Agreements; Delivery of
Opinions and Documents. The Borrower shall not, and shall not permit any
Subsidiary to (i) alter, amend, modify, rescind, terminate or waive any of its
rights under, or breach or cause an event of default to exist under, the
Distribution Fee Purchase Agreement, any Management Contract or Distribution
Agreement or any of its Contractual Obligations if the foregoing actions,
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect or if the foregoing actions, individually or in the
aggregate, could adversely affect the Borrower's right to receive the
Distribution Fees or the Contingent Deferred Sales Charge with respect to
shares distributed pursuant to a Distribution Plan, or (ii) amend any of the
documents relating to the Tranche A Credit Agreement or the Senior Notes
without the prior written consent of the Required Lenders.
Section 7.18. Reporting Requirements. So long as any
Obligation under the Loan Documents shall remain outstanding or any Lender
shall have any Commitment
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hereunder, the Borrower will, unless the Required Lenders shall otherwise
consent in writing, furnish to the Lenders (except as noted below):
(a) Default Notice. As soon as possible and in any event
within five days after the occurrence of each Default continuing on
the date of such statement, a statement of the President of the
Borrower setting forth details of such Default and the action that the
Borrower has taken and proposes to take with respect thereto.
(b) Annual Financial Statements. Within 90 days after
the end of each Fiscal Year of the Borrower, Consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries as
at the end of such year and the related Consolidated (and, as to
statements of operations, consolidating) statements of operations,
cash flows and changes in stockholders' equity of the Borrower and its
Subsidiaries for such Fiscal Year, setting forth in each case in
comparative form the Consolidated figures for the previous Fiscal
Year, all in reasonable detail and (i) in the case of such
Consolidated financial statements, accompanied by a report thereon of
KPMG Peat Marwick or other independent public accountants of
recognized national standing selected by the Borrower (and reasonably
satisfactory to the Lenders) which report shall state that such
Consolidated financial statements present fairly, in all material
respects, the financial position of the Borrower and its Subsidiaries
as at the dates indicated and the results of their operations and cash
flows for the periods indicated in conformity with GAAP (except as
otherwise specified in such report) and that the audit by such
accountants in connection with such Consolidated financial statements
has been made in accordance with generally accepted auditing standards
and (ii) in the case of such consolidating financial statements,
certified by a Responsible Officer as presenting fairly, in all
material respects, in accordance with GAAP applied (except as
specifically set forth therein) on a basis consistent with such prior
fiscal periods, the information contained therein.
(c) Quarterly Financial Statements. Within 45 days after
the end of each of the first three Fiscal Quarters in each Fiscal Year
of the Borrower, Consolidated balance sheets of the Borrower and its
Subsidiaries as at the end of such period and the related Consolidated
statements of operations, cash flows and changes in stockholders'
equity of the Borrower and its Subsidiaries for such period and (in
the case of the second and third Fiscal Quarters) for the period from
the beginning of the current Fiscal Year to the end of such Fiscal
Quarter, setting forth in each case in comparative form the
Consolidated figures for the corresponding periods of the previous
Fiscal Year, all in reasonable detail as certified by a Responsible
Officer as presenting fairly, in all material respects, in accordance
with GAAP (except for the absence of notes thereto) applied (except as
specifically set forth therein) on a basis consistent with such prior
fiscal periods, the information contained therein, subject to changes
resulting from normal year-end audit adjustments.
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(d) Compliance Certificates. Together with each delivery
of financial statements pursuant to subdivisions (b) and (c) of this
Section 7.18, an officer's certificate signed by a Responsible Officer
(i) stating that the signer has reviewed the terms of this Agreement
and of the Notes and has made, or caused to be made under his or her
supervision, a review in reasonable detail of the transactions and
condition of the Borrower and its Subsidiaries during the accounting
period covered by such financial statements and that such review has
not disclosed the existence during or at the end of such accounting
period, and that the signer does not have knowledge of the existence
as at the date of such officers' certificate, of any condition or
event which constitutes a Default, or, if any such condition or event
existed or exists, specifying the nature and period of existence
thereof and what action the Borrower has taken or is taking or
proposes to take with respect thereto, and (ii) setting forth
computations demonstrating in reasonable detail compliance at the end
of such accounting period with the financial covenants contained in
Section 7.01.
(e) Annual Budget. On or before the last Business Day of
December of the then current Fiscal Year of the Borrower, a budget and
financial forecast for the upcoming Fiscal Year, in reasonable detail
and setting forth the principal assumptions upon which such forecast
and budget are based.
(f) ERISA. (i) Promptly and in any event within 10 days
after the Borrower, any Subsidiary or any of their respective ERISA
Affiliates knows or has reason to know that any ERISA Event with
respect to the Borrower, any Subsidiary or any of their respective
ERISA Affiliates has occurred, a statement of a Responsible Officer of
the Borrower describing such ERISA Event and the action, if any, that
the Borrower, such Subsidiary or such ERISA Affiliate has taken and
proposes to take with respect thereto, together with copies of any
communications (or written descriptions of any oral communications)
received from or sent to the Department of Labor, the Internal Revenue
Service or the PBGC with respect thereto; (ii) promptly and in any
event within two Business Days after receipt thereof by the Borrower,
any Subsidiary or any of their respective ERISA Affiliates, copies of
each notice from the PBGC stating its intention to terminate any Plan
or to have a trustee appointed to administer any Plan; (iii) promptly
and in any event within 30 days after the filing thereof with the
Internal Revenue Service, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) with respect to
each Plan; and (iv) promptly and in any event within five Business
Days after receipt thereof by the Borrower, any Subsidiary or any of
their respective ERISA Affiliates from the sponsor of a Multiemployer
Plan, copies of each notice concerning (A) the imposition of
Withdrawal Liability by any such Multiemployer Plan, (B) the
reorganization, insolvency or termination, within the meaning of Title
IV of ERISA, of any such Multiemployer Plan, or (C) the amount of
liability incurred, or that may be incurred,
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by the Borrower, any Subsidiary or any of their respective ERISA
Affiliates in connection with any event described in clause (A) or
(B).
(g) Litigation. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and
proceedings before any Governmental Authority of the type described in
Section 6.06.
(h) Securities Reports. Promptly after the sending or
filing thereof, copies of all proxy statements, financial statements
and reports that any Loan Party sends to its stockholders, and copies
of all regular, periodic and special reports, and all registration
statements, that any Loan Party files with the Securities and Exchange
Commission or any other Governmental Authority that may be substituted
therefor, or with any national securities exchange.
(i) Creditor Reports. Promptly after the furnishing
thereof, copies of any statement or report furnished to any other
holder of the securities of any Loan Party pursuant to the terms of
any indenture, loan or credit or similar agreement and not otherwise
required to be furnished to the Lenders pursuant to any other clause
of this Section 7.18.
(j) Revenue Agent Reports. Within ten days after receipt,
copies of all Revenue Agent Reports (Internal Revenue Service Form
886), or other written proposals of the Internal Revenue Service, that
propose, determine or otherwise set forth positive adjustments to the
Federal income tax liability of any affiliated group (within the
meaning of Section 1504(a)(l) of the Internal Revenue Code) for a
taxable year in which the Borrower was a member of such group
aggregating $5,000,000 or more.
(k) Wholly-Owned Subsidiaries. Promptly after the
acquisition thereof, notice to the Administrative Agent of any Person
that becomes a direct Wholly-Owned Subsidiary after the date hereof in
accordance with clause (i) of the definition of "Permitted
Investment".
(l) Lender Reports. On or before the 20th day of each
month, lender reports substantially in the form of Schedule 3.02(b)
hereto.
(m) Other Information. Such other information respecting
the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower or any of its
Subsidiaries as any Lender through the Administrative Agent may from
time to time reasonably request.
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Section 7.19. Descriptions of Loan Documents. The Borrower
shall not, and shall not permit any of its Subsidiaries to, file any public
document containing a description or summary of the terms and conditions of any
Loan Document without the Administrative Agent's prior review and approval
(such approval not to be unreasonably withheld)
Section 7.20. Dividends of Subsidiaries. The Borrower will
(i) cause each of its Subsidiaries duly and validly to declare and pay
dividends on its capital stock, at least quarterly, in the amount of the excess
of such Subsidiary's net income for the immediately preceding Fiscal Quarter
over net losses carried forward from previous Fiscal Quarters, subject to
applicable corporation and insolvency law and net capital and other applicable
legal or regulatory requirements, provided that in the case of AIM Distributors
and any other Subsidiary that is a registered broker-dealer, the amount of any
dividend shall not exceed the maximum amount permitted to be paid without the
consent of the National Association of Securities Dealers or other applicable
regulatory authority (the "Permitted Dividend Amount") unless (x) the amount of
any net income in excess of such Permitted Dividend Amount (including any such
excess net income carried forward from a prior Fiscal Quarter in which the
quarterly dividend paid by the affected Subsidiary was limited by the Permitted
Dividend Amount) shall exceed $1,000,000 or (y) the Borrower or the affected
Subsidiary shall not have applied for regulatory consent to a dividend in
excess of the Permitted Dividend Amount for two consecutive Fiscal Quarters, it
being understood that the affected Subsidiary will carry forward any net income
in excess of the Permitted Dividend Amount until such excess net income can be
paid as a dividend either (1) in a Fiscal Quarter when net income for such
Fiscal Quarter is commensurately less than the Permitted Dividend Amount or (2)
application is made (not less frequently than once in every three-month period
during which net income has accumulated without being paid as a dividend due to
the foregoing limitation) to the applicable regulatory authority for, and such
regulatory authority consents to payment of a dividend in excess of the
Permitted Dividend Amount, provided further that Subsidiaries of the U.S.
Holding Company organized and existing outside of the United States shall not
be required to comply with this clause 7.20(i); and (ii) supply to the
Administrative Agent, together with the financial statements referred to in
Section 7.18(c), a schedule showing the net income of each such Subsidiary and
the amount of dividends declared and paid thereby for the immediately preceding
Fiscal Quarter. For purposes of this Section 7.20: "net income" shall mean,
with respect to each such Subsidiary and for a Fiscal Quarter, net income
before the payment of dividends or other distributions on its capital stock, as
shown on the Fiscal Quarter income statement for such Subsidiary for such
Fiscal Quarter.
Section 7.21. Certain Guaranties. If the Securities and
Exchange Commission shall at any time require that any financial information
with respect to any Subsidiary (other than the summarized financial information
described in Rule 1-02(aa) of Regulation S-X, as amended from time to time and
other than financial information required to be filed by a broker-dealer
Subsidiary relating to net capital requirements under the Exchange Act), be
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disclosed in any filing of the Borrower or any Subsidiary made under the
Securities Act or the Exchange Act, the Borrower shall promptly cause each such
Subsidiary for which such financial information is required to be disclosed to
enter into a Guaranty substantially in the form of Exhibit 7.21 hereto or
otherwise satisfactory to Administrative Agent.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of
any Loan (including any principal of any Loan that is required to be
prepaid hereunder) when the same becomes due and payable, (ii) the
Borrower shall fail to pay any interest required to be paid on any
principal amount of any Loan on the same date such principal amount
becomes due and payable, or (iii) the Borrower shall fail to pay any
other interest on any Loan or any Loan Party shall fail to make any
other payment under any Loan Document within two Business Days after
such interest or payment becomes due and payable, provided that, if
there is an underpayment of Facility Collections solely as a result of
a mistake in the calculation made pursuant to the Securitization
Program Allocation Procedures, such underpayment will not be an Event
of Default so long as (A) such underpayment is corrected on or before
the Monthly Settlement Date (as defined in the Collection Agency
Agreement) immediately following the date of such underpayment, (B) a
Responsible Officer of the Borrower delivers a written notification to
the Administrative Agent immediately upon its becoming aware of such
underpayment which describes in reasonable detail the mistake made in
such calculation, and (C) if any underpayment exceeds $1,000,000, the
Borrower will, simultaneously with the delivery of the notification
described in clause (B), pay, or cause to be paid, to the
Administrative Agent the amount of such underpayment; or
(b) any representation or warranty made by the Borrower
or any Material Subsidiary (or any of their respective officers) under
or in connection with any Loan Document, including any schedule,
certificate, financial statement, report, notice, or other writing
furnished by the Borrower or any Material Subsidiary to the
Administrative Agent or any Lender, shall prove to have been incorrect
in any material respect when made or deemed made; or
(c) the Borrower shall fail to perform or observe any
term, covenant or agreement contained in any of Sections 7.01 to 7.07,
inclusive, 7.09 or 7.18(a); or
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(d) any of the Guarantors shall fail to perform or
observe any term, covenant or agreement contained in the AIM Guaranty
to which it is a party; or
(e) any Loan Party shall fail to perform any other term,
covenant or agreement contained in any Loan Document (other than the
AIM Guaranties referred to in clause (d)) on its part to be performed
or observed if such failure shall remain unremedied for 30 days after
an officer of any Loan Party shall first have knowledge thereof or
written notice thereof shall have been given to the Borrower by any
Agent or any Lender; or
(f) (i) the Borrower or any Subsidiary shall fail to pay
any principal of, premium or interest on or any other amount payable
in respect of any Debt that is outstanding in a principal or notional
amount of at least $1,000,000 in the aggregate (but excluding Debt
outstanding hereunder) of such Person when the same becomes due and
payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or (ii) any other event shall
occur or condition shall exist under any agreement or instrument
relating to any such Debt, if the effect of such event or condition is
to accelerate, or to permit the acceleration of, the maturity of such
Debt or otherwise to cause, or to permit the holder thereof to cause
such Debt to mature; or (iii) any such Debt shall be declared to be
due and payable or required to be prepaid or redeemed, purchased or
defeased, or be prepaid or redeemed, purchased or defeased or an offer
to prepay, redeem, purchase or defease such Debt shall be made, in
each case prior to the stated maturity thereof, except that the
Borrower may make an offer to prepay and prepay the Senior Notes
pursuant to Section 3.02(a) and may make Permitted Investments and may
make Restricted Payments pursuant to Section 7.05 so long as no
Default shall have occurred and be continuing or would occur after
giving effect to any such prepayment, Permitted Investments or
Restricted Payments; or
(g) the Borrower or any Material Subsidiary shall
generally not pay its debts as such debts become due, or shall admit
in writing its inability to pay its debts generally, or shall make an
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any such Person seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under, or to take advantage of, any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors (including SIPA), or seeking the entry of an order for relief
or the appointment of a receiver, trustee, liquidator or other similar
official for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (other than a
proceeding in which the Borrower or any Material Subsidiary consents
to the commencement of any such proceeding or consents to (or files a
<PAGE> 85
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petition or answer seeking) reorganization or relief in any such
proceeding), such proceeding shall not have been dismissed within 60
days; or the Borrower or any Material Subsidiary shall take any
corporate action to authorize any of the actions set forth above in
this subsection; or
(h) one or more judgments or orders for the payment of
money, in the aggregate, in excess of $1,000,000 shall be rendered
against the Borrower or any Subsidiary and either (i) enforcement
proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of ten consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(i) any non-monetary judgment or order shall be rendered
against the Borrower or any Subsidiary that could have a Material
Adverse Effect, and there shall be any period of ten consecutive days
during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(j) there shall be one or more involuntary terminations
or suspensions, or any voluntary termination or suspension arising out
of a proceeding or investigation by any Governmental Authority, of any
Federal license or registration required for the Borrower or any of
its Subsidiaries to act as an investment advisor or broker-dealer; or
(k) the Securities Investor Protection Corporation (or
any successor) shall make an application asserting or seeking a decree
adjudicating that any customers of the Borrower or any of its
Subsidiaries are in need of protection under SIPA and the Borrower or
such Subsidiary shall fail duly to obtain a dismissal of such
application within 30 days of the filing thereof; or
(l) any provision of any Loan Document shall for any
reason (other than by its express terms) cease to be valid and binding
on or enforceable against the Borrower or any Material Subsidiary
party to it, or the Borrower or any Material Subsidiary shall
challenge the enforceability or validity of any such provision; or
(m) any Collateral Document shall for any reason (other
than pursuant to the terms thereof) cease to create a valid and
perfected first priority Lien on the Collateral purported to be
covered thereby, shall cease to be in full force and effect or shall
be or be declared invalid or unenforceable in any respect; or
(n) any Governmental Authority shall have enacted,
issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other
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order (whether temporary, preliminary or permanent) which is in effect
and which prohibits, enjoins or otherwise restricts the Borrower or
any of its Subsidiaries in a manner that has a Material Adverse
Effect; or
(o) the Borrower shall cease to own, directly or
indirectly, 100% of the outstanding shares of Capital Stock of each
Subsidiary, except directors' qualifying shares, if required by law
and shares of Capital Stock of Insurance Agency Subsidiaries which are
required to be held by another Person pursuant to applicable law or
the regulations or procedures of Governmental Authorities having
jurisdiction over such Insurance Agency Subsidiaries; or
(p) (i) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board
of Directors of the Borrower (together with any new directors whose
election to such Board or whose nomination for election by the
shareholders of the Borrower was approved by a vote of at least
66-2/3% of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of such Board of Directors then in
office; or (ii) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act and the rules and
regulations thereunder) other than any member of a Key Shareholder
Group shall at any time Beneficially Own a percentage of the
outstanding shares of Voting Stock of the Borrower equal to or greater
than 50% of the aggregate percentage of the outstanding shares of
Voting Stock of the Borrower Beneficially Owned by all Key Shareholder
Groups; or
(q) if at any time the Key Shareholder Groups or any one
or more of the members thereof shall cease to Beneficially Own in the
aggregate at least 20% of the outstanding Voting Stock of the
Borrower; or
(r) any change in Beneficial Ownership of the outstanding
shares of Voting Stock of the Borrower shall occur necessitating any
consent of the shareholders or directors of any Investment Company
under the Investment Advisers Act or the Investment Company Act and
such consent is not obtained in a timely manner, or with respect to
the Management Contracts, the consents relating to 90% thereof are not
obtained within the statutory period necessary to prevent termination
thereof; or
(s) any ERISA Event shall have occurred with respect to a
Plan of the Borrower, any Subsidiary or any of their respective ERISA
Affiliates and the sum (determined as of the date of occurrence of
such ERISA Event) of the Insufficiency of such Plan and the
Insufficiency of any and all other Plans of the Borrower, any
Subsidiary and any of their respective ERISA Affiliates with respect
to which an ERISA Event shall have occurred and then exist (or the
liability of the Borrower, and
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its Subsidiaries and their respective ERISA Affiliates related to such
ERISA Event and any other ERISA Event) exceeds $1,000,000; or
(t) there shall have been any Material Adverse Change
since December 31, 1995;
(u) the Borrower, any Subsidiary or any of their
respective ERISA Affiliates shall have been notified by the sponsor of
a Multiemployer Plan that it has incurred Withdrawal Liability to such
Multiemployer Plan in an amount that, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Borrower,
any Subsidiary and any of their respective ERISA Affiliates as
Withdrawal Liability (determined as of the date of such notification),
exceeds $1,000,000 or requires payments exceeding $1,000,000 per
annum; or
(v) the Borrower, any Subsidiary or any of their
respective ERISA Affiliates shall have been notified by the sponsor of
a Multiemployer Plan that such Multiemployer Plan is in reorganization
or is being terminated, within the meaning of Title IV of ERISA, and
as a result of such reorganization or termination the aggregate annual
contributions of the Borrower, any Subsidiary and any of their
respective ERISA Affiliates to all Multiemployer Plans that are then
in reorganization or being terminated have been or will be increased
over the amounts contributed to such Multiemployer Plans for the plan
years of such Multiemployer Plans immediately preceding the plan year
in which such reorganization or termination occurs by an amount
exceeding $1,000,000;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Loans to be terminated, whereupon
the same shall forthwith terminate, and (ii) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrower, declare the
Notes, the Loans, all interest thereon and all other amounts payable under the
Loan Documents to be forthwith due and payable, whereupon the Notes, the Loans,
all such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrower; provided that in the
event of an actual or deemed entry of an order for relief with respect to the
Borrower or any Material Subsidiary under the Federal Bankruptcy Code or any
similar order or adjudication under applicable law that would impose a
moratorium on or stay of creditor efforts to collect debts to become effective,
(x) the obligation of each Lender to make Loans shall automatically be
terminated and (y) the Notes, the Loans, all such interest and all such amounts
shall automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
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ARTICLE IX
THE ADMINISTRATIVE AGENT AND THE
CO-AGENTS
Section 9.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent and the Co-Agents to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement and the other Loan Documents as are delegated to the
Administrative Agent and the Co-Agents by the terms hereof or thereof, together
with such powers and discretion as are reasonably incidental thereto. Without
limiting the generality of the foregoing, each Lender hereby authorizes the
Administrative Agent to execute and deliver on behalf of the Lenders such
documents (including without limitation UCC filings, amendments to existing UCC
filings and the Collection Agency Agreement) as may be required to carry out
the intent and purpose of the provisions of this Agreement and the other Loan
Documents relating to Securitization Programs. As to any matters not expressly
provided for by the Loan Documents (including enforcement or collection of the
Notes), the Administrative Agent and the Co-Agents shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all the Lenders and all holders of Notes;
provided that neither the Administrative Agent nor any Co-Agent shall be
required to take any action that exposes the Administrative Agent or such
Co-Agent to personal liability or that is contrary to this Agreement or
applicable law. The Administrative Agent and each Co-Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant
to the terms of this Agreement.
Section 9.02. Duties and Reliance, Etc. (a) Neither the
Administrative Agent nor any Co-Agent, nor any of their respective directors,
officers, shareholders, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Administrative Agent
and each Co-Agent: (i) may treat the payee of any Note as the holder thereof
until the Administrative Agent receives and accepts an Assignment and
Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 10.07;
(ii) may consult with legal counsel (including counsel for the Borrower or any
Subsidiary), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (iii) may perform any of its duties under this Agreement by or through
agents or attorneys-in- fact selected by it with reasonable care and shall not
be liable for any action taken or omitted to be taken by any such agent or
attorney-in-fact; (iv) shall have no duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Loan
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Document on the part of any Loan Party or to inspect the property (including
the books and records) of the Borrower or any Subsidiary; (v) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopy, cable or telex) believed by it to be genuine and signed or sent by
the proper party or parties; (vi) makes no warranty or representation to any
Lender and shall not be responsible to any Lender for the accuracy or
completeness of the Borrower Information or for any other statements,
warranties or representations made in or in connection with the Loan Documents;
and (vii) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of any
Loan Document or any other instrument, document or filing furnished or made
pursuant hereto.
(b) The Co-Agents, as such, shall have no duties or
obligations with respect to any Loan Document or any matter related thereto.
Section 9.03. Administrative Agent, Co-Agents and Affiliates.
With respect to its Commitments, the Loans made by it and the Notes issued to
it, the Administrative Agent and each Co-Agent shall have the same rights and
powers under the Loan Documents as any other Lender and may exercise the same
as though it were not the Administrative Agent or a Co-Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include the
Administrative Agent and each Co-Agent in their respective individual
capacities as Lenders. Citibank, each financial institution that is a Co-Agent
and their respective Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from, enter
into Securitization Programs with and generally engage in any kind of business
with the Borrower or any Subsidiary and any Person who may do business with or
own securities of the Borrower or any Subsidiary, all as if Citibank were not
the Administrative Agent and as if such financial institutions were not
Co-Agents, and without any duty to account therefor to the Lenders. Each
Lender may accept deposits from, lend money to, act as trustee under indentures
of, accept investment banking engagements from, enter into Securitization
Programs with and generally engage in any kind of business with the Borrower or
any Subsidiary and any Person who may do business with or own securities of the
Borrower or any Subsidiary.
Section 9.04. Lender Credit Decision. Each Lender expressly
acknowledges that neither the Administrative Agent, any Co-Agent nor any of
their respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act by
the Administrative Agent or any Co-Agent hereafter taken, including any review
of the affairs of the Borrower or any of its Subsidiaries, shall be deemed to
constitute any representation or warranty by any of them to any Lender. Each
Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent, any Co-Agent or any other Lender and based on the
financial statements referred to in Section 6.05 and such other documents and
information as it has deemed appropriate,
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made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon
the Administrative Agent, any Co-Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder, neither
the Administrative Agent nor any Co-Agent shall have any duty or responsibility
to provide any Lender with any credit or other information concerning the
business, condition (financial or otherwise), operations, property, prospects
or creditworthiness of the Borrower or any of its Subsidiaries which may come
into the possession of the Administrative Agent any Co-Agent, or any of their
respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
Section 9.05. Indemnification. The Lenders agree to
indemnify the Administrative Agent and each Co-Agent (to the extent not
promptly reimbursed by the Borrower and the other Loan Parties), ratably
according to the principal amounts of the Loans then held by each Lender (or if
no Loans are at the time outstanding, ratably according to the amounts of their
Commitments), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by or
asserted against the Administrative Agent or any Co-Agent in any way relating
to or arising out of the Loan Documents or the transactions contemplated
thereby or any action taken or omitted by the Administrative Agent or any
Co-Agent under the Loan Documents; provided that no Lender shall be liable for
any portion of any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements imposed on,
incurred by or asserted against the Administrative Agent or any Co-Agent
resulting from such Agent's gross negligence, bad faith or willful misconduct.
Without limitation of the foregoing, each Lender agrees to reimburse the
Administrative Agent and each Co-Agent promptly upon demand for such Lender's
ratable share of any costs and expenses payable by the Borrower under Section
10.04, to the extent that the Administrative Agent or such Co-Agent (as the
case may be) is not promptly reimbursed for such costs and expenses by the
Borrower.
Section 9.06. Successor Agents. (a) The Administrative
Agent may resign at any time by giving written notice thereof to the Lenders
and the Borrower and may be removed at any time with cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Administrative Agent with the consent of the
Borrower (such consent not to be unreasonably withheld). If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent,
which shall be a commercial bank organized or
<PAGE> 91
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licensed under the laws of the United States or of any State thereof and having
a combined capital and surplus of at least $500,000,000. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall succeed to and
become vested with all the rights, powers, discretion, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under the Loan Documents. After
any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article IX shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
(b) Any Co-Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower.
Section 9.07. Public Filings. The Administrative Agent
agrees to use reasonable efforts to provide to the Borrower any of this
Agreement, any other Loan Document and any amendments or supplements hereto or
thereto in a computer readable format if so requested by the Borrower in
connection with its public filings.
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments, Etc. No amendment or waiver of
any provision of this Agreement or the Notes, nor consent to any departure by
the Borrower therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (i)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Loans that shall be required for the Lenders or any of them to
take any action hereunder; (ii) release or subordinate the Liens of the
Collateral Documents with respect to any material portion of the Collateral
(other than in connection with any Asset Sale or as otherwise contemplated by
the Collateral Documents) or release any of the AIM Guaranties; (iii) amend
this Section 10.01; (iv) increase the Commitments of the Lenders or subject the
Lenders to any additional obligations; (v) reduce the principal of, or interest
on, the Loans or any fees or other amounts payable hereunder; or (vi) postpone
any date fixed for any payment of principal of, or interest on, the Loans or
any fees or other amounts payable hereunder or amend Section 3.02; and provided
further that no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent or any Co-Agent (as the case may be) in
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85
addition to the Lenders required above to take such action, affect the rights
or duties of the Administrative Agent or such Co-Agent under any Loan Document.
Section 10.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, facsimile or telex communication) and mailed by registered or
certified mail, return receipt requested, faxed, telexed (if telex number is
available) or hand delivered, if to the Borrower, at its address at 11 Greenway
Plaza, Suite 1919, Houston, Texas 77046, Fax No.: (713) 993-9890, Attention:
President, together with a copy to the General Counsel of the Borrower at the
same address; if to any Lender, at its Domestic Lending Office specified under
its name on the signature pages hereto or in the Assumption Agreement or
Assignment and Acceptance pursuant to which it became a Lender; and if to the
Administrative Agent, at its address at 399 Park Avenue, New York, New York
10043, Fax No.: (212) 371-6309; Attention: Bank Loan Syndications (Reference:
AIM Management); or, as to the Borrower or the Administrative Agent, such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall be effective
when delivered, if hand delivered; five days after being deposited in the
mails, if mailed as set forth above; if transmitted by facsimile, when receipt
is acknowledged; if transmitted by telex, when confirmed by telex answerback;
if timely delivered to an overnight courier, the next Business Day; provided
that notices and communications to the Administrative Agent pursuant to Article
II, III, IV, V or IX shall not be effective until received by the
Administrative Agent.
Section 10.03. No Waiver; Remedies. No failure on the part
of any Lender, the Administrative Agent or any Co-Agent to exercise, and no
delay in exercising, any right hereunder or under any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 10.04. Costs; Expenses and Indemnification. (a) The
Borrower agrees to pay on demand (i) all reasonable costs and expenses of the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment and enforcement of the Loan Documents
(including (A) all due diligence, transportation, appraisal, audit, insurance,
search, filing and recording fees and expenses and (B) the reasonable fees and
expenses of counsel for the Administrative Agent with respect thereto, with
respect to advising the Administrative Agent as to its rights and
responsibilities, or the perfection, protection or preservation of rights or
interests, under the Loan Documents, with respect to negotiations with the
Borrower or any Subsidiary or with other creditors of the Borrower or any
Subsidiary arising out of any Default or any events or circumstances that may
give rise to a Default and with respect to presenting claims in or
<PAGE> 93
86
otherwise participating in or monitoring any bankruptcy, insolvency or other
similar proceeding involving creditors' rights generally and any proceeding
ancillary thereto) and (ii) all costs and expenses of the Administrative Agent,
each Co-Agent and the Lenders in connection with the enforcement of the Loan
Documents, whether in any action, suit or litigation, any bankruptcy,
insolvency or other similar proceeding affecting creditors' rights generally or
otherwise (including the reasonable fees and expenses of counsel for the
Administrative Agent, each Co-Agent and each Lender with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless
the Administrative Agent, each Co-Agent and each Lender and each of their
Affiliates and their respective officers, directors, employees, shareholders,
agents and advisors (each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses (including reasonable fees
and expenses of counsel) that may be incurred by or asserted or awarded against
any Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with the transactions contemplated by the Loan Documents, in each
case whether or not such investigation, litigation or proceeding is brought by
or on behalf of the Borrower or any Subsidiary or any of their respective
directors, shareholders, agents, advisors or creditors or by or on behalf of an
Indemnified Party or any Indemnified Party is otherwise a party to such Loan
Documents or transaction contemplated thereunder, and whether or not the
transactions contemplated hereby are consummated, except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted primarily from
such Indemnified Party's gross negligence, bad faith or willful misconduct.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Loan is made by the Borrower or in connection with a
reallocation of Commitments pursuant to Section 2.04 to or for the account of a
Lender other than on the last day of the Interest Period for such Eurodollar
Rate Loan pursuant to any provision hereof or for any other reason, upon demand
by such Lender, which demand shall be accompanied by a statement (which shall
be conclusive and binding for all purposes absent manifest error) setting forth
the amounts required to compensate such Lender for any losses, costs or
expenses that it may incur as a result of such payment and any loss, cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain such Eurodollar Rate
Loan, with a copy of such demand and statement to the Administrative Agent, the
Borrower shall pay to the Administrative Agent for the account of such Lender
the amounts set forth on such statement.
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including fees
and expenses of counsel and
<PAGE> 94
87
indemnities, such amount may be paid on behalf of such Loan Party by the
Administrative Agent, any Co-Agent or any Lender, in its sole discretion.
Section 10.05. Right of Set-off. Upon the occurrence and
during the continuance of any Event of Default each Lender shall have at any
time and from time to time, to the fullest extent permitted by law, without
presentment, demand, protest or other notice of any kind to any Loan Party or
any other Person, a right of set-off with respect to any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time held or owing by such Lender (including by
branches and agencies of such Lender wherever located) to or for the credit or
the account of the Borrower, irrespective of whether such Lender shall have
made any demand under this Agreement or any Loan Document and although such
obligations may be contingent or unmatured. Each Lender agrees promptly to
notify the Borrower after any such set-off; provided that the failure to give
such notice shall not affect the validity of such set-off. The rights of each
Lender under this Section 10.05 are in addition to other rights and remedies
that such Lender may have.
Section 10.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the
Administrative Agent and when the Administrative Agent shall have been notified
by each Lender that such Lender has executed it and thereafter shall be binding
upon and inure to the benefit of the Borrower, the Administrative Agent, each
Co-Agent and each Lender and its successors and permitted assigns, except that
the Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of all of the Lenders.
Section 10.07. Assignments and Participations. (a) Each
Lender may assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment, the Loans owing to it and all or a portion of its interest in the
Note or Registered Note held by it); provided that (i) except in the case of
(A) an assignment to an Eligible Assignee that, immediately prior to such
assignment, was a Lender, (B) an assignment of all of a Lender's rights and
obligations under this Agreement, or (C) an assignment to an Eligible Assignee
that is an Affiliate of a Lender, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $5,000,000, (ii) unless the assignment is to an existing
Lender or an Affiliate of the assigning Lender, the Borrower shall have
notified the assigning Lender within five Business Days of the Borrower's
receipt of notice of such assignment of the Borrower's approval of such
assignment (such approval not to be unreasonably withheld) and if the Borrower
has not notified the assigning Lender of its approval or disapproval of such
assignment by such date, the Borrower shall be deemed to have given its
approval, and (iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register (1) an
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88
Assignment and Acceptance, (2) if required by the first sentence of Section
10.07(d), any Note or Registered Note subject to such assignment, and (3) a
processing and recordation fee of $3,000. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in such
Assignment and Acceptance (which effective date shall not be any earlier than
the date on which the Administrative Agent accepts and records such Assignment
and Acceptance in the Register), (x) the assignee thereunder shall be a party
hereto and the Loan Documents to which the assigning Lender is a party on the
effective date specified in such Assignment and Acceptance and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and thereunder, and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement and such Loan Documents (and, in the case
of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto and thereto).
(b) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee thereunder confirm
to and agree with each other and the other parties hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
any Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Loan Document, or any other instrument
or document furnished pursuant hereto or thereto; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or any Subsidiary or with respect to
the performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement or any other Loan Document or any other
instrument or document furnished pursuant hereto or thereto; (iii) such
assignee confirms that it has received a copy of each Loan Document, together
with copies of the most recent financial statements delivered pursuant to
Sections 7.18(b) and 7.18(c) and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, each Co-Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement; (v) such assignee appoints
and authorizes the Administrative Agent and each Co-Agent to take such action
as agent on its behalf and to exercise such powers and discretion under this
Agreement and the other Loan Documents as are delegated to the Administrative
Agent and each Co-Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vi) such assignee agrees
to be bound by the terms of this Agreement and the Loan
<PAGE> 96
89
Documents to which it has become a party pursuant to this Agreement and the
Assignment and Acceptance.
(c) The Administrative Agent, acting for this purpose as
agent for the Borrower, shall maintain at its address referred to in Section
10.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders
and the Commitment of, and principal amount of the Loans owing to, each Lender
from time to time (the "Register"). The Administrative Agent shall incur no
liability of any kind to the Borrower, any Lender or any other Person with
respect to its maintenance of the Register or the recordation of information
therein. The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Administrative Agent,
each Co-Agent and the Lenders shall treat each Person whose name is recorded in
the Register as a Lender hereunder (and, in the case of Registered Notes, as
the owner of the Registered Notes registered to it) for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice. No assignment shall be effective unless the Assignment and Acceptance
has been accepted by the Administrative Agent and registered in the Register.
Further, no assignment of all or any part of a Registered Note shall be
registered in the Register unless such Registered Note has been duly endorsed
by (or accompanied by a written instrument of assignment or transfer duly
executed by) the assigning Lender (as the registered holder thereof) to the
assignee and the assigning Lender has surrendered such Note to the
Administrative Agent pursuant to Section 10.07(d).
(d) Upon its receipt of (i) an Assignment and Acceptance
which has been completed and executed by an assigning Lender and an assignee
representing that it is an Eligible Assignee and (ii) in the case of an
assignment of (A) all of such assigning Lender's rights and obligations or (B)
Registered Note (which Registered Note shall be duly endorsed by, or
accompanied by a written instrument of assignment or transfer duly executed by,
the assigning Lender, as the registered holder thereof, to the assignee), any
Note subject to such assignment, the Administrative Agent shall (x) accept such
Assignment and Acceptance, (y) record the information contained therein in the
Register, and (z) give prompt notice thereof to the Borrower. Within five
Business Days after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent a new Note
payable to the order of the assignee or a new Registered Note payable to the
assignee or its registered assigns, in an amount equal to the Loans and
Commitments assumed by it pursuant to such Assignment and Acceptance and, in
the case of a partial assignment of a Registered Note, a new Registered Note
payable to the assigning Lender or its registered assigns in an amount equal to
the Loans retained by it hereunder. Such new Note(s) or Registered Note(s)
shall be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit 2.02 (except in the case of
Registered Note(s) which shall be legended on the face thereof and shall be
made payable to the assignee or its registered
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90
assigns). Such new Note(s) or Registered Note(s), as applicable, shall be
exchanged for the Note or Registered Note surrendered by the assigning Lender
and the surrendered Note or Registered Note shall be cancelled and returned to
the Borrower. The Administrative Agent shall incur no liability of any kind to
the Borrower, any Lender or any other Person with respect to the transfer,
surrender, cancellation or exchange of the Notes or Registered Notes.
(e) Each Lender may sell participations in or to all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments, the Loans owing to it and the Note held by it) to
any Person; provided that (i) such Lender's obligations under this Agreement
(including its Commitments) shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) such Lender shall remain the holder of any such Note
for all purposes of this Agreement, (iv) the Borrower, the Administrative
Agent, the Co-Agents and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
would by its terms reduce the principal of, or interest on, the Notes or any
fees or other amounts payable hereunder or any other Loan Document, postpone
any date fixed for any payment of principal of, or interest on, the Notes or
any fees or other amounts payable hereunder or any other Loan Document, or
release all or substantially all of the Collateral (except as provided in the
Collateral Documents).
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower or any of its Subsidiaries; provided that,
prior to any such disclosure, the assignee or participant or proposed assignee
or participant shall agree to preserve the confidentiality of any Confidential
Information received by it from such Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including the Loans owing to it and
the Note held by it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System.
Section 10.08. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a
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signature page to this Agreement by facsimile transmission shall be effective
as delivery of a manually executed counterpart of this Agreement.
Section 10.09. Confidentiality. Neither the Administrative
Agent, any Co-Agent, nor any Lender shall disclose any Confidential Information
to any Person without the consent of the Borrower, other than (i) to the
Administrative Agent's, such Co-Agent's, or such Lender's Affiliates and their
respective officers, directors, employees, agents, counsel and advisors and to
actual or prospective Eligible Assignees and participants, and then only on a
confidential basis, (ii) as required by any law, rule or regulation or judicial
process, and (iii) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
Section 10.10. GOVERNING LAW. THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF.
Section 10.11. CONSENT TO JURISDICTION. (a) THE BORROWER
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL
COURT SITTING IN NEW YORK CITY AND ANY APPELLATE COURT FROM ANY THEREOF IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT TO WHICH THE BORROWER IS OR IS TO BECOME A PARTY, AND THE
BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT
OR IN SUCH FEDERAL COURT. THE BORROWER HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM
TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING. THE BORROWER HEREBY
IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND HEREBY CONSENTS TO SERVICE
OF PROCESS UPON IT BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED,
AT ITS ADDRESS SPECIFIED IN ACCORDANCE WITH SECTION 10.02 AND SERVICE SO MADE
SHALL BE DEEMED COMPLETED ON THE FIFTH BUSINESS DAY AFTER SUCH SERVICE IS
DEPOSITED IN THE MAIL. THE BORROWER AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
(b) NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY
LENDER, ANY CO-AGENT OR THE ADMINISTRATIVE AGENT TO SERVE LEGAL PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR AFFECT
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THE RIGHT OF ANY LENDER, ANY CO-AGENT OR THE ADMINISTRATIVE AGENT TO BRING ANY
ACTION OR PROCEEDING AGAINST THE BORROWER OR ITS PROPERTY IN THE COURTS OF
OTHER JURISDICTIONS.
Section 10.12. WAIVER OF JURY TRIAL. EACH OF THE BORROWER,
THE ADMINISTRATIVE AGENT, THE CO-AGENTS AND THE LENDERS HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE LOANS
OR THE ACTIONS OF THE ADMINISTRATIVE AGENT, ANY CO-AGENT OR ANY LENDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Section 10.13. No Third Party Beneficiary. The parties do
not intend the benefits of this Agreement or any other Loan Document to inure
to any third party. Notwithstanding anything contained herein or in the Notes,
or in any other Loan Document, or any conduct or course of conduct by any of
the parties hereto, before or after signing this Agreement or any other Loan
Documents, neither this Agreement nor any other Loan Document shall be
construed as creating any right, claim or cause of action against the
Administrative Agent or any Lender, or any of their respective officers,
directors, shareholders, agents or employees, in favor of any Person or entity
(including any Affiliate of the Borrower) other than the Borrower.
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93
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
BORROWER
A I M MANAGEMENT GROUP INC.,
as Borrower
By /s/ROBERT H. GRAHAM
--------------------------------------
Name: Robert H. Graham
Title: President
ADMINISTRATIVE AGENT AND LENDER
CITIBANK, N.A.,
as Administrative Agent and Lender
By /s/ JOHN J. MACDONALD
--------------------------------------
Name: John J. MacDonald
Title: Attorney-In-Fact
CO-AGENTS AND LENDERS
THE BANK OF NEW YORK
By /s/ ALEXANDER DUKA
--------------------------------------
Name: Alexander Duka
Title: AVP
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BANQUE NATIONALE DE PARIS
By /s/ RIVA HOWARD
--------------------------------------
Name: Riva L. Howard
Title: Vice President
By /s/ DIANE M. FERGUSON
--------------------------------------
Name: Diane Ferguson
Title: Vice President
CHEMICAL BANK
By /s/ HEATHER LINDSTROM
--------------------------------------
Name: Heather Lindstrom
Title: Vice President
CREDIT LYONNAIS, SAN FRANCISCO BRANCH
By /s/ WILLIAM J. FISCHER
--------------------------------------
Name: William J. Fischer
Title: Vice President & Manager
DEUTSCHE BANK A.G., NEW YORK BRANCH
By /s/ INDRA KISH / /s/ NICOLE HOLZAPFEL
--------------------------------------
Name: Indra Kish / Nicole Holzapfel
Title: Associate / Associate
<PAGE> 102
95
THE FIRST NATIONAL BANK OF BOSTON
By /s/ DEIRDRE HOLLAND COBERY
--------------------------------------
Name: Deirdre Holland Cobery
Title: Vice President
FLEET NATIONAL BANK
By /s/ ILLEGIBLE
--------------------------------------
Name: ILLEGIBLE
Title: AVP
MELLON BANK, N.A.
By /s/ PAULA A. MAMMARELLA
--------------------------------------
Name: Paula A. Mammarella
Title: Assistant Vice President
NATIONSBANK, N.A. (SOUTH)
By /s/ BETTY E. REID
--------------------------------------
Name: Betty E. Reid
Title: Senior Vice President
STATE STREET BANK AND TRUST COMPANY
By /s/ DAVID V. COX
--------------------------------------
Name: David V. Cox
Title: Vice President
<PAGE> 103
96
UNION BANK OF CALIFORNIA, N.A.
By /s/ RICHARD A. SUTTER
--------------------------------------
Name: Richard A. Sutter
Title: Vice President
LENDERS
ABN AMRO BANK N.V., NEW YORK BRANCH
By /s/ VICTOR J. FENNON
--------------------------------------
Name: Victor J. Fennon
Title: Vice President
By /s/ DAVID E. EASTEP
--------------------------------------
Name: David E. Eastep
Title: Assistant Vice President
SOCIETE GENERALE, NEW YORK BRANCH
By /s/ D. E. LITTLEFIELD
--------------------------------------
Name: D. E. Littlefield
Title: Vice President & Manager
<PAGE> 104
EXHIBIT 1.01A
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated as of ____________, 199_
Reference is made to the B Share Credit Agreement dated as of
June __, 1996 (as such B Share Credit Agreement may be amended or supplemented
from time to time, the "B Share Credit Agreement") among A I M Management Group
Inc., a Delaware corporation (the "Borrower"), the Lenders identified on the
signature pages thereof, Citibank, N.A., as Administrative Agent (the
"Administrative Agent"), and the financial institutions listed on the signature
pages thereof as co-agents, as Co-Agents for the Lenders (the "Co-Agents").
Capitalized terms not otherwise defined herein are defined in the B Share
Credit Agreement and are used herein with the same meanings.
__________________________ (the "Assignor") and
____________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor,
without recourse to the Assignor, for a purchase price of $_____, a ___ %
interest in and to all of the Assignor's rights and obligations under the B
Share Credit Agreement relating to the Loans as of the Effective Date (as
defined in Paragraph 4 below) (including, without limitation, such percentage
interest in the Assignor's Commitment as in effect on the Effective Date, the
Loans owing to the Assignor on the Effective Date, and the Note held by the
Assignor). Schedule I hereto sets forth the respective Commitments and Loans
of the Assignor and the Assignee immediately after giving effect to this
Assignment and Acceptance.
2. The Assignor: (a) represents and warrants that as of
the date hereof (i) without giving effect to assignments thereof which have not
yet become effective, its Commitment is $_____, and the aggregate outstanding
principal amount of the Loans owing to it is $_____ and (ii) it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to (i)
any statements, warranties or representations made in or in connection with any
Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of any Lien
or security interest created or purported to be created under or in connection
with, any Loan Document or any other instrument or document furnished pursuant
thereto; or (ii) the financial condition of the Borrower or any Guarantor or
the performance or observance by the Borrower or any Guarantor of any of its
obligations under the B Share Credit Agreement or any other Loan Document or
any other instrument or document furnished pursuant thereto; and (c) attaches
the Note referred to in paragraph 1
<PAGE> 105
above and requests that the Administrative Agent (i) exchange such Note for a
new Note dated ____________, 199_ in the principal amount of $_________,
payable to the order of the Assignee [and a new Note dated _________, 199__ in
the principal amount of $__________ payable to the order of the Assignor] and
(ii) cancel and return the attached Note to the Borrower.
3. The Assignee (a) confirms that it has received a
copy of each Loan Document, together with copies of the most recent financial
statements delivered pursuant to Sections 7.18(b) and 7.18(c) of the B Share
Credit Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (b) agrees that it will, independently and without
reliance upon the Administrative Agent, any Co-Agent, the Assignor or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the B Share Credit Agreement; (c) confirms that it is an Eligible
Assignee; (d) appoints and authorizes the Administrative Agent and each
Co-Agent to take such action as agent on its behalf and to exercise such powers
and discretion under the B Share Credit Agreement and the other Loan Documents
as are delegated to the Administrative Agent and each Co-Agent by the terms
thereof, together with such powers and discretion as are reasonably incidental
thereto; (e) agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the B Share Credit Agreement are required
to be performed by it as a Lender; and (f) specifies as its Domestic Lending
Office (and address for notices) and Eurodollar Lending Office the offices set
forth beneath its name on the signature pages hereof.
4. The effective date for this Assignment and
Acceptance shall be ________________ (the "Effective Date"). Following, and
subject to, the consent in writing by the Administrative Agent and the Borrower
to such assignment and the execution of this Assignment and Acceptance, this
Assignment and Acceptance will be delivered to the Administrative Agent,
together with the processing and recordation fee specified in Section 10.07(a)
of the B Share Credit Agreement, for acceptance and recording by the
Administrative Agent.
5. Upon execution, delivery, acceptance and recording
of this Assignment and Acceptance, from and after the Effective Date (a) the
Assignee shall be a party to the B Share Credit Agreement and the Assignee
shall have the rights and obligations of a Lender thereunder, and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the B Share
Credit Agreement.
6. Upon such acceptance and recording, from and after
the Effective Date, the Administrative Agent shall make all payments under the
Loan Documents in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and fees with respect thereto)
to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the B Share Credit Agreement and the Note for
periods prior to the Effective Date directly between themselves.
2
<PAGE> 106
7. This Assignment and Acceptance shall be governed by,
and construed in accordance with, the laws of the State of New York without
regard to the conflicts of law provisions thereof.
[NAME OF ASSIGNOR]
By _________________________________
Name:
Title:
[NAME OF ASSIGNEE]
By _________________________________
Name:
Title:
Domestic Lending Office (and address
for notices):
[Address]
Eurodollar Lending Office:
[Address]
3
<PAGE> 107
Accepted and consented
to this _____ day of
___________, ____
CITIBANK, N.A., as Administrative Agent
By ____________________________________
Name:
Title:
A I M MANAGEMENT GROUP INC.(1)
By ____________________________________
Name:
Title:
____________________
(1) The signature of A I M Management Group Inc. is not
required if A I M Management Group Inc. has not
notified the Assignor of its objection to this
assignment within five business days of its receipt of
notice of this assignment.
4
<PAGE> 108
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
Assignor's Commitment: $________________________
Assignee's Commitment $________________________
Aggregate Outstanding Principal
Amount of Loans Owing to Assignor: $________________________
Aggregate Outstanding Principal
Amount of Loans Owing to Assignee: $________________________
5
<PAGE> 109
EXHIBIT 1.01B
FORM OF ASSUMPTION AGREEMENT
Dated __________
A I M Management Group Inc.
11 Greenway Plaza
Suite 1919
Houston, TX 77046
Attention: President
Telecopier no. (713) 993-9890
Citibank, N.A.,as Administrative Agent
399 Park Avenue
New York, NY 10043
Attention: Bank Loan Syndications (ref: AIM Management)
Telecopier no. (212) 371-6309
Ladies and Gentlemen:
Reference is made to the B Share Credit Agreement, dated as of
June __, 1996 (the "B Share Credit Agreement"), among A I M Management Group
Inc., a Delaware corporation (the "Borrower"), the Lenders identified on the
signature pages thereof, Citibank, N.A., as Administrative Agent (the
"Administrative Agent"), and the financial institutions identified on the
signature pages thereof as co-agents, as Co-Agents for the Lenders (the
"Co-Agents"). Capitalized terms not otherwise defined herein are defined in
the B Share Credit Agreement and are used herein with the same meanings.
The undersigned (the "Assuming Lender") proposes to become an
Assuming Lender pursuant to Section 2.04(c) of the B Share Credit Agreement
and, in that connection, hereby agrees that it shall become a Lender for
purposes of the B Share Credit Agreement on __________, 19__ (the "Increase
Date") and that its Commitment shall as of such date be $__________.
<PAGE> 110
EXHIBIT 1.01C
DISTRIBUTION FEE PURCHASE AGREEMENT
Dated as of August 20, 1993
As Amended and Restated as of June 26, 1996
AMENDED AND RESTATED DISTRIBUTION FEE PURCHASE AGREEMENT,
dated as of June 26, 1996 (this "Agreement"), between A I M Distributors, Inc.,
a Delaware corporation (the "Seller"), and A I M Management Group Inc., a
Delaware corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller desires to sell to the Purchaser, and the
Purchaser desires to purchase from the Seller, on the terms and subject to the
conditions specified in this Agreement, the Purchased Assets (as defined
below);
NOW, THEREFORE, in consideration of the foregoing premises,
and the mutual covenants and agreements herein contained, and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
The following terms shall have the meanings ascribed to them
below. Capitalized terms not expressly defined herein which are defined in the
Uniform Commercial Code as in effect from time to time in the State of Texas
shall have the same meanings herein as in said UCC.
"AIM Funds" means all open-end mutual funds (and every series
thereof) sponsored by the Purchaser or any of its Subsidiaries or for which the
Purchaser or any of its Subsidiaries provides investment advisory, management,
administrative, supervisory, consulting, underwriting or similar services from
time to time, including such funds which are now existing and which may
hereafter be organized.
"Asset Based Sales Charge" shall have the meaning set forth in
Section 26(b)(8)(C) of the Rules of Fair Practice.
"CDSC Shares" means any shares (or class of shares) of
beneficial interest or capital stock of any AIM Fund, which are offered at net
asset value without an initial sales charge, and which are subject to a
Contingent Deferred Sales Charge upon the
<PAGE> 111
redemption of such shares for six years from the initial purchase of such
shares.
"Contingent Deferred Sales Charge" means the amount payable by
a shareholder of any AIM Fund on redemption of such shareholder's CDSC Shares
in such AIM Fund prior to the end of the holding period specified from time to
time in the Prospectus for such AIM Fund.
"Distribution Agreement" means any underwriting agreement and
any plan or related agreement as contemplated by Rule 12b-1 under the
Investment Company Act of 1940, as amended,in connection with the distribution
of shares of any AIM Fund.
"Distribution Plan" means any plan adopted (as amended from
time to time) by an AIM Fund and any related agreements, as contemplated by
Rule 12b-1 under the Investment Company Act of 1940, as amended, in connection
with the distribution of CDSC Shares of such AIM Fund.
"Free Shares" means shares other then CDSC Shares, including
without limitation, shares which are derived from CDSC Shares, but do not have
a Contingent Deferred Sales Charge because either (i) they were issued in an
exchange without the payment of a Contingent Deferred Sales Charge and
represent the appreciated value of the shares being exchanged over the initial
purchase price paid for such shares (of the shares from which they derived), or
(ii) they represent shares issued as a result of the reinvestment of dividends
or other distributions.
"Maximum Interest Allowable" shall mean the maximum interest
which may be taken into account under Section 26(d)(2)A) of the Rules of Fair
Practice in computing the aggregate asset-backed and deferred sales charges
which may be imposed.
"NASD" shall mean the National Association of Securities
Dealers, Inc. or any successor entity.
"Prospectus" shall mean with respect to any AIM Fund the
prospectus filed with the Securities and Exchange Commission as a part of the
Registration Statement on Form N-1A, as amended, and shall include, without
limitation, the related Statement of Additional Information included in such
Registration Statement.
"Purchased Assets" shall mean with respect to each AIM Fund,
all of the rights under the related Distribution Agreement, the related
Distribution Plan, the related Prospectus and in accordance with the applicable
Rules of Fair Practice to receive amounts paid or payable in respect of Service
Fees, Asset Based Sales Charges (including interest at the Maximum Interest
2
<PAGE> 112
Allowable) and Contingent Deferred Sales Charges, in each case in respect of
the issuance by such AIM Fund of CDSC Shares and Free Shares and in respect of
CDSC Shares and Free Shares of any other AIM Fund into which CDSC Shares and
Free Shares initially issued by another AIM Fund may be exchanged without the
payment of a Contingent Deferred Sales Charge, including, without limitation,
any similar amount paid or payable under any replacement Distribution
Agreement, Distribution Plan, Prospectus or the Rules of Fair Practice, and any
continuation payments in respect thereof paid or payable by the related
investment company in respect of such AIM Fund in the event of a termination of
the related Distribution Plan or the related Distribution Agreement.
"Rules of Fair Practice" shall mean the Rules of Fair Practice
of the NASD, including without limitation Section 26, thereof, as amended, and
the rules, regulations and interpretations of the NASD in respect thereto.
"Service Fee" shall have the meaning set forth in Section
26(b)(9) of the Rules of Fair Practice.
"Subsidiary" means any corporation at least a majority (by
number of votes) of the Voting Stock of which is at the time owned by the
Purchaser or by one or more Subsidiaries or by the Purchaser and one or more
Subsidiaries.
"Voting Stock" means, with reference to any corporation, stock
of any class or classes (or equivalent interests), if the holders of the stock
of such class or classes (or equivalent interests) are ordinarily, in the
absence of contingencies, entitled to vote for the election of the directors
(or Persons performing similar functions) of such corporation, even though the
right so to vote has been suspended by the happening of such a contingency.
ARTICLE II.
SALE AND PURCHASE OF THE PURCHASED ASSETS
Section 1. Sale and Purchase. (a) The Seller hereby
agrees to sell, transfer, convey and assign to the Purchaser, and the Purchaser
hereby agrees to purchase in each case on the terms and subject to the
conditions set forth in this Agreement, all of the Seller's right, title and
interest in, to and under all Purchased Assets and all proceeds of Purchased
Assets. The Purchaser's obligation to pay for, and the Seller's obligation to
transfer, such Purchased Assets shall continue so long as this Agreement is in
effect.
3
<PAGE> 113
(b) All sales of Purchased Assets by the Seller hereunder
shall be without recourse to, or representation or warranty of any kind
(express or implied) by the Seller.
Section 2. Transfers and Payments. (a) The Seller
shall convey the Purchased Assets to the Purchaser on the day the CDSC Shares
with respect to which Purchased Assets arise are originated concurrently with
such origination, by giving the Purchaser and the respective AIM Fund or AIM
Funds notice of such origination and transfer describing in reasonable detail
the Purchased Assets being transferred to the Purchaser, but without further
action by the Seller. The purchase price for each Purchased Asset shall equal
the dollar amount funded by the Seller in creating the CDSC Share with respect
to such Purchased Asset, and shall be paid by the Purchaser concurrently with
such funding.
(b) The parties agree, to the full extent they may lawfully
do so, that the consideration for the purchase and sale of the Purchased Assets
as determined pursuant to Section 2(a) above represents reasonably equivalent
value for the transfer of the same by the Seller to the Purchaser pursuant to
this Agreement.
Section 3. Recording of Sales and Transfers. In
connection with the sale and conveyance of the Purchased Assets pursuant
hereto, the Seller shall indicate on its books and records that all such
Purchased Assets have been sold or conveyed to the Purchaser. In addition, the
Seller shall not carry any Purchased Assets on the Seller's accounting records,
and the Seller agrees that all such Purchased Assets have been and will be, as
contemplated by the terms of this Agreement, transferred and sold upon
origination to the Purchaser and carried on the Purchaser's accounting records.
Section 4. Allocations. If the Seller is unable for any
reason to transfer any Purchased Assets required to be transferred to the
Purchaser in accordance with the provisions of this Agreement (including,
without limitation, by reason of any requirement of law, rule, regulation or
order or directive of any court or regulatory authority), then in any such
event, the Seller agrees that it shall thereafter allocate and promptly pay to
the Purchaser all funds received with respect to the Purchased Assets which
would have been paid directly to or on behalf of the Purchaser but for the
Seller's inability to transfer such Purchased Assets.
Section 5. Purchaser's Collection Rights. The Purchaser
shall be entitled to make all reasonable efforts to collect from the respective
AIM Funds all payments in respect of the Purchased Assets as and when the same
shall become due. The
4
<PAGE> 114
Seller hereby irrevocably authorizes and empowers (without imposing any
obligation on) the Purchaser, upon the occurrence of an event permitting the
Seller to demand, sue for, collect and receive payment of any funds due with
respect to the Purchased Assets, to demand, sue for, collect and receive such
funds in the name of the Seller.
Section 6. Seller's Continuing Obligations.
Notwithstanding any other provision of this Agreement, the Seller shall be
obligated to perform all of its obligations under, pursuant to and in
connection with the Purchased Assets to the same extent as if the Purchaser had
no interest therein, and the Purchaser shall have no obligations or liability
under any Purchased Assets to any AIM Find by reason of or arising out of this
Agreement, nor shall the Purchaser be required or obligated in any manner to
perform or fulfill any of the obligations of Seller under, pursuant to or in
connection with any Purchased Assets.
Section 7. Further Assurances. The Seller agrees to do
such further acts and things, and to execute and deliver to the Purchaser such
additional assignments, agreements, powers and instruments, as are reasonably
required by the Purchaser to carry into effect the purposes of this Agreement
or to better assure and confirm unto the Purchaser its rights, powers and
remedies hereunder.
ARTICLE III.
SECURITY INTEREST
It is the intention of this Agreement that the purchase of the
Purchased Assets hereunder shall convey to the Purchaser an undivided 100%
ownership interest in such Purchased Assets and the proceeds of such Purchased
Assets and that such transactions shall constitute a true sale and not a
secured loan. If, notwithstanding such intention, any conveyance of Purchased
Assets and the proceeds of such Purchased Assets from the Seller to the
Purchaser shall ever be recharacterized as a secured loan and not a sale, it is
the intention of this Agreement that the Seller shall be deemed to have granted
to the Purchaser, in order to secure such loan, a security interest in all of
the Seller's right, title and interest in and to all Purchased Assets and all
proceeds of such Purchased Assets.
5
<PAGE> 115
ARTICLE IV.
MISCELLANEOUS
Section 1. Notices, etc. All notices required or
permitted to be given to or made upon any party hereto shall be in writing
(including telegraphic or facsimile communication) and mailed, faxed or
delivered, addressed to the Seller or the Purchaser, as the case may be, at
their respective addresses or transmission numbers hereinafter set forth and
shall be effective when deposited in the mails or transmitted by facsimile,
respectively.
If to the Seller, to it at:
A I M Distributors, Inc.
11 Greenway Plaza
Suite 1919
Houston, Texas 77046
Attention: President
Telecopy: (713) 993-9890
With a copy to the General Counsel at the same address.
If to the Purchaser, to it at:
A I M Management Group Inc.
11 Greenway Plaza
Suite 1919
Houston, Texas 77046
Attention: President
Telecopy: (713) 993-9890
With a copy to the General Counsel at the same address.
Section 2. Severability; etc. Any provisions of this
Agreement which are 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. No term or
provision of this Agreement, and no right or obligation of either party in
respect hereof, shall have any force or effect to the extent that such term,
provision, right or obligation would be unlawful or contrary to any rule,
regulation or order or directive of any court or regulatory authority.
6
<PAGE> 116
Section 3. Successors and Assigns, etc. This Agreement
shall be binding upon, and inure to the benefit of, the Seller and the
Purchaser and their respective successors and assigns.
Section 4. Third Party Beneficiary. The parties hereto
intend that the benefits of this Agreement shall inure to the benefit of
lenders to or purchasers from the Purchaser who finance or purchase Purchased
Assets for or from the Purchaser as third party beneficiaries.
Section 5. Amendment; Waiver; etc. This Agreement and
any term or provision hereof may only be amended, modified or waived by a
written instrument executed by the parties hereto, and this Agreement may be
terminated by either party on 30 days' prior written notice to the other party;
provided that any termination will not affect sales of Purchased Assets made
prior to the effectiveness of such termination and Seller's obligations under
Article II, Section 6 shall continue with respect to such Purchased Assets
until collected in full.
Section 6. APPLICABLE LAW; WAIVER OF JURY TRIAL. (a)
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF TEXAS, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF.
(b) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED AGREEMENT TO WHICH
SUCH PERSON IS A PARTY.
Section 7. Miscellaneous. The headings contained in
this Agreement are for convenience of reference only and shall not affect the
meaning, construction or interpretation of this Agreement. This Agreement may
be executed in one or more counterparts, each of which shall be deemed to be an
original, and all of which together shall constitute one and the same
instrument.
7
<PAGE> 117
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
this Agreement to be executed by their respective officers thereunto duly
authorized as of the day and date first above written.
A I M MANAGEMENT GROUP INC.
By:
-----------------------------------
Name:
Title:
A I M DISTRIBUTORS, INC.
By:
-----------------------------------
Name:
Title:
8
<PAGE> 118
EXHIBIT 2.02
FORM OF NOTE
New York, New York
$ ________________ ____________, ____
For value received, A I M Management Group Inc., a Delaware
corporation (the "Borrower"), promises to pay to the order of ______________
(the "Lender"), for the account of its Applicable Lending Office, the principal
sum of $_______, or, if less, the aggregate principal amount of the Loans made
from time to time by the Lender to the Borrower pursuant to the B Share Credit
Agreement referred to below, on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Loan, from the date of such Loan until such principal amount is
paid in full, on the dates and at the rate or rates provided in the B Share
Credit Agreement. All such payments of principal and interest shall be made in
U.S. Dollars in immediately available funds at the office of Citibank, N.A.,
399 Park Avenue, New York, New York 10043, Attention: Bank Loan Syndications.
The Lender is authorized to record the principal amount,
types, interest rates, Interest Periods and assignments of the Loan, and the
dates and amounts of all repayments or prepayments of the principal thereof, on
the schedule attached hereto, or on a continuation of such schedule, which
recordation shall constitute prima facie evidence of the accuracy of the
information recorded in the absence of manifest error, provided that the
failure of the Lender to make any such recordation or the inaccuracy or
incompleteness of any such recordation shall not affect the obligations of the
Borrower hereunder or under the B Share Credit Agreement.
This Note is one of the Notes referred to in, and is entitled
to the benefits of, the B Share Credit Agreement dated as of June __, 1996 (as
such B Share Credit Agreement may be amended, restated or supplemented from
time to time, the "B Share Credit Agreement"; terms defined in the B Share
Credit Agreement are used herein as therein defined), among the Borrower, the
Lender and the other Lenders listed on the signature pages thereof, Citibank,
N.A., as Administrative Agent for the Lender and the other Lenders, and the
financial institutions listed on the signature pages thereof as co-agents, as
Co-Agents. The B Share Credit Agreement, among other things, (i) provides for
the making of Loans by the Lender to the Borrower from time to time in an
aggregate amount not to exceed at any time outstanding the dollar amount first
above mentioned, the indebtedness of the Borrower resulting from each such Loan
being evidenced by this Note, and (ii) contains
<PAGE> 119
provisions for acceleration of the maturity hereof upon the happening of
certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
The obligations of the Borrower under this Note, and the obligations of the
other Loan Parties under the Loan Documents, are secured by the Collateral as
provided in the Loan Documents.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
A I M MANAGEMENT GROUP INC.
By ______________________________
Name:
Title:
2
<PAGE> 120
PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
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Amount Amount of
Amount of Loan Type Principal Interest Interest Notation
Date of Loan Assigned of Loan Repaid Period Rate Made By
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
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</TABLE>
3
<PAGE> 121
EXHIBIT 3.01
FORM OF NOTICE OF BORROWING
[DATE]
Citibank, N.A., as
Administrative Agent
for the Lenders parties
to the B Share Credit Agreement
referred to below,
399 Park Avenue
New York, New York 10043
Attention: Bank Loan Syndications
ref: AIM Management
Ladies and Gentlemen:
The undersigned, A I M Management Group Inc., a Delaware
corporation, refers to the B Share Credit Agreement dated as of June __, 1996
(as such B Share Credit Agreement may be amended or supplemented from time to
time, the "B Share Credit Agreement"), among the undersigned, the Lenders
listed on the signature pages thereof, Citibank, N.A., as Administrative Agent
for the Lenders, and the financial institutions listed on the signature pages
thereof as co-agents, as Co-Agents. Capitalized terms not otherwise defined
herein are defined in the B Share Credit Agreement and are used herein with the
same meanings. The undersigned hereby gives notice pursuant to Section 3.01 of
the B Share Credit Agreement that the undersigned hereby requests a Borrowing
under the B Share Credit Agreement, and in that connection sets forth below the
information relating to such Borrowing (the "Proposed Borrowing") as required
by Section 3.01 of the B Share Credit Agreement:
(i) the Business Day of the Proposed Borrowing is
____________, 199_;
(ii) the Type of Loans comprising the Proposed Borrowing
is [Base Rate] [Eurodollar Rate] Loans;
(iii) the aggregate amount of the Proposed Borrowing is
$_________;
(iv) the Interest Period for each Eurodollar Rate Loan
made as part of the Proposed Borrowing is _____
month[s].
<PAGE> 122
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) each of the representations and warranties contained
in Article VI of the B Share Credit Agreement are true and correct,
before and after giving effect to the Proposed Borrowing and to the
application of the proceeds therefrom, as though made on and as of
such date, except to the extent they were expressly made as of the
Effective Date or expressly relate to a prior date, provided, that
Section 6.05 (other than the last sentence thereof) shall be deemed to
apply to the most recent financial statements delivered to the Lenders
pursuant to Sections 7.18(b) and 7.18(c) of the B Share Credit
Agreement;
(B) no Default exists or will result from such Proposed
Borrowing;
(C) the outstanding aggregate principal amount of all
Loans, after giving effect to the Proposed Borrowing, will not exceed
the aggregate amount of all Commitments in effect as of the date of
such Proposed Borrowing; and
(D) the undersigned certifies that it has performed in
all respects all agreements and satisfied all conditions under the B
Share Credit Agreement to be performed by it on or before the date
hereof.
Very truly yours,
A I M MANAGEMENT GROUP INC.
By ______________________________
Name:
Title:
2
<PAGE> 123
EXHIBIT 5.01(l)(v)
B SHARE COLLATERAL AGREEMENT
Dated June 26, 1996
From
A I M MANAGEMENT GROUP INC.
as Borrower
-----------
to
CITIBANK, N.A.
as Administrative Agent
-----------------------
<PAGE> 124
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
SECTION PAGE
<S><C> <C>
1. Grant of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Security for Obligations . . . . . . . . . . . . . . . . . . . . . . . . 3
3. Borrower Remains Liable . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Delivery of Account Collateral . . . . . . . . . . . . . . . . . . . . . 3
5. Maintaining the B Share Collateral Account . . . . . . . . . . . . . . . 3
6. Investing of Amounts in the B Share Collateral Account . . . . . . . . . 4
7. Release of Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
8. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . 5
9. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
10. Place of Perfection; Records; Collection of Receivables . . . . . . . . . 6
11. As to the Assigned Agreements . . . . . . . . . . . . . . . . . . . . . . 7
12. Payments Under the Assigned Agreements . . . . . . . . . . . . . . . . . . 8
13. Transfers and Other Liens . . . . . . . . . . . . . . . . . . . . . . . . 8
14. Administrative Agent Appointed Attorney-in-Fact . . . . . . . . . . . . . 8
15. Administrative Agent May Perform . . . . . . . . . . . . . . . . . . . . . 9
16. The Administrative Agent's Duties . . . . . . . . . . . . . . . . . . . . 9
17. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
18. Indemnity and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 11
19. Amendments; Waivers; Etc . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
<PAGE> 125
ii
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
20. Addresses for Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 11
21. Continuing Security Interest; Assignments under the Credit Agreement . . . 12
22. Release and Termination . . . . . . . . . . . . . . . . . . . . . . . . . 12
23. Governing Law; Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Schedule I - Assigned Agreements
Exhibit A - Form of Consent and Agreement
</TABLE>
<PAGE> 126
B SHARE COLLATERAL AGREEMENT
B SHARE COLLATERAL AGREEMENT dated June __, 1996 made by A I M
MANAGEMENT GROUP INC., a Delaware corporation with an office at 11 Greenway
Plaza, Suite 1919, Houston, Texas 77046 (the "Borrower"), to Citibank, N.A.
("Citibank"), as administrative agent (the "Administrative Agent") for the
lenders (the "Lenders") party to the Credit Agreement (as hereinafter defined).
PRELIMINARY STATEMENTS.
(1) The Lenders and the Administrative Agent have entered
into a Credit Agreement dated as of June __, 1996 (said Agreement, as it may
hereafter be amended or otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined herein being
used herein as therein defined) with the Borrower.
(2) The Borrower has opened a collateral account (the "B
Share Collateral Account") with A I M Money Market Fund at its office at 11
Greenway Plaza, Suite 1919, Houston, Texas 77046, Account No. 40 20 702 9182,
in the name of the Borrower, pledged to the Administrative Agent and subject to
the terms of this Agreement.
(3) It is a condition precedent to the making of Loans by
the Lenders under the Credit Agreement that the Borrower shall have granted the
assignment and security interest and made the pledge and assignment
contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Lenders to make Loans under the Credit Agreement, the Borrower
hereby agrees with the Administrative Agent for its benefit and the ratable
benefit of the Lenders as follows:
Section 1. Grant of Security. The Borrower hereby assigns
and pledges to the Administrative Agent for its benefit and the ratable benefit
of the Lenders, and hereby grants to the Administrative Agent for its benefit
and the ratable benefit of the Lenders a security interest in, the following
(collectively, the "Collateral"):
(a) all of the Borrower's right, title and interest,
whether now owned or hereafter acquired, in and to all accounts,
contract rights, chattel paper, instruments, deposit accounts, general
intangibles and other obligations of any kind, now or hereafter
existing, constituting Deferred Load Amounts (other than Deferred Load
Amounts that, on any date of determination, have been sold pursuant to
a Securitization Program) and the proceeds of any Securitization
Program (any and all such accounts, contract rights, chattel paper,
instruments, deposit accounts, general intangibles and obligations, to
the extent not referred to in clause (b), (c) or (d) below, being the
"Receivables");
<PAGE> 127
2
(b) all of the Borrower's right, title and interest in
its capacity as "Seller" in and to the Collection Agency Agreement
described on Schedule I hereto and all of the Borrower's right, title
and interest in and to each other agreement listed on Schedule I, as
such agreements may be amended or otherwise modified from time to time
(collectively, the "Assigned Agreements"), including, without
limitation, (i) all rights of the Borrower to receive moneys due and
to become due under or pursuant to the Assigned Agreements, (ii) all
rights of the Borrower to receive proceeds of any insurance,
indemnity, warranty or guaranty with respect to the Assigned
Agreements, (iii) claims of the Borrower for damages arising out of or
for breach of or default under the Assigned Agreements and (iv) the
right of the Borrower to compel performance and otherwise exercise all
remedies thereunder (all such Collateral being the "Agreement
Collateral");
(c) all of the following (collectively, the "Account
Collateral"):
(i) the B Share Collateral Account, all funds
held therein and all certificates and instruments, if any,
from time to time representing or evidencing the B Share
Collateral Account;
(ii) all Collateral Investments (as hereinafter
defined) from time to time and all certificates and
instruments, if any, from time to time representing or
evidencing the Collateral Investments;
(iii) all notes, certificates of deposit, deposit
accounts, checks and other instruments from time to time
hereafter delivered to or otherwise possessed by the
Administrative Agent for or on behalf of the Borrower in
substitution for or as a proceed of any or all of the then
existing Account Collateral; and
(iv) all interest, dividends, cash, instruments
and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or
all of the then existing Account Collateral; and
(d) all proceeds of any and all of the foregoing
Collateral (including, without limitation, proceeds that constitute
property of the types described in clauses (a) - (c) of this Section
1) and, to the extent not otherwise included, all (i) payments under
insurance (whether or not the Administrative Agent is the loss payee
thereof), or any indemnity, warranty or guaranty, payable by reason of
loss or damage to any of the foregoing Collateral and (ii) cash.
Notwithstanding anything in this Agreement to the contrary,
"Collateral" shall not include any assets sold by the Borrower
pursuant to a Securitization Program or any
<PAGE> 128
3
rights under the Assigned Agreements with respect to assets sold by
the Borrower pursuant to a Securitization Program.
Section 2. Security for Obligations. This Agreement secures
the payment of all Obligations of the Borrower now or hereafter existing under
the Loan Documents, whether for principal, interest, fees, expenses or
otherwise (all such Obligations being the "Secured Obligations"). Without
limiting the generality of the foregoing, this Agreement secures the payment of
all amounts that constitute part of the Secured Obligations and would be owed
by the Borrower to the Administrative Agent or the Lenders under the Loan
Documents but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
the Borrower.
Section 3. Borrower Remains Liable. Anything herein to the
contrary notwithstanding, (a) the Borrower shall remain liable under the
contracts and agreements included in the Collateral to the extent set forth
therein to perform all of its duties and obligations thereunder to the same
extent as if this Agreement had not been executed, (b) the exercise by the
Administrative Agent of any of the rights hereunder shall not release the
Borrower from any of its duties or obligations under the contracts and
agreements included in the Collateral and (c) neither the Administrative Agent
nor any Lender shall have any obligation or liability under the contracts and
agreements included in the Collateral by reason of this Agreement, nor shall
the Administrative Agent or any Lender be obligated to perform any of the
obligations or duties of the Borrower thereunder or to take any action to
collect or enforce any claim for payment assigned hereunder.
Section 4. Delivery of Account Collateral. All certificates
or instruments representing or evidencing Account Collateral shall be delivered
to and held by or on behalf of the Administrative Agent pursuant hereto and
shall be in suitable form for transfer by delivery, or shall be accompanied by
duly executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to the Administrative Agent. The Administrative Agent
shall have the right, at any time in its discretion and without notice to the
Borrower, to transfer to or to register in the name of the Administrative Agent
or any of its nominees any or all of the Account Collateral. In addition, the
Administrative Agent shall have the right at any time to exchange certificates
or instruments representing or evidencing Account Collateral for certificates
or instruments of smaller or larger denominations.
Section 5. Maintaining the B Share Collateral Account. So
long as any Loan shall remain unpaid or any Lender shall have any Commitment
under the Credit Agreement:
(a) The Borrower will maintain the B Share Collateral
Account pledged to the Administrative Agent;
<PAGE> 129
4
(b) The Borrower shall deposit into the B Share
Collateral Agreement, on each day, immediately available funds in an
amount equal to all Deferred Load Amounts received by the Borrower
that are not deposited into the Demand Deposit Account (as defined in
the Collection Agency Agreement); and
(c) It shall be a term and condition of the B Share
Collateral Account, notwithstanding any term or condition to the
contrary in any other agreement relating to the B Share Collateral
Account and except as otherwise provided by the provisions of Section
7 and Section 17, that no amount (including interest on Collateral
Investments) shall be paid or released to or for the account of, or
withdrawn by or for the account of, the Borrower or any other Person
from the B Share Collateral Account.
The B Share Collateral Account shall be subject to such applicable laws, and
such applicable regulations of the Board of Governors of the Federal Reserve
System and of any other appropriate banking or governmental authority, as may
now or hereafter be in effect.
Section 6. Investing of Amounts in the B Share Collateral
Account. If requested by the Borrower, the Administrative Agent will, subject
to the provisions of Section 7 and Section 17, from time to time (a) invest
amounts on deposit in the B Share Collateral Account in such Cash Equivalents
in the name of the Administrative Agent as the Borrower may select and (b)
invest interest paid on the Cash Equivalents referred to in clause (a) above,
and reinvest other proceeds of any such Cash Equivalents that may mature or be
sold, in each case in such Cash Equivalents in the name of the Administrative
Agent as the Borrower may select (the Cash Equivalents referred to in clauses
(a) and (b) above being collectively "Collateral Investments"). Interest and
proceeds that are not invested or reinvested in Collateral Investments as
provided above shall be deposited and held in the B Share Collateral Account.
Section 7. Release of Amounts. So long as no Event of
Default shall have occurred and be continuing, on the 20th day of each month
the Administrative Agent will liquidate the Collateral Investments in a
commercially reasonable manner to the extent necessary to provide for the
timely receipt by the Administrative Agent of cash to make the payments
described in this Section 7 and (a) apply available funds then on deposit in
the B Share Collateral Account to the prepayment of the Loans under Section
3.02(b) of the Credit Agreement and (b) pay and release to the Borrower or at
its order and at the request of the Borrower, the amount of any remaining
available funds in the B Share Collateral Account after the foregoing
application, provided that the amount paid pursuant to this clause (b) shall
not exceed an amount equal to the sum of (x) the excess, if any, of Deferred
Load Amounts paid into the B Share Collateral Account during the one month
period ending on the 15th day of such month over Facility Collections for such
period and (y) any interest or income on the Collateral Investments accrued on
or prior to such 15th day.
<PAGE> 130
5
Section 8. Representations and Warranties. The Borrower
represents and warrants as follows:
(a) The chief place of business and chief executive
office of the Borrower and the office where the Borrower keeps its
records concerning the Receivables, and the original copies of each
Assigned Agreement, are located at the address first specified above
for the Borrower. None of the Receivables or Agreement Collateral is
evidenced by a promissory note or other instrument.
(b) The Borrower is the legal and beneficial owner of the
Collateral free and clear of any Lien, except for the security
interest created by this Agreement. No effective financing statement
or other instrument similar in effect covering all or any part of the
Collateral is on file in any recording office, except such as may have
been filed in favor of the Administrative Agent relating to this
Agreement. The Borrower has no trade names.
(c) The Assigned Agreements, true and complete copies of
which have been furnished to each Lender, have been duly authorized,
executed and delivered by all parties thereto, have not been amended
or otherwise modified, are in full force and effect and are binding
upon and enforceable against all parties thereto in accordance with
their terms. There exists no default under any Assigned Agreement by
any party thereto. Each party to the Assigned Agreements (other than
the Collection Agency Agreement described on Schedule I) other than
the Borrower has executed and delivered to the Borrower a consent, in
substantially the form of Exhibit A, to the assignment of the
Agreement Collateral to the Administrative Agent pursuant to this
Agreement.
(d) The Borrower has instructed (i) AIM Distributors to
make all payments under the Distribution Fee Purchase Agreement to the
Demand Deposit Account (as defined in the Collection Agency
Agreement), (ii) each Eligible Fund or its transfer agent to make all
payments that are the proceeds of Receivables to the Demand Deposit
Account and (iii) the Collection Agent to make all payments
distributable to the Borrower under the Collection Agency Agreement to
the B Share Collateral Account.
(e) This Agreement creates a valid and perfected first
priority security interest in the Collateral, securing the payment of
the Secured Obligations, and all filings and other actions necessary
or desirable to perfect and protect such security interest have been
duly taken.
(f) No consent of any other Person and no authorization,
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or other third party is
required either (i) for the grant by the Borrower of the assignment
and security interest granted hereby or for the execution, delivery or
performance of this
<PAGE> 131
6
Agreement by the Borrower, (ii) for the perfection or maintenance of
the pledge, assignment and security interest created hereby (including
the first priority nature of such pledge, assignment or security
interest), except for the filing of financing and continuation
statements under the Uniform Commercial Code, which financing
statements have been duly filed, or (iii) for the exercise by the
Administrative Agent of its rights provided for in this Agreement or
the remedies in respect of the Collateral pursuant to this Agreement.
Section 9. Further Assurances. (a) The Borrower agrees that
from time to time, at the expense of the Borrower, the Borrower will promptly
execute and deliver all further instruments and documents, and take all further
action, that may be necessary or desirable, or that the Administrative Agent
may request, in order to perfect and protect any pledge, assignment or security
interest granted or purported to be granted hereby or to enable the
Administrative Agent to exercise and enforce its rights and remedies hereunder
with respect to any Collateral. Without limiting the generality of the
foregoing, the Borrower will: (i) mark conspicuously each Assigned Agreement
and, at the request of the Administrative Agent, each of its records pertaining
to the Collateral with a legend, in form and substance satisfactory to the
Administrative Agent, indicating that such document, chattel paper, Assigned
Agreement or Collateral is subject to the security interest granted hereby;
(ii) if any Collateral shall be evidenced by a promissory note or other
instrument, deliver and pledge to the Administrative Agent hereunder such note
or instrument duly indorsed and accompanied by duly executed instruments of
transfer or assignment, all in form and substance satisfactory to the
Administrative Agent; and (iii) execute and file such financing or continuation
statements, or amendments thereto, and such other instruments or notices, as
may be necessary or desirable, or as the Administrative Agent may request, in
order to perfect and preserve the pledge, assignment and security interest
granted or purported to be granted hereby.
(b) The Borrower hereby authorizes the Administrative
Agent to file one or more financing or continuation statements, and amendments
thereto, relating to all or any part of the Collateral without the signature of
the Borrower where permitted by law. A photocopy or other reproduction of this
Agreement or any financing statement covering the Collateral or any part
thereof shall be sufficient as a financing statement where permitted by law.
(c) The Borrower will furnish to the Administrative Agent
from time to time statements and schedules further identifying and describing
the Collateral and such other reports in connection with the Collateral as the
Administrative Agent may reasonably request, all in reasonable detail.
Section 10. Place of Perfection; Records; Collection of
Receivables. (a) The Borrower shall keep its chief place of business and
chief executive office and the office where it keeps its records concerning the
Collateral at the location therefor specified in Section 8(a) or, upon 30 days'
prior written notice to the Administrative Agent, at such other locations in a
<PAGE> 132
7
jurisdiction where all actions required by Section 9 shall have been taken with
respect to the Collateral. The Borrower will hold and preserve such records
and Assigned Agreements and will permit representatives of the Administrative
Agent at any time during normal business hours to inspect and make abstracts
from such records.
(b) Except as otherwise provided in this subsection (b),
the Borrower shall continue to collect, at its own expense, all amounts due or
to become due the Borrower under the Receivables. In connection with such
collections, the Borrower may take (and, at the Administrative Agent's
direction, shall take) such action as the Borrower or the Administrative Agent
may deem necessary or advisable to enforce collection of the Receivables;
provided, however, that the Administrative Agent shall have the right at any
time, upon the occurrence and during the continuance of a Default and upon
written notice to the Borrower of its intention to do so, at the expense of the
Borrower, to enforce collection of any such Receivables, and to adjust, settle
or compromise the amount or payment thereof, in the same manner and to the same
extent as the Borrower might have done. After receipt by the Borrower of the
notice from the Administrative Agent referred to in the proviso to the
preceding sentence, (i) all amounts and proceeds (including instruments)
received by the Borrower in respect of the Receivables shall be received in
trust for the benefit of the Administrative Agent hereunder, shall be
segregated from other funds of the Borrower and shall be forthwith paid over to
the Administrative Agent in the same form as so received (with any necessary
indorsement) to be deposited in the B Share Collateral Account and either (A)
released to the Borrower on the terms set forth in Section 7 so long as no
Event of Default shall have occurred and be continuing or (B) if any Event of
Default shall have occurred and be continuing, applied as provided by Section
17(b) and (ii) the Borrower shall not adjust, settle or compromise the amount
or payment of any Receivable, release wholly or partly any obligor thereof, or
allow any credit or discount thereon.
Section 11. As to the Assigned Agreements. (a) The Borrower
shall at its expense:
(i) perform and observe all the terms and provisions of
the Assigned Agreements to be performed or observed by it, maintain
the Assigned Agreements in full force and effect, enforce the Assigned
Agreements in accordance with their terms and take all such action to
such end as may be from time to time requested by the Administrative
Agent; and
(ii) furnish to the Administrative Agent promptly upon
receipt thereof copies of all notices, requests and other documents
received by the Borrower under or pursuant to the Assigned Agreements,
and from time to time (A) furnish to the Administrative Agent such
information and reports regarding the Collateral as the Administrative
Agent may reasonably request and (B) upon request of the
Administrative Agent make to each other party to any Assigned
Agreement such demands and requests for information and reports or for
action as the Borrower is entitled to make thereunder.
<PAGE> 133
8
(b) The Borrower shall not:
(i) cancel or terminate any Assigned Agreement or consent
to or accept any cancellation or termination thereof;
(ii) amend or otherwise modify any Assigned Agreement or
give any consent, waiver or approval thereunder;
(iii) waive any default under or breach of any Assigned
Agreement; or
(iv) take any other action in connection with any Assigned
Agreement that would impair the value of the interest or rights of the
Borrower thereunder or that would impair the interest or rights of the
Administrative Agent.
Section 12. Payments Under the Assigned Agreements. (a) The
Borrower agrees, and has effectively so instructed each other party to each
Assigned Agreement, that all payments due or to become due under or in
connection with such Assigned Agreement shall be made directly to either the B
Share Collateral Account or the Demand Deposit Account, as specified in Section
8(d) above.
(b) Except as set forth in Section 17, all moneys
received or collected pursuant to subsection (a) above shall be applied as set
forth in Section 7.
Section 13. Transfers and Other Liens. The Borrower shall
not, except pursuant to a Securitization Program, (i) sell, assign (by
operation of law or otherwise) or otherwise dispose of, or grant any option
with respect to, any of the Collateral or (ii) create or suffer to exist any
Lien upon or with respect to any of the Collateral except for the pledge,
assignment and security interest created by this Agreement.
Section 14. Administrative Agent Appointed Attorney-in-Fact.
The Borrower hereby irrevocably appoints the Administrative Agent the
Borrower's attorney-in-fact, with full authority in the place and stead of the
Borrower and in the name of the Borrower or otherwise, from time to time in the
Administrative Agent's discretion at any time that a Default has occurred and
is continuing, to take any action and to execute any instrument that the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Agreement, including, without limitation:
(a) to ask for, demand, collect, sue for, recover,
compromise, receive and give acquittance and receipts for moneys due
and to become due under or in respect of any of the Collateral,
<PAGE> 134
9
(b) to receive, indorse and collect any drafts or other
instruments, documents and chattel paper, in connection with clause
(a) above, and
(c) to file any claims or take any action or institute
any proceedings that the Administrative Agent may deem necessary or
desirable for the collection of any of the Collateral or otherwise to
enforce compliance with the terms and conditions of any Assigned
Agreement or the rights of the Administrative Agent with respect to
any of the Collateral.
Section 15. Administrative Agent May Perform. If the
Borrower fails to perform any agreement contained herein, the Administrative
Agent may itself perform, or cause performance of, such agreement, and the
expenses of the Administrative Agent incurred in connection therewith shall be
payable by the Borrower under Section 18(b).
Section 16. The Administrative Agent's Duties. The powers
conferred on the Administrative Agent hereunder are solely to protect its
interest in the Collateral and shall not impose any duty upon it to exercise
any such powers. Except for the safe custody of any Collateral in its
possession and the accounting for moneys actually received by it hereunder, the
Administrative Agent shall have no duty as to any Collateral, as to
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral, whether or not
the Administrative Agent or any Lender has or is deemed to have knowledge of
such matters, or as to the taking of any necessary steps to preserve rights
against any parties or any other rights pertaining to any Collateral. The
Administrative Agent shall be deemed to have exercised reasonable care in the
custody and preservation of any Collateral in its possession if such Collateral
is accorded treatment substantially equal to that which Citibank accords its
own property.
Section 17. Remedies. If any Event of Default shall have
occurred and be continuing:
(a) The Administrative Agent may exercise in respect of
the Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a
secured party upon default under the Uniform Commercial Code in effect
in the State of New York at such time (the "N.Y. Uniform Commercial
Code") (whether or not the N.Y. Uniform Commercial Code applies to the
affected Collateral) and also may (i) require the Borrower to, and the
Borrower hereby agrees that it will at its expense and upon request of
the Administrative Agent forthwith, assemble all or part of the
Collateral as directed by the Administrative Agent and make it
available to the Administrative Agent at a place to be designated by
the Administrative Agent that is reasonably convenient to both parties
and (ii) without notice except as specified below, sell the Collateral
or any part thereof in one or more parcels at public or private sale,
at any of the Administrative Agent's offices or elsewhere, for cash,
on credit or for future
<PAGE> 135
10
delivery, and upon such other terms as the Administrative Agent may
deem commercially reasonable. The Borrower agrees that, to the extent
notice of sale shall be required by law, at least ten days' notice to
the Borrower of the time and place of any public sale or other
disposition or the time after which any private sale is to be made
shall constitute reasonable notification. The Administrative Agent
shall not be obligated to make any sale or other disposition of
Collateral regardless of notice of sale having been given. The
Administrative Agent may adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to
which it was so adjourned.
(b) All cash proceeds received by the Administrative
Agent in respect of any sale of, collection from, or other realization
upon all or any part of the Collateral may, in the discretion of the
Administrative Agent, be held by the Administrative Agent as
collateral for, and/or then or at any time thereafter applied (after
payment of any amounts payable to the Administrative Agent pursuant to
Section 18) in whole or in part by the Administrative Agent for the
ratable benefit of the Lenders against, all or any part of the Secured
Obligations in such order as the Administrative Agent shall elect.
Any surplus of such cash or cash proceeds held by the Administrative
Agent and remaining after payment in full of all the Secured
Obligations shall be paid over to the Borrower or to whomsoever may be
lawfully entitled to receive such surplus.
(c) The Administrative Agent may exercise any and all
rights and remedies of the Borrower under or in connection with the
Assigned Agreements or otherwise in respect of the Collateral,
including, without limitation, any and all rights of the Borrower to
demand or otherwise require payment of any amount under, or
performance of any provision of, any Assigned Agreement.
(d) All payments received by the Borrower under or in
connection with any Assigned Agreement or otherwise in respect of the
Collateral shall be received in trust for the benefit of the
Administrative Agent, shall be segregated from other funds of the
Borrower and shall be forthwith paid over to the Administrative Agent
in the same form as so received (with any necessary indorsement).
(e) The Administrative Agent may, without notice to the
Borrower except as required by law and at any time or from time to
time, charge, set-off and otherwise apply all or any part of the
Secured Obligations against the B Share Collateral Account or any part
thereof.
(f) Notwithstanding anything in this Agreement to the
contrary, so long as each Financing Participant shall be subject to a
similar restriction for the benefit of the Administrative Agent and
the Lenders, the Administrative Agent shall not exercise any right,
remedy or power, whether under this Agreement, at law or at equity
(including,
<PAGE> 136
11
without limitation, any right or power to enforce, to sell, at any
public or private sale, to foreclose upon or otherwise dispose of any
Collateral that relate to Designated Shares of a Designated AIM Fund),
the effect of which is to cause (i) any Deferred Load Amount relating
to any Designated Share of a Designated AIM Fund not to be remitted by
the applicable Designated AIM Fund to the Demand Deposit Account or
(ii) which would otherwise adversely affect the rights of any
Financing Participant in any asset the subject of the Securitization
Program, in each case without the prior written consent of Citicorp
North America, Inc., as Program Agent.
Section 18. Indemnity and Expenses. (a) The Borrower agrees
to indemnify the Administrative Agent from and against any and all claims,
losses and liabilities growing out of or resulting from this Agreement
(including, without limitation, enforcement of this Agreement), except claims,
losses or liabilities resulting from the Administrative Agent's gross
negligence, bad faith or willful misconduct as determined by a final judgment
of a court of competent jurisdiction.
(b) The Borrower will upon demand pay to the
Administrative Agent the amount of any and all reasonable expenses, including
the reasonable fees and expenses of its counsel and of any experts and agents,
that the Administrative Agent may incur in connection with (i) the
administration of this Agreement, (ii) the custody, preservation, use or
operation of, or the sale of, collection from or other realization upon, any of
the Collateral, (iii) the exercise or enforcement of any of the rights of the
Administrative Agent or the Lenders hereunder or (iv) the failure by the
Borrower to perform or observe any of the provisions hereof.
Section 19. Amendments; Waivers; Etc. No amendment or waiver
of any provision of this Agreement, and no consent to any departure by the
Borrower herefrom, shall in any event be effective unless the same shall be in
writing and signed by the Administrative Agent and the Required Lenders, and
then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No failure on the part of the
Administrative Agent to exercise, and no delay in exercising any right
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or
the exercise of any other right.
Section 20. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including
telecopier, telegraphic, telex or cable communication) and, mailed,
telegraphed, telecopied, telexed, cabled or delivered to the Borrower or to the
Administrative Agent, as the case may be, in each case addressed to it at its
address specified in the Credit Agreement or, as to either party, at such other
address as shall be designated by such party in a written notice to each other
party complying as to delivery with the terms of this Section. All such
notices and other communications shall, when mailed, telecopied, telegraphed,
telexed or cabled, respectively, be effective when deposited in the mails,
<PAGE> 137
12
telecopied, delivered to the telegraph company, confirmed by telex answerback
or delivered to the cable company, respectively, addressed as aforesaid.
Section 21. Continuing Security Interest; Assignments under
the Credit Agreement. This Agreement shall create a continuing security
interest in the Collateral and shall (a) remain in full force and effect until
the later of the payment in full in cash of the Secured Obligations and the
Termination Date, (b) be binding upon the Borrower, its successors and assigns
and (c) inure, together with the rights and remedies of the Administrative
Agent hereunder, to the benefit of the Administrative Agent, the Lenders and
their respective successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), any Lender may assign or otherwise
transfer all or any portion of its rights and obligations under the Credit
Agreement (including, without limitation, all or any portion of its Commitment,
the Loans owing to it and the Note held by it to any other Person, and such
other Person shall thereupon become vested with all the benefits in respect
thereof granted to such Lender herein or otherwise, in each case as provided in
Section 10.07 of the Credit Agreement.
Section 22. Release and Termination. (a) Upon any sale,
lease, transfer or other disposition of any item of Collateral in accordance
with the terms of the Loan Documents, the Administrative Agent will, at the
Borrower's expense, execute and deliver to the Borrower such documents as the
Borrower shall reasonably request to evidence the release of such item of
Collateral from the assignment and security interest granted hereby; provided,
however, that (i) at the time of such request and such release no Default shall
have occurred and be continuing, (ii) the Borrower shall have delivered to the
Administrative Agent, at least ten Business Days prior to the date of the
proposed release, a written request for release describing the item of
Collateral and the terms of the sale, lease, transfer or other disposition in
such reasonable detail as shall be acceptable to the Administrative Agent,
together with a form of release for execution by the Administrative Agent and a
certification by the Borrower to the effect that the transaction is in
compliance with the Loan Documents and as to such other matters as the
Administrative Agent may request and (iii) the proceeds of any such sale,
lease, transfer or other disposition required to be applied in accordance with
Section 3.02(a) of the Credit Agreement shall be paid to, or in accordance with
the instructions of, the Administrative Agent at the closing.
(b) Upon the later of the payment in full in cash of the
Secured Obligations and the Termination Date, the pledge, assignment and
security interest granted hereby shall terminate and all rights to the
Collateral shall revert to the Borrower. Upon any such termination, the
Administrative Agent will, at the Borrower's expense, execute and deliver to
the Borrower such documents as the Borrower shall reasonably request to
evidence such termination.
Section 23. Governing Law; Terms. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
except to the extent that the validity or perfection of the security interest
hereunder, or remedies hereunder, in respect of any
<PAGE> 138
13
particular Collateral are governed by the laws of a jurisdiction other than the
State of New York. Unless otherwise defined herein or in the Credit Agreement,
terms used in Article 9 of the N.Y. Uniform Commercial Code are used herein as
therein defined.
IN WITNESS WHEREOF, the Borrower has caused this Agreement to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
A I M MANAGEMENT GROUP INC.
By
-----------------------------------
Title: President
<PAGE> 139
SCHEDULE I
ASSIGNED AGREEMENTS
1. Collection Agency Agreement dated as of May 2, 1995 among Citibank,
N.A., Citicorp North America, Inc., as Program Agent, the Borrower,
Citibank, N.A., as Administrative Agent, and Bankers Trust Company, as
Collection Agent, as amended through June 26, 1996.
2. Second Amended and Restated Distribution Fee Purchase Agreement dated
as of June 26, 1996 between the Borrower and A I M Distributors, Inc.
<PAGE> 140
EXHIBIT A
FORM OF CONSENT AND AGREEMENT
The undersigned hereby acknowledges notice of, and consents to
the terms and provisions of, the B Share Collateral Agreement dated June__,
1996 (the "B Share Collateral Agreement", the terms defined therein being used
herein as therein defined) from A I M Management Group Inc. (the "Borrower") to
Citibank, N.A., as agent (the "Administrative Agent") for the Lenders referred
to therein, and hereby agrees with the Administrative Agent that:
(a) The undersigned will make all payments to be made by
it under or in connection with the __________ Agreement dated
_______________, 19__ (the "Assigned Agreement") between the
undersigned and the Borrower directly to the Demand Deposit Account or
otherwise in accordance with the instructions of the Administrative
Agent and the Program Agent.
(b) All payments referred to in paragraph (a) above shall
be made by the undersigned irrespective of, and without deduction for,
any counterclaim, defense, recoupment or set-off and shall be final,
and the undersigned will not seek to recover from the Administrative
Agent or any Lender for any reason any such payment once made.
(c) The Administrative Agent shall be entitled to
exercise any and all rights and remedies of the Borrower under the
Assigned Agreement in accordance with the terms of the B Share
Collateral Agreement, and the undersigned shall comply in all respects
with such exercise.
(d) The undersigned will not, without the prior written
consent of the Administrative Agent, (i) cancel or terminate the
Assigned Agreement or consent to or accept any cancellation or
termination thereof or (ii) amend or otherwise modify the Assigned
Agreement.
This Consent and Agreement shall be binding upon the
undersigned and its successors and assigns, and shall inure, together with the
rights and remedies of the Administrative Agent hereunder, to the benefit of
the Administrative Agent, the Lenders and their successors, transferees and
assigns. This Consent and Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
<PAGE> 141
IN WITNESS WHEREOF, the undersigned has duly executed this
Consent and Agreement as of the date set opposite its name below.
Dated: _______________, 19__ [NAME OF OBLIGOR]
By: __________________________________
Title:
<PAGE> 142
EXHIBIT 5.01(l)(vii)-1
A I M MANAGEMENT GROUP INC.
SOLVENCY CERTIFICATE
I, Dawn M. Hawley, do hereby certify that I am the Vice President and
Chief Financial Officer of A I M Management Group Inc., a Delaware corporation
(the "Borrower"), and that, as such: (a) I am duly authorized to execute and
deliver this certificate on behalf of the Borrower pursuant to Section
5.01(l)(vii) of the B Share Credit Agreement dated as of June 26, 1996 (the "B
Share Credit Agreement"; capitalized terms used in this certificate without
definition herein are used as defined in the B Share Credit Agreement), among
the Borrower, the Lenders identified on the signature page thereof, Citibank,
N.A., as Administrative Agent, and the financial institutions listed on the
signature page thereof as co-agents, as Co-Agents; and (b) after giving effect
to the Borrowings on the Effective Date contemplated under the B Share Credit
Agreement:
(i) the fair value of the property of the Borrower and its
Subsidiaries is greater than the total amount of all of their
liabilities, including contingent, subordinated, absolute,
fixed, matured or unmatured and liquidated or unliquidated
liabilities;
(ii) the present fair salable value of the assets of the Borrower
and its Subsidiaries are not less than the amount that will be
required to pay their liabilities on their debts as they
become absolute and matured;
(iii) the Borrower and its Subsidiaries are able to realize upon
their assets and pay their debts, other liabilities and other
commitments as they mature in the normal course of business;
(iv) the Borrower and its Subsidiaries do not intend to, and do not
believe that they will, incur debts or liabilities (including
contingent, subordinated, absolute, fixed, matured or
unmatured and liquidated or unliquidated liabilities) beyond
their ability to pay such debts and liabilities as they
mature; and
(v) the Borrower and its Subsidiaries are not engaged in business
or any transaction, and are not about to engage in business or
any transaction, for which the Borrower's property and that of
its Subsidiaries would constitute unreasonably small capital
after giving due consideration to the prevailing practice in
the industry in which the Borrower or any of its Subsidiaries
are engaged.
IN WITNESS WHEREOF, I have hereunto set my hand this 27th day of June,
1996.
By
-----------------------------------
Name: Dawn M. Hawley
Title: Vice President and
Chief Financial Officer
<PAGE> 143
EXHIBIT 5.01(l)(vii)-2
A I M ADVISORS, INC.
SOLVENCY CERTIFICATE
I, John J. Arthur, do hereby certify that I am the Senior Vice
President and Treasurer of A I M Advisors, Inc., a Delaware corporation (the
"Company"), and that, as such: (a) I am duly authorized to execute and deliver
this certificate on behalf of the Company pursuant to Section 5.01(l)(vii) of
the B Share Credit Agreement dated as of June 26, 1996 (the "B Share Credit
Agreement"; capitalized terms used in this certificate without definition
herein are used as defined in the B Share Credit Agreement), among A I M
Management Group Inc., a Delaware corporation, the Lenders identified on the
signature pages thereof, Citibank, N.A., as Administrative Agent, and the
financial institutions listed on the signature page thereof as co-agents, as
Co-Agents; and (b) after giving effect to the Borrowings on the Effective Date
contemplated under the B Share Credit Agreement:
(i) the fair value of the property of the Company and its
Subsidiaries is greater than the total amount of all of their
liabilities, including contingent, subordinated, absolute,
fixed, matured or unmatured and liquidated or unliquidated
liabilities;
(ii) the present fair salable value of the assets of the Company
and its Subsidiaries are not less than the amount that will be
required to pay their liabilities on their debts as they
become absolute and matured;
(iii) the Company and its Subsidiaries are able to realize upon
their assets and pay their debts, other liabilities and other
commitments as they mature in the normal course of business;
(iv) the Company and its Subsidiaries do not intend to, and do not
believe that they will, incur debts or liabilities (including
contingent, subordinated, absolute, fixed, matured or
unmatured and liquidated or unliquidated liabilities) beyond
their ability to pay such debts and liabilities as they
mature; and
(v) the Company and its Subsidiaries are not engaged in business
or any transaction, and are not about to engage in business or
any transaction, for which the Company's property and that of
its Subsidiaries would constitute unreasonably small capital
after giving due consideration to the prevailing practice in
the industry in which the Company or any of its Subsidiaries
are engaged.
IN WITNESS WHEREOF, I have hereunto set my hand this 27th day of June,
1996.
By
-----------------------------------
Name: John J. Arthur
Title: Senior Vice President
and Treasurer
<PAGE> 144
[AIM MANAGEMENT GROUP INC. GENERAL COUNSEL LETTERHEAD]
EXHIBIT 5.01(l)(viii)
June 27, 1996
To The Lenders Named on Annex I Hereto
c/o Citibank, N.A., as Administrative Agent
399 Park Avenue
New York, NY 10043
Ladies and Gentlemen:
I, Carol F. Relihan, am general counsel for A I M Management Group Inc., a
Delaware corporation (the "Borrower") and A I M Advisors, Inc., a Delaware
corporation and a direct wholly-owned subsidiary of the Borrower ("AIM
Advisors"), and I am rendering this opinion in connection with the execution
and delivery of (i) the B Share Credit Agreement dated as of June 26, 1996 (the
"Credit Agreement") among the Borrower, each of the lenders identified on the
signature pages thereof (the "Lenders"), Citibank, N.A., as Administrative
Agent (in such capacity, the "Administrative Agent"), and the co-agents
identified on the signature pages thereof, as Co-Agents, (ii) the B Share
Collateral Agreement, dated as of June 26, 1996 (the "Security Agreement"),
from the Borrower to the Administrative Agent, (iii) the Notes issued on June
27, 1996 by the Borrower to the Lenders (collectively, the "Notes"), and (iv)
the Guaranty dated June 26, 1996 made by AIM Advisors in favor of the Lenders
(the "Guaranty") and in connection with the consummation today of the initial
borrowings under the Credit Agreement.
This opinion is delivered to you pursuant to subsection 5.01(1)(ix) of the
Credit Agreement. Unless defined in this opinion, capitalized terms are used
herein as defined in the Credit Agreement.
In connection with this opinion, I have examined the originals, or copies
certified or otherwise identified to my satisfaction, of such corporate
records, agreements and other documents, and of certificates or comparable
documents of public officials and of officers and representatives of the
Borrower and AIM Advisors and have made such examinations of law as I have
deemed necessary for purposes of this opinion.
I have assumed the genuineness of all signatures of all persons signing the
Loan Documents on behalf of the parties thereto other than the Borrower and AIM
Advisors, the authenticity of all documents submitted to me as originals and
the conformity to original documents of documents submitted to me as certified,
conformed or photostatic copies. I have also assumed the legal capacity of
each natural person who has executed any document.
I have also assumed, without verification (i) that the parties to the Loan
Documents, other than the Borrower and AIM Advisors, have the power (including,
without limitation, corporate power where applicable) and authority to enter
into and perform the Loan Documents, (ii) the due authorization, execution and
delivery by such other parties of each Loan Document, and (iii) that the Loan
<PAGE> 145
To The Lenders Named on Annex I Hereto
June 27, 1996
Page 2
Documents constitute legal, valid and binding obligations of each such other
party, enforceable against such other party in accordance with their respective
terms.
Based on the foregoing, and subject to the qualifications set forth herein, I
am of the opinion that:
1. The Credit Agreement, each of the Notes and the Security Agreement
have been duly executed and delivered on behalf of the Borrower, and constitute
the legal, valid and binding obligations of the Borrower, enforceable against
the Borrower in accordance with their terms.
2. The Guaranty has been duly executed and delivered on behalf of AIM
Advisors, and constitutes the legal, valid and binding obligation of AIM
Advisors, enforceable against AIM Advisors in accordance with its terms.
3. Each of the Management Contracts and Distribution Contracts between
AIM Advisors and any of the AIM Funds is a legal, valid and binding obligation
of AIM Advisors and AIM Advisors is not in breach or violation of or in default
under any such agreement.
4. AIM Advisors is duly registered as an investment adviser under the
Investment Advisers Act and under applicable Texas law. AIM Advisors is not
engaged in activities which subject it to registration with the Commodities
Futures Trading Commission under the Commodities Exchange Act of 1922 and any
amendments thereto.
5. Each of the Borrower and AIM Advisors is duly qualified as a foreign
corporation in good standing in each jurisdiction in the United States where
failure to qualify would have a Material Adverse Effect.
6. The Loan Documents provide that they are governed by New York law. If
a state or federal court sitting in Texas were to hold that the Loan Documents
are governed by, and are to be construed in accordance with, the law of the
State of Texas, each of the Loan Documents would be, under the law of the State
of Texas, the legal, valid and binding obligation of each Loan Party thereto,
enforceable against such Loan Party in accordance with its terms.
I confirm to you that to my knowledge no litigation or governmental proceeding
is pending or threatened in writing against the Borrower or any of its
Subsidiaries (i) with respect to the Loan Documents or (ii) which individually
seeks in excess of $1,000,000.
<PAGE> 146
To The Lenders Named on Annex I Hereto
June 27, 1996
Page 3
The foregoing opinions are subject to the following exceptions, limitations and
qualifications:
(a) The foregoing opinions set forth in paragraphs 1, 2 and 6 are subject
to (i) the effect of applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer, fraudulent conveyance or similar laws
affecting creditors' rights and remedies generally; (ii) the rights of account
debtors, the terms of the contracts between the Borrower or AIM Advisors and
such account debtors, and any claims or defenses of such account debtors
against the Borrower or AIM Advisors arising under such contracts; (iii)
general principles of equity, including without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at law), and
(iv) limitations on enforceability of rights to indemnification by federal or
state securities laws or regulations or by public policy.
(b) I express no opinion as to the application or requirements of state
"blue sky," or state or federal patent, trademark, copyright, antitrust and
unfair competition, pension or employee benefit or tax laws in respect of the
transactions contemplated by or referred to in the Loan Documents.
(c) I express no opinion as to the validity or enforceability of any
provision of the Loan Documents which (i) permits the Lenders to increase the
rate of interest or to collect a late charge in the event of delinquency or
default, (ii) purports to be a waiver by the Borrower or AIM Advisors of any
right or benefit except to the extent permitted by applicable law, (iii)
purports to grant the Administrative Agent a power-of-attorney, (iv) purports
to entitle the Administrative Agent to take possession of Collateral in any
manner other than peaceably and by reason of the peaceable surrender of such
possession by the Borrower or by reason of appropriate judicial proceedings,
(v) purports to require that waivers must be in writing to the extent that an
oral agreement modifying provisions of the Loan Documents has been performed,
(vi) purports to be a waiver of the right to a jury trial, (vii) purports to be
a waiver of the obligations of good faith, fair dealing, diligence, mitigation
of damages or commercial reasonableness, (viii) purports to exculpate any
Lender from its own negligent acts or limit any Lender from certain
liabilities, or (ix) the enforceability of Section 17(a) of the Security
Agreement insofar as it purports to make the rights and remedies contained in
the UCC applicable whether or not the UCC applies to the affected Collateral.
(d) I express no opinion as to the enforceability of the choice of law of
choice or forum provisions contained in the Loan Documents.
(e) I express no opinion as to Texas usury law.
<PAGE> 147
To The Lenders Named on Annex I Hereto
June 27, 1996
Page 4
I express no opinion herein as to the law of any jurisdiction other than the
Federal law of the United States, the law of the State of Texas and the General
Corporation Law of the State of Delaware. My opinion is given as if the laws
of the State of Texas governed the Loan Documents.
A copy of this opinion may be delivered by you to each financial institution
that may become a Lender under the Credit Agreement, and such Persons may rely
on this opinion as if it were addressed to them and had been delivered to them
on the date hereof. Subject to the foregoing, this opinion may be relied upon
by you only in connection with the consummation of the transactions described
herein and may not be used or relied upon by you or any other person for any
other purpose, without in each instance my prior written consent.
This opinion is limited to the matters expressly stated herein. No implied
opinion may be inferred to extend this opinion beyond the matters expressly
stated herein. I do not undertake to advise you or anyone else of any changes
in the opinions expressed herein resulting from changes in law, changes in
facts or any other matters that hereafter might occur or be brought to my
attention.
Very truly yours,
<PAGE> 148
ANNEX I
ABN AMRO Bank, N.V.
Bank of New York
Banque Nationale de Paris
The Chase Manhattan Bank, N.A.
Citibank, N.A.
Credit Lyonnais
Deutsche Bank A.G.
Fleet National Bank
Mellon Bank, N.A.
NationsBank, N.A. (South)
Societe Generale
State Street Bank and Trust Company
The First National Bank of Boston
Union Bank of California, N.A.
<PAGE> 149
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL]
EXHIBIT 5.01(l)(ix)
June 27, 1996
To the Lenders Named on Annex I Hereto
c/o Citibank, N.A., as Administrative Agent
399 Park Avenue
New York, New York 10043
Ladies and Gentlemen:
We have acted as special counsel for A I M Management Group
Inc., a Delaware corporation (the "Borrower") and A I M Advisors, Inc., a
Delaware corporation ("AIM Advisors"), in connection with the execution and
delivery of (i) the B Share Credit Agreement, dated as of June 26, 1996 (the
"Credit Agreement"), among the Borrower, each of the lenders identified on the
signature pages thereof (the "Lenders"), Citibank, N.A., as Administrative
Agent (in such capacity, the "Administrative Agent"), and the co-agents
identified on the signature pages thereof, as Co-Agents, (ii) the B Share
Collateral Agreement, dated as of June 26, 1996 (the "Security Agreement"),
from the Borrower to the Administrative Agent, (iii) the Notes issued on June
27, 1996 by the Borrower to the Lenders (collectively, the "Notes"), (iv) the
Guaranty dated as of June 26, 1996 made by AIM Advisors in favor of the Lenders
(the "Guaranty"), and (v) the Control Agreement dated as of June 26, 1996 by
and among the Borrower, the Administrative Agent and AIM Equity Funds on behalf
of AIM Money Market Fund (the "Control Agreement") and in connection with the
consummation today of the initial borrowings under the Credit Agreement.
This opinion is delivered to you pursuant to Section
5.01(l)(ix) of the Credit Agreement. Unless defined in this opinion,
capitalized terms are used herein as defined in the Credit Agreement. The term
"UCC" as used herein means the text of the Uniform Commercial Code as in effect
in the State of Texas.
<PAGE> 150
To the Lenders Named
on Annex I Hereto
June 27, 1996
Page 2
In so acting, we have examined the originals, or copies
certified or otherwise identified to our satisfaction, of such corporate
records, agreements and other documents, and of certificates or comparable
documents of public officials and of officers and representatives of the
Borrower and AIM Advisors and have made such examinations of law as we have
deemed necessary in connection with the opinions set forth below.
We have assumed the genuineness of all signatures of all
persons signing the Loan Documents, the authenticity of all documents submitted
to us as originals and the conformity to original documents of documents
submitted to us as certified, conformed or photostatic copies. We have also
assumed the legal capacity of each natural person who has executed any
document.
We have also assumed, without verification (i) that the
parties to the Loan Documents, other than the Borrower and AIM Advisors, have
the power (including, without limitation, corporate power where applicable) and
authority to enter into and perform the Loan Documents, (ii) the due
authorization, execution and delivery by such other parties of each Loan
Document, and (iii) that the Loan Documents constitute legal, valid and binding
obligations of each such other party, enforceable against such other party in
accordance with their respective terms.
We have relied on the representations of the Borrower set
forth in the Security Agreement with respect to the location of the chief
executive office and places of business of the Borrower and the location of the
Collateral, and the representation of AIM Funds Group in the Control Agreement
as to the notation of the Administrative Agent's interest as pledgee on its
records with respect to the B Share Collateral Account (as defined in the B
Share Collateral Agreement).
Based on the foregoing, and subject to the qualifications set
forth herein, we are of the opinion that:
1. Each of the Borrower and AIM Advisors is duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has the corporate power to own or lease its properties and to
conduct the business in which it is currently engaged.
2. Each of the Borrower and AIM Advisors (i) has all
necessary corporate power and authority to execute, deliver and perform its
obligations under each Loan Document to which it is a party, and (ii) has taken
all necessary corporate action
<PAGE> 151
To the Lenders Named
on Annex I Hereto
June 27, 1996
Page 3
(including shareholder approvals to the extent necessary) to authorize such
execution, delivery and performance.
3. The Credit Agreement, each of the Notes, the Security
Agreement and the Control Agreement have been duly executed and delivered on
behalf of the Borrower, and constitute the legal, valid and binding obligations
of the Borrower, enforceable against the Borrower in accordance with their
terms.
4. The Guaranty has been duly executed and delivered on
behalf of AIM Advisors, and constitutes the legal, valid and binding obligation
of AIM Advisors, enforceable against AIM Advisors in accordance with its terms.
5. The execution, delivery and performance by the Borrower
and AIM Advisors of each Loan Document to which it is a party, do not and will
not conflict with or result in a breach or violation of, or constitute a
default under, or permit any termination or any mandatory prepayment or
acceleration of the maturity of, or, except for the Liens created by the
Security Agreement, result in or require the creation or imposition of any Lien
upon or with respect to any of the properties of the Borrower or AIM Advisors
under (i) the Borrower's or AIM Advisors' certificate of incorporation or
by-laws, (ii) any Management Contract or Distribution Agreement, any contract,
loan or credit agreement listed in Schedule 6.09 to the Credit Agreement, the
Purchase and Sale Agreement dated as of April 22, 1992 between the Borrower and
CIGNA Investments, Inc. or the Guarantee dated August 9, 1993 of AIM Advisors
with respect thereto or the Purchase and Sale Agreement dated as of May 2,
1995, as amended, among the Borrower, AIM Distributors, Citibank, N.A., as
purchaser, and Citicorp North America, Inc., as program agent, as consented to
and agreed to by AIM Advisors (the "Purchase Agreement") or the Tranche A
Credit Agreement or the Amended and Restated Guaranty of AIM Advisors dated as
of June 26, 1996, executed in connection therewith, or (iii) any statutory law
or regulation of the United States or the Commonwealth of Pennsylvania or the
General Corporation Law of the State of Delaware. When used in this opinion,
the phrase "conflict with" shall comprehend obligations or options to take
action under the Loan Documents which, if performed today, would constitute a
breach or default under, or result in the creation or imposition of any Lien on
the Borrower's or AIM Advisors' property under, or constitute a default or
event of default under, or result in any requirement for mandatory prepayment
or purchase of debt or in a resetting of interest rates under, any document
listed in clause (ii) of this paragraph 5. The opinion expressed in clause
(ii) of this paragraph 5 assumes, without
<PAGE> 152
To the Lenders Named
on Annex I Hereto
June 27, 1996
Page 4
investigation, that the transactions contemplated by the Loan Documents will
not result in a violation of covenants containing financial ratios or any other
provisions in the agreements to which the Borrower or AIM Advisors are a party
that are based upon the financial statements or the financial condition of the
Borrower or AIM Advisors.
6. No authorization, approval, consent, waiver or license of
any federal or state governmental or administrative body of the United States
or of the State of Delaware under the General Corporation Law of the State of
Delaware, or any third party that is party to any of the agreements and
instruments listed in Schedule 6.09 to the Credit Agreement or to the Purchase
Agreement or the Tranche A Credit Agreement is necessary in connection with the
due authorization, execution, delivery and performance by the Borrower and AIM
Advisors of each Loan Document to which it is a party and the consummation
today of the transactions contemplated thereby. No consent or approval of the
shareholders of the Borrower, AIM Advisors or any AIM Fund is required as a
condition to the validity or performance or the exercise by the Administrative
Agent or the Lenders of any of their rights or remedies under any of the Loan
Documents, that has not been obtained and is not in full force and effect.
7. (a) The provisions of the Security Agreement are
effective to create enforceable security interests in favor of the
Administrative Agent for the benefit of the Lenders, in all of the collateral
described therein that is of the type in which a security interest can be
created under Article 9 of the UCC (collectively, the "Filing Collateral").
Insofar as perfection can be accomplished only by the filing of financing
statements under the UCC, upon the filing and proper indexing of the financing
statement attached as Annex II hereto (the "Financing Statement") with the
Secretary of State of Texas, the Administrative Agent will have a perfected
security interest in such Filing Collateral as to which the security interest
in favor of the Administrative Agent has attached. Upon the delivery of the
Collateral in which a security interest may be perfected by possession pursuant
to Article 9 of the UCC to (and provided that the same remains in the
possession of) the Administrative Agent, the Administrative Agent will have a
perfected security interest in such Collateral.
(b) The Administrative Agent will have an
enforceable and perfected security interest in the B Share Collateral Account
under Section 8-313(b) of the Uniform Commercial Code (1978 Official Text) to
the extent applicable, and under Section 9-115 of the UCC to the extent Texas
law
<PAGE> 153
To the Lenders Named
on Annex I Hereto
June 27, 1996
Page 5
governs. Under Texas law, such security interest will have priority over any
other security interest in the B Share Collateral Account which is not
perfected by "control" (as defined in the UCC) and will rank equally with any
other security interest of a secured party with control.
8. The forms of the Financing Statement with respect to the
Filing Collateral to be filed with the Secretary of State of Texas is in
appropriate form for filing under the UCC. The only jurisdiction in which the
Financing Statement must be filed to create a valid and perfected security
interest in the Filing Collateral is the Secretary of State of Texas.
We confirm to you that to our knowledge, after inquiry of each
lawyer who is the current primary contact for the Borrower and AIM Advisors or
who has devoted substantive attention to matters on behalf of the Borrower and
AIM Advisors during the preceding twelve months and who is still currently
employed by or a member of this firm, no litigation or governmental proceeding
is pending or threatened in writing against the Borrower or AIM Advisors (i)
with respect to the Loan Documents or (ii) which individually seeks in excess
of $1,000,000.
The opinions given in paragraphs 7 and 8 above with respect to
the perfection and priority of security interests is subject to the following
exceptions:
(i) in the case of all property which becomes Collateral
after the date hereof, Section 552 of the Federal
Bankruptcy Code limits the extent to which property
acquired by a debtor after the commencement of a case
under the Federal Bankruptcy Code may be subject to a
security interest arising from a security agreement
entered into by the debtor before the commencement of
such case;
(ii) in the case of all Collateral, the Administrative
Agent's security interest will terminate upon a
disposition authorized by the Administrative Agent;
(iii) in the case of any interest in or claim in or under any
policy of insurance, the Administrative Agent's security
interest is limited to proceeds payable to the Borrower
(and not to any other party named as loss payee under
such policies);
<PAGE> 154
To the Lenders Named
on Annex I Hereto
June 27, 1996
Page 6
(iv) continued perfection of any security interest in proceeds
that are not identifiable cash proceeds after ten days
after receipt of such proceeds by Borrower is subject to
Section 9-306 of the UCC; and
(v) in the case of all Filing Collateral, Article 9 of the
UCC requires the filing of continuation statements
within the period of six months prior to the expiration
of (A) five years from the date of the original filings
and (B) each five year anniversary of the date of the
original filings thereafter, in order to maintain the
effectiveness of the filings.
We call to your attention that the perfection of the security
interests in Filing Collateral will be terminated (i) as to any Filing
Collateral acquired by the Borrower more than four months after a change of
name, identity or corporate structure made by or with respect to the Borrower,
unless new appropriate financing statements indicating the new name, identity
or corporate structure of the Borrower are properly filed before the expiration
of such four months; and (ii) as to any Filing Collateral consisting of
accounts, chattel paper and general intangibles, four months after the Borrower
changes its chief executive office to a new jurisdiction outside the State of
Texas (or, if earlier, when perfection would have ceased as set forth in
subparagraph (v) above) unless perfected in such new jurisdiction before that
termination.
The foregoing opinions are subject to the following
exceptions, limitations and qualifications:
(a) Our opinions in paragraphs 3, 4 and 7 are subject to
(i) the effect of applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws affecting creditors' rights
and remedies generally; (ii) the rights of account debtors, the terms of the
contracts between the Borrower and such account debtors, and any claims or
defenses of such account debtors against the Borrower arising under such
contracts; (iii) general principles of equity, including without limitation,
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and (iv) limitations on enforceability of rights to
indemnification by federal or state securities laws or regulations or by public
policy.
<PAGE> 155
To the Lenders Named
on Annex I Hereto
June 27, 1996
Page 7
(b) We express no opinion as to the application or
requirements of state or federal securities, patent, trademark, copyright,
antitrust and unfair competition, pension or employee benefit or tax laws in
respect of the transactions contemplated by or referred to in the Loan
Documents.
(c) We assume the Borrower has rights in the Collateral,
and except as provided in paragraphs 7 and 8 above, we express no opinion as to
the perfection or priority of the security interests granted under the Security
Agreement.
(d) We express no opinion as to the validity or
enforceability of any provision of the Loan Documents which (i) permits the
Lenders to increase the rate of interest or to collect a late charge in the
event of delinquency or default, (ii) purports to be a waiver by the Borrower
or AIM Advisors of any right or benefit except to the extent permitted by
applicable law, (iii) purports to grant the Administrative Agent a
power-of-attorney, (iv) purports to entitle the Administrative Agent to take
possession of Collateral in any manner other than peaceably and by reason of
the peaceable surrender of such possession by the Borrower or by reason of
appropriate judicial proceedings, (v) purports to require that waivers must be
in writing to the extent that an oral agreement modifying provisions of the
Loan Documents has been performed, (vi) purports to be a waiver of the right to
a jury trial, (vii) purports to be a waiver of the obligations of good faith,
fair dealing, diligence, mitigation of damages or commercial reasonableness,
(viii) purports to exculpate any Lender from its own negligent acts or limits
any Lender from certain liabilities, or (ix) the enforceability of Section
17(a) of the Security Agreement insofar as it purports to make the rights and
remedies contained in the UCC applicable whether or not the UCC applies to the
affected Collateral.
(e) We express no opinion as to the enforceability of
choice of law or choice of forum provisions contained in the Loan Documents.
We express no opinion herein as to the law of any jurisdiction
other than the Federal law of the United States, the law of the Commonwealth of
Pennsylvania, the General Corporation Law of the State of Delaware and the text
of the Uniform Commercial Code as in effect in the State of Texas. Our opinion
is given as if the laws of the Commonwealth of Pennsylvania governed the Loan
Documents.
<PAGE> 156
To the Lenders Named
on Annex I Hereto
June 27, 1996
Page 8
A copy of this opinion may be delivered by you to each
financial institution that may become a Lender under the Credit Agreement, and
such Persons may rely on this opinion as if it were addressed to them and had
been delivered to them on the date hereof. Subject to the foregoing, this
opinion may be relied upon by you only in connection with the consummation of
the transactions described herein and may not be used or relied upon by you or
any other person for any other purpose, without in each instance our prior
written consent.
This opinion is limited to the matters expressly stated
herein. No implied opinion may be inferred to extend this opinion beyond the
matters expressly stated herein. We do not undertake to advise you or anyone
else of any changes in the opinions expressed herein resulting from changes in
law, changes in facts or any other matters that hereafter might occur or be
brought to our attention.
Very truly yours,
<PAGE> 157
ANNEX I
ABN AMRO Bank, N.V.
Bank of New York
Banque Nationale de Paris
Chemical Bank
Citibank, N.A.
Credit Lyonnais
Deutsche Bank A.G.
Fleet National Bank
Mellon Bank, N.A.
NationsBank, N.A. (South)
Societe Generale
State Street Bank and Trust Company
The First National Bank of Boston
Union Bank of California, N.A.
<PAGE> 158
Annex II
<TABLE>
<S> <C> <C>
THIS FINANCING STATEMENT IS PRESENTED
TO A FILING OFFICER FOR FILING PURSUANT
TO THE UNIFROM COMMERCIAL CODE.
-----------------------------------------------
11. / / CHECK TO REQUEST SAME DEBTOR
SEARCH CERTIFICATE (INSTRUCTION B.11)
- -----------------------------------------------------------------------------------------------------------------------------------
DEBTOR (IF PERSONAL) LAST NAME FIRST NAME M.I. 1A. PREFIX 1B. SUFFIX
A I M Management Group Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
MAILING ADDRESS 1D. CITY, STATE 1E. ZIP CODE
11 Greenway Plaza, Suite 1919 Houston, Texas 77046
- -----------------------------------------------------------------------------------------------------------------------------------
ADDITIONAL DEBTOR (IF PERSONAL) LAST NAME FIRST NAME M.I. 2A. PREFIX 2B. SUFFIX
- -----------------------------------------------------------------------------------------------------------------------------------
MAILING ADDRESS 2D. CITY, STATE 2E. ZIP CODE
- -----------------------------------------------------------------------------------------------------------------------------------
ADDITIONAL DEBTOR (IF PERSONAL) LAST NAME FIRST NAME M.I. 3A. PREFIX 3B. SUFFIX
- -----------------------------------------------------------------------------------------------------------------------------------
MAILING ADDRESS 3D. CITY, STATE 3E. ZIP CODE
===================================================================================================================================
SECURED PARTY (IF PERSONAL) LAST NAME FIRST NAME M.I.
Citibank, N.A., as Administrative Agent
- -----------------------------------------------------------------------------------------------------------------------------------
MAILING ADDRESS 4B. CITY, STATE 4C. ZIP CODE
399 Park Avenue New York, New York 11043
- -----------------------------------------------------------------------------------------------------------------------------------
ASSIGNEE OF SECURED PARTY (IF ANY)
- -----------------------------------------------------------------------------------------------------------------------------------
MAILING ADDRESS 5B. CITY, STATE 5C. ZIP CODE
===================================================================================================================================
THIS FINANCING STATEMENT covers the following types of items of property. (If collateral is crops, fixtures, timber or minerals,
read instruction B. 6-7.)
All of the Debtor's right, title and interest, whether now owned or hereafter acquired, in and to all accounts, contract rights,
chattel paper, instruments, deposit accounts, general intangibles, uncertificated securities and certificated securities, as
described on Exhibit A hereto.
===================================================================================================================================
CHECK ONLY 7A. PRODUCTS OF 7B. THIS FINANCING STATEMENT IS NUMBER OF ADDITIONAL
IF COLLATERAL ARE TO BE FILED FOR RECORD IN SHEETS
APPLICABLE /X/ ALSO COVERED / / THE REAL ESTATE RECORDS. PRESENTED ___________
- -----------------------------------------------------------------------------------------------------------------------------------
CHECK 8A. THIS FINANCING STATEMENT IS SIGNED BY THE SECURED PARTY
APPROPRIATE INSTEAD OF THE DEBTOR TO PERFECT A SECURITY INTEREST IN
BOX COLLATERAL IN ACCORDANCE WITH INSTRUCTION 8. B ITEM: / /(1) / /(2) / /(3) / /(4) / /(5)
- -----------------------------------------------------------------------------------------------------------------------------------
SIGNATURE(S) THIS SPACE FOR USE OF FILING OFFICER
OF AIM Management Group Inc. (DATE, TIME, NUMBER, FILING OFFICER)
DEBTOR(S)
- ---------------------------------------------------------------------------------
/s/ ROBERT H. GRAHAM
- ---------------------------------------------------------------------------------
SIGNATURE(S)
OF Citibank, N.A., as Administrative Agent
SECURED PARTY(IES)
- ---------------------------------------------------------------------------------
=================================================================================
Return copy to:
NAME
ADDRESS
CITY
STATE
===================================================================================================================================
STANDARD FORM -- FORM UCC-1 (REV. 9/1/92) Copyright 1992 OFFICE OF THE SECRETARY OF STATE OF TEXAS
REORDER FROM: Registre', Inc. 614 PIERCE ST P.O. BOX 215 ANOKA, MN 55303
</TABLE>
<PAGE> 159
EXHIBIT A
To Uniform Commercial Code Financing Statement
----------------------------------------------
===============================================================================
Debtor: Secured Party:
------- --------------
- -------------------------------------------------------------------------------
A I M MANAGEMENT GROUP INC. CITIBANK, N.A.
as Administrative Agent
===============================================================================
- -------------------------------------------------------------------------------
1. This financing statement covers all of the following property,
whether now owned or hereafter acquired, wherever located and whether now or
hereafter existing (collectively, the "Collateral") (Capitalized terms used
herein and not defined in this Section 1 are defined in Section 2 hereof):
(a) all of the Debtor's right, title and interest, whether now
owned or hereafter acquired, in and to all accounts, contract rights,
chattel paper, instruments, deposit accounts, general intangibles and
other obligations of any kind, now or hereafter existing, constituting
Deferred Load Amounts (other than Deferred Load Amounts that, on any
date of determination, have been sold pursuant to a Securitization
Program) and the proceeds of any Securitization Program;
(b) all of the Debtor's right, title and interest in its
capacity as "seller" in and to the Collection Agency Agreement
described on Schedule I hereto and all of the Debtor's right, title and
interest in and to each other agreement listed on Schedule I, as such
agreements may be amended or otherwise modified from time to time
(collectively, the "Assigned Agreements"), including, without
limitation, (i) all rights of the Debtor to receive moneys due and to
become due under or pursuant to the Assigned Agreements, (ii) all
rights of the Debtor to receive proceeds of any insurance, indemnity,
warranty or guaranty with respect to the Assigned Agreements, (iii)
claims of the Debtor for damages arising out of or for breach of or
default under the Assigned Agreements and (iv) the right of the Debtor
to compel performance and otherwise exercise all remedies thereunder;
(c) all of the following (collectively, the "Account
Collateral"):
(i) the B Share Collateral Account, all funds held
therein and all certificates and instruments, if any, from time
to time representing or evidencing the B Share Collateral
Account;
1 of 6
<PAGE> 160
EXHIBIT A
To Uniform Commercial Code Financing Statement
----------------------------------------------
===============================================================================
Debtor: Secured Party:
------- --------------
- -------------------------------------------------------------------------------
A I M MANAGEMENT GROUP INC. CITIBANK, N.A.
as Administrative Agent
===============================================================================
- -------------------------------------------------------------------------------
(ii) all Collateral Investments from time to time
and all certificates and instruments, if any, from time to
time representing or evidencing the Collateral Investments;
(iii) all notes, certificates of deposit, deposit
accounts, checks and other instruments from time to time
hereafter delivered to or otherwise possessed by the Secured
Party for or on behalf of the Debtor in substitution for or as
a proceed of any or all of the then existing Account
Collateral; and
(iv) all interest, dividends, cash, instruments and
other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or
all of the existing Account Collateral; and
(d) all proceeds of any and all of the foregoing Collateral
(including, without limitation, proceeds that constitute property of
the types described in clauses (a) - (c) of this Section 1) and, to
the extent not otherwise included, all (i) payments under insurance
(whether or not the Secured Party is the loss payee thereof), or any
indemnity, warranty or guaranty, payable by reason of loss or damage to
any of the foregoing Collateral and (ii) cash.
Notwithstanding anything in this Exhibit A to the contrary,
"Collateral" shall not include any assets sold by the Debtor pursuant
to a Securitization Program or any rights under the Assigned Agreements
with respect to assets sold by the Debtor pursuant to a Securitization
Program.
2. All capitalized terms used herein and not previously
defined herein are defined as follows:
"AIM Funds" means all open-end mutual funds (and every series
thereof) sponsored by the Debtor or any of its subsidiaries or for which the
Debtor or any of its subsidiaries provides investment advisory, management,
administrative, supervisory,
2 of 6
<PAGE> 161
EXHIBIT A
To Uniform Commercial Code Financing Statement
----------------------------------------------
===============================================================================
Debtor: Secured Party:
------- --------------
- -------------------------------------------------------------------------------
A I M MANAGEMENT GROUP INC. CITIBANK, N.A.
as Administrative Agent
===============================================================================
- -------------------------------------------------------------------------------
consulting, underwriting or similar services from time to time, including such
funds which are now existing and which may hereafter be organized.
"B Share Collateral Account" means the money market mutual fund account
maintained by the Debtor with AIM Money Market Fund, pledged to the Secured
Party.
"CDSC Shares" means any shares (or class of shares) of beneficial
interest or capital stock of any AIM Fund, which (i) are offered at net asset
value without an initial sales charge, (ii) are subject to a Contingent
Deferred Sales Charge upon the redemption of such shares for six years from the
initial purchase of such shares and (iii) as to which Distribution Fees are
payable in connection with the distribution thereof.
"Collateral Fund" means an AIM Fund into which CDSC Shares initially
issued by an Eligible Fund may be exchanged without the payment of a Contingent
Deferred Sales Charge.
"Collateral Investments" means amounts on deposit in the B Share
Collateral Account and interest paid thereon.
"Contingent Deferred Sales Charge" means the amount payable by a
shareholder of any AIM Fund on redemption of such shareholder's CDSC Shares in
such AIM Fund prior to the end of the holding period specified from time to
time in such AIM Fund's prospectus, the proceeds of which charge are payable to
or for the benefit of the Debtor.
"Deferred Load Amounts" means all amounts payable or that become
payable to or for the benefit of the Debtor by any AIM Fund which is an
Eligible Fund, a Collateral Fund or a Designated AIM Fund and/or any shareholder
of such an AIM Fund from time to time in respect to all Distribution Fees and
all Contingent Deferred Sales Charges.
"Designated AIM Fund" means AIM Funds specified pursuant to a
Securitization Program in respect of which Deferred Loan Amounts are sold.
3 of 6
<PAGE> 162
EXHIBIT A
To Uniform Commercial Code Financing Statement
----------------------------------------------
===============================================================================
Debtor: Secured Party:
------- --------------
- -------------------------------------------------------------------------------
A I M MANAGEMENT GROUP INC. CITIBANK, N.A.
as Administrative Agent
===============================================================================
- -------------------------------------------------------------------------------
"Distribution Fees" means all fees payable to or for the benefit of the
Debtor by any AIM Fund pursuant to a Distribution Plan with respect to CDSC
Shares.
"Distribution Plan" means any plan adopted (as amended from time to
time) by an Eligible Fund or any Collateral Fund and any related agreements, as
contemplated by Rule 12b-1 under the Investment Company Act, in connection with
the distribution of CDSC Shares of such Eligible Fund (or any Collateral Fund).
"Eligible Fund" means any AIM Fund which is designated from time to
time as an Eligible Fund with the consent of the required lenders. As of the
date of this financing statement, the Eligible Funds are those listed on
Schedule II.
"Securitization Program" means any sale to a third-party investor by
the Debtor or any of its subsidiaries of its rights to receive Deferred
Load Amounts pursuant to a securitization program having terms and conditions
satisfactory to at least 51% of the lenders parties to the B Share Credit
Agreement dated as of June 26, 1996 among the Debtor, such lenders, the
Secured Party and the co-agents named therein, as such agreement may be
amended, supplemented or otherwise modified from time to time, in accordance
with the terms of such B Share Credit Agreement.
4 of 6
<PAGE> 163
EXHIBIT A
To Uniform Commercial Code Financing Statement
----------------------------------------------
===============================================================================
Debtor: Secured Party:
------- --------------
- -------------------------------------------------------------------------------
A I M MANAGEMENT GROUP INC. CITIBANK, N.A.
as Administrative Agent
===============================================================================
- -------------------------------------------------------------------------------
Schedule I
ASSIGNED AGREEMENTS
1. Collection Agency Agreement dated as of May 2, 1995 among
Citibank, N.A., Citibank North America, Inc., as program agent,
the Debtor, Citibank, N.A., as administrative agent, and Bankers
Trust Company, as collection agent, as amended through
June 26, 1996.
2. Second Amended and Restated Distribution Fee Purchase Agreement
dated as of June 26, 1996 between the Debtor and A I M Distributors,
Inc.
5 of 6
<PAGE> 164
EXHIBIT A
To Uniform Commercial Code Financing Statement
----------------------------------------------
===============================================================================
Debtor: Secured Party:
------- --------------
- -------------------------------------------------------------------------------
A I M MANAGEMENT GROUP INC. CITIBANK, N.A.
as Administrative Agent
===============================================================================
- -------------------------------------------------------------------------------
Schedule II
ELIGIBLE FUNDS
AIM Balanced Fund
AIM Charter Fund
AIM Global Aggressive Growth Fund
AIM Global Growth Fund
AIM Global Income Fund
AIM Intermediate Government Fund
AIM Growth Fund
AIM High Yield Fund
AIM Income Fund
AIM International Equity Fund
AIM Money Market Fund
AIM Municipal Bond Fund
AIM Global Utilities Fund
AIM Value Fund
AIM Weingarten Fund
6 of 6
<PAGE> 165
EXHIBIT 7.21
FORM OF
GUARANTY
Dated June 26, 1996
From
A I M ADVISORS, INC.
as Guarantor
------------
in favor of
THE GUARANTEED PARTIES PARTIES TO
THE B SHARE CREDIT AGREEMENT REFERRED TO HEREIN
<PAGE> 166
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
SECTION PAGE
<S><C> <C>
1. Guaranty; Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Guaranty Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Waivers and Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. Payments Free and Clear of Taxes, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 4
6. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
11. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
12. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
13. Continuing Guaranty; Assignments under the B Share Credit Agreement . . . . . . . . . 8
14. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. . . . . . . . . . . . . . . . 9
</TABLE>
<PAGE> 167
GUARANTY
GUARANTY dated June 26, 1996 made by A I M ADVISORS, INC., a
Delaware corporation (the "Guarantor"), in favor of the Guaranteed Parties (as
defined below).
PRELIMINARY STATEMENT. The Lenders, Citibank, N.A., as
administrative agent (the "Administrative Agent") for the Lenders, and the
financial institutions listed on the signature pages thereof as co-agents, as
co-agents (the "Co-Agents", and, together with the Lenders and the
Administrative Agent, the "Guaranteed Parties"), are parties to a B Share
Credit Agreement dated as of June 26, 1996 (said Agreement, as it may hereafter
be amended, supplemented or otherwise modified from time to time, being the "B
Share Credit Agreement"; the terms defined therein and not otherwise defined
herein being used herein as therein defined) with A I M Management Group Inc.,
a Delaware corporation (the "Borrower"). The Guarantor may receive a portion
of the proceeds of the Loans under the B Share Credit Agreement and will derive
substantial direct and indirect benefit from the transactions contemplated by
the B Share Credit Agreement. It is a condition precedent to the making of
Loans by the Lenders under the B Share Credit Agreement that the Guarantor
shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Lenders to make Loans from time to time, the Guarantor hereby
agrees as follows:
Section 1. Guaranty; Limitation of Liability. (a) The
Guarantor hereby unconditionally and irrevocably guarantees the punctual
payment when due, whether at stated maturity, by acceleration or otherwise, of
all Obligations of the Borrower now or hereafter existing under the Loan
Documents, whether for principal, interest, fees, expenses or otherwise (such
Obligations being the "Guaranteed Obligations"), and agrees to pay any and all
expenses (including counsel fees and expenses) incurred by the Administrative
Agent or any other Guaranteed Party in enforcing any rights under this
Guaranty. Without limiting the generality of the foregoing, the Guarantor's
liability shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by the Borrower to the Administrative Agent or
any other Guaranteed Party under the Loan Documents but for the fact that they
are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Borrower.
(b) The liability of the Guarantor under this Guaranty
shall not exceed the greater of (i) the net benefit realized by the Guarantor
from the proceeds of the Loans made from time to time by the Borrower to the
Guarantor or any Subsidiary of the Guarantor and (ii) the greater of (x) 95% of
the Adjusted Net Assets of the Guarantor on the date of delivery hereof and (y)
95% of the Adjusted Net Assets of the Guarantor on the date of any payment
hereunder. "Adjusted Net Assets" of the Guarantor at any date means the lesser
of (x) the amount by which the fair value of the property of the Guarantor
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities, but excluding liabilities under this Guaranty, of the
Guarantor at such date and (y) the amount by which the present fair salable
<PAGE> 168
2
value of the assets of the Guarantor at such date exceeds the amount that will
be required to pay the probable liability of the Guarantor on its debts,
excluding debt in respect of this Guaranty, as they become absolute and
matured.
Section 2. Guaranty Absolute. The Guarantor guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms
of the Loan Documents, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Administrative Agent or any other Guaranteed Party with respect
thereto. The Obligations of the Guarantor under this Guaranty are independent
of the Guaranteed Obligations or any other Obligations of any other Loan Party
under the Loan Documents, and a separate action or actions may be brought and
prosecuted against the Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Borrower or any other Loan Party or
whether the Borrower or any other Loan Party is joined in any such action or
actions. The liability of the Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and the Guarantor
hereby irrevocably waives any defenses it may now or hereafter have in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan
Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Guaranteed Obligations
or any other Obligations of any other Loan Party under the Loan
Documents, or any other amendment or waiver of or any consent to
departure from any Loan Document, including, without limitation, any
increase in the Guaranteed Obligations resulting from a Commitment
Increase or any other extension of additional credit to the Borrower
or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of
any Collateral, or any taking, release or amendment or waiver of or
consent to departure from any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of Collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any Collateral for all or any of the
Guaranteed Obligations or any other Obligations of any other Loan
Party under the Loan Documents or any other assets of the Borrower or
any of its Subsidiaries;
(e) any change, restructuring or termination of the
corporate structure or existence of the Borrower or any of its
Subsidiaries;
<PAGE> 169
3
(f) any failure of any Guaranteed Party to disclose to
the Borrower or the Guarantor any information relating to the
financial condition, operations, properties or prospects of any other
Loan Party now or in the future known to any Guaranteed Party (the
Guarantor waiving any duty on the part of the Guaranteed Parties to
disclose such information); or
(g) any other circumstance or any existence of or
reliance on any representation by the Administrative Agent or any
other Guaranteed Party that might otherwise constitute a defense
available to, or a discharge of, the Borrower, the Guarantor or any
other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by any Guaranteed Party or any other
Person upon the insolvency, bankruptcy or reorganization of the Borrower or any
other Loan Party or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) The Guarantor
hereby waives promptness, diligence, notice of acceptance and any other notice
with respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that the Administrative Agent or any other Guaranteed Party
protect, secure, perfect or insure any Lien or any property subject thereto or
exhaust any right or take any action against the Borrower or any other Person
or any Collateral.
(b) The Guarantor hereby waives any right to revoke this
Guaranty, and acknowledges that this Guaranty is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in the future.
(c) The Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in this
Section 3 are knowingly made in contemplation of such benefits.
Section 4. Subrogation. The Guarantor will not exercise any
rights that it may now or hereafter acquire against the Borrower or any other
insider guarantor that arise from the existence, payment, performance or
enforcement of the Guarantor's Obligations under this Guaranty or any other
Loan Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Administrative Agent or any other
Guaranteed Party against the Borrower or any other insider guarantor or any
Collateral, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without limitation, the right
to take or receive from the Borrower or any other insider guarantor, directly
or indirectly, in cash or other property or by set-off or in any other manner,
payment or security
<PAGE> 170
4
on account of such claim, remedy or right, unless and until all of the
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash and the Commitments shall have expired or terminated. If
any amount shall be paid to the Guarantor in violation of the preceding
sentence at any time prior to the later of the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty and
the Termination Date, such amount shall be held in trust for the benefit of the
Administrative Agent and the other Guaranteed Parties and shall forthwith be
paid to the Administrative Agent to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Guaranty, whether matured
or unmatured, in accordance with the terms of the Loan Documents, or to be held
as Collateral for any Guaranteed Obligations or other amounts payable under
this Guaranty thereafter arising. If (i) the Guarantor shall make payment to
the Administrative Agent or any other Guaranteed Party of all or any part of
the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all
other amounts payable under this Guaranty shall be paid in full in cash and
(iii) the Termination Date shall have occurred, the Administrative Agent and
the other Guaranteed Parties will, at the Guarantor's request and expense,
execute and deliver to the Guarantor appropriate documents, without recourse
and without representation or warranty, necessary to evidence the transfer by
subrogation to the Guarantor of an interest in the Guaranteed Obligations
resulting from such payment by the Guarantor.
Section 5. Payments Free and Clear of Taxes, Etc. (a) Any
and all payments made by the Guarantor hereunder shall be made free and clear
of and without deduction for any and all present or future Taxes. If the
Guarantor shall be required by law to deduct or withhold any Taxes from or in
respect of any sum payable hereunder to the Administrative Agent or any other
Guaranteed Party, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions or withholding (including deductions
or withholding applicable to additional sums payable under this Section) the
Administrative Agent or such other Guaranteed Party (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions or withholding been made, (ii) the Guarantor shall make such
deductions or withholding and (iii) the Guarantor shall timely pay the full
amount deducted or withheld to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Guarantor agrees to pay any present
or future Other Taxes.
(c) The Guarantor will indemnify and hold harmless the
Administrative Agent and each other Guaranteed Party from and against the full
amount of Taxes or Other Taxes (including, without limitation, Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Section) paid
by the Administrative Agent or such other Guaranteed Party (as the case may be)
and any liability (including penalties, additions to tax, interest on tax and
expenses) arising therefrom or with respect thereto. This indemnification
shall be made within 30 days from the date the Administrative Agent or such
other Guaranteed Party (as the case may be) makes written demand therefor.
<PAGE> 171
5
(d) Within 30 days after the date of any payment of Taxes
by or on behalf of the Guarantor, the Guarantor will furnish to the
Administrative Agent, at its address referred to in the B Share Credit
Agreement, an official receipt (or a certified copy) or other documentation
reasonably acceptable to the Administrative Agent evidencing payment thereof to
the relevant taxation or other authority. In the case of any payment hereunder
by or on behalf of the Guarantor through an account or branch outside the
United States or by or on behalf of the Guarantor by a payor that is not a
United States person, if the Guarantor determines that no Taxes are payable in
respect thereof, the Guarantor shall furnish, or shall cause such payor to
furnish, to the Administrative Agent at such address, an opinion of counsel
acceptable to the Administrative Agent stating that such payment is exempt from
Taxes; provided however, that no such opinion shall be required with respect to
any exemption from Taxes imposed by the United States. For purposes of this
subsection (d) and the following subsection (e), the terms "United States" and
"United States person" shall have the meaning specified in Section 7701 on the
Internal Revenue Code.
(e) Each Guaranteed Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of the B Share Credit Agreement in the case of each
Guaranteed Party listed on the signature pages thereof, and on the date of the
Assignment and Acceptance or the Assumption Agreement, as the case may be,
pursuant to which it became a Guaranteed Party in the case of each other
Guaranteed Party, and from time to time thereafter if requested in writing by
the Guarantor (but only so long thereafter as such Guaranteed Party remains
lawfully able to do so), provide the Administrative Agent and the Guarantor
with two original Internal Revenue Service Forms 1001 or 4224, as appropriate,
or any successor or other form prescribed by the Internal Revenue Service,
certifying that such Guaranteed Party is entitled to benefits under an income
tax treaty to which the United States is a party that reduces the rate of
withholding tax on payments under this Guaranty or certifying that the income
receivable pursuant to this Guaranty is effectively connected with the conduct
of a trade or business in the United States. If the form provided by a
Guaranteed Party at the time such Guaranteed Party first becomes a party to the
B Share Credit Agreement indicates a United States interest withholding tax
rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Guaranteed Party provides the
appropriate form certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from Taxes for
periods governed by such form; provided, that, if at the date of the Assignment
and Acceptance or the Assumption Agreement, as the case may be, pursuant to
which a Guaranteed Party assignee becomes a party to the B Share Credit
Agreement, the Guaranteed Party assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Guaranteed Party assignee on such date. As an
alternative to delivering Internal Revenue Service Form 1001 or 4224, a
Non-U.S. Guaranteed Party holding
<PAGE> 172
6
Registered Notes (a "Registered Noteholder") (or, if such Registered Noteholder
is not the beneficial owner thereof, such beneficial owner) may deliver to the
Guarantor prior to or at the time such Non-U.S. Guaranteed Party becomes a
Registered Noteholder, an Internal Revenue Service Form W-8 (or such successor
and related forms as may from time to time be adopted by the relevant taxing
authorities of the United States), together with an annual certificate stating
that such Registered Noteholder or beneficial owner, as the case may be, is not
any person described in Section 871(h)(3) or Section 881(c)(3) of the United
States Internal Revenue Code. Each Registered Noteholder or beneficial owner,
as the case may be, agrees (x) to deliver to the Guarantor a further duly
completed copy of any previously delivered Internal Revenue Service Form W-8 on
or before the earlier of the date that any such Form W-8 expires or becomes
obsolete under applicable United States Treasury regulations and the date such
Form W-8 otherwise is required to be resubmitted as a condition to obtaining an
exemption from withholding from United States federal income tax and (y) to
notify the Guarantor within thirty days after it determines that it is no
longer in a position to provide such Form W-8 or annual certificate to the
Guarantor.
(f) For any period with respect to which a Guaranteed
Party has failed to provide the Guarantor with the appropriate form described
in subsection (e) above or any successor form (other than if such failure is
due to a change in law occurring after the date on which a form originally was
required to be provided or if such form otherwise is not required under
subsection (e)), such Guaranteed Party shall not be entitled to indemnification
under subsection (a) or (c) with respect to Taxes imposed by the United States
unless such Taxes would have been imposed without regard to such Guaranteed
Party's failure to provide the appropriate form to the Borrower; provided, that
should a Guaranteed Party become subject to Taxes because of its failure to
deliver a form required hereunder, the Guarantor shall take at such Guaranteed
Party's expense such steps as such Guaranteed Party shall reasonably request to
assist such Guaranteed Party to recover such Taxes.
(g) Without prejudice to the survival of any other
agreement of the Guarantor hereunder, the agreements and obligations of the
Guarantor contained in this Section 5 shall survive the termination of the B
Share Credit Agreement, payment in full of the Guaranteed Obligations and all
other amounts payable under this Guaranty.
(h) Notwithstanding anything to the contrary in this
Section 5, the Guarantor shall not be required to pay or indemnify for any Tax
or Other Tax to the extent such Tax or Other Tax would not have been imposed
but for the sale of participations by any Guaranteed Party in or to all or a
portion of its rights and obligations under this Agreement pursuant to Section
10.07(e) of the B Share Credit Agreement.
Section 6. Representations and Warranties. The Guarantor
hereby represents and warrants as follows:
<PAGE> 173
7
(a) The Guarantor (i) is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
(ii) is duly qualified or licensed and is in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property or
in which the conduct of its business requires it so to qualify or be licensed,
and (iii) has all requisite corporate power and authority to own or lease and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted. All of the outstanding capital stock of the Guarantor
has been validly issued, is fully paid and nonassessable.
(b) There are no conditions precedent to the
effectiveness of this Guaranty that have not been satisfied or waived.
(c) The Guarantor has, independently and without reliance
upon the Administrative Agent or any other Guaranteed Party and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Guaranty, and the Guarantor has
established adequate means of obtaining from any other Loan Parties on a
continuing basis information pertaining to, and is now and on a continuing
basis will be completely familiar with, the financial condition, operations,
properties and prospects of such other Loan Parties.
Section 7. Covenants. The Guarantor covenants and agrees
that, so long as any part of the Guaranteed Obligations shall remain unpaid or
any Lender shall have any Commitment, the Guarantor will, unless the Required
Lenders shall otherwise consent in writing, perform or observe all of the
terms, covenants and agreements that the Loan Documents state that the Borrower
is to cause the Guarantor to perform or observe.
Section 8. Amendments, Etc. No amendment or waiver of any
provision of this Guaranty and no consent to any departure by the Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent and the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all of the Guaranteed Parties
(other than any Lender that is, at such time, a Defaulting Lender), (a) limit
the liability of the Guarantor hereunder, (b) postpone any date fixed for
payment hereunder or (c) change the number of Guaranteed Parties required to
take any action hereunder.
Section 9. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed,
telecopied, telexed or delivered to it, if to the Guarantor, addressed to it at
11 Greenway Plaza, Suite 1919, Houston, Texas 77046, Fax No.: (713) 993-9890,
Attention: President, together with a copy to the General Counsel of the
Guarantor at the same address, if to the Administrative Agent or any Guaranteed
Party, at its address specified in the B Share
<PAGE> 174
8
Credit Agreement, or as to any party at such other address as shall be
designated by such party in a written notice to each other party. All such
notices and other communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively.
Section 10. No Waiver; Remedies. No failure on the part of
the Administrative Agent or any other Guaranteed Party to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
Section 11. Right of Set-off. Upon the occurrence and during
the continuance of any Event of Default, each Guaranteed Party shall have at
any time and from time to time, to the fullest extent permitted by law, without
presentment, demand, protest or other notice of any kind to any Loan Party or
any other Person a right of set off with respect to any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Guaranteed Party (including by
branches and Agencies of such Guaranteed Party, wherever located) to or for the
credit or the account of the Guarantor irrespective of whether or not such
Guaranteed Party shall have made any demand under this Guaranty and although
such Obligations may be contingent or unmatured. Each Guaranteed Party agrees
promptly to notify the Guarantor after any such set-off; provided, that the
failure to give such notice shall not affect the validity of such set-off. The
rights of each Guaranteed Party under this Section are in addition to other
rights and remedies that such Guaranteed Party may have.
Section 12. Indemnification. Without limitation on any
other Obligations of the Guarantor or remedies of the Guaranteed Parties under
this Guaranty, the Guarantor shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless each Guaranteed Party from and
against, and shall pay on demand, any and all losses, liabilities, damages,
costs, expenses and charges (including the fees and disbursements of such
Guaranteed Party's legal counsel) suffered or incurred by such Guaranteed Party
as a result of any failure of any Guaranteed Obligations to be the legal, valid
and binding obligations of the Borrower enforceable against the Borrower in
accordance with their terms provided, that the amounts payable by the Guarantor
pursuant to this Section 12 shall not exceed, in the aggregate, the amount of
the Guaranteed Obligations.
Section 13. Continuing Guaranty; Assignments under the B
Share Credit Agreement. This Guaranty is a continuing guaranty and shall (a)
remain in full force and effect until the later of the payment in full in cash
of the Guaranteed Obligations and all other amounts payable under this Guaranty
and the Termination Date, (b) be binding upon the Guarantor, its successors and
assigns and (c) inure to the benefit of and be enforceable by the
Administrative
<PAGE> 175
9
Agent and the other Guaranteed Parties and their successors, transferees and
assigns. Without limiting the generality of the foregoing clause (c), any
Guaranteed Party may assign or otherwise transfer all or any portion of its
rights and obligations under the B Share Credit Agreement (including, without
limitation, all or any portion of its Commitment, the Loans owing to it and the
Note held by it) to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to such
Guaranteed Party herein or otherwise, in each case as and to the extent
provided in Section 10.07 of the B Share Credit Agreement.
Section 14. Governing Law; Jurisdiction; Waiver of Jury
Trial, Etc. (a) This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to the
conflict of law provisions thereof.
(b) The Guarantor hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting
in New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Guaranty or any of the other Loan
Documents to which it is or is to be a party, or for recognition or enforcement
of any judgment, and the Guarantor hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in any such New York State court or, to the extent permitted by
law, in such federal court. The Guarantor agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(c) Nothing in this Section shall affect the right of any
Guaranteed Party to serve legal process in any other manner permitted by law or
affect the right of any Guaranteed Party to bring any action or proceeding
against the Guarantor or its property in the courts of other jurisdictions.
(d) The Guarantor hereby irrevocably waives, to the
fullest extent permitted by law, all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to any of the Loan Documents, the transactions
contemplated thereby or the actions of the Administrative Agent or any other
Guaranteed Party in the negotiation, administration, performance or enforcement
thereof.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
A I M ADVISORS, INC.
By
____________________________________
Title: President
<PAGE> 176
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
<TABLE>
<CAPTION>
Domestic Eurodollar
Lender Commitment Lending Office Lending Office
------ ---------- -------------- --------------
<S> <C> <C> <C>
ABN AMRO Bank N.V. $ 7,500,000.00 500 Park Avenue 500 Park Avenue
New York, NY 10022 New York, NY 10022
Attn: Stella Milano Attn: Stella Milano
Fax: (212) 446-4335 Fax: (212) 446-4335
Bank of New York $ 15,250,000.00 Securities Ind. Dept. Securities Ind. Dept.
101 Barclay Street 101 Barclay Street
New York, NY 10286 New York, NY 10286
Attn: Joann Barton Attn: Joann Barton
Fax: (212) 635-6615 Fax: (212) 635-6615
Banque Nationale de Paris $ 15,250,000.00 499 Park Avenue 499 Park Avenue
New York, NY 10022 New York, NY 10022
Attn: Laurent Vanderzyppe Attn: Laurent Vanderzyppe
Fax: (212) 415-9707 Fax: (212) 415-9707
Chemical Bank $ 15,250,000.00 270 Park Avenue 270 Park Avenue
New York, NY 10022 New York, NY 10022
Attn: Richard Klein Attn: Richard Klein
Fax: (212) 270-5222 Fax: (212) 270-5222
Citibank, N.A. $ 17,250,000.00 399 Park Avenue 399 Park Avenue
New York, NY 10043 New York, NY 10043
Attn: John J. MacDonald Attn: John J. MacDonald
Fax: (212) 371-6309 Fax: (212) 371-6309
Credit Lyonnais $ 15,250,000.00 Three Embarcadero Ctr. Three Embarcadero Ctr.
Suite 1640 Suite 1640
San Francisco, CA 94111 San Francisco, CA 94111
Attn: William J. Fischer Attn: William J. Fischer
Fax: (415) 956-7008 Fax: (415) 956-7008
Deutsche Bank A.G. $ 15,250,000.00 31 West 52nd Street 31 West 52nd Street
New York, NY 10019 New York, NY 10019
Attn: Lynn Sweeney, CFS Attn: Lynn Sweeney, CFS
Fax: (212) 474-7879/7880 Fax: (212) 474-7879/7880
Fleet National Bank $ 15,250,000.00 777 Main Street 777 Main Street
Hartford, CT 06475 Hartford, CT 06475
Attn: David Wilkie Attn: David Wilkie
Fax: (860) 936-1264 Fax: (860) 936-1264
Mellon Bank, N.A. $ 15,250,000.00 One Mellon Bank Ctr. One Mellon Bank Ctr.
Room 370 Room 370
Pittsburgh, PA 15259 Pittsburgh, PA 15259
Attn: Paula A. Mammarella Attn: Paula A. Mammarella
Fax: (412) 234-8087 Fax: (412) 234-8087
</TABLE>
<PAGE> 177
<TABLE>
<CAPTION>
Domestic Eurodollar
Lender Commitment Lending Office Lending Office
------ ---------- -------------- --------------
<S> <C> <C> <C>
NationsBank, N.A. (South) $ 15,250,000.00 101 North Tryon Street 101 North Tryon Street
Charlotte, NC 28255 Charlotte, NC 28255
Attn: Judy Dudley Attn: Judy Dudley
Fax: (704) 386-8694 Fax: (704) 386-8694
Societe Generale $ 7,500,000.00 11th Floor 11th Floor
1221 Avenue of the Americas 1221 Avenue of the Americas
New York, NY 10020 New York, NY 10020
Attn: John Padwater Attn: John Padwater
Fax: (212) 278-7153 Fax: (212) 278-7153
State Street Bank and Trust $ 15,250,000.00 225 Franklin Street 225 Franklin Street
Company Boston, MA 02101 Boston, MA 02101
Attn: Lynn Downing Attn: Lynn Downing
Fax: (617) 654-3767 Fax: (617) 654-3767
The First National Bank of $ 15,250,000.00 100 Federal Street 100 Federal Street
Boston Boston, MA 02110 Boston, MA 02110
Attn: Deirdre H. Cobery Attn: Deirdre H. Cobery
Fax: (614) 434-1537 Fax: (614) 434-1537
Union Bank of California, N.A. $ 15,250,000.00 11th Floor 11th Floor
350 California Street 350 California Street
San Francisco, CA 94104 San Francisco, CA 94104
Attn: David Hants Attn: David Hants
Fax: (415) 705-7037 Fax: (415) 705-7037
Total Commitments $ 200,000,000.00
</TABLE>
<PAGE> 178
SCHEDULE 1.01A
ELIGIBLE FUNDS
Eligible Funds
--------------
AIM Balanced Fund
AIM Charter Fund
AIM Global Aggressive Growth Fund
AIM Global Growth Fund
AIM Global Income Fund
AIM Intermediate Government Fund
AIM Growth Fund
AIM High Yield Fund
AIM Income Fund
AIM International Equity Fund
AIM Money Market Fund
AIM Municipal Bond Fund
AIM Global Utilities Fund
AIM Value Fund
AIM Weingarten Fund
<PAGE> 179
SCHEDULE 1.01B
KEY SHAREHOLDERS
The Key Shareholders are collectively:
(a) (i) Charles T. Bauer ("Bauer"), (ii) Bauer's spouse and
lineal descendants (including persons lawfully adopted by
Bauer or any of Bauer's lineal descendants) (each such person,
together with Bauer, the "Bauer Family"), (iii) any trust of
which (1) each trustee is a member of the Bauer Family or a
sibling of Bauer, or Graham or Crum or (2) each beneficiary is
a member of the Bauer Family, (iv) any limited partnership of
which the general partner is a member of the Bauer Family or a
sibling of Bauer, or Graham or Crum, and each limited partner
is a member of the Bauer Family, (v) any limited liability
company of which each member is a member of the Bauer Family,
or (vi) any similar arrangement where the beneficial ownership
of the shares of Capital Stock of the Borrower remains in the
Bauer Family, provided that Bauer (or after Bauer's death, one
or more members of the Bauer Family, the trustee or general
partner, as the case may be) retains sole control over the
voting and disposition of any Capital Stock of the Borrower
(each such entity together with the Bauer Family, the "Bauer
Group");
(b) (i) Robert H. Graham ("Graham), (ii) Graham's spouse and
lineal descendants (including persons lawfully adopted by
Graham or any of Graham's lineal descendants) (each such
person together with Graham, the "Graham Family"), (iii) any
trust of which (1) each trustee is a member of the Graham
Family or (2) each beneficiary is a member of the Graham
Family (each such trust being a "Graham Trust"), (iv) any
limited partnership of which the general partner is a member
of the Graham Family or a Graham Trust, and each limited
partner is a member of the Graham Family or a Graham Trust,
(v) any limited liability company of which each member is a
member of the Graham Family or a Graham Trust, or (vi) any
similar arrangement where the beneficial ownership of the
shares of Capital Stock of the Borrower remains in the Graham
Family, provided that Graham (or after Graham's death, one or
more members of the Graham Family, the trustee or general
partner, as the case may be) retains sole control over the
voting and disposition of any Capital Stock of the Borrower
(each such entity together with the Graham Family, the "Graham
Group");
(c) (i) Gary T. Crum ("Crum), (ii) Crum's spouse and lineal
descendants (including persons lawfully adopted by Crum or any
of Crum's lineal descendants) (each such person together with
Crum, the "Crum Family"), (iii) any trust of which (1) each
trustee is a member of the Crum Family or a sibling of Crum,
or Graham or Bauer or (2) each beneficiary is a member of the
Crum Family, (iv) any limited partnership of which the general
partner is a member of the Crum Family or a sibling of Crum,
or Bauer or Graham, and each limited partner is a member of
the Crum Family, (v) any limited liability company of which
each member is a member of the Crum Family, or (vi) any
similar arrangement where the beneficial ownership of the
shares of Capital Stock of the Borrower remains in the Crum
Family, provided that Crum (or after Crum's death, one or more
members of the Crum Family, the trustee or general
1
<PAGE> 180
partner, as the case may be) retains sole control over the
voting and disposition of any Capital Stock of the Borrower
(each such entity together with the Crum Family, the "Crum
Group");
(d) (i) Jeffrey T. Chambers, Michael C. Child, Brian J.
Conway, Katherine S. Cromwell, Robert W. Daly, Stephen J.
Gaal, Donald J. Kramer, C. Kevin Landry, P. Andrews McLane,
Jacqueline C. Morby and Richard D. Tadler (collectively, the
"TA Partners"), (ii) the limited partnerships that are parties
to the TA Purchase Agreement (the "TA Purchasers"), and (iii)
any limited partnership of which each general partner is (1) a
TA Partner or (2) a limited partnership of which each general
partner is a TA Partner (each such limited partnership
together with the TA Partners and the TA Purchasers, the "TA
Group").
Each of the TA Group, the Bauer Group, the Graham Group, and
the Crum Group are referred to as a "Key Shareholder Group."
2
<PAGE> 181
SCHEDULE 1.01C
DISTRIBUTION EXPENSES
---------------------
Distribution Expenses
---------------------
CDSC Shares Brokerage Commission: 3.75% of purchase amount
Prepaid Service Fee: .25% of purchase amount
Distribution Fee: .75% of the average
daily net assets attributable
to CDSC Shares payable under
the Distribution Plan
Contingent Deferred Sales Charge
--------------------------------
Contingent Deferred Sales
Charge as a % of Net Asset
Year Since Purchase Made Value of Shares Redeemed
------------------------ ------------------------
First 5%
Second 4%
Third 3%
Fourth 3%
Fifth 2%
Sixth 1%
Seventh and Following None
In determining whether a contingent deferred sales charge is applicable,
it will be assumed that a redemption is made first of any shares held in the
shareholder's account that are not subject to such charge; second, of shares
derived from reinvestment of dividends and distributions; third, of shares held
for more than six years from the date such shares were purchased; and fourth,
of shares held less than six years from the date such shares were purchased.
The applicable sales charge will be applied against the lesser of the current
market value of shares redeemed or their original cost.
Contingent deferred sales charges on CDSC Shares will be waived on
redemptions (1) following the death or disability of a shareholder (provided
AIM Distributors is notified of the shareholder's death or disability at the
time of the redemption request and is provided with satisfactory evidence of
such death or disability), (2) in connection with certain distributions from
individual retirement accounts and custodian accounts maintained pursuant to
Section 403(b)(7) of the Code, deferred compensation plans qualified under
Section 457 of the Code and plans qualified under Section 401 of the Code
(collectively, "Retirement Plans"), (3) pursuant to a Systematic Withdrawal
Plan, provided that amounts withdrawn under such plan do not exceed on an
annual basis 12% of the market value of the shareholder's investment in CDSC
Shares at the time the shareholder elects to participate in the Systematic
Withdrawal Plan, (4) effected pursuant to the right of a Dual Class Fund to
liquidate a shareholder's account if the aggregate net asset value of shares
held in the account is less than the designated minimum account size described
in the prospectus of such Dual Class Fund and (5) effected by AIM of its
investment in a Dual Class Fund.
<PAGE> 182
SCHEDULE 1.01D
INVESTMENTS
-----------
1) Life Partners Group, Inc., 62,182 shares (proposed to be exchanged for
shares of Conseco, Inc. stock).
2) ICI Mutual Insurance Company Reserve Premium.
3) Assets of a trust established to comply with Rule 27d-1 of the
Investment Company Act of 1940 in connection with Summit Investors
Plans. The Company is prohibited from using the assets of such trust.
The amounts vary as required by Rule 27d-1. As of May 31, 1996, an
aggregate amount in trust of approximately $400,000 is currently
invested in:
(a) Federal National Mortgage Association Note. Face
Value $300,000. Matures July 19, 1996. Held through
Merrill Lynch Acct. No. 581-07452; and
(b) Segregated Trust Savings Account at State Street Bank
& Trust Co.
4) Investment in ABAMCO Limited, a management company owned and operated
by a joint venture between A I M Management Group Inc., a Pakistani
broker-dealer, a privately owned Pakistani bank and the International
Finance Corporation.
<PAGE> 183
SCHEDULE 3.02(a)
EXCLUDED ASSET SALES
--------------------
1. Liquidation of seed money contributed to funds advised by A I M
Advisors, Inc. or A I M Capital Management, Inc. from time to time.
2. Exchanges of shares of Life Partners Group, Inc. stock for shares of
Conseco, Inc. stock and subsequent sales of shares of Conseco, Inc.
stock from time to time.
<PAGE> 184
SCHEDULE 3.02(b)
A I M MANAGEMENT GROUP INC.
B-SHARE LOAN
COLLECTIONS SETTLEMENT STATEMENT
------------------------------------------------
Settlement Date: 08/20/96
Settlement Period: 7/01/96 - 7/31/96
<TABLE>
<CAPTION>
LENDER 1 LENDER 6* TOTAL
<S> <C> <C> <C>
Reconciliation of Account
- -------------------------
ABSC - 75bp 0.00 0.00 0.00
Contingent Deferred Sales Charges 0.00 0.00 0.00
Income on Permitted Investments-Banker's 0.00 0.00 0.00
Trust
------------ ------------ ------------
Sub-Total of Seller's Portion from 0.00
Purchaser's Report
Income on Permitted Investments-AIM 0.00
------------
Account Balance 0.00
============
Calculations of Collections
- ---------------------------
ADD:
ABSC - 75 bp 0.00 0.00 0.00
Contingent Deferred Sales Charges 0.00 0.00 0.00
LESS:
Interest on B-Share Loans 0.00 0.00 0.00
Round pay up/down to Citibank 0.00 0.00 0.00
------------ ------------ ------------
Collections 0.00 0.00 0.00
============ ============ ============
RECONCILIATION
- --------------
Account Balance 0.00 0.00 0.00
LESS:
Collections 0.00 0.00 0.00
Interest -B-Share Loans 0.00 0.00 0.00
------------
Due AIM 0.00
============
</TABLE>
<TABLE>
<CAPTION>
==========================================================================================
AMOUNT DUE AMOUNT DUE TOTAL
CITIBANK AIM
<S> <C> <C> <C>
Collections 0.00 0.00 0.00
Interest 0.00 0.00 0.00
------------ ------------ ------------
Total Allocation of Seller's Portion 0.00 0.00 0.00
============ ============ ============
</TABLE>
Lender 1-Financing by B-Share Lender from 9/93-3/31/95
Lender 6-Financing by AIM 7/1/96-7/31/96
* Lender's Report will be attached when Collections are allocated to AIM.
Purchaser's Report supplied pursuant to Collection Agency Agreement will be
attached.
1
<PAGE> 185
FORM OF LENDER REPORT
For the Month Ended: 7/31/96
PART I ADMINISTRATIVE AGENT INSTRUCTIONS
<TABLE>
<S> <C>
A. B-Share Collateral Account Balance for July 1996 at Settlement $0.00
Disbursement Instructions:
B. Transfer to Management Account for payment of AIM's Portion {IIE+IIG+III} #DIV/0! AIM #954768
C. Transfer to Citibank's Account for payment of Lender's Portion {IA-IB} #DIV/0! Citibank
-------
D. Total Disbursements from B-Share Collateral Account #DIV/0!
</TABLE>
PART II LENDER'S PORTION AND AIM'S PORTION
<TABLE>
<S> <C>
A. Seller's Portion (as defined in Collection Agency Agreement) of
Collections deposited in the Collection Account since
preceding calendar month $0.00
B. Net Investment Earnings during the immediately preceding calendar
month on balances in Collection Account & B-Share Collateral Account $0.00
-----
C. IIA+IIB $0.00
D. CDSC's payable to Lender $0.00
E. CDSC's payable to AIM $0.00
F. Asset based sales charge ("ABSC") payable to Lender #DIV/0!
G. ABSC payable to AIM #DIV/0!
H. AIM's Portion of Net Investment Earnings 100.00%
I. AIM's Portion of Net Investment Earnings {IIB X IIH} $0.00
</TABLE>
Page 1
<PAGE> 186
PART VI LENDER'S ALLOCATION OF COLLECTIONS
- ------------------------------------------
<TABLE>
<CAPTION>
650 655 660 665 670 675
Growth Utilities Gov't Secs Income Municipal Bond High Yield
Fund Fund Fund Fund Fund Fund
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Computation of Lender's ABSC Allocation %
- -----------------------------------------------------
A. Lender Share Balance-Beginning of Month 0.000 0.000 0.000 0.000 0.000 0.000
B. Net Asset Value-Beginning of Month $0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------
C. Lender Shares times the Net Asset Value {A X B} $0 $0 $0 $0 $0 $0
D. Lender Share Balance-End of Month 0.000 0.000 0.000 0.000 0.000 0.000
E. Net Asset Value-End of Month $0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------
F. Lender Shares times the Net Asset Value {DX E} $0 $0 $0 $0 $0 $0
G. Average Lender's Net Asset Value {C+F}/2 $0.00 $0 $0 $0 $0 $0
H. Total Share Balance-Beginning of Month 0.000 0.000 0.000 0.000 0.000 0.000
I. Net Asset Value-Beginning of Month 0.000 0.000 0.000 0.000 0.000 0.000
------------------------------------------------------------------------------
J. Total Shares times the Net Asset Value {H X I} $0 $0 $0 $0 $0 $0
K. Total Share Balance-End of Month 0.000 0.000 0.000 0.000 0.000 0.000
L. Net Asset Value-End of Month 0.000 0.000 0.000 0.000 0.000 0.000
------------------------------------------------------------------------------
M. Total Shares times the Net Asset Value {K X L} $0 $0 $0 $0 $0 $0
N. Average Net Asset Value {J + M}/2 $0 $0 $0 $0 $0 $0
O. Lender's ABSC Allocation Percentage {G/N} #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Allocation of ABSC Fees:
- -----------------------------------------------------
P. ABSC fees collected {Y From Purchaser's Report} $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
Q. Lender's ABSC Allocation Percentage {O} #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
------------------------------------------------------------------------------
R. Lender's ABSC {P X Q} #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Lender Collections
- ------------------
S. ABSC {R} #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
T. CDSCs (Actual) $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
----- ----- ----- ----- ----- -----
U. Collections {S + T} #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Total Seller Collections and Related Collections (from
Purchaser's Report)
- ------------------------------------------------------
V. ABSC collected $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
W. CDSC Collected $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
----- ----- ----- ----- ----- -----
X. Total {V+W} $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
Y. AIM's ABSC #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
</TABLE>
Page 1
<PAGE> 187
PART VI LENDER'S ALLOCATION OF COLLECTIONS
- ------------------------------------------
<TABLE>
<CAPTION>
680 685 690 691 692 693
Money Mkt Balanced Value Global Global Global Income
Fund Fund Fund Aggr. Grth Growth Fund
---- ---- ---- ---------- ------ ----
<S> <C> <C> <C> <C> <C> <C>
Computation of Lender's ABSC Allocation %
- ------------------------------------------------------
A. Lender Share Balance-Beginning of Month 0.000 0.000 0.000 0.000 0.000 0.000
B. Net Asset Value-Beginning of Month 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------
C. Lender Shares times the Net Asset Value {A X B} $0 $0 $0 $0 $0 $0
D. Lender Share Balance-End of Month 0.000 0.000 0.000 0.000 0.000 0.000
E. Net Asset Value-End of Month 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------
F. Lender Shares times the Net Asset Value {DX E} $0 $0 $0 $0 $0 $0
G. Average Lender's Net Asset Value {C+F}/2 $0 $0 $0 $0 $0 $0
H. Total Share Balance-Beginning of Month 0.000 0.000 0.000 0.000 0.000 0.000
I. Net Asset Value-Beginning of Month 0.000 0.000 0.000 0.000 0.000 0.000
------------------------------------------------------------------------------
J. Total Shares times the Net Asset Value {H X I} $0 $0 $0 $0 $0 $0
K. Total Share Balance-End of Month 0.000 0.000 0.000 0.000 0.000 0.000
L. Net Asset Value-End of Month 0.000 0.000 0.000 0.000 0.000 0.000
------------------------------------------------------------------------------
M. Total Shares times the Net Asset Value {K X L} $0 $0 $0 $0 $0 $0
N. Average Net Asset Value {J + M}/2 $0 $0 $0 $0 $0 $0
O. Lender's ABSC Allocation Percentage {G/N} #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Allocation of ABSC Fees:
P. ABSC fees collected {Y From Purchaser's Report} $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
Q. Lender's ABSC Allocation Percentage {O} #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
------------------------------------------------------------------------------
R. Lender's ABSC {P X Q} #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Lender Collections
- ------------------
S. ABSC {R} #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
T. CDSCs (Actual) $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
----- ----- ----- ----- ----- -----
U. Collections {S + T} #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Total Seller Collections and Related Collections (from
Purchaser's Report)
- ------------------------------------------------------
V. ABSC collected $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
W. CDSC Collected $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
----- ----- ----- ----- ----- -----
X. Total {V+W} $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
Y. AIM's ABSC #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0! #DIV/0!
</TABLE>
Page 2
<PAGE> 188
PART VI LENDER'S ALLOCATION OF COLLECTIONS
- ------------------------------------------
<TABLE>
<CAPTION>
694 640 645
Int'l Equity Weingarten Charter
Fund Fund Fund Total
---- ---- ---- -----
<S> <C> <C> <C> <C>
Computation of Lender's ABSC Allocation %
- ------------------------------------------------------
A. Lender Share Balance-Beginning of Month 0.000 0.000 0.000 0
B. Net Asset Value-Beginning of Month 0.00 0.00 0.00
-----------------------------------------------------------
C. Lender Shares times the Net Asset Value {A X B} $0 $0 $0 $0
D. Lender Share Balance-End of Month 0.000 0.000 0.000 0
E. Net Asset Value-End of Month 0.00 0.00 0.00
-----------------------------------------------------------
F. Lender Shares times the Net Asset Value {DX E} $0 $0 $0 $0
G. Average Lender's Net Asset Value {C+F}/2 $0 $0 $0 $0
H. Total Share Balance-Beginning of Month 0.000 0.000 0.000 0
I. Net Asset Value-Beginning of Month 0.000 0.000 0.000
-----------------------------------------------------------
J. Total Shares times the Net Asset Value {H X I} $0 $0 $0 $0
K. Total Share Balance-End of Month 0.000 0.000 0.000 0
L. Net Asset Value-End of Month 0.000 0.000 0.000
-----------------------------------------------------------
M. Total Shares times the Net Asset Value {K X L} $0 $0 $0 $0
N. Average Net Asset Value {J + M}/2 $0 $0 $0 $0
O. Lender's ABSC Allocation Percentage {G/N} #DIV/0! #DIV/0! #DIV/0!
Allocation of ABSC Fees:
- ------------------------------------------------------
P. ABSC fees collected {Y From Purchaser's Report} $0.00 $0.00 $0.00 $0.00
Q. Lender's ABSC Allocation Percentage {O} #DIV/0! #DIV/0! #DIV/0!
-----------------------------------------------------------
R. Lender's ABSC {P X Q} #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Lender Collections
- ------------------
S. ABSC {R} #DIV/0! #DIV/0! #DIV/0! #DIV/0!
T. CDSCs (Actual) $0.00 $0.00 $0.00 $0.00
----- ----- ----- -----
U. Collections {S + T} #DIV/0! #DIV/0! #DIV/0! #DIV/0!
Total Seller Collections and Related Collections (from
Purchaser's Report)
- ------------------------------------------------------
V. ABSC collected $0.00 $0.00 $0.00 $0.00
W. CDSC Collected $0.00 $0.00 $0.00 $0.00
----- ----- ----- -----
X. Total {V+W} $0.00 $0.00 $0.00 $0.00
Y. AIM's ABSC #DIV/0! #DIV/0! #DIV/0! #DIV/0!
</TABLE>
Page 3
<PAGE> 189
SCHEDULE 6.02
SUBSIDIARIES
<TABLE>
<S> <C>
----------------------------
A I M Management Group, Inc.
(Delaware)
----------------------------
| 100%
--------------------
A I M Advisors, Inc.
(Delaware)
--------------------
|
=====================================================================================================================_
100% | 100% | 100% | 100% | 100% | 100% | |
- ------------------------- ------------------- --------------- -------------- ------------------- --------------- |
A I M Capital Management, A I M Distributors, Fund Management A I M Fund A I M Institutional A I M Insurance |
Inc. Inc. Company Services, Inc. Fund Services, Inc. Agency of |
(Texas) (Delaware) (Texas) (Delaware) (Delaware) Alabama, Inc. |
- ------------------------- ------------------- --------------- -------------- ------------------- (Alabama) |
| --------------- |
| =============================================================
100% | 100% | 100% |
- ------------------------- ----------------------- ----------------------
AIM Global Holdings, Inc. A I M Insurance Agency, A I M Insurance Agency
(Delaware) Inc. of New Mexico, Inc.
- ------------------------- (Delaware) (New Mexico)
| ----------------------- ----------------------
|=============================================================================
100% | 100% | 100% | 100% |
- ----------------------- ----------------------- ------------------------ -------------------
AIM Global Ventures Co. A I M Global Management A I M Global Associates, AIM Global Advisors
(Cayman Islands) Company Limited Inc. Limited
- ----------------------- (Ireland) (Delaware) (United Kingdom)
----------------------- ------------------------ -------------------
</TABLE>
<PAGE> 190
SCHEDULE 6.04
APPROVALS
---------
Filing of UCC Financing Statements:
-Texas Secretary of State
<PAGE> 191
SCHEDULE 6.09
EXISTING DEBT
-------------
1. Irrevocable Standby Letter of Credit issued by NationsBank Corporation
for the benefit of ICI Mutual Insurance Company in the amount of
$394,809.
2. Capital Lease Agreement among A I M Advisors, Inc. and A I M Fund
Services, Inc., as Co-Lessees, and Unisys Leasing Corporation for cash
processing equipment in the amount of $92,455.
3. 9% Senior Secured Notes due 2003
4. Second Amended and Restated Credit Agreement, as amended and restated
as of November 30, 1995 among A I M Management Group Inc. as Borrower,
the Lenders named therein, Citibank, N.A. as Lead Managing Agent, and
Chemical Bank and NationsBank of Georgia, N.A. as Co-Managing Agents
(this agreement will be amended and restated on the date the B Share
Credit Agreement is executed).
<PAGE> 192
SCHEDULE 6.12
TAXES
-----
Federal Income Tax Audit
- ------------------------
A I M Management Group Inc. and subsidiaries:
The federal tax return on Form 1120 for 1992 is currently under audit.
Status is unknown.
Texas Franchise Tax Audits
- --------------------------
A I M Management Group Inc.
Audit presently covers 1991-1994 tax years (i.e. privilege periods
1992-1995). Status is unknown.
A I M Capital Management, Inc.
Audit presently covers 1991-1993 tax years (i.e., privilege periods
1992-1994). Status is unknown.
<PAGE> 193
SCHEDULE 6.13
ERISA
-----
Plans
- -----
None
Multiemployer Plans
- -------------------
None
Welfare Plans
- -------------
1. AIM Flexible Benefits Plan/A I M Management Group Inc. Section 125 Program
a. Massachusetts Mutual Life Insurance Company Medical, Life
Insurance and Accidental Death & Dismemberment Program
b. DentiCare, Inc. Dental Program
c. UniLife Insurance Company Dental Program
2. A I M Management Group Inc. Long-Term Disability Income Benefit Plan
3. A I M Management Group Inc. Short-Term Disability Income Benefit Plan
4. A I M Management Group Inc. Travel Accident Policy
5. A I M Management Group Inc. Plan 21 (Employee Assistance Plan)
6. A I M Management Group Inc. Profit Sharing Plan
7. A I M Management Group Inc. Life & Accidental Death & Dismemberment
Insurance
<PAGE> 194
SCHEDULE 7.02
LIENS
-----
None
<PAGE> 1
EXHIBIT 10.7
DISTRIBUTION FEE PURCHASE AGREEMENT
Dated as of August 20, 1993
As Amended and Restated as of June 26, 1996
AMENDED AND RESTATED DISTRIBUTION FEE PURCHASE AGREEMENT,
dated as of June 26, 1996 (this "Agreement"), between A I M Distributors, Inc.,
a Delaware corporation (the "Seller"), and A I M Management Group Inc., a
Delaware corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller desires to sell to the Purchaser, and the
Purchaser desires to purchase from the Seller, on the terms and subject to the
conditions specified in this Agreement, the Purchased Assets (as defined
below);
NOW, THEREFORE, in consideration of the foregoing premises,
and the mutual covenants and agreements herein contained, and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
The following terms shall have the meanings ascribed to them
below. Capitalized terms not expressly defined herein which are defined in the
Uniform Commercial Code as in effect from time to time in the State of Texas
shall have the same meanings herein as in said UCC.
"AIM Funds" means all open-end mutual funds (and every series
thereof) sponsored by the Purchaser or any of its Subsidiaries or for which the
Purchaser or any of its Subsidiaries provides investment advisory, management,
administrative, supervisory, consulting, underwriting or similar services from
time to time, including such funds which are now existing and which may
hereafter be organized.
"Asset Based Sales Charge" shall have the meaning set forth in
Section 26(b)(8)(C) of the Rules of Fair Practice.
"CDSC Shares" means any shares (or class of shares) of
beneficial interest or capital stock of any AIM Fund, which are offered at net
asset value without an initial sales charge, and which are subject to a
Contingent Deferred Sales Charge upon the
<PAGE> 2
redemption of such shares for six years from the initial purchase of such
shares.
"Contingent Deferred Sales Charge" means the amount payable by
a shareholder of any AIM Fund on redemption of such shareholder's CDSC Shares
in such AIM Fund prior to the end of the holding period specified from time to
time in the Prospectus for such AIM Fund.
"Distribution Agreement" means any underwriting agreement and
any plan or related agreement as contemplated by Rule 12b-1 under the
Investment Company Act of 1940, as amended,in connection with the distribution
of shares of any AIM Fund.
"Distribution Plan" means any plan adopted (as amended from
time to time) by an AIM Fund and any related agreements, as contemplated by
Rule 12b-1 under the Investment Company Act of 1940, as amended, in connection
with the distribution of CDSC Shares of such AIM Fund.
"Free Shares" means shares other then CDSC Shares, including
without limitation, shares which are derived from CDSC Shares, but do not have
a Contingent Deferred Sales Charge because either (i) they were issued in an
exchange without the payment of a Contingent Deferred Sales Charge and
represent the appreciated value of the shares being exchanged over the initial
purchase price paid for such shares (of the shares from which they derived), or
(ii) they represent shares issued as a result of the reinvestment of dividends
or other distributions.
"Maximum Interest Allowable" shall mean the maximum interest
which may be taken into account under Section 26(d)(2)A) of the Rules of Fair
Practice in computing the aggregate asset-backed and deferred sales charges
which may be imposed.
"NASD" shall mean the National Association of Securities
Dealers, Inc. or any successor entity.
"Prospectus" shall mean with respect to any AIM Fund the
prospectus filed with the Securities and Exchange Commission as a part of the
Registration Statement on Form N-1A, as amended, and shall include, without
limitation, the related Statement of Additional Information included in such
Registration Statement.
"Purchased Assets" shall mean with respect to each AIM Fund,
all of the rights under the related Distribution Agreement, the related
Distribution Plan, the related Prospectus and in accordance with the applicable
Rules of Fair Practice to receive amounts paid or payable in respect of Service
Fees, Asset Based Sales Charges (including interest at the Maximum Interest
2
<PAGE> 3
Allowable) and Contingent Deferred Sales Charges, in each case in respect of
the issuance by such AIM Fund of CDSC Shares and Free Shares and in respect of
CDSC Shares and Free Shares of any other AIM Fund into which CDSC Shares and
Free Shares initially issued by another AIM Fund may be exchanged without the
payment of a Contingent Deferred Sales Charge, including, without limitation,
any similar amount paid or payable under any replacement Distribution
Agreement, Distribution Plan, Prospectus or the Rules of Fair Practice, and any
continuation payments in respect thereof paid or payable by the related
investment company in respect of such AIM Fund in the event of a termination of
the related Distribution Plan or the related Distribution Agreement.
"Rules of Fair Practice" shall mean the Rules of Fair Practice
of the NASD, including without limitation Section 26, thereof, as amended, and
the rules, regulations and interpretations of the NASD in respect thereto.
"Service Fee" shall have the meaning set forth in Section
26(b)(9) of the Rules of Fair Practice.
"Subsidiary" means any corporation at least a majority (by
number of votes) of the Voting Stock of which is at the time owned by the
Purchaser or by one or more Subsidiaries or by the Purchaser and one or more
Subsidiaries.
"Voting Stock" means, with reference to any corporation, stock
of any class or classes (or equivalent interests), if the holders of the stock
of such class or classes (or equivalent interests) are ordinarily, in the
absence of contingencies, entitled to vote for the election of the directors
(or Persons performing similar functions) of such corporation, even though the
right so to vote has been suspended by the happening of such a contingency.
ARTICLE II.
SALE AND PURCHASE OF THE PURCHASED ASSETS
Section 1. Sale and Purchase. (a) The Seller hereby
agrees to sell, transfer, convey and assign to the Purchaser, and the Purchaser
hereby agrees to purchase in each case on the terms and subject to the
conditions set forth in this Agreement, all of the Seller's right, title and
interest in, to and under all Purchased Assets and all proceeds of Purchased
Assets. The Purchaser's obligation to pay for, and the Seller's obligation to
transfer, such Purchased Assets shall continue so long as this Agreement is in
effect.
3
<PAGE> 4
(b) All sales of Purchased Assets by the Seller hereunder
shall be without recourse to, or representation or warranty of any kind
(express or implied) by the Seller.
Section 2. Transfers and Payments. (a) The Seller
shall convey the Purchased Assets to the Purchaser on the day the CDSC Shares
with respect to which Purchased Assets arise are originated concurrently with
such origination, by giving the Purchaser and the respective AIM Fund or AIM
Funds notice of such origination and transfer describing in reasonable detail
the Purchased Assets being transferred to the Purchaser, but without further
action by the Seller. The purchase price for each Purchased Asset shall equal
the dollar amount funded by the Seller in creating the CDSC Share with respect
to such Purchased Asset, and shall be paid by the Purchaser concurrently with
such funding.
(b) The parties agree, to the full extent they may lawfully
do so, that the consideration for the purchase and sale of the Purchased Assets
as determined pursuant to Section 2(a) above represents reasonably equivalent
value for the transfer of the same by the Seller to the Purchaser pursuant to
this Agreement.
Section 3. Recording of Sales and Transfers. In
connection with the sale and conveyance of the Purchased Assets pursuant
hereto, the Seller shall indicate on its books and records that all such
Purchased Assets have been sold or conveyed to the Purchaser. In addition, the
Seller shall not carry any Purchased Assets on the Seller's accounting records,
and the Seller agrees that all such Purchased Assets have been and will be, as
contemplated by the terms of this Agreement, transferred and sold upon
origination to the Purchaser and carried on the Purchaser's accounting records.
Section 4. Allocations. If the Seller is unable for any
reason to transfer any Purchased Assets required to be transferred to the
Purchaser in accordance with the provisions of this Agreement (including,
without limitation, by reason of any requirement of law, rule, regulation or
order or directive of any court or regulatory authority), then in any such
event, the Seller agrees that it shall thereafter allocate and promptly pay to
the Purchaser all funds received with respect to the Purchased Assets which
would have been paid directly to or on behalf of the Purchaser but for the
Seller's inability to transfer such Purchased Assets.
Section 5. Purchaser's Collection Rights. The Purchaser
shall be entitled to make all reasonable efforts to collect from the respective
AIM Funds all payments in respect of the Purchased Assets as and when the same
shall become due. The
4
<PAGE> 5
Seller hereby irrevocably authorizes and empowers (without imposing any
obligation on) the Purchaser, upon the occurrence of an event permitting the
Seller to demand, sue for, collect and receive payment of any funds due with
respect to the Purchased Assets, to demand, sue for, collect and receive such
funds in the name of the Seller.
Section 6. Seller's Continuing Obligations.
Notwithstanding any other provision of this Agreement, the Seller shall be
obligated to perform all of its obligations under, pursuant to and in
connection with the Purchased Assets to the same extent as if the Purchaser had
no interest therein, and the Purchaser shall have no obligations or liability
under any Purchased Assets to any AIM Find by reason of or arising out of this
Agreement, nor shall the Purchaser be required or obligated in any manner to
perform or fulfill any of the obligations of Seller under, pursuant to or in
connection with any Purchased Assets.
Section 7. Further Assurances. The Seller agrees to do
such further acts and things, and to execute and deliver to the Purchaser such
additional assignments, agreements, powers and instruments, as are reasonably
required by the Purchaser to carry into effect the purposes of this Agreement
or to better assure and confirm unto the Purchaser its rights, powers and
remedies hereunder.
ARTICLE III.
SECURITY INTEREST
It is the intention of this Agreement that the purchase of the
Purchased Assets hereunder shall convey to the Purchaser an undivided 100%
ownership interest in such Purchased Assets and the proceeds of such Purchased
Assets and that such transactions shall constitute a true sale and not a
secured loan. If, notwithstanding such intention, any conveyance of Purchased
Assets and the proceeds of such Purchased Assets from the Seller to the
Purchaser shall ever be recharacterized as a secured loan and not a sale, it is
the intention of this Agreement that the Seller shall be deemed to have granted
to the Purchaser, in order to secure such loan, a security interest in all of
the Seller's right, title and interest in and to all Purchased Assets and all
proceeds of such Purchased Assets.
5
<PAGE> 6
ARTICLE IV.
MISCELLANEOUS
Section 1. Notices, etc. All notices required or
permitted to be given to or made upon any party hereto shall be in writing
(including telegraphic or facsimile communication) and mailed, faxed or
delivered, addressed to the Seller or the Purchaser, as the case may be, at
their respective addresses or transmission numbers hereinafter set forth and
shall be effective when deposited in the mails or transmitted by facsimile,
respectively.
If to the Seller, to it at:
A I M Distributors, Inc.
11 Greenway Plaza
Suite 1919
Houston, Texas 77046
Attention: President
Telecopy: (713) 993-9890
With a copy to the General Counsel at the same address.
If to the Purchaser, to it at:
A I M Management Group Inc.
11 Greenway Plaza
Suite 1919
Houston, Texas 77046
Attention: President
Telecopy: (713) 993-9890
With a copy to the General Counsel at the same address.
Section 2. Severability; etc. Any provisions of this
Agreement which are 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. No term or
provision of this Agreement, and no right or obligation of either party in
respect hereof, shall have any force or effect to the extent that such term,
provision, right or obligation would be unlawful or contrary to any rule,
regulation or order or directive of any court or regulatory authority.
6
<PAGE> 7
Section 3. Successors and Assigns, etc. This Agreement
shall be binding upon, and inure to the benefit of, the Seller and the
Purchaser and their respective successors and assigns.
Section 4. Third Party Beneficiary. The parties hereto
intend that the benefits of this Agreement shall inure to the benefit of
lenders to or purchasers from the Purchaser who finance or purchase Purchased
Assets for or from the Purchaser as third party beneficiaries.
Section 5. Amendment; Waiver; etc. This Agreement and
any term or provision hereof may only be amended, modified or waived by a
written instrument executed by the parties hereto, and this Agreement may be
terminated by either party on 30 days' prior written notice to the other party;
provided that any termination will not affect sales of Purchased Assets made
prior to the effectiveness of such termination and Seller's obligations under
Article II, Section 6 shall continue with respect to such Purchased Assets
until collected in full.
Section 6. APPLICABLE LAW; WAIVER OF JURY TRIAL. (a)
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF TEXAS, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF.
(b) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED AGREEMENT TO WHICH
SUCH PERSON IS A PARTY.
Section 7. Miscellaneous. The headings contained in
this Agreement are for convenience of reference only and shall not affect the
meaning, construction or interpretation of this Agreement. This Agreement may
be executed in one or more counterparts, each of which shall be deemed to be an
original, and all of which together shall constitute one and the same
instrument.
7
<PAGE> 8
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
this Agreement to be executed by their respective officers thereunto duly
authorized as of the day and date first above written.
A I M MANAGEMENT GROUP INC.
By: /s/ ROBERT H. GRAHAM
-----------------------------------
Name:
Title:
A I M DISTRIBUTORS, INC.
By: /s/ JOHN CALDWELL SVP
-----------------------------------
Name:
Title:
8
<PAGE> 1
EXHIBIT 10.8
GUARANTY
Dated June 26, 1996
From
A I M ADVISORS, INC.
as Guarantor
------------
in favor of
THE GUARANTEED PARTIES PARTIES TO
THE B SHARE CREDIT AGREEMENT REFERRED TO HEREIN
<PAGE> 2
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
SECTION PAGE
<S><C> <C>
1. Guaranty; Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Guaranty Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Waivers and Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. Payments Free and Clear of Taxes, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 4
6. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
11. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
12. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
13. Continuing Guaranty; Assignments under the B Share Credit Agreement . . . . . . . . . 8
14. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. . . . . . . . . . . . . . . . 9
</TABLE>
<PAGE> 3
GUARANTY
GUARANTY dated June 26, 1996 made by A I M ADVISORS, INC., a
Delaware corporation (the "Guarantor"), in favor of the Guaranteed Parties (as
defined below).
PRELIMINARY STATEMENT. The Lenders, Citibank, N.A., as
administrative agent (the "Administrative Agent") for the Lenders, and the
financial institutions listed on the signature pages thereof as co-agents, as
co-agents (the "Co-Agents", and, together with the Lenders and the
Administrative Agent, the "Guaranteed Parties"), are parties to a B Share
Credit Agreement dated as of June 26, 1996 (said Agreement, as it may hereafter
be amended, supplemented or otherwise modified from time to time, being the "B
Share Credit Agreement"; the terms defined therein and not otherwise defined
herein being used herein as therein defined) with A I M Management Group Inc.,
a Delaware corporation (the "Borrower"). The Guarantor may receive a portion
of the proceeds of the Loans under the B Share Credit Agreement and will derive
substantial direct and indirect benefit from the transactions contemplated by
the B Share Credit Agreement. It is a condition precedent to the making of
Loans by the Lenders under the B Share Credit Agreement that the Guarantor
shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Lenders to make Loans from time to time, the Guarantor hereby
agrees as follows:
Section 1. Guaranty; Limitation of Liability. (a) The
Guarantor hereby unconditionally and irrevocably guarantees the punctual
payment when due, whether at stated maturity, by acceleration or otherwise, of
all Obligations of the Borrower now or hereafter existing under the Loan
Documents, whether for principal, interest, fees, expenses or otherwise (such
Obligations being the "Guaranteed Obligations"), and agrees to pay any and all
expenses (including counsel fees and expenses) incurred by the Administrative
Agent or any other Guaranteed Party in enforcing any rights under this
Guaranty. Without limiting the generality of the foregoing, the Guarantor's
liability shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by the Borrower to the Administrative Agent or
any other Guaranteed Party under the Loan Documents but for the fact that they
are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Borrower.
(b) The liability of the Guarantor under this Guaranty
shall not exceed the greater of (i) the net benefit realized by the Guarantor
from the proceeds of the Loans made from time to time by the Borrower to the
Guarantor or any Subsidiary of the Guarantor and (ii) the greater of (x) 95% of
the Adjusted Net Assets of the Guarantor on the date of delivery hereof and (y)
95% of the Adjusted Net Assets of the Guarantor on the date of any payment
hereunder. "Adjusted Net Assets" of the Guarantor at any date means the lesser
of (x) the amount by which the fair value of the property of the Guarantor
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities, but excluding liabilities under this Guaranty, of the
Guarantor at such date and (y) the amount by which the present fair salable
<PAGE> 4
2
value of the assets of the Guarantor at such date exceeds the amount that will
be required to pay the probable liability of the Guarantor on its debts,
excluding debt in respect of this Guaranty, as they become absolute and
matured.
Section 2. Guaranty Absolute. The Guarantor guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms
of the Loan Documents, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Administrative Agent or any other Guaranteed Party with respect
thereto. The Obligations of the Guarantor under this Guaranty are independent
of the Guaranteed Obligations or any other Obligations of any other Loan Party
under the Loan Documents, and a separate action or actions may be brought and
prosecuted against the Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Borrower or any other Loan Party or
whether the Borrower or any other Loan Party is joined in any such action or
actions. The liability of the Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and the Guarantor
hereby irrevocably waives any defenses it may now or hereafter have in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan
Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Guaranteed Obligations
or any other Obligations of any other Loan Party under the Loan
Documents, or any other amendment or waiver of or any consent to
departure from any Loan Document, including, without limitation, any
increase in the Guaranteed Obligations resulting from a Commitment
Increase or any other extension of additional credit to the Borrower
or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of
any Collateral, or any taking, release or amendment or waiver of or
consent to departure from any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of Collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any Collateral for all or any of the
Guaranteed Obligations or any other Obligations of any other Loan
Party under the Loan Documents or any other assets of the Borrower or
any of its Subsidiaries;
(e) any change, restructuring or termination of the
corporate structure or existence of the Borrower or any of its
Subsidiaries;
<PAGE> 5
3
(f) any failure of any Guaranteed Party to disclose to
the Borrower or the Guarantor any information relating to the
financial condition, operations, properties or prospects of any other
Loan Party now or in the future known to any Guaranteed Party (the
Guarantor waiving any duty on the part of the Guaranteed Parties to
disclose such information); or
(g) any other circumstance or any existence of or
reliance on any representation by the Administrative Agent or any
other Guaranteed Party that might otherwise constitute a defense
available to, or a discharge of, the Borrower, the Guarantor or any
other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by any Guaranteed Party or any other
Person upon the insolvency, bankruptcy or reorganization of the Borrower or any
other Loan Party or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) The Guarantor
hereby waives promptness, diligence, notice of acceptance and any other notice
with respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that the Administrative Agent or any other Guaranteed Party
protect, secure, perfect or insure any Lien or any property subject thereto or
exhaust any right or take any action against the Borrower or any other Person
or any Collateral.
(b) The Guarantor hereby waives any right to revoke this
Guaranty, and acknowledges that this Guaranty is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in the future.
(c) The Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in this
Section 3 are knowingly made in contemplation of such benefits.
Section 4. Subrogation. The Guarantor will not exercise any
rights that it may now or hereafter acquire against the Borrower or any other
insider guarantor that arise from the existence, payment, performance or
enforcement of the Guarantor's Obligations under this Guaranty or any other
Loan Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Administrative Agent or any other
Guaranteed Party against the Borrower or any other insider guarantor or any
Collateral, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without limitation, the right
to take or receive from the Borrower or any other insider guarantor, directly
or indirectly, in cash or other property or by set-off or in any other manner,
payment or security
<PAGE> 6
4
on account of such claim, remedy or right, unless and until all of the
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash and the Commitments shall have expired or terminated. If
any amount shall be paid to the Guarantor in violation of the preceding
sentence at any time prior to the later of the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty and
the Termination Date, such amount shall be held in trust for the benefit of the
Administrative Agent and the other Guaranteed Parties and shall forthwith be
paid to the Administrative Agent to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Guaranty, whether matured
or unmatured, in accordance with the terms of the Loan Documents, or to be held
as Collateral for any Guaranteed Obligations or other amounts payable under
this Guaranty thereafter arising. If (i) the Guarantor shall make payment to
the Administrative Agent or any other Guaranteed Party of all or any part of
the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all
other amounts payable under this Guaranty shall be paid in full in cash and
(iii) the Termination Date shall have occurred, the Administrative Agent and
the other Guaranteed Parties will, at the Guarantor's request and expense,
execute and deliver to the Guarantor appropriate documents, without recourse
and without representation or warranty, necessary to evidence the transfer by
subrogation to the Guarantor of an interest in the Guaranteed Obligations
resulting from such payment by the Guarantor.
Section 5. Payments Free and Clear of Taxes, Etc. (a) Any
and all payments made by the Guarantor hereunder shall be made free and clear
of and without deduction for any and all present or future Taxes. If the
Guarantor shall be required by law to deduct or withhold any Taxes from or in
respect of any sum payable hereunder to the Administrative Agent or any other
Guaranteed Party, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions or withholding (including deductions
or withholding applicable to additional sums payable under this Section) the
Administrative Agent or such other Guaranteed Party (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions or withholding been made, (ii) the Guarantor shall make such
deductions or withholding and (iii) the Guarantor shall timely pay the full
amount deducted or withheld to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Guarantor agrees to pay any present
or future Other Taxes.
(c) The Guarantor will indemnify and hold harmless the
Administrative Agent and each other Guaranteed Party from and against the full
amount of Taxes or Other Taxes (including, without limitation, Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Section) paid
by the Administrative Agent or such other Guaranteed Party (as the case may be)
and any liability (including penalties, additions to tax, interest on tax and
expenses) arising therefrom or with respect thereto. This indemnification
shall be made within 30 days from the date the Administrative Agent or such
other Guaranteed Party (as the case may be) makes written demand therefor.
<PAGE> 7
5
(d) Within 30 days after the date of any payment of Taxes
by or on behalf of the Guarantor, the Guarantor will furnish to the
Administrative Agent, at its address referred to in the B Share Credit
Agreement, an official receipt (or a certified copy) or other documentation
reasonably acceptable to the Administrative Agent evidencing payment thereof to
the relevant taxation or other authority. In the case of any payment hereunder
by or on behalf of the Guarantor through an account or branch outside the
United States or by or on behalf of the Guarantor by a payor that is not a
United States person, if the Guarantor determines that no Taxes are payable in
respect thereof, the Guarantor shall furnish, or shall cause such payor to
furnish, to the Administrative Agent at such address, an opinion of counsel
acceptable to the Administrative Agent stating that such payment is exempt from
Taxes; provided however, that no such opinion shall be required with respect to
any exemption from Taxes imposed by the United States. For purposes of this
subsection (d) and the following subsection (e), the terms "United States" and
"United States person" shall have the meaning specified in Section 7701 on the
Internal Revenue Code.
(e) Each Guaranteed Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of the B Share Credit Agreement in the case of each
Guaranteed Party listed on the signature pages thereof, and on the date of the
Assignment and Acceptance or the Assumption Agreement, as the case may be,
pursuant to which it became a Guaranteed Party in the case of each other
Guaranteed Party, and from time to time thereafter if requested in writing by
the Guarantor (but only so long thereafter as such Guaranteed Party remains
lawfully able to do so), provide the Administrative Agent and the Guarantor
with two original Internal Revenue Service Forms 1001 or 4224, as appropriate,
or any successor or other form prescribed by the Internal Revenue Service,
certifying that such Guaranteed Party is entitled to benefits under an income
tax treaty to which the United States is a party that reduces the rate of
withholding tax on payments under this Guaranty or certifying that the income
receivable pursuant to this Guaranty is effectively connected with the conduct
of a trade or business in the United States. If the form provided by a
Guaranteed Party at the time such Guaranteed Party first becomes a party to the
B Share Credit Agreement indicates a United States interest withholding tax
rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Guaranteed Party provides the
appropriate form certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from Taxes for
periods governed by such form; provided, that, if at the date of the Assignment
and Acceptance or the Assumption Agreement, as the case may be, pursuant to
which a Guaranteed Party assignee becomes a party to the B Share Credit
Agreement, the Guaranteed Party assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Guaranteed Party assignee on such date. As an
alternative to delivering Internal Revenue Service Form 1001 or 4224, a
Non-U.S. Guaranteed Party holding
<PAGE> 8
6
Registered Notes (a "Registered Noteholder") (or, if such Registered Noteholder
is not the beneficial owner thereof, such beneficial owner) may deliver to the
Guarantor prior to or at the time such Non-U.S. Guaranteed Party becomes a
Registered Noteholder, an Internal Revenue Service Form W-8 (or such successor
and related forms as may from time to time be adopted by the relevant taxing
authorities of the United States), together with an annual certificate stating
that such Registered Noteholder or beneficial owner, as the case may be, is not
any person described in Section 871(h)(3) or Section 881(c)(3) of the United
States Internal Revenue Code. Each Registered Noteholder or beneficial owner,
as the case may be, agrees (x) to deliver to the Guarantor a further duly
completed copy of any previously delivered Internal Revenue Service Form W-8 on
or before the earlier of the date that any such Form W-8 expires or becomes
obsolete under applicable United States Treasury regulations and the date such
Form W-8 otherwise is required to be resubmitted as a condition to obtaining an
exemption from withholding from United States federal income tax and (y) to
notify the Guarantor within thirty days after it determines that it is no
longer in a position to provide such Form W-8 or annual certificate to the
Guarantor.
(f) For any period with respect to which a Guaranteed
Party has failed to provide the Guarantor with the appropriate form described
in subsection (e) above or any successor form (other than if such failure is
due to a change in law occurring after the date on which a form originally was
required to be provided or if such form otherwise is not required under
subsection (e)), such Guaranteed Party shall not be entitled to indemnification
under subsection (a) or (c) with respect to Taxes imposed by the United States
unless such Taxes would have been imposed without regard to such Guaranteed
Party's failure to provide the appropriate form to the Borrower; provided, that
should a Guaranteed Party become subject to Taxes because of its failure to
deliver a form required hereunder, the Guarantor shall take at such Guaranteed
Party's expense such steps as such Guaranteed Party shall reasonably request to
assist such Guaranteed Party to recover such Taxes.
(g) Without prejudice to the survival of any other
agreement of the Guarantor hereunder, the agreements and obligations of the
Guarantor contained in this Section 5 shall survive the termination of the B
Share Credit Agreement, payment in full of the Guaranteed Obligations and all
other amounts payable under this Guaranty.
(h) Notwithstanding anything to the contrary in this
Section 5, the Guarantor shall not be required to pay or indemnify for any Tax
or Other Tax to the extent such Tax or Other Tax would not have been imposed
but for the sale of participations by any Guaranteed Party in or to all or a
portion of its rights and obligations under this Agreement pursuant to Section
10.07(e) of the B Share Credit Agreement.
Section 6. Representations and Warranties. The Guarantor
hereby represents and warrants as follows:
<PAGE> 9
7
(a) The Guarantor (i) is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
(ii) is duly qualified or licensed and is in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property or
in which the conduct of its business requires it so to qualify or be licensed,
and (iii) has all requisite corporate power and authority to own or lease and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted. All of the outstanding capital stock of the Guarantor
has been validly issued, is fully paid and nonassessable.
(b) There are no conditions precedent to the
effectiveness of this Guaranty that have not been satisfied or waived.
(c) The Guarantor has, independently and without reliance
upon the Administrative Agent or any other Guaranteed Party and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Guaranty, and the Guarantor has
established adequate means of obtaining from any other Loan Parties on a
continuing basis information pertaining to, and is now and on a continuing
basis will be completely familiar with, the financial condition, operations,
properties and prospects of such other Loan Parties.
Section 7. Covenants. The Guarantor covenants and agrees
that, so long as any part of the Guaranteed Obligations shall remain unpaid or
any Lender shall have any Commitment, the Guarantor will, unless the Required
Lenders shall otherwise consent in writing, perform or observe all of the
terms, covenants and agreements that the Loan Documents state that the Borrower
is to cause the Guarantor to perform or observe.
Section 8. Amendments, Etc. No amendment or waiver of any
provision of this Guaranty and no consent to any departure by the Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent and the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all of the Guaranteed Parties
(other than any Lender that is, at such time, a Defaulting Lender), (a) limit
the liability of the Guarantor hereunder, (b) postpone any date fixed for
payment hereunder or (c) change the number of Guaranteed Parties required to
take any action hereunder.
Section 9. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed,
telecopied, telexed or delivered to it, if to the Guarantor, addressed to it at
11 Greenway Plaza, Suite 1919, Houston, Texas 77046, Fax No.: (713) 993-9890,
Attention: President, together with a copy to the General Counsel of the
Guarantor at the same address, if to the Administrative Agent or any Guaranteed
Party, at its address specified in the B Share
<PAGE> 10
8
Credit Agreement, or as to any party at such other address as shall be
designated by such party in a written notice to each other party. All such
notices and other communications shall, when mailed, telegraphed, telecopied or
telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively.
Section 10. No Waiver; Remedies. No failure on the part of
the Administrative Agent or any other Guaranteed Party to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
Section 11. Right of Set-off. Upon the occurrence and during
the continuance of any Event of Default, each Guaranteed Party shall have at
any time and from time to time, to the fullest extent permitted by law, without
presentment, demand, protest or other notice of any kind to any Loan Party or
any other Person a right of set off with respect to any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Guaranteed Party (including by
branches and Agencies of such Guaranteed Party, wherever located) to or for the
credit or the account of the Guarantor irrespective of whether or not such
Guaranteed Party shall have made any demand under this Guaranty and although
such Obligations may be contingent or unmatured. Each Guaranteed Party agrees
promptly to notify the Guarantor after any such set-off; provided, that the
failure to give such notice shall not affect the validity of such set-off. The
rights of each Guaranteed Party under this Section are in addition to other
rights and remedies that such Guaranteed Party may have.
Section 12. Indemnification. Without limitation on any
other Obligations of the Guarantor or remedies of the Guaranteed Parties under
this Guaranty, the Guarantor shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless each Guaranteed Party from and
against, and shall pay on demand, any and all losses, liabilities, damages,
costs, expenses and charges (including the fees and disbursements of such
Guaranteed Party's legal counsel) suffered or incurred by such Guaranteed Party
as a result of any failure of any Guaranteed Obligations to be the legal, valid
and binding obligations of the Borrower enforceable against the Borrower in
accordance with their terms provided, that the amounts payable by the Guarantor
pursuant to this Section 12 shall not exceed, in the aggregate, the amount of
the Guaranteed Obligations.
Section 13. Continuing Guaranty; Assignments under the B
Share Credit Agreement. This Guaranty is a continuing guaranty and shall (a)
remain in full force and effect until the later of the payment in full in cash
of the Guaranteed Obligations and all other amounts payable under this Guaranty
and the Termination Date, (b) be binding upon the Guarantor, its successors and
assigns and (c) inure to the benefit of and be enforceable by the
Administrative
<PAGE> 11
9
Agent and the other Guaranteed Parties and their successors, transferees and
assigns. Without limiting the generality of the foregoing clause (c), any
Guaranteed Party may assign or otherwise transfer all or any portion of its
rights and obligations under the B Share Credit Agreement (including, without
limitation, all or any portion of its Commitment, the Loans owing to it and the
Note held by it) to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to such
Guaranteed Party herein or otherwise, in each case as and to the extent
provided in Section 10.07 of the B Share Credit Agreement.
Section 14. Governing Law; Jurisdiction; Waiver of Jury
Trial, Etc. (a) This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to the
conflict of law provisions thereof.
(b) The Guarantor hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting
in New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Guaranty or any of the other Loan
Documents to which it is or is to be a party, or for recognition or enforcement
of any judgment, and the Guarantor hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in any such New York State court or, to the extent permitted by
law, in such federal court. The Guarantor agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(c) Nothing in this Section shall affect the right of any
Guaranteed Party to serve legal process in any other manner permitted by law or
affect the right of any Guaranteed Party to bring any action or proceeding
against the Guarantor or its property in the courts of other jurisdictions.
(d) The Guarantor hereby irrevocably waives, to the
fullest extent permitted by law, all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to any of the Loan Documents, the transactions
contemplated thereby or the actions of the Administrative Agent or any other
Guaranteed Party in the negotiation, administration, performance or enforcement
thereof.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
A I M ADVISORS, INC.
By /s/ ROBERT H. GRAHAM
____________________________________
Title: President
<PAGE> 12
SCHEDULE 1.01A
ELIGIBLE FUNDS
Eligible Funds
--------------
AIM Balanced Fund
AIM Charter Fund
AIM Global Aggressive Growth Fund
AIM Global Growth Fund
AIM Global Income Fund
AIM Intermediate Government Fund
AIM Growth Fund
AIM High Yield Fund
AIM Income Fund
AIM International Equity Fund
AIM Money Market Fund
AIM Municipal Bond Fund
AIM Global Utilities Fund
AIM Value Fund
AIM Weingarten Fund
<PAGE> 13
SCHEDULE 1.01D
INVESTMENTS
-----------
1) Life Partners Group, Inc., 62,182 shares (proposed to be exchanged for
shares of Conseco, Inc. stock).
2) ICI Mutual Insurance Company Reserve Premium.
3) Assets of a trust established to comply with Rule 27d-1 of the
Investment Company Act of 1940 in connection with Summit Investors
Plans. The Company is prohibited from using the assets of such trust.
The amounts vary as required by Rule 27d-1. As of May 31, 1996, an
aggregate amount in trust of approximately $400,000 is currently
invested in:
(a) Federal National Mortgage Association Note. Face
Value $300,000. Matures July 19, 1996. Held through
Merrill Lynch Acct. No. 581-07452; and
(b) Segregated Trust Savings Account at State Street Bank
& Trust Co.
4) Investment in ABAMCO Limited, a management company owned and operated
by a joint venture between A I M Management Group Inc., a Pakistani
broker-dealer, a privately owned Pakistani bank and the International
Finance Corporation.
<PAGE> 14
SCHEDULE 3.02(a)
EXCLUDED ASSET SALES
--------------------
1. Liquidation of seed money contributed to funds advised by A I M
Advisors, Inc. or A I M Capital Management, Inc. from time to time.
2. Exchanges of shares of Life Partners Group, Inc. stock for shares of
Conseco, Inc. stock and subsequent sales of shares of Conseco, Inc.
stock from time to time.
<PAGE> 15
SCHEDULE 6.04
APPROVALS
---------
Filing of UCC Financing Statements:
-Texas Secretary of State
<PAGE> 16
SCHEDULE 6.12
TAXES
-----
Federal Income Tax Audit
- ------------------------
A I M Management Group Inc. and subsidiaries:
The federal tax return on Form 1120 for 1992 is currently under audit.
Status is unknown.
Texas Franchise Tax Audits
- --------------------------
A I M Management Group Inc.
Audit presently covers 1991-1994 tax years (i.e. privilege periods
1992-1995). Status is unknown.
A I M Capital Management, Inc.
Audit presently covers 1991-1993 tax years (i.e., privilege periods
1992-1994). Status is unknown.
<PAGE> 17
SCHEDULE 6.13
ERISA
-----
Plans
- -----
None
Multiemployer Plans
- -------------------
None
Welfare Plans
- -------------
1. AIM Flexible Benefits Plan/A I M Management Group Inc. Section 125 Program
a. Massachusetts Mutual Life Insurance Company Medical, Life
Insurance and Accidental Death & Dismemberment Program
b. DentiCare, Inc. Dental Program
c. UniLife Insurance Company Dental Program
2. A I M Management Group Inc. Long-Term Disability Income Benefit Plan
3. A I M Management Group Inc. Short-Term Disability Income Benefit Plan
4. A I M Management Group Inc. Travel Accident Policy
5. A I M Management Group Inc. Plan 21 (Employee Assistance Plan)
6. A I M Management Group Inc. Profit Sharing Plan
7. A I M Management Group Inc. Life & Accidental Death & Dismemberment
Insurance
<PAGE> 18
SCHEDULE 7.02
LIENS
-----
None
<PAGE> 1
EXHIBIT 10.9
B SHARE COLLATERAL AGREEMENT
Dated June 26, 1996
From
A I M MANAGEMENT GROUP INC.
as Borrower
-----------
to
CITIBANK, N.A.
as Administrative Agent
-----------------------
<PAGE> 2
T A B L E O F C O N T E N T S
---------------------------------
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
1. Grant of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Security for Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. Borrower Remains Liable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Delivery of Account Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. Maintaining the B Share Collateral Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
6. Investing of Amounts in the B Share Collateral Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
7. Release of Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
8. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
9. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
10. Place of Perfection; Records; Collection of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
11. As to the Assigned Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
12. Payments Under the Assigned Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
13. Transfers and Other Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
14. Administrative Agent Appointed Attorney-in-Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
15. Administrative Agent May Perform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
16. The Administrative Agent's Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
17. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
18. Indemnity and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
19. Amendments; Waivers; Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
<PAGE> 3
ii
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
20. Addresses for Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
21. Continuing Security Interest; Assignments under the Credit Agreement . . . . . . . . . . . . . . . . . . . . . . 12
22. Release and Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
23. Governing Law; Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
Schedule I - Assigned Agreements
Exhibit A - Form of Consent and Agreement
<PAGE> 4
B SHARE COLLATERAL AGREEMENT
B SHARE COLLATERAL AGREEMENT dated June __, 1996 made by A I M
MANAGEMENT GROUP INC., a Delaware corporation with an office at 11 Greenway
Plaza, Suite 1919, Houston, Texas 77046 (the "Borrower"), to Citibank, N.A.
("Citibank"), as administrative agent (the "Administrative Agent") for the
lenders (the "Lenders") party to the Credit Agreement (as hereinafter defined).
PRELIMINARY STATEMENTS.
(1) The Lenders and the Administrative Agent have entered
into a Credit Agreement dated as of June __, 1996 (said Agreement, as it may
hereafter be amended or otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined herein being
used herein as therein defined) with the Borrower.
(2) The Borrower has opened a collateral account (the "B
Share Collateral Account") with A I M Money Market Fund at its office at 11
Greenway Plaza, Suite 1919, Houston, Texas 77046, Account No. 40 20 702 9182,
in the name of the Borrower, pledged to the Administrative Agent and subject to
the terms of this Agreement.
(3) It is a condition precedent to the making of Loans by
the Lenders under the Credit Agreement that the Borrower shall have granted the
assignment and security interest and made the pledge and assignment
contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Lenders to make Loans under the Credit Agreement, the Borrower
hereby agrees with the Administrative Agent for its benefit and the ratable
benefit of the Lenders as follows:
Section 1. Grant of Security. The Borrower hereby assigns
and pledges to the Administrative Agent for its benefit and the ratable benefit
of the Lenders, and hereby grants to the Administrative Agent for its benefit
and the ratable benefit of the Lenders a security interest in, the following
(collectively, the "Collateral"):
(a) all of the Borrower's right, title and interest,
whether now owned or hereafter acquired, in and to all accounts,
contract rights, chattel paper, instruments, deposit accounts, general
intangibles and other obligations of any kind, now or hereafter
existing, constituting Deferred Load Amounts (other than Deferred Load
Amounts that, on any date of determination, have been sold pursuant to
a Securitization Program) and the proceeds of any Securitization
Program (any and all such accounts, contract rights, chattel paper,
instruments, deposit accounts, general intangibles and obligations, to
the extent not referred to in clause (b), (c) or (d) below, being the
"Receivables");
<PAGE> 5
2
(b) all of the Borrower's right, title and interest in
its capacity as "Seller" in and to the Collection Agency Agreement
described on Schedule I hereto and all of the Borrower's right, title
and interest in and to each other agreement listed on Schedule I, as
such agreements may be amended or otherwise modified from time to time
(collectively, the "Assigned Agreements"), including, without
limitation, (i) all rights of the Borrower to receive moneys due and
to become due under or pursuant to the Assigned Agreements, (ii) all
rights of the Borrower to receive proceeds of any insurance,
indemnity, warranty or guaranty with respect to the Assigned
Agreements, (iii) claims of the Borrower for damages arising out of or
for breach of or default under the Assigned Agreements and (iv) the
right of the Borrower to compel performance and otherwise exercise all
remedies thereunder (all such Collateral being the "Agreement
Collateral");
(c) all of the following (collectively, the "Account
Collateral"):
(i) the B Share Collateral Account, all funds
held therein and all certificates and instruments, if any,
from time to time representing or evidencing the B Share
Collateral Account;
(ii) all Collateral Investments (as hereinafter
defined) from time to time and all certificates and
instruments, if any, from time to time representing or
evidencing the Collateral Investments;
(iii) all notes, certificates of deposit, deposit
accounts, checks and other instruments from time to time
hereafter delivered to or otherwise possessed by the
Administrative Agent for or on behalf of the Borrower in
substitution for or as a proceed of any or all of the then
existing Account Collateral; and
(iv) all interest, dividends, cash, instruments
and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or
all of the then existing Account Collateral; and
(d) all proceeds of any and all of the foregoing
Collateral (including, without limitation, proceeds that constitute
property of the types described in clauses (a) - (c) of this Section
1) and, to the extent not otherwise included, all (i) payments under
insurance (whether or not the Administrative Agent is the loss payee
thereof), or any indemnity, warranty or guaranty, payable by reason of
loss or damage to any of the foregoing Collateral and (ii) cash.
Notwithstanding anything in this Agreement to the contrary,
"Collateral" shall not include any assets sold by the Borrower
pursuant to a Securitization Program or any
<PAGE> 6
3
rights under the Assigned Agreements with respect to assets sold by
the Borrower pursuant to a Securitization Program.
Section 2. Security for Obligations. This Agreement secures
the payment of all Obligations of the Borrower now or hereafter existing under
the Loan Documents, whether for principal, interest, fees, expenses or
otherwise (all such Obligations being the "Secured Obligations"). Without
limiting the generality of the foregoing, this Agreement secures the payment of
all amounts that constitute part of the Secured Obligations and would be owed
by the Borrower to the Administrative Agent or the Lenders under the Loan
Documents but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
the Borrower.
Section 3. Borrower Remains Liable. Anything herein to the
contrary notwithstanding, (a) the Borrower shall remain liable under the
contracts and agreements included in the Collateral to the extent set forth
therein to perform all of its duties and obligations thereunder to the same
extent as if this Agreement had not been executed, (b) the exercise by the
Administrative Agent of any of the rights hereunder shall not release the
Borrower from any of its duties or obligations under the contracts and
agreements included in the Collateral and (c) neither the Administrative Agent
nor any Lender shall have any obligation or liability under the contracts and
agreements included in the Collateral by reason of this Agreement, nor shall
the Administrative Agent or any Lender be obligated to perform any of the
obligations or duties of the Borrower thereunder or to take any action to
collect or enforce any claim for payment assigned hereunder.
Section 4. Delivery of Account Collateral. All certificates
or instruments representing or evidencing Account Collateral shall be delivered
to and held by or on behalf of the Administrative Agent pursuant hereto and
shall be in suitable form for transfer by delivery, or shall be accompanied by
duly executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to the Administrative Agent. The Administrative Agent
shall have the right, at any time in its discretion and without notice to the
Borrower, to transfer to or to register in the name of the Administrative Agent
or any of its nominees any or all of the Account Collateral. In addition, the
Administrative Agent shall have the right at any time to exchange certificates
or instruments representing or evidencing Account Collateral for certificates
or instruments of smaller or larger denominations.
Section 5. Maintaining the B Share Collateral Account. So
long as any Loan shall remain unpaid or any Lender shall have any Commitment
under the Credit Agreement:
(a) The Borrower will maintain the B Share Collateral
Account pledged to the Administrative Agent;
<PAGE> 7
4
(b) The Borrower shall deposit into the B Share
Collateral Agreement, on each day, immediately available funds in an
amount equal to all Deferred Load Amounts received by the Borrower
that are not deposited into the Demand Deposit Account (as defined in
the Collection Agency Agreement); and
(c) It shall be a term and condition of the B Share
Collateral Account, notwithstanding any term or condition to the
contrary in any other agreement relating to the B Share Collateral
Account and except as otherwise provided by the provisions of Section
7 and Section 17, that no amount (including interest on Collateral
Investments) shall be paid or released to or for the account of, or
withdrawn by or for the account of, the Borrower or any other Person
from the B Share Collateral Account.
The B Share Collateral Account shall be subject to such applicable laws, and
such applicable regulations of the Board of Governors of the Federal Reserve
System and of any other appropriate banking or governmental authority, as may
now or hereafter be in effect.
Section 6. Investing of Amounts in the B Share Collateral
Account. If requested by the Borrower, the Administrative Agent will, subject
to the provisions of Section 7 and Section 17, from time to time (a) invest
amounts on deposit in the B Share Collateral Account in such Cash Equivalents
in the name of the Administrative Agent as the Borrower may select and (b)
invest interest paid on the Cash Equivalents referred to in clause (a) above,
and reinvest other proceeds of any such Cash Equivalents that may mature or be
sold, in each case in such Cash Equivalents in the name of the Administrative
Agent as the Borrower may select (the Cash Equivalents referred to in clauses
(a) and (b) above being collectively "Collateral Investments"). Interest and
proceeds that are not invested or reinvested in Collateral Investments as
provided above shall be deposited and held in the B Share Collateral Account.
Section 7. Release of Amounts. So long as no Event of
Default shall have occurred and be continuing, on the 20th day of each month
the Administrative Agent will liquidate the Collateral Investments in a
commercially reasonable manner to the extent necessary to provide for the
timely receipt by the Administrative Agent of cash to make the payments
described in this Section 7 and (a) apply available funds then on deposit in
the B Share Collateral Account to the prepayment of the Loans under Section
3.02(b) of the Credit Agreement and (b) pay and release to the Borrower or at
its order and at the request of the Borrower, the amount of any remaining
available funds in the B Share Collateral Account after the foregoing
application, provided that the amount paid pursuant to this clause (b) shall
not exceed an amount equal to the sum of (x) the excess, if any, of Deferred
Load Amounts paid into the B Share Collateral Account during the one month
period ending on the 15th day of such month over Facility Collections for such
period and (y) any interest or income on the Collateral Investments accrued on
or prior to such 15th day.
<PAGE> 8
5
Section 8. Representations and Warranties. The Borrower
represents and warrants as follows:
(a) The chief place of business and chief executive
office of the Borrower and the office where the Borrower keeps its
records concerning the Receivables, and the original copies of each
Assigned Agreement, are located at the address first specified above
for the Borrower. None of the Receivables or Agreement Collateral is
evidenced by a promissory note or other instrument.
(b) The Borrower is the legal and beneficial owner of the
Collateral free and clear of any Lien, except for the security
interest created by this Agreement. No effective financing statement
or other instrument similar in effect covering all or any part of the
Collateral is on file in any recording office, except such as may have
been filed in favor of the Administrative Agent relating to this
Agreement. The Borrower has no trade names.
(c) The Assigned Agreements, true and complete copies of
which have been furnished to each Lender, have been duly authorized,
executed and delivered by all parties thereto, have not been amended
or otherwise modified, are in full force and effect and are binding
upon and enforceable against all parties thereto in accordance with
their terms. There exists no default under any Assigned Agreement by
any party thereto. Each party to the Assigned Agreements (other than
the Collection Agency Agreement described on Schedule I) other than
the Borrower has executed and delivered to the Borrower a consent, in
substantially the form of Exhibit A, to the assignment of the
Agreement Collateral to the Administrative Agent pursuant to this
Agreement.
(d) The Borrower has instructed (i) AIM Distributors to
make all payments under the Distribution Fee Purchase Agreement to the
Demand Deposit Account (as defined in the Collection Agency
Agreement), (ii) each Eligible Fund or its transfer agent to make all
payments that are the proceeds of Receivables to the Demand Deposit
Account and (iii) the Collection Agent to make all payments
distributable to the Borrower under the Collection Agency Agreement to
the B Share Collateral Account.
(e) This Agreement creates a valid and perfected first
priority security interest in the Collateral, securing the payment of
the Secured Obligations, and all filings and other actions necessary
or desirable to perfect and protect such security interest have been
duly taken.
(f) No consent of any other Person and no authorization,
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or other third party is
required either (i) for the grant by the Borrower of the assignment
and security interest granted hereby or for the execution, delivery or
performance of this
<PAGE> 9
6
Agreement by the Borrower, (ii) for the perfection or maintenance of
the pledge, assignment and security interest created hereby (including
the first priority nature of such pledge, assignment or security
interest), except for the filing of financing and continuation
statements under the Uniform Commercial Code, which financing
statements have been duly filed, or (iii) for the exercise by the
Administrative Agent of its rights provided for in this Agreement or
the remedies in respect of the Collateral pursuant to this Agreement.
Section 9. Further Assurances. (a) The Borrower agrees that
from time to time, at the expense of the Borrower, the Borrower will promptly
execute and deliver all further instruments and documents, and take all further
action, that may be necessary or desirable, or that the Administrative Agent
may request, in order to perfect and protect any pledge, assignment or security
interest granted or purported to be granted hereby or to enable the
Administrative Agent to exercise and enforce its rights and remedies hereunder
with respect to any Collateral. Without limiting the generality of the
foregoing, the Borrower will: (i) mark conspicuously each Assigned Agreement
and, at the request of the Administrative Agent, each of its records pertaining
to the Collateral with a legend, in form and substance satisfactory to the
Administrative Agent, indicating that such document, chattel paper, Assigned
Agreement or Collateral is subject to the security interest granted hereby;
(ii) if any Collateral shall be evidenced by a promissory note or other
instrument, deliver and pledge to the Administrative Agent hereunder such note
or instrument duly indorsed and accompanied by duly executed instruments of
transfer or assignment, all in form and substance satisfactory to the
Administrative Agent; and (iii) execute and file such financing or continuation
statements, or amendments thereto, and such other instruments or notices, as
may be necessary or desirable, or as the Administrative Agent may request, in
order to perfect and preserve the pledge, assignment and security interest
granted or purported to be granted hereby.
(b) The Borrower hereby authorizes the Administrative
Agent to file one or more financing or continuation statements, and amendments
thereto, relating to all or any part of the Collateral without the signature of
the Borrower where permitted by law. A photocopy or other reproduction of this
Agreement or any financing statement covering the Collateral or any part
thereof shall be sufficient as a financing statement where permitted by law.
(c) The Borrower will furnish to the Administrative Agent
from time to time statements and schedules further identifying and describing
the Collateral and such other reports in connection with the Collateral as the
Administrative Agent may reasonably request, all in reasonable detail.
Section 10. Place of Perfection; Records; Collection of
Receivables. (a) The Borrower shall keep its chief place of business and
chief executive office and the office where it keeps its records concerning the
Collateral at the location therefor specified in Section 8(a) or, upon 30 days'
prior written notice to the Administrative Agent, at such other locations in a
<PAGE> 10
7
jurisdiction where all actions required by Section 9 shall have been taken with
respect to the Collateral. The Borrower will hold and preserve such records
and Assigned Agreements and will permit representatives of the Administrative
Agent at any time during normal business hours to inspect and make abstracts
from such records.
(b) Except as otherwise provided in this subsection (b),
the Borrower shall continue to collect, at its own expense, all amounts due or
to become due the Borrower under the Receivables. In connection with such
collections, the Borrower may take (and, at the Administrative Agent's
direction, shall take) such action as the Borrower or the Administrative Agent
may deem necessary or advisable to enforce collection of the Receivables;
provided, however, that the Administrative Agent shall have the right at any
time, upon the occurrence and during the continuance of a Default and upon
written notice to the Borrower of its intention to do so, at the expense of the
Borrower, to enforce collection of any such Receivables, and to adjust, settle
or compromise the amount or payment thereof, in the same manner and to the same
extent as the Borrower might have done. After receipt by the Borrower of the
notice from the Administrative Agent referred to in the proviso to the
preceding sentence, (i) all amounts and proceeds (including instruments)
received by the Borrower in respect of the Receivables shall be received in
trust for the benefit of the Administrative Agent hereunder, shall be
segregated from other funds of the Borrower and shall be forthwith paid over to
the Administrative Agent in the same form as so received (with any necessary
indorsement) to be deposited in the B Share Collateral Account and either (A)
released to the Borrower on the terms set forth in Section 7 so long as no
Event of Default shall have occurred and be continuing or (B) if any Event of
Default shall have occurred and be continuing, applied as provided by Section
17(b) and (ii) the Borrower shall not adjust, settle or compromise the amount
or payment of any Receivable, release wholly or partly any obligor thereof, or
allow any credit or discount thereon.
Section 11. As to the Assigned Agreements. (a) The Borrower
shall at its expense:
(i) perform and observe all the terms and provisions of
the Assigned Agreements to be performed or observed by it, maintain
the Assigned Agreements in full force and effect, enforce the Assigned
Agreements in accordance with their terms and take all such action to
such end as may be from time to time requested by the Administrative
Agent; and
(ii) furnish to the Administrative Agent promptly upon
receipt thereof copies of all notices, requests and other documents
received by the Borrower under or pursuant to the Assigned Agreements,
and from time to time (A) furnish to the Administrative Agent such
information and reports regarding the Collateral as the Administrative
Agent may reasonably request and (B) upon request of the
Administrative Agent make to each other party to any Assigned
Agreement such demands and requests for information and reports or for
action as the Borrower is entitled to make thereunder.
<PAGE> 11
8
(b) The Borrower shall not:
(i) cancel or terminate any Assigned Agreement or consent
to or accept any cancellation or termination thereof;
(ii) amend or otherwise modify any Assigned Agreement or
give any consent, waiver or approval thereunder;
(iii) waive any default under or breach of any Assigned
Agreement; or
(iv) take any other action in connection with any Assigned
Agreement that would impair the value of the interest or rights of the
Borrower thereunder or that would impair the interest or rights of the
Administrative Agent.
Section 12. Payments Under the Assigned Agreements. (a) The
Borrower agrees, and has effectively so instructed each other party to each
Assigned Agreement, that all payments due or to become due under or in
connection with such Assigned Agreement shall be made directly to either the B
Share Collateral Account or the Demand Deposit Account, as specified in Section
8(d) above.
(b) Except as set forth in Section 17, all moneys
received or collected pursuant to subsection (a) above shall be applied as set
forth in Section 7.
Section 13. Transfers and Other Liens. The Borrower shall
not, except pursuant to a Securitization Program, (i) sell, assign (by
operation of law or otherwise) or otherwise dispose of, or grant any option
with respect to, any of the Collateral or (ii) create or suffer to exist any
Lien upon or with respect to any of the Collateral except for the pledge,
assignment and security interest created by this Agreement.
Section 14. Administrative Agent Appointed Attorney-in-Fact.
The Borrower hereby irrevocably appoints the Administrative Agent the
Borrower's attorney-in-fact, with full authority in the place and stead of the
Borrower and in the name of the Borrower or otherwise, from time to time in the
Administrative Agent's discretion at any time that a Default has occurred and
is continuing, to take any action and to execute any instrument that the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Agreement, including, without limitation:
(a) to ask for, demand, collect, sue for, recover,
compromise, receive and give acquittance and receipts for moneys due
and to become due under or in respect of any of the Collateral,
<PAGE> 12
9
(b) to receive, indorse and collect any drafts or other
instruments, documents and chattel paper, in connection with clause
(a) above, and
(c) to file any claims or take any action or institute
any proceedings that the Administrative Agent may deem necessary or
desirable for the collection of any of the Collateral or otherwise to
enforce compliance with the terms and conditions of any Assigned
Agreement or the rights of the Administrative Agent with respect to
any of the Collateral.
Section 15. Administrative Agent May Perform. If the
Borrower fails to perform any agreement contained herein, the Administrative
Agent may itself perform, or cause performance of, such agreement, and the
expenses of the Administrative Agent incurred in connection therewith shall be
payable by the Borrower under Section 18(b).
Section 16. The Administrative Agent's Duties. The powers
conferred on the Administrative Agent hereunder are solely to protect its
interest in the Collateral and shall not impose any duty upon it to exercise
any such powers. Except for the safe custody of any Collateral in its
possession and the accounting for moneys actually received by it hereunder, the
Administrative Agent shall have no duty as to any Collateral, as to
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral, whether or not
the Administrative Agent or any Lender has or is deemed to have knowledge of
such matters, or as to the taking of any necessary steps to preserve rights
against any parties or any other rights pertaining to any Collateral. The
Administrative Agent shall be deemed to have exercised reasonable care in the
custody and preservation of any Collateral in its possession if such Collateral
is accorded treatment substantially equal to that which Citibank accords its
own property.
Section 17. Remedies. If any Event of Default shall have
occurred and be continuing:
(a) The Administrative Agent may exercise in respect of
the Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a
secured party upon default under the Uniform Commercial Code in effect
in the State of New York at such time (the "N.Y. Uniform Commercial
Code") (whether or not the N.Y. Uniform Commercial Code applies to the
affected Collateral) and also may (i) require the Borrower to, and the
Borrower hereby agrees that it will at its expense and upon request of
the Administrative Agent forthwith, assemble all or part of the
Collateral as directed by the Administrative Agent and make it
available to the Administrative Agent at a place to be designated by
the Administrative Agent that is reasonably convenient to both parties
and (ii) without notice except as specified below, sell the Collateral
or any part thereof in one or more parcels at public or private sale,
at any of the Administrative Agent's offices or elsewhere, for cash,
on credit or for future
<PAGE> 13
10
delivery, and upon such other terms as the Administrative Agent may
deem commercially reasonable. The Borrower agrees that, to the extent
notice of sale shall be required by law, at least ten days' notice to
the Borrower of the time and place of any public sale or other
disposition or the time after which any private sale is to be made
shall constitute reasonable notification. The Administrative Agent
shall not be obligated to make any sale or other disposition of
Collateral regardless of notice of sale having been given. The
Administrative Agent may adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to
which it was so adjourned.
(b) All cash proceeds received by the Administrative
Agent in respect of any sale of, collection from, or other realization
upon all or any part of the Collateral may, in the discretion of the
Administrative Agent, be held by the Administrative Agent as
collateral for, and/or then or at any time thereafter applied (after
payment of any amounts payable to the Administrative Agent pursuant to
Section 18) in whole or in part by the Administrative Agent for the
ratable benefit of the Lenders against, all or any part of the Secured
Obligations in such order as the Administrative Agent shall elect.
Any surplus of such cash or cash proceeds held by the Administrative
Agent and remaining after payment in full of all the Secured
Obligations shall be paid over to the Borrower or to whomsoever may be
lawfully entitled to receive such surplus.
(c) The Administrative Agent may exercise any and all
rights and remedies of the Borrower under or in connection with the
Assigned Agreements or otherwise in respect of the Collateral,
including, without limitation, any and all rights of the Borrower to
demand or otherwise require payment of any amount under, or
performance of any provision of, any Assigned Agreement.
(d) All payments received by the Borrower under or in
connection with any Assigned Agreement or otherwise in respect of the
Collateral shall be received in trust for the benefit of the
Administrative Agent, shall be segregated from other funds of the
Borrower and shall be forthwith paid over to the Administrative Agent
in the same form as so received (with any necessary indorsement).
(e) The Administrative Agent may, without notice to the
Borrower except as required by law and at any time or from time to
time, charge, set-off and otherwise apply all or any part of the
Secured Obligations against the B Share Collateral Account or any part
thereof.
(f) Notwithstanding anything in this Agreement to the
contrary, so long as each Financing Participant shall be subject to a
similar restriction for the benefit of the Administrative Agent and
the Lenders, the Administrative Agent shall not exercise any right,
remedy or power, whether under this Agreement, at law or at equity
(including,
<PAGE> 14
11
without limitation, any right or power to enforce, to sell, at any
public or private sale, to foreclose upon or otherwise dispose of any
Collateral that relate to Designated Shares of a Designated AIM Fund),
the effect of which is to cause (i) any Deferred Load Amount relating
to any Designated Share of a Designated AIM Fund not to be remitted by
the applicable Designated AIM Fund to the Demand Deposit Account or
(ii) which would otherwise adversely affect the rights of any
Financing Participant in any asset the subject of the Securitization
Program, in each case without the prior written consent of Citicorp
North America, Inc., as Program Agent.
Section 18. Indemnity and Expenses. (a) The Borrower agrees
to indemnify the Administrative Agent from and against any and all claims,
losses and liabilities growing out of or resulting from this Agreement
(including, without limitation, enforcement of this Agreement), except claims,
losses or liabilities resulting from the Administrative Agent's gross
negligence, bad faith or willful misconduct as determined by a final judgment
of a court of competent jurisdiction.
(b) The Borrower will upon demand pay to the
Administrative Agent the amount of any and all reasonable expenses, including
the reasonable fees and expenses of its counsel and of any experts and agents,
that the Administrative Agent may incur in connection with (i) the
administration of this Agreement, (ii) the custody, preservation, use or
operation of, or the sale of, collection from or other realization upon, any of
the Collateral, (iii) the exercise or enforcement of any of the rights of the
Administrative Agent or the Lenders hereunder or (iv) the failure by the
Borrower to perform or observe any of the provisions hereof.
Section 19. Amendments; Waivers; Etc. No amendment or waiver
of any provision of this Agreement, and no consent to any departure by the
Borrower herefrom, shall in any event be effective unless the same shall be in
writing and signed by the Administrative Agent and the Required Lenders, and
then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No failure on the part of the
Administrative Agent to exercise, and no delay in exercising any right
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or
the exercise of any other right.
Section 20. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including
telecopier, telegraphic, telex or cable communication) and, mailed,
telegraphed, telecopied, telexed, cabled or delivered to the Borrower or to the
Administrative Agent, as the case may be, in each case addressed to it at its
address specified in the Credit Agreement or, as to either party, at such other
address as shall be designated by such party in a written notice to each other
party complying as to delivery with the terms of this Section. All such
notices and other communications shall, when mailed, telecopied, telegraphed,
telexed or cabled, respectively, be effective when deposited in the mails,
<PAGE> 15
12
telecopied, delivered to the telegraph company, confirmed by telex answerback
or delivered to the cable company, respectively, addressed as aforesaid.
Section 21. Continuing Security Interest; Assignments under
the Credit Agreement. This Agreement shall create a continuing security
interest in the Collateral and shall (a) remain in full force and effect until
the later of the payment in full in cash of the Secured Obligations and the
Termination Date, (b) be binding upon the Borrower, its successors and assigns
and (c) inure, together with the rights and remedies of the Administrative
Agent hereunder, to the benefit of the Administrative Agent, the Lenders and
their respective successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), any Lender may assign or otherwise
transfer all or any portion of its rights and obligations under the Credit
Agreement (including, without limitation, all or any portion of its Commitment,
the Loans owing to it and the Note held by it to any other Person, and such
other Person shall thereupon become vested with all the benefits in respect
thereof granted to such Lender herein or otherwise, in each case as provided in
Section 10.07 of the Credit Agreement.
Section 22. Release and Termination. (a) Upon any sale,
lease, transfer or other disposition of any item of Collateral in accordance
with the terms of the Loan Documents, the Administrative Agent will, at the
Borrower's expense, execute and deliver to the Borrower such documents as the
Borrower shall reasonably request to evidence the release of such item of
Collateral from the assignment and security interest granted hereby; provided,
however, that (i) at the time of such request and such release no Default shall
have occurred and be continuing, (ii) the Borrower shall have delivered to the
Administrative Agent, at least ten Business Days prior to the date of the
proposed release, a written request for release describing the item of
Collateral and the terms of the sale, lease, transfer or other disposition in
such reasonable detail as shall be acceptable to the Administrative Agent,
together with a form of release for execution by the Administrative Agent and a
certification by the Borrower to the effect that the transaction is in
compliance with the Loan Documents and as to such other matters as the
Administrative Agent may request and (iii) the proceeds of any such sale,
lease, transfer or other disposition required to be applied in accordance with
Section 3.02(a) of the Credit Agreement shall be paid to, or in accordance with
the instructions of, the Administrative Agent at the closing.
(b) Upon the later of the payment in full in cash of the
Secured Obligations and the Termination Date, the pledge, assignment and
security interest granted hereby shall terminate and all rights to the
Collateral shall revert to the Borrower. Upon any such termination, the
Administrative Agent will, at the Borrower's expense, execute and deliver to
the Borrower such documents as the Borrower shall reasonably request to
evidence such termination.
Section 23. Governing Law; Terms. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
except to the extent that the validity or perfection of the security interest
hereunder, or remedies hereunder, in respect of any
<PAGE> 16
13
particular Collateral are governed by the laws of a jurisdiction other than the
State of New York. Unless otherwise defined herein or in the Credit Agreement,
terms used in Article 9 of the N.Y. Uniform Commercial Code are used herein as
therein defined.
IN WITNESS WHEREOF, the Borrower has caused this Agreement to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
A I M MANAGEMENT GROUP INC.
By /s/ ROBERT H. GRAHAM
---------------------------
Title: President
<PAGE> 17
SCHEDULE I
ASSIGNED AGREEMENTS
1. Collection Agency Agreement dated as of May 2, 1995 among Citibank,
N.A., Citicorp North America, Inc., as Program Agent, the Borrower,
Citibank, N.A., as Administrative Agent, and Bankers Trust Company, as
Collection Agent, as amended through June 26, 1996.
2. Second Amended and Restated Distribution Fee Purchase Agreement dated
as of June 26, 1996 between the Borrower and A I M Distributors, Inc.
<PAGE> 18
EXHIBIT A
FORM OF CONSENT AND AGREEMENT
The undersigned hereby acknowledges notice of, and consents to
the terms and provisions of, the B Share Collateral Agreement dated June__,
1996 (the "B Share Collateral Agreement", the terms defined therein being used
herein as therein defined) from A I M Management Group Inc. (the "Borrower") to
Citibank, N.A., as agent (the "Administrative Agent") for the Lenders referred
to therein, and hereby agrees with the Administrative Agent that:
(a) The undersigned will make all payments to be made by
it under or in connection with the __________ Agreement dated
_______________, 19__ (the "Assigned Agreement") between the
undersigned and the Borrower directly to the Demand Deposit Account or
otherwise in accordance with the instructions of the Administrative
Agent and the Program Agent.
(b) All payments referred to in paragraph (a) above shall
be made by the undersigned irrespective of, and without deduction for,
any counterclaim, defense, recoupment or set-off and shall be final,
and the undersigned will not seek to recover from the Administrative
Agent or any Lender for any reason any such payment once made.
(c) The Administrative Agent shall be entitled to
exercise any and all rights and remedies of the Borrower under the
Assigned Agreement in accordance with the terms of the B Share
Collateral Agreement, and the undersigned shall comply in all respects
with such exercise.
(d) The undersigned will not, without the prior written
consent of the Administrative Agent, (i) cancel or terminate the
Assigned Agreement or consent to or accept any cancellation or
termination thereof or (ii) amend or otherwise modify the Assigned
Agreement.
This Consent and Agreement shall be binding upon the
undersigned and its successors and assigns, and shall inure, together with the
rights and remedies of the Administrative Agent hereunder, to the benefit of
the Administrative Agent, the Lenders and their successors, transferees and
assigns. This Consent and Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
<PAGE> 19
IN WITNESS WHEREOF, the undersigned has duly executed this
Consent and Agreement as of the date set opposite its name below.
Dated: _______________, 19__ [NAME OF OBLIGOR]
By:____________________________________
Title:
<PAGE> 1
EXHIBIT 10.10
TWENTY-FIFTH AMENDMENT OF LEASE CONTRACT
----------------------------------------
THIS TWENTY-FIFTH AMENDMENT OF LEASE CONTRACT ("Twenty-Fifth Amendment") is
entered into between NINE GREENWAY, LTD., a Texas limited partnership
("Landlord"), and A I M MANAGEMENT GROUP INC., a Delaware corporation
("Tenant"), with reference to the following:
A. Nine Greenway Venture (predecessor in interest to Landlord)
and Tenant entered into a Lease Contract Dated April 14, 1980, First Amendment
of Lease Contract dated January 29, 1981, Second Amendment of Lease Contract
dated November 12, 1982, Third Amendment of Lease Contract dated August 17,
1984, Fourth Amendment of Lease Contract dated April 28, 1986, Fifth Amendment
of Lease Contract dated December 11, 1986, Sixth Amendment of Lease Contract
dated August 6, 1987, Seventh Amendment of Lease Contract dated February 4,
1988, and Eighth Amendment of Lease Contract dated January 6, 1989 (the "Eighth
Amendment"), and Landlord and Tenant entered into a Ninth Amendment of Lease
Contract dated March 27, 1990, Tenth Amendment of Lease Contract dated June 12,
1990, Eleventh Amendment of Lease Contract dated August 27, 1990, Twelfth
Amendment of Lease Contract dated July 15, 1991, Thirteenth Amendment of Lease
Contract dated January 13, 1992, Fourteenth Amendment of Lease Contract dated
July 17, 1992, Fifteenth Amendment of Lease Contract dated July 17, 1992,
Sixteenth Amendment of Lease Contract dated August 10, 1992, Seventeenth
Amendment of Lease Contract dated February 25, 1993, Eighteenth Amendment of
Lease Contract dated April 22, 1994, Nineteenth Amendment of Lease Contract
dated March 31, 1995, Twentieth Amendment of Lease Contract dated July 31,
1995, Twenty-First Amendment of Lease Contract dated August 1, 1995 and
Twenty-Second Amendment of Lease Contract (the "Twenty-Second Amendment") dated
December 1, 1995, Twenty-Third Amendment of Lease Contract dated March 18,
1996, and the Twenty-Fourth Amendment of Lease Contract dated March 18, 1996
(the "Twenty-Fourth Amendment") [as amended, the "Lease"] covering
approximately 267,507 square feet of Rentable Area consisting of: approximately
9,671 square feet of Rentable Area on the Concourse Level; approximately 4,607
square feet of Rentable Area on the first (1st) floor, approximately 23,399
square feet of Rentable Area being the entirety of the sixth (6th) floor;
approximately 23,399 square feet of Rentable Area being the entirety of the
seventh (7th) floor; approximately 17,741 square feet of Rentable Area on the
eleventh (11th) floor [of which approximately 10,940 square feet of Rentable
Area shall become effective on or about November 16, 1996]; approximately
23,399 square feet of Rentable Area on the twelfth (12th) floor [of which 7,698
square feet of Rentable Area is not effective until August 16, 1996];
approximately 23,829 square feet of Rentable Area being the entirety of the
thirteenth (13th) floor; approximately 9,655 square feet of Rentable Area on
the seventeenth (17th) floor; approximately 23,782 square feet of Rentable Area
being the entirety of the eighteenth (18th) floor; approximately 23,782 square
feet of Rentable Area being the entirety of the nineteenth (19th) floor;
approximately 24,113 square feet of Rentable Area being the entirety of the
twenty-third (23rd) floor; approximately 24,113 square feet of Rentable Area
being the entirety of the twenty-fourth (24th) floor; approximately 24, 113
square feet of Rentable Area being the entirety of the twenty-fifth (25th)
floor; and approximately 11,904 square feet of Rentable Area on the
twenty-sixth (26th) floor of the building known as Summit Tower, Eleven
Greenway, Houston, Texas (the "Building").
B. Tenant wishes to lease from Landlord additional space located
on the seventeenth (17th) floor of the Building as hereinafter described.
C. Landlord and Tenant now desire to enter into this Twenty-Fifth
Amendment to confirm certain Commencement Dates, and to incorporate additional
space and adjust the Base Rental and Building Operating Cost accordingly, as
provided below.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are acknowledged, the parties agree as follows:
1. CONFIRMATION OF COMMENCEMENT DATES. This confirms the anticipated
Commencement Dates contemplated in the Twenty-Fourth Amendment as follows:
a. The Commencement Date for Expansion Space V occurred on March
16, 1996.
b. The Commencement Date for Expansion Space W occurred on April
16, 1996.
c. The Commencement Date for Expansion Space Y occurred on May 1,
1996.
d. The Commencement Date for Expansion Spaces Z occurred on May
16, 1996.
1
<PAGE> 2
2. ADDITIONAL SPACE. Landlord leases to Tenant and Tenant leases from
Landlord approximately 4,665 square feet of Rentable Area on the seventeenth
(17th) floor of the Building shown outlined and hatched on EXHIBIT "A" attached
hereto ("Expansion Space BB"). The lease term for Expansion Space BB shall
commence on the "Commencement Date: defined below and shall expire on December
31, 2003, the date of expiration of the Fourth Extension Period. The
Commencement Date for Expansion Space BB shall be forty-five (45) days from the
date Landlord tenders possession of Expansion Space BB to Tenant. Such tender
of possession is anticipated to occur on August 1, 1996 and the Commencement
Date is anticipated to be September 16, 1996.
3. TOTAL SQUARE FOOTAGE. The following summarizes the schedule of
expansion remaining to be undertaken in 1996 pursuant to the Twenty-Second and
Twenty-Fourth Amendments and this Twenty-Fifth Amendment:
a. Commencing August 16, 1996, the term "Leased Premises" as used
herein shall mean and include approximately 256,567 square feet of Rentable
Area, being approximately 248,869 square feet of Rentable Area then leased and
occupied by Tenant, plus approximately 7,698 square feet of Rentable Area in
Expansion Space AA leased under the Twenty-Fourth Amendment.
b. Commencing September 16,1996, the term "Leased Premises" as
used herein shall mean and include approximately 261,232 square feet of
Rentable Area, being approximately 256,567 square feet of Rentable Area then
leased and occupied by Tenant, plus approximately 4,665 square feet of Rentable
Area in Expansion Space BB leased hereunder.
c. Commencing November 16, 1996, the term "Leased Premises" as
used herein shall mean and include approximately 272,172 square feet of
Rentable Area, being approximately 261,232 then leased and occupied by Tenant,
plus approximately 10,940 square feet of Rentable Area in Expansion Space X
leased under the Twenty-Second Amendment.
4. BASE RENTAL. Tenant shall pay Landlord Base Rental for Expansion
Space BB in the sum of Five Thousand Four Hundred Forty-Two and 50/100 Dollars
($5,442.50) per month from the Commencement Date (anticipated to be September
16, 1996) through December 31, 2000. Commencing January 1, 2001 and continuing
through December 31, 2003, Tenant shall pay Landlord for Expansion Space BB the
sum of Six Thousand Four Hundred Fourteen and 38/100 Dollars ($6,414.38) per
month.
5. REVISED SCHEDULE OF BASE RENTAL. Effective August 16, 1996
(Commencement Date for Expansion Space AA taken under the Twenty-Fourth
Amendment), the rent schedule set forth in PARAGRAPH 4 of the Twenty-Fourth
Amendment is deleted in its entirety and the following rent schedule, which
takes into consideration Expansion Space BB leased hereunder, shall be
substituted in lieu thereof:
<TABLE>
<CAPTION>
FROM TO MONTHLY BASE RENTAL
---- -- -------------------
<S> <C> <C>
August 16, 1996 September 15, 1996 $292,461.75
September 16, 1996 November 15, 1996 $297,904.25
November 16, 1996 December 31, 1997 $310,211.75
January 1, 1998 June 9, 2000 $337,578.49
June 10, 2000 December 31, 2000 $349,339.52
January 1, 2001 December 31, 2003 $372,891.84
</TABLE>
The foregoing rent schedule shall be subject to further amendment
should any Commencement Date for Expansion Spaces X, AA and/or BB occur on
dates other than as anticipated in the Twenty-Second or Twenty-Fourth
Amendments or this Twenty-Fifth Amendment, as applicable. When Expansion
Spaces X, AA, and BB are occupied by Tenant, Landlord and Tenant shall, at the
request of either party, execute a memorandum specifying the Commencement Date
for each such expansion space.
6. ESCALATION ADJUSTMENT. Commencing August 16, 1996, Tenant's
proportionate share of increases in Building Operating costs payable under
PARAGRAPH 13. of the Lease shall be increased to take into consideration
Expansion Space BB leased hereunder. The "Base Year" for Expansion Space BB
shall be the calendar year 1996.
2
<PAGE> 3
7. CONDITION OF PREMISES. Landlord will tender and Tenant agrees to
accept Expansion Space BB in an "as-is" condition; however, Landlord shall
provide an allowance ("Construction Allowance") of Seventy Four Thousand Six
Hundred Forty and No/100 Dollars ($74,640.00) [$16.00 per square foot of
Rentable Area] for permanent leasehold improvements Tenant may elect to install
in Expansion Space BB. As said Construction Allowance is utilized by Tenant,
payments and/or partial payments to Tenant shall be made within thirty (30)
days from Landlord's receipt of paid invoices. Tenant shall, at its sole cost
and expense, provide complete construction documentation, including MEP
engineered drawings. Tenant may utilize up to Nine Thousand Three Hundred
Thirty and No/100 Dollars ($9,330.00) [$2.00 per square foot of Rentable Area]
to offset its cost for architectural services and the preparation of
construction documentation. If the entire construction Allowance is not
utilized by Tenant, up to Four Six Hundred Sixty-Five and No/100 Dollars
($4,665.00) [$1.00 per square foot of Rentable Area] may be taken as a credit
again Base Rental. Such credit shall be applied against the first monthly Base
Rental payment next coming due after completion and occupancy of the Expansion
Space BB.
8. COMPETITIVE BIDS. For Expansion Space BB, Landlord will seek
competitive bids from a minimum of three (3) general contractors which meet
Landlord's existing requirements from Landlord's approved bidding list mutually
agreed upon between Tenant and Landlord and provide Tenant copies of the bids.
In addition, only subcontractors approved by Landlord, according to Landlord's
current standards for such approval, will be permitted to work on the
mechanical, electrical and plumbing systems of the Building. Tenant shall be
allowed to participate in the selection of the successful bidder and Tenant
shall enter into a contract with the successful bidder.
9. AMERICANS WITH DISABILITIES ACT. Landlord shall be responsible for
costs and implementation associated with compliance with the Americans with
Disabilities Act (the "ADA") for the base Building and all points of access
into the Building (the "Landlord's ADA Work"). Tenant shall be responsible for
all costs and implementation associated with ADA compliance within Expansion
Space BB.
10. PARKING. Parking shall continue pursuant to Paragraph 24 of the
Lease, as amended by Paragraph V. of the Eighth Amendment; however, Paragraph
24.C. of the Lease shall be amended by the addition of the following at the end
thereof: "Notwithstanding the foregoing, the following allocation shall apply
to the four (4) parking permits per 1,000 square feet of Rentable Area
attributable to Expansion Space BB, Expansion Space X and any additional space
hereafter leased by Tenant: (a) twenty-five percent (25%) in the Greenway East
Garage; (b) forty-five percent (45%) in the garage north of Richmond, and (c)
thirty percent (30%) in the garage south of the Building."
11. NO FURTHER MODIFICATIONS. Except as modified by this Twenty-Fifth
Amendment, the Lease remains unchanged and shall continue in full force and
effect.
ACCORDINGLY, Landlord and Tenant enter into this Twenty-Fifth
Amendment as of June 29, 1996.
NINE GREENWAY, LTD., by its managing partner,
J/K - G/P #9, LTD., by its sole general partner,
J/K Holdings, Inc.
By /s/ NEIL H. TOFSKY
----------------------------------------------
Neil H. Tofsky, Senior Vice President
LANDLORD
A I M MANAGEMENT GROUP INC., a Delaware
corporation
By /s/ GARY T. CRUM
----------------------------------------------
Gary T. Crum, Senior Vice President
TENANT
3
<PAGE> 4
FLOOR 17
Floor Status
1 February 1996
[FLOOR PLAN APPEARS HERE]
AIM MANAGEMENT GROUP INC.
EXHIBIT "A"
EXPANSION SPACE BB
PLEASE INITIAL
[ILLEGIBLE]
--------------------
[ILLEGIBLE]
--------------------
11 GREENWAY PLAZA
SENTERRA DEVELOPMENT
<PAGE> 1
EXHIBIT 11
A I M MANAGEMENT GROUP INC. AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER SHARE
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
-------------------- --------------------
1996 1995 1996 1995
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Computation of Earnings per Common Share:
Income before extraordinary item ................ $25,750 $9,924 $46,302 $15,518
Extraordinary item - extinguishment of debt
(less applicable income tax of $289) ......... 537 -- 537 --
-------- -------- -------- --------
Net income ...................................... $25,213 $9,924 $45,765 $15,518
Less increase in the Redemption Price of the
Class B Common Stock ......................... (15,725) -- (23,974) --
-------- -------- -------- --------
Net income applicable to common stock ........... $9,488 $9,924 $21,791 $15,518
-------- -------- -------- --------
Computation of Weighted Average Common Shares:
Weighted average common shares outstanding ...... 3,356 3,183 3,325 3,179
Common shares issuable upon exercise of
warrants and options ......................... 548 633 548 633
Less shares assumed repurchased with proceeds ... (258) (258) (256) (270)
-------- -------- -------- --------
3,646 3,558 3,617 3,542
Income before extraordinary item ................ $2.75 $2.79 $6.17 $4.38
Extraordinary item .............................. (.15) -- (.15) --
-------- -------- -------- --------
NET INCOME APPLICABLE TO COMMON STOCK ................. $2.60 $2.79 $6.02 $4.38
======== ======== ======== ========
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> JUN-30-1996
<CASH> 44,134
<SECURITIES> 13,431
<RECEIVABLES> 41,760
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 101,348
<PP&E> 38,336
<DEPRECIATION> (16,913)
<TOTAL-ASSETS> 218,054
<CURRENT-LIABILITIES> 51,129
<BONDS> 134,287
<COMMON> 6
83,564
0
<OTHER-SE> (65,937)
<TOTAL-LIABILITY-AND-EQUITY> 218,054
<SALES> 0
<TOTAL-REVENUES> 181,219
<CGS> 0
<TOTAL-COSTS> 90,860
<OTHER-EXPENSES> 10,344
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 7,077
<INCOME-PRETAX> 72,938
<INCOME-TAX> 26,636
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 537
<CHANGES> 0
<NET-INCOME> 45,765
<EPS-PRIMARY> 6.02
<EPS-DILUTED> 6.02
</TABLE>
