LIQUIDATOR TO PAY THE FULL AMOUNT OF SUCH CLASS A
MEMBER'S CAPITAL ACCOUNT WITHIN THE TIME PERIOD REQUIRED BY SECTION 12.02 OF THE
OPERATING AGREEMENT, (Y) THE FAILURE BY ANY IMS HEALTH MEMBER OR ITS DESIGNEE TO
PAY THE PURCHASE PRICE TO ANY CLASS A MEMBER WITHIN THE TIME PERIOD REQUIRED IN
SECTION 14.03 OF THE OPERATING AGREEMENT, OR (Z) THE FAILURE OF THE IMS HEALTH
LLC TO DISTRIBUTE AND PAY TO SUCH CLASS A MEMBER ON THE APPLICABLE RETIREMENT
DATE THE AMOUNTS REQUIRED TO BE SO DISTRIBUTED AND PAID PURSUANT TO
SECTION 10.08(B) OF THE OPERATING AGREEMENT. DELAY DAMAGES FOR ANY SUCH CLASS A
MEMBER SHALL BE IN AN AMOUNT, ACCRUED AND PAYABLE DAILY WITHOUT DEMAND,
CALCULATED AS THE EXCESS, IF ANY, OF (A) AN AMOUNT EQUAL TO INTEREST AT 2.5% PER
ANNUM IN EXCESS OF THE LONDON INTER BANK OFFERED RATE AT APPROXIMATELY
11:00 A.M. LONDON TIME ON SUCH DAY FOR THREE-MONTH EURODOLLAR DEPOSITS OFFERED
BY PRIME BANKS IN THE EURODOLLAR MARKET ON THE AMOUNT NOT DISTRIBUTED OR PAID
OVER (B) ANY AMOUNT OF PRIORITY RETURN (WHETHER DISTRIBUTED OR PAID AS PART OF
THE PURCHASE PRICE) PAID TO SUCH CLASS A MEMBER.
SECTION 3. OBLIGATION ABSOLUTE.
To the maximum extent permitted by law, the obligation of IMS Health under the
Guaranty shall be absolute and unconditional irrespective of:
(A)
ANY LACK OF VALIDITY OR ENFORCEABILITY OF
ANY OF THE PERFORMANCE OBLIGATIONS OR ANY PROVISION OF APPLICABLE LAW OR
REGULATION PURPORTING TO PROHIBIT THE PERFORMANCE OBLIGATIONS; OR
6
(B)
ANY CHANGE IN THE TIME, MANNER OR PLACE OF
PERFORMANCE, OR IN ANY OTHER TERM, OF ALL OR ANY OF THE PERFORMANCE OBLIGATIONS,
OR ANY OTHER AMENDMENT OR WAIVER OF OR ANY CONSENT TO DEPARTURE FROM THE
INVESTMENT DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY INCREASE IN OR
MODIFICATION OF THE PERFORMANCE OBLIGATIONS OR THE DISSOLUTION OF THE IMS HEALTH
LLC; OR
(C)
ANY CHANGE, RESTRUCTURING OR TERMINATION OF
THE CORPORATE STRUCTURE, EXISTENCE OR OWNERSHIP OF THE IMS HEALTH LLC, IMS AG OR
CMS; OR
(D)
ANY OTHER CIRCUMSTANCE, INCLUDING WITHOUT
LIMITATION ANY STATUTE OF LIMITATION, WHICH MIGHT OTHERWISE CONSTITUTE A DEFENSE
(OTHER THAN A DEFENSE OF PAYMENT OR PERFORMANCE) AVAILABLE TO, OR A DISCHARGE
OF, IMS AG, CMS OR IMS HEALTH OR A GUARANTOR OR INDEMNITOR GENERALLY; OR
(E)
ANY ACT OR OMISSION OF ANY INDEMNITEE OR
ANY PAST OR FUTURE INDEMNITEE; OR
(F)
THE EXISTENCE OF ANY CLAIMS, SETOFF OR
OTHER RIGHT THAT IMS HEALTH MAY HAVE HEREUNDER OR UNDER ANY OTHER DOCUMENT AT
ANY TIME AGAINST ANY INDEMNITEE, THE IMS HEALTH LLC, IMS AG, CMS OR ANY OTHER
PERSON (BUT THE FOREGOING SHALL NOT CONSTITUTE A WAIVER OR SURRENDER OF ANY SUCH
RIGHTS).
Without limiting the generality of the foregoing, IMS Health's liability
hereunder shall extend to all liability, loss or damage and reasonable
out-of-pocket costs and expenses incurred or suffered by an Indemnitee arising
from any breach of or failure to perform any Performance Obligations for which
IMS AG or CMS would have been obligated under the