Exhibit 10.1 SUPPLEMENTAL AGREEMENT TO THE AMENDED AND RESTATED SECOND CREDIT FACILITIES AGREEMENT
Exhibit 10.1
SUPPLEMENTAL AGREEMENT
TO
THE AMENDED AND RESTATED SECOND CREDIT FACILITIES AGREEMENT
This Agreement is made to be effective from 23 June 2008 (the “Effective Date of this Agreement”)
AMONG
INNOVEX (THAILAND) LIMITED (Registration No. Bor Aor Chor. Lor Por 253) with its head office located at No. 79 Moo 4 Export Industrial Zone 2, Northern Industrial Estate, Baan Klang Sub-district, Muang Lampoon District, Lampoon Province (hereinafter referred to as the “Borrower”)
BANK OF AYUDHYA PUBLIC COMPANY LIMITED (“Bank of Ayudhya”) as the Facility Agent
(hereinafter referred to in this Agreement as the “Facility Agent”)
TMB BANK PUBLIC COMPANY LIMITED (“TMB Bank”) as the Security Agent (hereinafter referred to as the “Security Agent”).
AND
BANK OF AYUDHYA and TMB BANK as the Creditors (hereinafter referred to collectively as the “Creditors” and individually as “Creditor”).
WHEREAS
| (A) | The Borrower entered into the Credit Facilities Agreement dated 23 April 2001 (the “Credit Facilities Agreement dated 23 April 2001”) with the Facility Agent, the Security Agent and the Creditors. |
| (B) | The Borrower entered into (i) the Supplemental Agreement to the Credit Facilities Agreement dated 23 April 2001 on 1 March 2002 with the Facility Agent, the Security Agent and the Creditors (the “First Supplemental Agreement to the Credit Facilities Agreement”) and (ii) the Second Supplemental Agreement to the Credit Facilities Agreement dated 23 April 2001 on 28 February 2003 with the Facility Agent, the Security Agent and the Creditors ( the “Second Supplemental Agreement to the Credit Facilities Agreement”). The Credit Facilities Agreement dated 23 April 2001, the First Supplemental Agreement to the Credit Facilities Agreement and the Second Supplemental Agreement to the Credit Facilities Agreement hereinafter referred to as the “Credit Facilities Agreement”. |
| (C) | The Borrower entered into the Second Credit Facilities Agreement dated 11 June 2004 (the “Second Credit Facilities Agreement dated 11 June 2004”) with the Facility Agent, the Security Agent and the Creditors in order to amend the Credit Facilities Agreement and reinstated all supplemental agreements to the Credit Facilities Agreement and become this Agreement. |
(D) The Borrower entered into the Supplemental Agreement to the Second Credit Facilities Agreement dated 11 June 2004 on 30 June 2005 with the Facility Agent, the Security Agent and the Creditors (the “Supplemental Agreement to the Second Credit Facilities Agreement”) and the Borrower entered into another supplemental agreement to the Second Credit Facilities Agreement on 9 December 2005 with the Facility Agent, the Security Agent and the Creditors (the “Second Supplemental Agreement to the Second Credit Facilities Agreement”). The Second Credit Facilities Agreement dated 11 June 2004, the Supplemental Agreement to the Second Credit Facilities Agreement and the Second Supplemental Agreement to the Second Credit Facilities Agreement hereinafter referred to as the “Second Credit Facilities Agreement”.
(E) The Borrower entered into the Amended and Restated Second Credit Facilities Agreement on 19 December 2006 with the Facility Agent, the Security Agent and the Creditors in order to amend the Second Credit Facilities Agreement (the “Amended and Restated Second Credit Facilities Agreement”)
(F) The Borrower, the Facility Agent, the Security Agent and the Creditors intend to amend the Amended and Restated Second Credit Facilities Agreement pursuant to the terms and conditions of this Agreement.
| 1. | Definition and Interpretation |
| The parties agree as follows: |
1.1 Words and expressions used in this Agreement shall have the same respective meanings as the words and expressions defined in the Credit Facilities Agreement except as otherwise defined in this Agreement.
| 1.2 | In this Agreement, except as otherwise defined the reference to the Amended and Restated Second Credit Facilities Agreement, the Transaction Documents or any documents related to the Amended and Restated Second Credit Facilities Agreement or the Transaction Documents shall include this Agreement. |
| 1.3 | From the Effective Date of this Agreement, any terms or conditions in the Amended and Restated Second Credit Facilities Agreement or the Transaction Documents or any documents related to the Amended and Restated Second Credit Facilities Agreement or the Transaction Documents which contradict the terms amended by this Agreement, then the terms under this Agreement shall prevail and the terms or conditions under the Amended and Restated Second Credit Facilities Agreement or the Transaction Documents or any documents related to the Amended and Restated Second Credit Facilities Agreement or the Transaction Documents which contradict the terms of this Agreement shall no longer be effective. |
| 2. | Amendment |
The Borrower, the Facility Agent, the Security Agent and the Creditors agree to amend and revise the terms of the Amended and Restated Second Credit Facilities Agreement as follows:
| 2.1 | Certain definitions as appeared in Clause 1.1 of the Amended and Restated Second Credit Facility Agreement shall be supplemented, amended and/or revised as follows: |
| 2.1.1 | The definition of “Repayment Schedule” as appeared in Clause 1.1 of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: |
| “Repayment Schedule for Debt under the Long Term Facilities” means the repayment schedule for Debt under Long Term Facility Portion 1 under the conditions specified in Clause 6.1.1(a) and Attachment 6.1 and the repayment schedule for Debt under Long Term Facility Portion 2 under the conditions specified in Clause 6.1.1(b) and Attachment 6.2 ; | |
| 2.1.2 | The definition of “Excess Cash from Business Operation” shall be supplemented to Clause 1.1 of the Amended and Restated Second Credit Facility Agreement to read as follows” |
““Excess Cash from Business Operation” means the excess cash which will be calculated on a quarterly basis (excluding the balance which required to be deposit in the Debt Service Reserve Account) based on the actual cash balance as shown in the consolidated balance sheets of the Guarantor on the last day of the relevant quarter which has been audited by the auditor or reviewed by the authorized director of the Guarantor based on the 10-Q form (in case of first, second and third quarters) subtracted by the following items (a) to (e) and the Borrower will send the report of this calculation to each Creditor within forty five (45) days after the last day of that quarter:
| (a) | two (2) months of operating expense (excluding depreciation and other non-cash items) based on the actual cash balance as shown in the previous quarter plus or minus adjustment factors; | |
| (b) | two (2) months of production cost (excluding depreciation and other cash items) based on the actual figures of the previous quarter plus or minus adjustment factors; | |
| (c) | interest payment on working capital facilities, import and export credit facility and Debt under the Long Term Facilities and an amount for principle repayment of Debt under the Long Term Facilities as prescribed in the Repayment Schedule for Debt under Long Term Facilities for the subsequent quarter; | |
| (d) | capital expenditure forecasted for the subsequent quarter; and | |
| (e) | contingency expense in the amount equal to five percent (5%) of the amount under items (a) and (b) above. |
| 2.1.3 | The definition of “Equity” as appeared in Clause 1.1 of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: |
| “Equity” means the equity of the Borrower in case of maintaining ratio by the Borrower or the equity of Innovex Group Companies in case of maintaining ratio by the Guarantor which includes paid-up share capital, share premiums, reserves and retained earnings. | |
| 2.1.4 | The definition of “Debt Service Reserve Account” as appeared in Clause 1.1 of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: |
| “Debt Service Reserve Account” means Savings Account No. xxx-x-xxxxx-x, an interest bearing account of the Borrower opened and maintained with TMB Bank Public Company Limited, Phahon Yothin branch. | |
| 2.1.5 | The definition of “Facility” as appeared in Clause 1.1 of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: |
| “Facility” means the credit facilities provided by the Creditors to the Borrower under this Agreement including (1) Long Term Facilities which are restructured under this Agreement and referred to as Debt under the Long Term Facilities (2) Import and Export Credit Facility (3) Working Capital Facility and (4) Letter of Guarantee Facility. | |
| 2.1.6 | The definition of “Long Term Facility Portion 1” as appeared in Clause 1.1 of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: |
| “Long Term Facility Portion 1” means the facility in Baht provided by the Creditors to the Borrower for the purpose as specified in Clause 2.2.1 in the facility limit as indicated in Attachment 1 of the Amended and Restated Second Credit Facilities Agreement.” |
| 2.1.7 | The definition of “Long Term Facility Portion 2” as appeared in Clause 1.1 of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: |
| “Long Term Facility Portion 2” means the facility in Baht provided by the Creditors to the Borrower for the purpose as specified in Clause 2.2.1 in the facility limit as indicated in Attachment 1 of the Amended and Restated Second Credit Facilities Agreement.” | |
| 2.1.8 | The definition of “Fifth Guarantee Agreement” shall be supplemented to Clause 1.1 of the Amended and Restated Second Credit Facility Agreement to read as follows: |
| “Fifth Guarantee Agreement” means the Fifth Guarantee Agreement issued by the Guarantor to the Creditors in accordance with the form of Attachment 1; | |
| 2.1.9 | The definition of “Third Credit Facilities Agreement” as appeared in Clause 1.1 of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: |
| “Third Credit Facilities Agreement” means the Third Credit Facilities Agreement between the Borrower, the Facility Agent, the Security Agent and the Creditors dated 19 December 2006, the transaction documents under this Agreement and any supplemental agreements to this Agreement. | |
| 2.1.10 | The definition of “Pledge of Right of Deposit Agreement” shall be supplemented to Clause 1.1 of the Amended and Restated Second Credit Facility Agreement to read as follows: |
| “Pledge of Right to Deposit Agreement” means the Pledge of Right to Deposit dated 23 June 2008 between the Borrower and the Security Agent for the benefit of the Creditors in relation to the deposit in the Debt Service Reserve Account in the form specified in Attachment 2 of this Agreement. | |
| 2.1.11 | The definition of “Conditional Assignment of Right to Deposit Agreement” shall be supplemented to Clause 1.1 of the Amended and Restated Second Credit Facility Agreement to read as follows: |
| “Conditional Assignment of Right to Deposit Agreement” means the Conditional Assignment of Right to Deposit Agreement dated 23 June 2008 between the Borrower and the Security Agent for the benefit of the Creditors in relation to the deposit in the Debt Service Reserve Account in the form specified in Attachment 3 of this Agreement. | |
| 2.1.12 | The definition of “Long Term Debt” as appeared in Clause 1.1 of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: |
| “Long Term Debt” means any debt that has a repayment maturity of not less than one year of the Borrower in the case of ratio to be maintained by the Borrower or of the Innovex Group Companies in the case of ratio to be maintained by the Guarantor. | |
| 2.1.13 | The definition of “Aggregate Debt” as appeared in Clause 1.1 of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: |
| “Aggregate Debt” means all debts and obligations of the Borrower in the case of ratio to be maintained by the Borrower or of the Innovex Group Companies in the case of ratio to be maintained by the Guarantor at any time. |
| 2.1.14 | The definition of “Debt under the Long Term Facilities” shall be supplemented to Clause 1.1 of the Amended and Restated Second Credit Facility Agreement to read as follows: |
| “Debt under the Long Term Facilities” means Debt under the Long Term Facility Portion 1 and Debt under the Long Term Facilities Portion 2.” | |
| 2.1.15 | The definition of “Debt under the Long Term Facility Portion 1” shall be supplemented to Clause 1.1 of the Amended and Restated Second Credit Facility Agreement to read as follows: |
| “Debt under the Long Term Facility Portion 1” means Debt under the Long Term Facility Portion 1 as prescribed in Clause 2.1.1. | |
| 2.1.16 | The definition of “Debt under the Long Term Facility Portion 2” shall be supplemented to Clause 1.1 of the Amended and Restated Second Credit Facility Agreement to read as follows: |
| “Debt under the Long Term Facility Portion 2” means Debt under the Long Term Facility Portion 2 as prescribed in Clause 2.1.2. | |
| 2.1.17 | The definition of “Debt Service Coverage Ratio” as appeared in Clause 1.1 of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: |
| "Debt Service Coverage Ratio" means the ratio of EBITDA divided by debt determined as at the end of each twelve (12) months period of the Borrower's financial year in the case of ratio to be maintained by the Borrower or of the Innovex Group Companies in the case of ratio to be maintained by the Guarantor. For the purpose of this definition, "debt" means the current portion of principal payable on all outstanding Debt under the Long Term Facilities for each twelve (12) months period under this Agreement, debt under long term facility under the Supplemental Agreement to the Third Credit Facilities Agreement and debt under any long term facility (if any) at that time and interest expenses on the Debt under the Long Term Facilities under this Agreement, debt under long term facility under the Supplemental Agreement to the Third Credit Facilities Agreement and debt under any long term facility (if any) become payable for the twelve (12) months period of the Borrower's financial year in the case of ratio to be maintained by the Borrower or of the Innovex Group Companies in the case of ratio to be maintained by the Guarantor except interest expenses on short term loan of the Borrowr or Innovex Group Companies (as the case may be). | |
| 2.1.18 | The definition of “Interest Coverage Ratio” as appeared in Clause 1.1 of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: |
| “Interest Coverage Ratio” means the ratio of EBITDA divided by interest determined as at the end of each twelve (12) months period of the Borrower's financial year in the case of ratio to be maintained by the Borrower or of the Innovex Group Companies in the case of ratio to be maintained by the Guarantor. For the purpose of this definition, "interest" means the current portion of interest expenses relevant to each twelve (12) months period of the Borrower's financial year in the case of ratio to be maintained by the Borrower or of the Innovex Group Companies in the case of ratio to be maintained by the Guarantor. | |
| 2.1.19 | The definition of “Return on Assets Ratio” shall be supplemented to Clause 1.1 of the Amended and Restated Second Credit Facility Agreement to read as follows: |
| “Return on Assets Ratio” means the profit from the operation of the Borrower divided by the average of assets used in the operation of the Borrower. For the purpose of this definition, “profit from the operation” means profit from the operation of the Borrower as appeared in the financial statement as at the end of each twelve (12) months period of the Borrower’s Fiscal Year audited by the auditor of the Borrower excluding (a) profit or loss from exchange rate, (b) interest expense and (c) corporate income tax and “average of assets used in the operation” means the average of total assets at the beginning of the period and at the end of the period as appeared in the financial statement as at the end of each twelve (12) months period of the same Borrower’s Fiscal Year audited by the auditor of the Borrower excluding (a) investment in Innovex Group Companies and/or affiliated companies and investment in securities. |
| 2.2 | Clause 2.1.1 and Clause 2.1.2 of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: |
| “2.1.1 | Debt under the Long Term Facility Portion 1 the Borrower’s debt having with the Long Term Creditors pursuant to the Long Term Facility Portion 1 which is restructured under this Agreement under the terms and conditions of this Agreement. As at 31 March 2008, the debt under the Long Term Facility Portion 1 is in the amount of Baht 160,000,000 (One Hundred and Sixty Million Baht); | |
| 2.1.2 | Debt under the Long Term Facility Portion 2 the Borrower’s debt having with the Long Term Creditors pursuant to the Long Term Facility Portion 2 which is restructured under this Agreement under the terms and conditions of this Agreement. As at 31 March 2008, the debt under the Long Term Facility Portion 2 is in the amount of Baht 210,000,000 (Two Hundred and Ten Million Baht).” |
| 2.3 | Clause 5.1.4 and Clause 5.1.5 of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: |
| “5.1.4 | Interest for the Debt under the Long Term Facility Portion 1 |
| The interest rate for the Debt under the Long Term Facility Portion 1 will be at the rate of Average MLR minus one percent (Average MLR-1%) per annum of the amount due under the Debt under the Long Term Facility Portion 1 calculated by the Facility Agent on the Effective Date of this Agreement for the first Interest Period and for the subsequent Interest Period shall be at the rate calculated by the Facility Agent on the first day of the relevant Interest Period to be used for such Interest Period. | |
| For each Interest Period, the Borrower will pay interest for the Debt under the Long Term Facility Portion 1 in compliance with the conditions in this Agreement to the Facility Agent for the benefit of the Long Term Creditors pursuant to its Proportion of Debt by payment within 10:00 a.m. (Bangkok time) on the last Banking Day of each month under the calendar year. |
| 5.1.5 | Interest for the Debt under the Long Term Facility Portion 2 |
| The interest rate for the Debt under the Long Term Facility Portion 2 will be at the rate of Average MLR minus one percent (Average MLR-1%) per annum of the amount due under the Debt under the Long Term Facility Portion 2 calculated by the Facility Agent on the Effective Date of this Agreement for the first Interest Period and for the subsequent Interest Period shall be at the rate calculated by the Facility Agent on the first day of the relevant Interest Period to be used for such Interest Period. | |
| For each Interest Period, the Borrower will pay interest for the Debt under the Long Term Facility Portion 2 in compliance with the conditions in this Agreement to the Facility Agent for the benefit of the Long Term Creditors pursuant to its Proportion of Debt by payment within 10:00 a.m. (Bangkok time) on the last Banking Day of each month under the calendar year.” |
| 2.4 | Clause 6.1 of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: |
| “6.1 | Debt under the Long Term Facility |
| 6.1.1 | (a) | Debt under the Long Term Facility Portion 1 | |
| The Borrower shall repay the Debt under the Long Term Facility Portion 1 to each Long Term Creditor on the last Banking Day of each calendar month (for the total 48 installments) in accordance with Repayment Schedule for Debt under the Long Term Facilities commencing from the last Banking Day of October 2008 onwards; and | |||
| (b) | Long Term Facility Portion 2 | ||
| The Borrower shall repay the Debt under the Long Term Facility Portion 2 to each Long Term Creditor on the last Banking Day of each calendar month (for the total 48 installments) in accordance with Repayment Schedule for Debt under the Long Term Facilities commencing from the last Banking Day of October 2008 onwards. |
| 6.1.2 | Before 10.00 a.m on each Repayment Date for Debt under the Long Term Facilities, the Borrower will repay the Debt under the Long Term Facilities to the Facility Agent for the benefit of the Long Term Creditors in accordance with the condition of Clause 6.1.1(a) or Clause 6.1.1(b) (as the case may be) and in compliance with the Repayment Schedule for Debt under the Long Term Facilities. | |
| 6.1.3 | After the Borrower has repaid the Debt under the Long Term Facilities, the Borrower may not utilize such repayment amount again. | |
| 6.1.4 | The Borrower is entitled to prepay the Debt under the Long Term Facility Portion 1 or the Debt under the Long Term Facility Portion 2 (as the case may be) in whole or in part on any Interest Payment Date before the Repayment Schedule for Debt under the Long Term Facilities in compliance with the following conditions: |
| (a) | The Borrower has delivered the notice in writing specifying the intention to prepay the Debt under the Long Term Facilities by specifying the amount to be prepaid and the date of such prepayment to the Facility Agent in advance not less than thirty (30) Banking Days; | ||
| (b) | Subject to Clause 7.1, the amount to be partially prepaid will be in the amount of not less than Baht 5,000,000 (Five Million Baht) or the integral multiple of Baht 5,000,000 (Five Million Baht) except in the case that the amount to be prepaid is arisen from the Excess Cash from Business Operation pursuant to Clause 11.4; | ||
| (c) | The Borrower shall prepay the Debt under the Long Term Facilities together with interest calculated until the date of such prepayment and any other amount which is due and payable under this Agreement; | ||
| (d) | The amount prepaid will firstly be used to pay the expenses which are due under this Agreement. After that it will be used to pay the fees and interest which are due and payable and the Debt under the Long Term Facilities in the inverse order of maturity and pursuant to the terms as specified in Clause 6.1.2; | ||
| (e) | On each prepayment date, the Borrower agrees to pay the prepayment fee equal to two percent (2%) of the amount prepaid to the Facility Agent for the benefit of the Long Term Creditors in compliance with their Proportion of Debt in relation to the Debt under the Long Term Facility Portion 1 or the Debt under the Long Term Facility Portion 2 (as the case may be) except in the case where the prepayment money is obtained from the operation of the Borrower, from any capital increase in the Borrower which occurs after two (2) years from the Effective Date of this Agreement and/or from the Excess Cash from Business Operation, in which case the Borrower shall not be responsible to pay the prepayment fee. |
| 6.1.5 | Any notices of prepayment given by the Borrower shall be irrevocable and the Borrower shall be bound to make the prepayment in accordance with such notice. | |
| 6.1.6 | Except as otherwise clearly mentioned in this Agreement, the Borrower is not entitled to prepay all or any part of the Debt under the Long Term Facilities. The Debt under the Long Term Facilities, which is prepaid, shall not be available for further drawdown.” |
| 2.5 | Clause 11.1.6 (b) of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: |
| “(b) | as soon as they are available, (but in any event within forty five (45) days) after the end of each quarter, copies of unaudited quarterly financial statements of the Borrower and as soon as they are available, (but in any event within forty five (45) days) after the end of the first, second and third quarters, copies of the consolidated financial statement of the Guarantor based on the 10-Q form for the first, second and third quarters and as soon as they are available (but no later than one hundred and twenty (120) days) after the end of the fourth quarter the 10-K annual report of the Guarantor for each year during the term of this Agreement together with the cashflow statements and sources and uses of funds in respect of such periods of the Borrower or the Guarantor (as the case may be) for the number enough for all the Creditors having ensured that they were prepared in accordance with accounting principles and practices generally acceptable in Thailand (in the case of the Borrower) or in the United States of America (in the case of the Guarantor) and gives in conjunction with the notes thereto including the notes on changes in the application of an accounting principles and practices (1) the financial condition of the Borrower or the Guarantor as of the last day of such financial period and (2) the result of the operation of the Borrower or the Guarantor for the period of which they relate, having been prepared with the due care and diligence in the case of the Borrower or accepted by the creditors of the Guarantor in case of the Guarantor.” |
| 2.6 | Clause 11.1.11 of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: |
| “11.1.11 | The Borrower shall perform the followings: | |||
| (a) | The Borrower shall do all acts to have the Guarantor maintain the following ratios based on the consolidated annual financial statements audited by the Auditor acceptable to the Creditors: | |||
| (1) | the ratio of Aggregate Debt to Equity at the rate of not exceeding: | |||
| (1.1) | 12:1 for the year 2010; | |||
| (1.2) | 3:1 for the year 2011; and | |||
| (1.3) | 3:1 for the year 2012 and as long as there is any Debt under this Agreement and/or Transaction Documents outstanding. | |||
| (2) | the ratio of Long Term Debt to Equity at the rate of not exceeding: | |||
| (2.1) | 1.5:1 for the year 2010; | |||
| (2.2) | 1.5:1 for the year 2011; and | |||
| (2.3) | 1.5:1 for the year 2012 and as long as there is any Debt under this Agreement and/or Transaction Documents outstanding. | |||
| (3) | Debt Service Coverage Ratio at the rate not less than: | |||
|
| (3.1) 1.2:1 for the year 2009; | |||
|
| (3.2) 1.2:1 for the year 2010; | |||
|
| (3.3) 1.2:1 for the year 2011; and | |||
| (3.4) | 1.2:1 for the year 2012 and as long as there is any Debt under this Agreement and/or Transaction Documents outstanding. | |||
| (4) | Interest Coverage Ratio at the rate not less than: | |||
|
| (4.1) 1.5:1 for the year 2009; | |||
|
| (4.2) 2:1 for the year 2010; | |||
|
| (4.3) 2:1 for the year 2011; and | |||
| (4.4) | 2:1 for the year 2012 and as long as there is any Debt under this Agreement and/or Transaction Documents outstanding. | |||
| (b) | The Borrower shall maintain the following ratios: | |||
| (1) | the Aggregate Debt to Equity ratio based on the unaudited quarterly financial statements of the Borrower and the annual financial statement audited by the Auditor acceptable to the Creditors at the rate of not exceeding: | |||
|
| (1.1) 3:1 for the year 2008; and | |||
|
| (1.2) 3:1 for the year 2009 | |||
| (2) | the Long Term Debt to Equity ratio based on the unaudited quarterly financial statements of the Borrower and the annual financial statement audited by the Auditor acceptable to the Creditors at the rate of not exceeding: | |||
|
| (2.1) 1.5:1 for the year 2008; and | |||
|
| (2.2) 1.5:1 for the year 2009. | |||
| (3) | the Debt Service Coverage Ratio based on the annual financial statement of the Borrower audited by the Auditor acceptable to the Creditors at the rate of not less than 1.2:1 for the year 2009. | |||
| (4) | the Interest Coverage Ratio based on the annual financial statement of the Borrower audited by the Auditor acceptable to the Creditors at the rate of not less than 1.5:1 for the year 2009. | |||
| (5) | the Return on Assets Ratio based on the annual financial statement of the Borrower audited by the Auditor acceptable to the Creditors at the rate of not less than: | |||||
| (5.1) | 4% for the year 2008; | |||||
| (5.2) | 4% for the year 2009; | |||||
| (5.3) | 6% for the year 2010; | |||||
| (5.4) | 6% for the year 2011; and | |||||
| (5.5) | 6% for the year 2012 and as long as there is any Debt under this Agreement and/or Transaction Documents outstanding. | |||||
The Creditors shall have the right to revise the ratios to be maintained and/or the procedures to review the ratios maintained by the Borrower and/or the Guarantor as the Creditors deem appropriate from time to time and the Borrower shall strictly perform and shall do all acts to have the Guarantor strictly performs it obligations as revised from time to time.”
| 2.7 | Clause 11.1.16 of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: | ||
| “11.1.16 | From the Effective Date of this Agreement until the Debt is paid in full, the Borrower shall at all times keep funded the Debt Service Reserve Account in advance with an amount at least equal to (1) the amount of interest payments to the Creditors for the Debt under the Long Term Facilities for the subsequent three (3) Interest Periods and (2) the amount of principle payment to the Creditors for the Debt under the Long Term Facilities for the subsequent one (1) Interest Period.” | ||
| 2.8 | The following terms shall be inserted to be Clause 11.1.19 of the Amended and Restated Second Credit Facility Agreement to read as follows: | ||
| “1.1.19 | The Borrower shall deliver the monthly cash flow and performance update of (1) the Borrower and (2) the Guarantor (which include the report on cash flow and performance of the Innovex Group Companies) to each Creditor within the last Banking Day of the subsequent month.” | ||
| 2.9 | The following terms shall be inserted to be Clause 11.4 of the Amended and Restated Second Credit Facility Agreement to read as follows: | ||
| “11.4 | The Borrower shall use the Excess Cash from Business Operation to repay the debt under the working capital facility and the import and export credit facility which are due and payable within three (3) months from the last day of each of the previous quarter and if there is any excess amount from the repayment of debt under the working capital facility and the import and export credit facility, such amount shall be used to repay the Debt under the Long Term Facilities in addition to the repayment as specified in Clause 6.1.1 and the Attachment 6.1 and Attachment 6.2 in inverse order of maturity. | ||
| The Borrower shall make payment in relation to the Excess Cash from Business Operation to the Creditors within sixty (60) days from the last day of the relevant quarter.” | |||
| 2.10 | Clause 13 of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: |
| 13. | Security |
| The Borrower agrees to provide the Security as follows as the security for the debt of the Borrower under the Amended and Restated Second Credit Facility Agreement, the Third Credit Facilities Agreement, the Transaction Documents and any amendments to these agreements. | |
| 13.1 | The Borrower shall pledge all the Equipment for the benefit of the Creditors under the Equipment Pledge Agreement between the Borrower and the Security Agent for the benefit of the Creditors, from time to time, as soon as practicable for the pledge under the laws or upon request by the Security Agent or Creditors by instructing the Security Keeper designated by the Facility Agent, the Security Agent and the Creditors to control the said Equipment for the benefit of the Creditors and after the Borrower has registered the mortgage of Registerable Equipment in the name of the Creditors under the conditions of Clause 13.3 such Registerable Equipment will be released from the pledge under this clause. |
| 13.2 | Registerable Equipment of the Borrower to the Equipment Registrar, from time to time, as soon as practicable under the laws or upon demand by the Security Agent or Creditors and after the registration of the equipment the Borrower must submit all documents which are the evidence of such ownership registration in the equipment which is the original to the Security Agent for the safe custody. |
| 13.3 | The Borrower must register the mortgage of all of the Registerable Equipment the ownership of which have already been registered pursuant to Clause 13.2, from time to time, under the form and substance satisfactory to the Creditors as a security for the debt under this Agreement and the Transaction Documents in which case the Borrower shall be responsible to pay for the fees and expenses for such mortgage and after the registration of any Equipment the Borrower shall deliver all the evidences (which is the original) relating to such mortgage to the Security Agent for the benefit of the Creditors, provided that before each registration of the mortgage of the Registerable Equipment, the Borrower shall obtain all consents, licenses, permits or other similar type of documents from any relevant governmental authority, agency, organization, board (including the Board of Investment) or other person as necessary to mortgage that Registerable Equipment. |
| 13.4 | In case the Borrower has additional land and/or building for the operating of the Project, the Borrower shall mortgage such land and/or building to the Creditors in the form and substance satisfactory to the Creditors in which case the Borrower shall be responsible to pay for the fees and expenses for such mortgage registration and after any mortgage registration, the Borrower shall deliver all evidences (which is original) relating to such mortgage to the Security Agent for the benefit of the Creditors. |
| 13.5 | Within 23 June 2008 the Borrower shall enter into the Pledge of Right to Deposit Agreement and the Conditional Assignment of Right to Deposit Agreement between the Borrower and the Security Agent for the benefit of the Creditors and deliver the relevant books in relation to the account to the Security Agent for the benefit of the Creditors pursuant to the Pledge of Right of Deposit Agreement. |
| 13.6 | Within 23 June 2008 the Guarantor shall enter into the Fifth Guarantee Agreement for the benefit of the Creditors. |
| 13.7 | The Borrower shall provide additional Security as requested by the Creditors when the Creditors consider that the Security provided by the Borrower to the Creditors under this Agreement or the Transaction Documents are deteriorated or the value of such Security has been diminished. |
| 2.11 | Attachment 6.1 (Repayment Schedule for Debt under the Long Term Facility Portion 1) and Attachment 6.2 (the Repayment Schedule for Debt under the Long Term Facility Portion 2) of the Amended and Restated Second Credit Facilities Agreement shall be repealed and replaced to read as follows: |
Attachment 6.1
Repayment Schedule for Debt under the Long Term Facility Portion 1
| No. | Repayment Date (The last Banking | Amount of | Portion of TMB | Portion of Bank |
| 1 | October 2008 | 800,000 | 400,000 | 400,000 |
| 2 | November 2008 | 800,000 | 400,000 | 400,000 |
| 3 | December 2008 | 800,000 | 400,000 | 400,000 |
| 4 | January 2009 | 800,000 | 400,000 | 400,000 |
| 5 | February 2009 | 2,800,000 | 1,400,000 | 1,400,000 |
| 6 | March 2009 | 2,800,000 | 1,400,000 | 1,400,000 |
| 7 | April 2009 | 2,800,000 | 1,400,000 | 1,400,000 |
| 8 | May 2009 | 2,800,000 | 1,400,000 | 1,400,000 |
| 9 | June 2009 | 2,800,000 | 1,400,000 | 1,400,000 |
| 10 | July 2009 | 2,800,000 | 1,400,000 | 1,400,000 |
| 11 | August 2009 | 2,800,000 | 1,400,000 | 1,400,000 |
| 12 | September 2009 | 2,800,000 | 1,400,000 | 1,400,000 |
| 13 | October 2009 | 2,800,000 | 1,400,000 | 1,400,000 |
| 14 | November 2009 | 2,800,000 | 1,400,000 | 1,400,000 |
| 15 | December 2009 | 2,800,000 | 1,400,000 | 1,400,000 |
| 16 | January 2010 | 2,800,000 | 1,400,000 | 1,400,000 |
| 17 | February 2010 | 2,800,000 | 1,400,000 | 1,400,000 |
| 18 | March 2010 | 2,800,000 | 1,400,000 | 1,400,000 |
| 19 | April 2010 | 2,800,000 | 1,400,000 | 1,400,000 |
| 20 | May 2010 | 2,800,000 | 1,400,000 | 1,400,000 |
| 21 | June 2010 | 2,800,000 | 1,400,000 | 1,400,000 |
| 22 | July 2010 | 2,800,000 | 1,400,000 | 1,400,000 |
| 23 | August 2010 | 2,800,000 | 1,400,000 | 1,400,000 |
| 24 | September 2010 | 2,800,000 | 1,400,000 | 1,400,000 |
| 25 | October 2010 | 4,000,000 | 2,000,000 | 2,000,000 |
| 26 | November 2010 | 4,000,000 | 2,000,000 | 2,000,000 |
| 27 | December 2010 | 4,000,000 | 2,000,000 | 2,000,000 |
| 28 | January 2011 | 4,000,000 | 2,000,000 | 2,000,000 |
| 29 | February 2011 | 4,000,000 | 2,000,000 | 2,000,000 |
| 30 | March 2011 | 4,000,000 | 2,000,000 | 2,000,000 |
| 31 | April 2011 | 4,000,000 | 2,000,000 | 2,000,000 |
| 32 | May 2011 | 4,000,000 | 2,000,000 | 2,000,000 |
| 33 | June 2011 | 4,000,000 | 2,000,000 | 2,000,000 |
| 34 | July 2011 | 4,000,000 | 2,000,000 | 2,000,000 |
| 35 | August 2011 | 4,000,000 | 2,000,000 | 2,000,000 |
| 36 | September 2011 | 4,000,000 | 2,000,000 | 2,000,000 |
| 37 | October 2011 | 4,800,000 | 2,400,000 | 2,400,000 |
| 38 | November 2011 | 4,800,000 | 2,400,000 | 2,400,000 |
| 39 | December 2011 | 4,800,000 | 2,400,000 | 2,400,000 |
| 40 | January 2012 | 4,800,000 | 2,400,000 | 2,400,000 |
| 41 | February 2012 | 4,800,000 | 2,400,000 | 2,400,000 |
| 42 | March 2012 | 4,800,000 | 2,400,000 | 2,400,000 |
| 43 | April 2012 | 4,800,000 | 2,400,000 | 2,400,000 |
| 44 | May 2012 | 4,800,000 | 2,400,000 | 2,400,000 |
| 45 | June 2012 | 4,800,000 | 2,400,000 | 2,400,000 |
| 46 | July 2012 | 4,800,000 | 2,400,000 | 2,400,000 |
| 47 | August 2012 | 4,800,000 | 2,400,000 | 2,400,000 |
| 48 | September 2012 | 4,000,000 | 2,000,000 | 2,000,000 |
| Total | 160,000,000 | 80,000,000 | 80,000,000 |
Attachment 6.1
Repayment Schedule for Debt under the Long Term Facility Portion 2
| No. | Repayment Date
| Amount of | Portion of TMB | Portion of Bank |
| 1 | October 2008 | 1,000,000 | 500,000 | 500,000 |
| 2 | November 2008 | 1,000,000 | 500,000 | 500,000 |
| 3 | December 2008 | 1,000,000 | 500,000 | 500,000 |
| 4 | January 2009 | 1,000,000 | 500,000 | 500,000 |
| 5 | February 2009 | 1,000,000 | 500,000 | 500,000 |
| 6 | March 2009 | 1,000,000 | 500,000 | 500,000 |
| 7 | April 2009 | 3,800,000 | 1,900,000 | 1,900,000 |
| 8 | May 2009 | 3,800,000 | 1,900,000 | 1,900,000 |
| 9 | June 2009 | 3,800,000 | 1,900,000 | 1,900,000 |
| 10 | July 2009 | 3,800,000 | 1,900,000 | 1,900,000 |
| 11 | August 2009 | 3,800,000 | 1,900,000 | 1,900,000 |
| 12 | September 2009 | 3,800,000 | 1,900,000 | 1,900,000 |
| 13 | October 2009 | 3,800,000 | 1,900,000 | 1,900,000 |
| 14 | November 2009 | 3,800,000 | 1,900,000 | 1,900,000 |
| 15 | December 2009 | 3,800,000 | 1,900,000 | 1,900,000 |
| 16 | January 2010 | 3,800,000 | 1,900,000 | 1,900,000 |
| 17 | February 2010 | 3,800,000 | 1,900,000 | 1,900,000 |
| 18 | March 2010 | 3,800,000 | 1,900,000 | 1,900,000 |
| 19 | April 2010 | 3,800,000 | 1,900,000 | 1,900,000 |
| 20 | May 2010 | 3,800,000 | 1,900,000 | 1,900,000 |
| 21 | June 2010 | 3,800,000 | 1,900,000 | 1,900,000 |
| 22 | July 2010 | 3,800,000 | 1,900,000 | 1,900,000 |
| 23 | August 2010 | 3,800,000 | 1,900,000 | 1,900,000 |
| 24 | September 2010 | 3,800,000 | 1,900,000 | 1,900,000 |
| 25 | October 2010 | 5,200,000 | 2,600,000 | 2,600,000 |
| 26 | November 2010 | 5,200,000 | 2,600,000 | 2,600,000 |
| 27 | December 2010 | 5,200,000 | 2,600,000 | 2,600,000 |
| 28 | January 2011 | 5,200,000 | 2,600,000 | 2,600,000 |
| 29 | February 2011 | 5,200,000 | 2,600,000 | 2,600,000 |
| 30 | March 2011 | 5,200,000 | 2,600,000 | 2,600,000 |
| 31 | April 2011 | 5,200,000 | 2,600,000 | 2,600,000 |
| 32 | May 2011 | 5,200,000 | 2,600,000 | 2,600,000 |
| 33 | June 2011 | 5,200,000 | 2,600,000 | 2,600,000 |
| 34 | July 2011 | 5,200,000 | 2,600,000 | 2,600,000 |
| 35 | August 2011 | 5,200,000 | 2,600,000 | 2,600,000 |
| 36 | September 2011 | 5,200,000 | 2,600,000 | 2,600,000 |
| 37 | October 2011 | 6,200,000 | 3,100,000 | 3,100,000 |
| 38 | November 2011 | 6,200,000 | 3,100,000 | 3,100,000 |
| 39 | December 2011 | 6,200,000 | 3,100,000 | 3,100,000 |
| 40 | January 2012 | 6,200,000 | 3,100,000 | 3,100,000 |
| 41 | February 2012 | 6,200,000 | 3,100,000 | 3,100,000 |
| 42 | March 2012 | 6,200,000 | 3,100,000 | 3,100,000 |
| 43 | April 2012 | 6,200,000 | 3,100,000 | 3,100,000 |
| 44 | May 2012 | 6,200,000 | 3,100,000 | 3,100,000 |
| 45 | June 2012 | 6,200,000 | 3,100,000 | 3,100,000 |
| 46 | July 2012 | 6,200,000 | 3,100,000 | 3,100,000 |
| 47 | August 2012 | 6,200,000 | 3,100,000 | 3,100,000 |
| 48 | September 2012 | 5,000,000 | 2,500,000 | 2,500,000 |
| Total | 210,000,000 | 105,000,000 | 105,000,000 |
| 3. | Continuity of Agreement |
| Except as amended and supplemented under this Agreement, all terms and conditions under the Amended and Restated Second Credit Facilities Agreement, the Transaction Documents and any documents related to the Amended and Restated Second Credit Facilities Agreement and the Transaction Documents (including the provisions on security) shall remain in full force and effect among the Borrower, the Facility Agent, the Security Agent and the Creditors and this Agreement shall be deemed as an integral part of the Amended and Restated Second Credit Facilities Agreement and the Transaction Documents. The provisions with respect to Representations and Warranties, Affirmative Covenants and Negative Covenants including Event of Default which must be performed or should not be performed as specified in the Amended and Restated Second Credit Facilities Agreement, the Transaction Documents and any agreements related to the Amended and Restated Second Credit Facilities Agreement and the Transaction Documents shall also apply to this Agreement. | |
| 4. | Effective Date of this Agreement |
| This Agreement shall be effective from the Effective Date of this Agreement. |
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date specified above.
THE BORROWER:
INNOVEX (THAILAND) LIMITED
/s/ Randy Acres
THE SECURITY AGENT:
TMB BANK PUBLIC COMPANY LIMITED
/s/ Siripong Sombutsiri____________________
(Mr. Siripong Sombutsiri)
/s/ Saipin Thongkomol
(Ms. Saipin Thongkomol)
THE FACILITY AGENT:
BANK OF AYUDHYA PUBLIC COMPANY LIMITED
/s/ Somsak Deemongkolsuk
(Mr. Somsak Deemongkolsuk)
THE CREDITORS:
TMB BANK PUBLIC COMPANY LIMITED
/s/ Subhak Siwaraksa
(Mr. Subhak Siwaraksa)
/s/ Utoomphorn Kunakom
(Ms. Utoomphorn Kunakorn)
BANK OF AYUDHYA PUBLIC COMPANY LIMITED
/s/ Apinan Hornopparat
(Mr. Apinan Hornopparat)
WITNESS:
/s/ Rochana Huntopap
(Ms. Rochana Huntopap)
WITNESS:
/s/ Kiettirong Daowsook
(Mr. Kiettirong Daowsook)
