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Title: |
Credit Facilities Agreement |
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Entities: |
ACT Manufacturing, Inc.; Chase Manhattan Bank; Testa, Hurwitz & Thibeault |
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Date: |
2001 |
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Size: |
Preview shows 29KB of 266KB total |
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Price: |
$69 |
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ID: |
#1229869 |
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29 March 2001
ACT MANUFACTURING (THAILAND) PUBLIC COMPANY LIMITED
(as Borrower)
THE THAI FARMERS BANK PUBLIC COMPANY LIMITED
(as Arranger)
THE THAI FARMERS BANK PUBLIC COMPANY LIMITED
BANK OF AYUDHYA PUBLIC COMPANY LIMITED
(as Lenders)
BANK OF AYUDHYA PUBLIC COMPANY LIMITED
(as Facility Agent)
and
THE THAI FARMERS BANK PUBLIC COMPANY LIMITED
(as Security Agent)
==========================================
US$ 53,470,000 and Baht 60,000,000
CREDIT FACILITIES AGREEMENT
==========================================
<PAGE>
CONTENTS
<TABLE>
<CAPTION>
Clause Page
<S> <C>
SECTION I: DEFINITIONS AND INTERPRETATION............................................... 1
1. Definitions and Interpretation................................................. 1
SECTION II: THE FACILITIES.............................................................. 17
2. Amount and Purpose............................................................. 17
3. Syndicate...................................................................... 18
4. Signing Date and Conditions Precedent.......................................... 19
SECTION III: TRANCHE A FACILITY......................................................... 20
5. Tranche A Facility............................................................. 20
6. Interest....................................................................... 21
7. Repayment...................................................................... 22
SECTION IV: TRANCHE B FACILITIES........................................................ 24
8. General........................................................................ 24
9. Tranche B Letter of Credit Facility............................................ 24
10. Tranche B Trust Receipt Facility............................................... 27
11. Tranche B Loan Facility........................................................ 29
SECTION V: Tranche C FACILITY........................................................... 33
12. Tranche C Facility............................................................. 33
13. Interest....................................................................... 34
14. Repayment...................................................................... 35
SECTION VI: TRANCHE D FACILITY.......................................................... 36
15. Tranche D Facility............................................................. 36
SECTION VII: TRANCHE E FACILITY......................................................... 38
16. Tranche E Facility............................................................. 38
SECTION VIII: PREPAYMENT AND CANCELLATION............................................... 40
17. Prepayment and Cancellation.................................................... 40
18. Supplementary Provisions Relating to Prepayment and Cancellation............... 42
SECTION IX: PAYMENTS, TAXES AND DEFAULT INTEREST........................................ 43
19. Payment........................................................................ 43
20. Taxes.......................................................................... 43
21. Default Interest............................................................... 44
SECTION X: CHANGES IN CIRCUMSTANCES..................................................... 45
22. Changes in Circumstances....................................................... 45
SECTION XI: REPRESENTATIONS AND UNDERTAKINGS............................................ 48
23. Representations and Warranties................................................. 48
24. Undertakings................................................................... 50
SECTION XII: DEFAULT AND INDEMNITY...................................................... 59
25. Default........................................................................ 59
26. Indemnity...................................................................... 62
</TABLE>
Page I
<PAGE>
<TABLE>
<S> <C>
SECTION XIII: SET-OFF AND SECURITY SHARING ARRANGEMENTS................................. 63
27. Set-off and Pro Rata Sharing................................................... 63
28. Security Sharing Arrangements.................................................. 64
SECTION XIV: THE AGENTS AND THE ARRANGER................................................ 66
29. The Agents and the Arranger.................................................... 66
SECTION XV: AMENDMENTS, ASSIGNMENTS AND TRANSFERS....................................... 71
30. Amendments..................................................................... 71
31. Assignments and Transfers...................................................... 71
SECTION XVI: FEES AND EXPENSES.......................................................... 75
32. Fees and Expenses.............................................................. 75
SECTION XVII: MISCELLANEOUS............................................................. 77
33. Miscellaneous.................................................................. 77
SECTION XVIII: LAW...................................................................... 79
34. Law............................................................................ 79
SCHEDULE 1.............................................................................. 80
Lenders and Commitments............................................................ 80
SCHEDULE 2.............................................................................. 81
Conditions Precedent Documents to Facilities....................................... 81
SCHEDULE 3.............................................................................. 84
Part I Form of Drawing Notice...................................................... 84
Part II Form of Receipt............................................................ 85
SCHEDULE 4.............................................................................. 86
Certificate of Borrower............................................................ 86
SCHEDULE 5.............................................................................. 87
Certificate of Guarantor........................................................... 87
SCHEDULE 6.............................................................................. 91
Form of Transfer Certificate....................................................... 91
Schedule 7.............................................................................. 94
List of Asset and Property to be Granted as Security............................... 94
SCHEDULE 8.............................................................................. 95
List of Bank Accounts.............................................................. 95
SIGNATURE PAGE.......................................................................... 98
</TABLE>
Page II
<PAGE>
THIS CREDIT FACILITIES AGREEMENT is made on 29 March 2001
Between
ACT MANUFACTURING (THAILAND) PUBLIC COMPANY LIMITED of 94 Moo 1, Hi-Tech
Industrial Estate, Banlane, Bang-Pa-In, Phra Nakhon Si Ayutthaya 13160, Thailand
(the Borrower);
THE THAI FARMERS BANK PUBLIC COMPANY LIMITED of 1 Thai Farmers Lane, Ratburana
Road, Bangkok 10140, Thailand as arranger of the Facilities (the Arranger);
THE THAI FARMERS BANK PUBLIC COMPANY LIMITED of 1 Thai Farmers Lane, Ratburana
Road, Bangkok 10140, Thailand and BANK OF AYUDHYA PUBLIC COMPANY LIMITED of 1222
Rama III Road, Bangpongpang, Yannawa, Bangkok 10120, Thailand, as Lenders (the
Lenders);
BANK OF AYUDHYA PUBLIC COMPANY LIMITED as facility agent for the Lenders; and
THE THAI FARMERS BANK PUBLIC COMPANY LIMITED as security agent for the Lenders
It is agreed:
SECTION I:
DEFINITIONS AND INTERPRETATION
Definitions and Interpretation
1.1 Definitions: In this Agreement, except where the context otherwise
requires:
Accounting Principles means the accounting principles, standards, conventions
and practices used by the Borrower in the preparation of its audited statutory
accounts for the year ended 24 November 2000 as such principles, standards,
conventions and practices may hereafter be modified in order to comply with
changes in generally accepted accounting principles in the Kingdom of Thailand
or otherwise with the prior written consent of the Facility Agent;
ACT Loan Agreement means a loan arrangement between the Borrower and the
Guarantor under which the Guarantor has granted a loan of money in the principal
amount of US$10,500,000 (US$ ten million five hundred thousand) to the Borrower
and the entire amount of this outstanding principal and accrued interest (if
any) shall be converted into share capital of the Borrower in accordance with
clause 24.2(n) (ACT Loan Agreement);
Advance means the principal amount of each amount made available to the Borrower
hereunder (including without limitation Tranche A Advances, Tranche B T/R
Advances, Tranche B Loan Advances, Tranche C Advances and Tranche D Advances) by
way of
Page 1
<PAGE>
loan, Conversion or (as the context requires) the principal amount thereof for
the time being outstanding;
Agents means the Facility Agent and the Security Agent, and Agent means either
of them, as the context requires;
Authorised Directors mean the directors who are authorised to sign on behalf of
the Borrower;
Availability Period means:
(a) in respect of the Tranche A Facility, the period commencing on the
Effective Date and ending at the end of the Business Day in Bangkok on the
date falling 60 (sixty) days after the Effective Date;
(b) in respect of the Tranche B Facilities, the period commencing on the
Effective Date and ending at the end of the Business Day in Bangkok on 26
November 2001;
(c) in respect of the Tranche C Facility, the Tranche D Facility and the
Tranche E Facility, the period commencing on the Effective Date and ending
at the end of the Business Day in Bangkok on either of the following dates,
whichever occurs first:
(i) the date falling 5 (five) years from the last Drawing Date in
respect of a Tranche B Loan Advance; or
(ii) the date falling 5 (five) years from the last Conversion Date in
respect of a Tranche B Loan Advance,
provided that the Availability Period in respect of the Tranche C Facility,
the Tranche D Facility and the Tranche E Facility will be subject to
changes upon a review on an annual basis by the Tranche C Lenders, the
Tranche D Lenders and the Tranche E Lenders, as the case may be,
provided always that where an Availability Period relating to any Facility ends
on a day which is not a Business Day, it shall be deemed to end on the Business
Day preceding that day;
Average Selling Rate means the average (rounded, if necessary, to the nearest
four decimal places with the midpoint rounded upwards) of the telegraphic
transfer exchange rates quoted by the relevant Lenders for the sale of the
relevant currency using Baht as the means of payment for such sale at 12 noon
(Bangkok time) 2 (two) Business Days prior to the day the amount in question is
due to be calculated, determined or notionally converted, as the case may be;
Baht means Thai baht, the lawful currency of the Kingdom of Thailand;
BAY means Bank of Ayudhya Public Company Limited;
Page 2
<PAGE>
BoT Announcements means announcements, notifications and regulations of the Bank
of Thailand as may be issued and/or amended from time to time (including without
limitation the Notification of the Bank of Thailand Re: Prescription on
Interests and Discounts to be Observed by Commercial Banks in respect of
Interest Payable on Loans made by Commercial Banks);
Business Day means a day (other than a Saturday or Sunday) on which the Lenders
are open for general interbank business in Bangkok;
Commitment means, in relation to a Lender, the aggregate of its Tranche A
Commitment, its Tranche B Commitments, its Tranche C Commitment, its Tranche D
Commitment and its Tranche E Commitment;
Conversion means, in relation to the Tranche B Facilities, any conversion of the
Tranche B L/C Outstandings and/or the Tranche B T/R Outstandings into Tranche B
Loan Advances pursuant to the terms of this Agreement;
Conversion Date means, in relation to the Tranche B Facilities, each of the
following dates on which a Conversion is made automatically in accordance with
clause 11.3 (Conversion):
(a) the last Business Day of June 2001;
(b) the last Business Day of September 2001; and
(c) the last Business Day of December 2001;
Debt means any indebtedness of the Borrower as at any date for or in respect of:
(a) all moneys borrowed (with or without security) or raised by the Borrower;
(b) moneys raised by the sale of receivables, invoices, bills or notes or other
financial assets on terms that recourse may be had to the vendors in the
event of non-payment of such receivables, invoices, bills or financial
assets when due;
(c) the acquisition cost of any asset remaining unpaid for which deferred
payment is arranged primarily as a method of raising finance;
(d) any obligation under any lease which is required to be capitalised under
the Accounting Principles;
(e) the net exposure (meaning the amount payable by the party liable thereunder
on termination or closing out of such arrangements determined on a mark to
market basis) of currency swap or interest swap, cap or collar
transactions;
(f) the principal amount raised by the Borrower by acceptances (not being
acceptances in relation to the purchase of goods or services in the
ordinary course of trading which have been outstanding for 180 (one hundred
and eighty)
Page 3
<PAGE>
days or less) or under any acceptance credit opened on its behalf by a bank
or accepting house;
(g) the principal amount (including any fixed or minimum premium payable on
final redemption or repayment) of any debentures, notes, bonds, bills or
other similar instruments of the Borrower;
(h) any other transaction having the commercial effect of a borrowing (whether
including money, commodities or other property); and
(i) any Subordinated Loan,
provided that no amount shall be taken into account more than once in the same
calculation;
Debt Service Coverage Ratio means the ratio of (a) EBITDA for the six months
immediately prior to the relevant calculation date to (b) all scheduled payments
of principal and interest which fell due for payment by the Borrower under the
Tranche A Facility and the Tranche B Facilities for the six months immediately
prior to the relevant calculation date, with non-Baht denominated amounts being
notionally converted to Baht at the Average Selling Rate;
Debt Service Reserve Accounts means the bank accounts listed in Schedule 8 (List
of Bank Accounts) which have been opened and maintained by the Borrower and any
other bank account to be opened by the Borrower pursuant to the terms of this
Agreement from which funds may be withdrawn for servicing scheduled payments of
principal and interest by the Borrower under the Tranche A Facility and the
Tranche B Facilities (including any substitute and replacement account thereof);
Debt to Equity Ratio means the ratio of Debt to Equity;
Default means an Event of Default or a Potential Event of Default;
Default Interest Rate means:
(a) in respect of amounts payable in US dollars, the rate per annum determined
by the Facility Agent to be the aggregate of:
(i) LIBOR;
(ii) the Margin; and
(iii) 4% (four per cent.); and
(b) in respect of amounts payable in Baht, the default interest rate per annum
announced by each Lender from time to time according to the BoT
Announcements (as a matter of reference only, such default interest
announced as at the Signing Date by TFB is 13.5% (thirteen point five per
cent.) per annum and by BAY is 14.5% (fourteen point five per cent.) per
annum);
Page 4
<PAGE>
Drawing Date means a Business Day upon which any Advance is to be made;
Drawing Notice means a notice of drawing substantially in the form set out in
Part I of Schedule 3 (Form of Drawing Notice) duly completed and signed by the
Authorised Directors;
EBITDA means, for the relevant period, revenues less cost of goods sold and
selling and administrative expenses, but before extraordinary gains/losses,
foreign exchange gains/losses, interest income, interest expense, income tax,
depreciation and amortisation;
Effective Date means the Business Day determined and notified as such by the
Facility Agent to each of the Lenders and the Borrower after all of the
conditions precedent documents referred to in Schedule 2 (Conditions Precedent
Documents to Facilities) have been satisfactorily received by the Facility Agent
in accordance with clause 4.2 (Conditions to Facilities);
Equity means paid-in capital plus (a) share premium; (b) undistributed profits
after deduction of retained losses (if any); and (c) legal reserves;
Event of Default means any of the events mentioned in clause 25.1 (Event of
Default);
Existing BAY Facilities means the revolving credit facilities in an aggregate
amount of no less than US$ 4,500,000 (US$ four million five hundred thousand)
which has been, and/or will be, granted independently of this Agreement by BAY
to the Borrower up until the date immediately preceding the Effective Date but
which will, as from the Effective Date, be deemed and treated for all purposes
and to all intents as part of the Tranche C Commitment, the Tranche C Advance
and/or the Tranche C Outstandings, as the case may be, in respect of BAY under
the Tranche C Facility and shall, thereafter, be subject to the terms and
conditions of this Agreement in all respects;
Existing Security Interests means the Security Interests created or otherwise
arising under credit facility arrangements between the Borrower and the Export-
Import Bank of Thailand in an aggregate amount of US$4,000,000 (including
without limitation those credit facilities under their US$2,000,000 short-term
credit facilities agreement dated 1 August 1998 and their US$2,000,000 short-
term credit facilities agreement dated 14 June 2000);
Existing TFB Packing Credit Facility means the revolving packing credit facility
in an aggregate amount of no more than US$4,500,000 (US$ four million five
hundred thousand) which has been, and/or will be, granted independently of this
Agreement by TFB to the Borrower up until the date immediately preceding the
Effective Date but which will, as from the Effective Date, be deemed and treated
for all purposes and to all intents as part of the Tranche C Commitment, the
Tranche C Advance and/or the Tranche C Outstandings, as the case may be, in
respect of TFB under the Tranche C Facility and shall, thereafter, be subject to
the terms and conditions of this Agreement in all respects;
Page 5
<PAGE>
Existing TFB T/R Facility means the revolving trust receipt facility in an
aggregate amount of no more than US$2,000,000 (US$ two million) which has been,
and/or will be, granted independently of this Agreement by TFB to the Borrower
up until the date immediately preceding the Effective Date but which will, as of
the Effective Date, be deemed and treated for all purposes and to all intents as
part of the Tranche B T/R Commitment, the Tranche B T/R Advance and/or the
Tranche B T/R Outstandings, as the case may be, in respect of TFB under the
Tranche B T/R Facility and shall, thereafter, be subject to the terms and
conditions of this Agreement in all respects;
Facilities means the Tranche A Facility, the Tranche B Facilities, the Tranche C
Facility, the Tranche D Facility and the Tranche E Facility, the terms and
conditions of which are set out in this Agreement, and Facility means any of
them, as the context requires;
Facility Agent means Bank of Ayudhya Public Company Limited or any successor as
facility agent of the Lenders under the Financing Documents;
Facility Office shall have the meaning given to it in clause 31.8 (Facility
Office);
Fee Letters means the letter agreements executed between: (a) each Agent and the
Borrower in respect of agency fees; and (b) the Arranger and the Borrower in
respect of arrangement fees, and Fee Letter means any of them, as the context
requires;
Finance Party means any of the Agents, the Arranger or a Lender;
Financing Documents means this Agreement, the Parent Guarantee, the Side Letter,
the Fee Letters, the Tranche D Overdraft Agreement, the Security Documents, the
ACT Loan Agreement, any Transfer Certificate and any other document designated
in writing as such by the Facility Agent and the Borrower;
General Pledge Agreement means a pledge agreement over certain assets and
property listed in Schedule 7 (List of Asset and Property to be Granted as
Security) to be pledged pursuant to clause 24.2(i) (Security Documents), which
shall be in form and content satisfactory to the Security Agent;
Guarantor means ACT Manufacturing, Inc., a company incorporated under the law of
the Commonwealth of Massachusetts;
Guarantor Collateral Agreement means a guarantee and collateral agreement dated
29 June 2000 among the Guarantor, JP Morgan Chase, certain Subsidiaries of
Guarantor and the other parties named therein (including any amendment and
supplement thereof);
Guarantor Credit Agreement means a US$250,000,000 credit agreement dated 29 June
2000 among the Guarantor, JP Morgan Chase as administrative agent, Credit Suisse
First Boston as syndication agent, Societe Generale as documentation agent and
the lenders named therein (including any amendment and supplement thereof);
Interest Payment Date means, for any Advance, the last day of an Interest
Period;
Page 6
<PAGE>
Interest Period means, for any Advance, the period determined in accordance with
clauses 6.1 (Period), 10.5 (Interest), 11.5 (Interest Period), 13.1 (Interest
Period) and 15.4 (Interest), as the case may be;
Issue means the issue by the Tranche B Lenders of a Tranche B Letter of Credit
under the Tranche B L/C Facility or the issue by the Tranche E Lenders of a
Tranche E Guarantee under the Tranche E Facility, as the case may be;
Issue Date means the date of any Issue;
JP Morgan Chase means J.P. Morgan Chase & Co. (formerly named "The Chase
Manhattan Bank") which is a lender, and also acts as the administrative agent,
under the Guarantor Credit Agreement;
Land and Building Mortgages Agreement means a mortgage contract of land and
buildings and any agreement annexed or supplemental thereto in respect of the
land and buildings listed in Schedule 7 (List of Asset and Property to be
Granted as Security) to be mortgaged pursuant to clause 24.2(i) (Security
Documents), which shall be in form and content satisfactory to the Security
Agent;
Law includes common or customary law and any constitution, decree, judgment,
legislation, order, ordinance, regulation, statute, treaty or other legislative
measure in any jurisdiction and any present or future directive, regulation,
approval, licence, authorisation, guideline, practice, concession, request or
requirement whether or not having the force of law issued by any governmental
body, agency or department or any central bank or other fiscal, monetary,
regulatory, self regulatory or other authority or agency;
Lenders means those Lenders listed in Schedule 1 (Lenders and Commitments) and
their respective successors and any Transferee Lenders (as defined in clause
31.2 (Assignment and Transfers by Lenders)) which are, in each case, for the
time being participating in the Facilities, and Lender means either of them, as
the context requires;
LIBOR means, in relation to an Interest Period under the Tranche A Facility and
the Tranche B Facilities, the rate per annum determined by the Facility Agent to
be the rate or rates, and if more than one, the highest of the rates, rounded
upwards to the nearest whole multiple of one-sixteenth of one per cent. (1/16%)
of the offered quotations for deposits in US dollars for a comparable period to
such Interest Period which appears on the Reuters screen being "LIBO" page (or
such other page as may replace that service) at or about 11:00 a.m. (London
time) on the date falling 2 (two) Business Days prior to the first day of such
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