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Exhibit 10.4
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$75,000,000
REVOLVING CREDIT AGREEMENT
Dated as of February 26, 1999
Between
MEMC ELECTRONIC MATERIALS, INC.
as Borrower
and
VEBA CORPORATION
as Initial Lender and as Agent
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS....................................1
SECTION 1.01. Certain Defined Terms...........................................1
SECTION 1.02. Computation of Time Periods.....................................5
SECTION 1.03. Accounting Terms................................................5
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES..................................5
SECTION 2.01. The Advances....................................................5
SECTION 2.02. Making the Advances.............................................5
SECTION 2.03. Commitment Fee..................................................6
SECTION 2.04. Optional Termination or Reduction of the Commitments............6
SECTION 2.05. Repayment.......................................................7
SECTION 2.06. Interest........................................................7
SECTION 2.07. Reserved........................................................7
SECTION 2.08. Interest Rate Determination.....................................7
SECTION 2.09. Increased Costs, Etc............................................7
SECTION 2.10. Illegality......................................................8
SECTION 2.11. Payments and Computations.......................................8
SECTION 2.12. Taxes...........................................................9
SECTION 2.13. Sharing of Payments, Etc.......................................10
SECTION 2.14. Use of Proceeds................................................11
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING..........................11
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01..........11
SECTION 3.02. Conditions Precedent to each Borrowing.........................12
SECTION 3.03. Determinations Under Section 3.01..............................12
ARTICLE IV REPRESENTATIONS AND WARRANTIES....................................12
SECTION 4.01. Representations and Warranties of the Borrower.................12
ARTICLE V COVENANTS OF THE BORROWER..........................................13
SECTION 5.01. Covenant to Repay from Private Placement Proceeds..............13
SECTION 5.02. Negative Covenants.............................................14
ARTICLE VI EVENTS OF DEFAULT.................................................15
SECTION 6.01. Events of Default..............................................15
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ARTICLE VII THE AGENT........................................................16
SECTION 7.01. Authorization and Action.......................................16
SECTION 7.02. Agent's Reliance, Etc..........................................17
SECTION 7.03. VEBA...........................................................17
SECTION 7.04. Lender Credit Decision.........................................17
SECTION 7.05. Indemnification................................................17
SECTION 7.06. Successor Agent................................................18
ARTICLE VIII MISCELLANEOUS...................................................18
SECTION 8.01. Amendments, Etc................................................18
SECTION 8.02. Notices, Etc...................................................18
SECTION 8.03. No Waiver; Remedies............................................19
SECTION 8.04. Costs and Expenses.............................................19
SECTION 8.05. Right of Setoff................................................20
SECTION 8.06. Binding Effect.................................................20
SECTION 8.07. Assignments and Participations.................................20
SECTION 8.08. Confidentiality................................................23
SECTION 8.09. Governing Law..................................................23
SECTION 8.10. Execution in Counterparts......................................23
SECTION 8.11. Jurisdiction, Etc..............................................23
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Form of Borrowing Notice
Exhibit C - Form of Assignment and Acceptance
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REVOLVING CREDIT AGREEMENT
Dated as of February 26, 1999
MEMC ELECTRONIC MATERIALS, INC., a Delaware corporation, as
the borrower (the "Borrower"), and VEBA CORPORATION, a corporation formed under
the laws of the State of Delaware ("VEBA"), as the initial lender (the "Initial
Lender") and as agent (together with any successor appointed pursuant to Article
VII, the "Agent") for the Lenders (as hereinafter defined), hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Advance" has the meaning specified in Section 2.01.
"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 5% 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.
"Agent" has the meaning specified in the recital of parties
to this Agreement.
"Agent's Account" means the Dollar account of the Agent
maintained with such bank as the Agent shall specify in writing to the Borrower
and the Lenders from time to time.
"Applicable Spread" means a percentage per annum equal to the
excess of (a) the Bloomberg fair market sector curves (adjusted for the chosen
interest rate method and period) applicable one Business Day prior to March 1,
1999, to a B3 rated industrial borrower for the period from March 1, 1999
through June 30, 1999 over (b) the corresponding British Bankers' Association
(BBA) LIBOR fixing rate (as shown on the Reuters page FRBD or comparable pages)
for such four-month period.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee and accepted by the Agent, in
substantially the form of Exhibit C hereto.
"Bank" means any Lender other than the Initial Lender or any
Affiliate of the Initial Lender.
"Borrower" has the meaning specified in the recital of
parties to this Agreement.
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"Borrowing" means the borrowing consisting of the Advances
made by the Lenders.
"Borrowing Notice" has the meaning specified in
Section 2.02(a).
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the applicable
business day relates to any Advances, on which dealings are carried on in the
London interbank market.
"Commitment" has the meaning specified in Section 2.01.
"Confidential Information" means information that the Borrower
furnishes to the Agent or any Lender in a writing designated as confidential,
but does not include any such information that is or becomes generally available
to the public or that is or becomes available to the Agent or such Lender from a
source other than the Borrower, an Affiliate of the Borrower or an Affiliate of
the Initial Lender.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Debt" means (a) indebtedness for borrowed money, (b)
obligations evidenced by bonds, debentures, notes or other similar instruments,
(c) obligations to pay the deferred purchase price of property or services, (d)
obligations as lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles, recorded as capital
leases, and (e) obligations under direct or indirect guaranties in respect of,
and obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clause (a) through (d) of this
definition.
"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.
"Dollars" and the sign "$" each means lawful money of the
United States of America.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means any Person approved by all of the
Lenders; provided, however, that neither the Borrower nor any Subsidiary of the
Borrower shall qualify as an Eligible Assignee.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Eurodollar Lending Office" means, with respect to any Bank,
the office of such Bank specified as its "Eurodollar Lending Office" in the
Assignment and Acceptance pursuant to which it became a Lender, or such other
office of such Bank as such Bank may from time to time specify to the Borrower
and the Agent.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
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"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Advances 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, without limitation, 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 reference to which the interest rate on
Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"GAAP" has the meaning specified in Section 1.03.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, and any federal, state, local or
foreign court or governmental, executive, legislative, judicial, administrative
or regulatory agency, department, authority, instrumentality, commission, board
or similar body.
"Indemnified Party" has the meaning specified in
Section 8.04(b).
"Initial Lender" has the meaning specified in the recital of
parties to this Agreement.
"Interest Period" means, for each Advance comprising part of
the same Borrowing, the period commencing on the date of such Advance 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 week or one, two, three or
four months, as the Borrower may, upon notice received by the 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, however, that:
(a) the Borrower may not select any Interest Period that ends
after the Termination Date;
(b) Interest Periods commencing on the same date for Advances
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, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on the
next preceding Business Day; and
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(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 equal to 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" for any Interest Period means a rate per annum
at all times equal to the sum of (i) the British Bankers' Association (BBA)
LIBOR rate (as shown on the Reuters page FRBD or comparable pages) for such
Interest Period for such Advance, divided by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage for such Interest Period, plus (ii) the
Applicable Spread.
"Lender" means the Initial Lender and each Person that shall
become a party hereto pursuant to Section 8.07.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole.
"Note" means a promissory note of the Borrower payable to the
order of any Lender, substantially in the form of Exhibit A hereto, evidencing
the Debt of the Borrower to such Lender resulting from the Advance made by such
Lender.
"Other Taxes" has the meaning specified in Section 2.12(b).
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust, unincorporated
association, joint venture, limited liability company or other entity, or a
government or any political subdivision or agency thereof.
"Private Placement Closing" means the closing under the
Purchase Agreement dated as of October 22, 1998 by and among VEBA and the
Borrower, as amended from time to time and as assigned by VEBA to VEBA Zweite
Verwaltungsgesellschaft mbH, a German limited liability company, as of December
30, 1998.
"Register" has the meaning specified in Section 8.07(c).
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having ordinary
voting power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such limited
liability company, partnership or joint venture or (c) the beneficial interest
in such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries; provided,
however, that the term "Subsidiary" shall not include any joint venture of the
Borrower with respect to any action or decision of the board of directors of
such joint venture if, by
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written agreement, such action or decision requires a vote in excess of the
number of members of such board of directors elected or controlled by the
Borrower.
"Taxes" has the meaning specified in Section 2.12(a).
"Termination Date" means the earliest of (a) June 30, 1999,
(b) the termination in whole of the Commitments pursuant to Section 2.04 or
Section 6.01 or (c) the date of the Private Placement Closing.
"United States" and "U.S." each means the United States
of America.
The words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation."
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each means "to but excluding."
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make advances (each, an
"Advance") to the Borrower from time to time on any Business Day during the
period from the Effective Date until the Termination Date in an amount not to
exceed the amount set forth opposite such Lender's name on the signature pages
hereof or, if such Lender has entered into any Assignment and Acceptance, set
forth for such Lender in the Register maintained by the Agent pursuant to
Section 8.07(c), as such amount may be reduced pursuant to Section 2.04 (such
Lender's "Commitment"). Each Borrowing shall be in an aggregate amount of
$5,000,000 or an integral multiple of $5,000,000 in excess thereof and shall be
made simultaneously by the Lenders ratably according to their respective
Commitments. Within the limits of each Lender's Commitment, the Borrower may
borrow and reborrow under this Section 2.01.
SECTION 2.02. Making the Advances. (a) Each Borrowing shall be
made on notice, given not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed Borrowing by the Borrower
to the Agent, which shall give to each Lender prompt notice thereof by
telecopier or telex. Each notice of a Borrowing (a "Borrowing Notice") shall be
by telephone, confirmed immediately in writing, or telecopier or telex, in
substantially the form of Exhibit B hereto, specifying therein, among other
things, the requested (i) date of such Borrowing, (ii) the amount of such
Borrowing and (iii) the initial Interest Period for such Advances. Each Lender
shall, before 11:00 A.M. (New York City time) on the date of such Borrowing,
make available for the account of its Eurodollar
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Lending Office to the Agent at the Agent's Account, in same day funds, such
Lender's ratable portion of such Borrowing. After the Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Agent will make such funds available to the Borrower by depositing the
proceeds of the Advances in such Dollar account of the Borrower (or of such
Person as the Borrower shall specify to the Lender in the Borrowing Notice or by
other written notice to the Lender given simultaneously with or prior to such
Borrowing Notice) maintained with such bank as the Borrower shall specify to the
Agent in such Borrowing Notice.
The parties hereto understand and agree that the Initial
Lender may, in its sole discretion (but shall have no obligation to), designate
a financial institution or another Person to perform the Initial Lender's
obligations hereunder in accordance with the terms hereof. The Borrower agrees
that performance of any such obligation by any such designee of the Initial
Lender shall be deemed to constitute performance by the Initial Lender for all
purposes of this Agreement and the Note and shall discharge the Initial Lender
from such obligation to the extent of such performance.
(b) Anything in subsection (a) of this Section 2.02 to the contrary
notwithstanding, the Borrower may not request a Borrowing if the obligation of
the Lenders to make Advances shall then be suspended pursuant to Section 2.10.
(c) Each Borrowing Notice delivered by the Borrower to the Agent shall
be irrevocable and binding on the Borrower. 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 Borrowing Notice
for such Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Advance to be made
by such Lender as part of such Borrowing when such Advance, as a result of such
failure, is not made on such date.
(d) The Agent shall only make available to the Borrower on the date of
any Borrowing the ratable portion of such Borrowing of each Lender that such
Lender has made available to the Agent on or prior to the date of such
Borrowing.
(e) The failure of any Lender to make the Advance 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 Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Commitment Fee. The Borrower agrees to pay to
the Agent for the account of each Lender a commitment fee on the unused portion
of such Lender's Commitment from the Effective Date in the case of the Initial
Lender and from the effective date specified in the Assignment and Acceptance
pursuant to which it became a Lender in the case of each other Lender until the
Termination Date at a rate per annum equal to 1/4 of 1%, payable in arrears on
March 31, 1999 and on the Termination Date.
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SECTION 2.04. Optional Termination or Reduction of the
Commitments. The Borrower shall have the right, upon at least three Business
Days' notice to the Agent, to terminate in whole or reduce ratably in part the
unused portions of the respective Commitments of the Lenders, provided that each
partial reduction shall be in the aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof.
SECTION 2.05. Repayment. The Borrower shall repay to the Agent
for the ratable account of the Lenders on the Termination Date the aggregate
principal amount of the Advances then outstanding.
SECTION 2.06. Interest. (a) Interest on the Advances. The
Borrower shall pay interest on the unpaid principal amount of each Advance owing
to each Lender from the date of such Advance until such principal amount shall
have been paid in full at an interest rate per annum equal to the Interest Rate,
payable in arrears on the last day of such Interest Period and on the date such
Advance shall be paid in full.
(b) Interest on Overdue Amounts. In the event that any principal amount
of any Advance or any interest, fees, costs, expenses or other amounts payable
hereunder are not paid when due, the Borrower shall pay interest on such unpaid
amount from the date such amount is due until the date such amount is paid in
full, payable on demand, at an interest rate per annum equal to the interest
rate referred to in subsection (a) of this Section 2.06 then in effect plus 2%.
SECTION 2.07. Reserved.
SECTION 2.08. Interest Rate Determination. (a) The Agent
shall give prompt notice to the Borrower and the Lenders of the applicable
interest rate determined by the Agent for purposes of Section 2.06(a).
(b) If the Borrower shall fail to select the duration of any Interest
Period for any Advances in accordance with the provisions contained in the
definition of "Interest Period" in Section 1.01, the Agent will forthwith so
notify the Borrower and the Lenders and such Advances will automatically, on the
last day of the then existing Interest Period therefor, convert into an Advance
bearing interest at the Interest Rate applicable to Advances of the same
aggregate amount having an Interest Period of four months.
(c) On the date on which the aggregate unpaid principal amount of
Advances comprising any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $5,000,000, such Advances shall automatically convert
into an Advance bearing interest at the Interest Rate applicable to Advances of
the same aggregate amount having an Interest Period of four months.
SECTION 2.09. Increased Costs, Etc. If due to either (a) the
introduction of or any change (including, without limitation, any change by way
of imposition or increase of reserve requirements) in or in the interpretation
of any law or regulation or (b) the compliance with any guideline or request
from any central bank or other Governmental Authority (whether or not having the
force of law), there shall be any increase in the cost to any Bank of agreeing
to make or making, funding or
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maintaining an Advance, then the Borrower shall from time to time, upon demand
by such Bank (with a copy of such demand to the Agent), pay to the Agent for the
account of such Bank additional amounts sufficient (as applicable) to compensate
such Bank for such increased cost. A certificate as to the amount of such
increased cost, submitted to the Borrower by such Bank, shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 2.10. Illegality. Notwithstanding any other provision
of this Agreement, if any Bank shall notify the Borrower that any law or
regulation, or the introduction of or any change in or in the interpretation of
any law or regulation, makes it unlawful, or any central bank or other
Governmental Authority asserts that it is unlawful, for such Bank to perform its
obligations hereunder to make an Advance or to fund or maintain an Advance
hereunder, (a) the obligation of such Bank to make, fund and maintain any
Advance shall be suspended until such Bank shall notify the Borrower that the
circumstances causing such suspension no longer exist, (b) such Bank shall
promptly notify the Borrower of such circumstances and such suspension, and (c)
unless the Borrower and such Bank shall have otherwise agreed within ten
Business Days of such notice, the Borrower shall forthwith on such tenth
Business Day prepay in full the Advances then outstanding together with interest
accrued thereon.
SECTION 2.11. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later than 1:00 P.M.
(New York City time) on the day when due in Dollars to the Agent at the Agent's
Account, in each case in immediately available funds. The Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest or fees ratably (other than amounts payable pursuant to
Section 2.09, 2.12 or 8.04(c)) to the Lenders for the account of their
respective Eurodollar 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
Eurodollar 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 8.07(d), from and after the effective date specified in such Assignment
and Acceptance, the 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.
(b) All computations of interest and of fees shall be made in good
faith by the Agent on the basis of a year of 360 days for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest or fees are payable.
(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 or fee, as the case may be;
provided, however, that, if such extension would cause payment of interest on or
principal of any Advances to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.
(d) Unless the Agent shall have received notice from the Borrower prior
to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in
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full, the Agent may assume that the Borrower has made such payment in full to
the Agent on such date and the Agent may, in reliance upon such assumption,cause
to be distributed to each 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 Agent, each Lender shall repay to the 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 Agent, at the
Federal Funds Rate.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made in accordance with Section 2.11, 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, excluding, in the case of each Lender and the Agent, net income
taxes that are imposed by the United States and net income taxes (or franchise
taxes imposed in lieu thereof) that are imposed on such Lender or the Agent by
the state or foreign jurisdiction under the laws of which such Lender or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Lender, net income taxes (or franchise taxes imposed in
lieu thereof) that are imposed on such Lender by the state or foreign
jurisdiction of such Lender's Eurodollar Lending Office or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities in respect of payments hereunder or under
the Notes being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note, (i) the sum payable shall be increased as may be
necessary so that, after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.12), such Lender or
the Agent receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp,
documentary, excise, property or other taxes, charges or 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").
(c) The Borrower shall indemnify each Lender and the Agent for the full
amount of Taxes or Other Taxes and for the full amount of Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 2.12 imposed
on or paid by such Lender or the Agent (as the case may be) or any liability
(including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted. This indemnification shall be made within 30 days from the
date such Lender or the Agent makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
shall furnish to the Agent, at its address referred to in Section 8.02, the
original receipt of payment or a certified copy of such receipt. If no Taxes are
payable in respect of any payment hereunder or under the Notes, the Borrower
shall furnish to the Agent, at such address, a certificate from each appropriate
taxing authority,
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or an opinion of counsel acceptable to the Lenders, in either case stating that
such payment is exempt from or not subject to Taxes.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States shall, on the Effective Date in the case of the Initial Lender and
on the date of the Assignment and Acceptance 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 or the Agent (but only so long as such
Lender remains lawfully able to do so), provide each of the Borrower and the
Agent with 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 exempt from or entitled to a reduced rate of United States
withholding tax on payments of interest pursuant to this Agreement or the Notes.
If the form provided by such Lender at the time such Lender 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,
however, that, if at the date of the Assignment and Acceptance pursuant to which
a Lender becomes a party to this Agreement, the Lender assignor was entitled to
payments under Section 2.12(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 Lender assignee on such date. If any
form or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001 or
4224, that the Lender reasonably considers to be confidential, the Lender shall
give notice thereof to the Borrower and shall not be obligated to include in
such form or document such confidential information.
(f) For any period with respect to which a Lender has failed to provide
the Borrower with the appropriate form described in Section 2.12(e) (other than
if such failure is due to a change in law occurring subsequent to the date on
which a form originally was required to be provided, or if such form otherwise
is not required under the first sentence of Section 2.12(e) above), such Lender
shall not be entitled to indemnification under Section 2.12(a) with respect to
Taxes imposed by the United States; provided, however, that should such Lender
become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Taxes.
SECTION 2.13. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of setoff, or otherwise) on account of the Advance owing to it (other than
pursuant to Section 2.09, 2.12 or 8.04(c)) in excess of its ratable share of
payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, 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 (a) the amount of such Lender's required
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repayment to (b) 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 2.13
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of setoff) 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 2.14. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely for general corporate purposes of the Borrower and its Subsidiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 of this Agreement shall become effective on and as of the
first date (the "Effective Date") on which the following conditions precedent
have been satisfied:
(a) There shall have occurred no Material Adverse Change since
September 30, 1998.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its
Subsidiaries pending or threatened in writing before any court,
governmental agency or arbitrator that (i) may materially adversely
affect the financial condition or operations of the Borrower or any of
its subsidiaries or (ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby.
(c) On the Effective Date, the following statements shall be
true and the Agent shall have received a certificate signed by a duly
authorized officer of the Borrower, dated the Effective Date, stating
that:
(i) the representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) no event has occurred and is continuing that
constitutes a Default.
(d) The Agent shall have received on or before the Effective
Date the following, each dated such date, in form and substance
satisfactory to the Lenders (except for the Notes):
(i) executed counterparts of this Agreement duly
executed and delivered by the Borrower;
(ii) the Notes to the order of the Lenders;
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(iii) certified copies of the resolutions of the board
of directors of the Borrower approving this Agreement and the
Notes, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement and the Notes; and
(iv) a certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement and the Notes and the other documents to be
delivered hereunder.
SECTION 3.02. Conditions Precedent to each Borrowing. The
obligation of each Lender to make an Advance on the occasion of each Borrowing
shall be subject to the conditions precedent that the Effective Date shall have
occurred and on the date of such Borrowing the following statements shall be
true (and each of the giving of the applicable Borrowing Notice and the
acceptance by the Borrower of the proceeds of such Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such Borrowing
such statements are true):
(a) the representations and warranties contained in Section
4.01 (other than the last sentence of subsection (e) thereof) are
correct on and as of the date of such Borrowing, before and after
giving effect to such Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and
(b) no event has occurred and is continuing, or would result
from such Borrowing or from the application of the proceeds therefrom,
that constitutes a Default.
SECTION 3.03. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
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(b) The execution, delivery and performance by the Borrower of
this Agreement and the Notes are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action,
and do not contravene (i) the Borrower's charter or by-laws or (ii) any
law or any contractual restriction binding on or affecting the
Borrower.
(c) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority is required for
the due execution, delivery and performance by the Borrower of this
Agreement and the Notes.
(d) This Agreement has been, and the Notes when delivered
hereunder will have been, duly executed and delivered by the Borrower.
This Agreement is, and each of the Notes when delivered hereunder will
be, legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their respective terms.
(e) The Consolidated balance sheets of the Borrower and its
Subsidiaries as at December 31, 1997 and September 30, 1998, and the
related Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for the fiscal year and the nine months
then ended, copies of which have been furnished to the Lenders, fairly
present the financial condition of the Borrower and its Subsidiaries as
at such date and the results of the operations of the Borrower and its
Subsidiaries for the period ended on such date, all in accordance with
GAAP. Since September 30, 1998, there has been no Material Adverse
Change.
(f) There is no pending or threatened action or proceeding
affecting the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator, that (i) may materially adversely
affect the financial condition or operations of the Borrower or any of
its Subsidiaries or (ii) purports to affect the legality, validity or
enforceability of this Agreement or the Notes or the consummation of
the transactions contemplated hereby.
(g) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no proceeds of any Advance 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.
(h) The Advances and all related obligations of the Borrower
under this Agreement and the Notes rank pari passu with all other
unsecured obligations of the Borrower that are not, by their terms,
expressly subordinate to such other obligations of the Borrower.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Covenant to Repay from Private Placement
Proceeds. Unless the Lenders shall otherwise consent in writing, if the Private
Placement Closing has occurred prior to the dates specified under (a) and (b) in
the definition of "Termination Date" in Section 1.01, Borrower will
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use the proceeds from the Private Placement Closing to make the repayment in
accordance with Section 2.05.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will not, unless the Lenders shall otherwise consent in writing:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Subsidiaries to create or suffer to exist, any lien, security
interest or other charge or encumbrance, or any other type of
preferential arrangement, upon or with respect to any of its
properties, whether now owned or hereafter acquired, or assign, or
permit any of its Subsidiaries to assign, any right to receive income,
in each case to secure any Debt of any Person, other than:
(i) purchase money liens or purchase money security
interests upon or in any property acquired or held by the
Borrower or any Subsidiary in the ordinary course of business
to secure the purchase price of such property or to secure
indebtedness incurred solely for the purpose of financing the
acquisition of such property;
(ii) liens or security interests existing on such
property at the time of its acquisition (other than any such
lien or security interest created in contemplation of such
acquisition);
(iii) liens for taxes, assessments and governmental
charges or levies;
(iv) liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's liens and
other similar liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more
than 30 days;
(v) pledges or deposits to secure obligations under
workers' compensation laws or similar legislation or to secure
public or statutory obligations;
(vi) easements, rights of way and other encumbrances on
title to real property that do not render title to the
property encumbered thereby unmarketable or materially
adversely affect the use of such property for its present
purposes; and
(vii) liens incurred or deposits made in the ordinary
course of business to secure the performance of letters of
credit, bids, tenders, sales contracts, leases, surety, appeal
and performance bonds and other similar obligations not
incurred in connection with the borrowing of money;
provided that the aggregate principal amount of the Debt, other
indebtedness, taxes, assessments, governmental charges or levies and
other obligations secured by the liens or security interests referred
to in clauses (i) through (vii) of this Section 5.02(a) shall not
exceed $45,000,000 in the aggregate at any time outstanding.
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(b) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as allowed by generally accepted accounting
principles.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) the Borrower shall fail to pay (i) any principal of any
Advance when the same becomes due and payable or (ii) any interest on
any Advance or any other amount payable under this Agreement or any
Note within ten days from the date the same becomes due and payable; or
(b) any representation or warranty made by the Borrower herein
or by the Borrower (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect
when made; or
(c) (i) the Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.02 or (ii) the
Borrower shall fail to perform or observe any other term, covenant or
agreement contained in this Agreement or any Note on its part to be
performed or observed if such failure shall remain unremedied for 30
days after written notice thereof shall have been given to the Borrower
by the Agent or any Lender; or
(d) the Borrower or any of its Subsidiaries shall fail to pay
any principal of or premium or interest on any Debt that is outstanding
in a principal amount of at least $5,000,000 in the aggregate (but
excluding Debt outstanding hereunder) of the Borrower or such
Subsidiary (as the case may be), 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 any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), redeemed, purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Debt shall be required to be
made, in each case prior to the stated maturity thereof; or
(e) the Borrower or any of its Subsidiaries 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 a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or
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composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee,
custodian 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 (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 60 days, or any of the
actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower or any
of its Subsidiaries shall take any corporate action to authorize any of
the actions set forth above in this Section 6.01(e); or
(f) any judgment or order for the payment of money in excess
of $5,000,000 shall be rendered against the Borrower or any of its
Subsidiaries 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 30 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;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Lenders, by notice to the Borrower, declare the obligation of
each Lender to make Advances to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with the consent, of
the Lenders, by notice to the Borrower, declare the Notes, all interest thereon
and all other amounts payable under this Agreement to be forthwith due and
payable, whereupon the Notes, 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, however, that in the event of an actual or deemed entry of
an order for relief with respect to the Borrower under the Federal Bankruptcy
Code, (A) the obligation of each Lender to make Advances shall automatically be
terminated and (B) the Notes, 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.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent 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 Lenders, and such instructions shall be binding upon all Lenders and all
holders of Notes; provided, however, that the Agent shall not be required to
take any action that exposes the Agent to personal liability or that is contrary
to this Agreement or applicable law. The 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.
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SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (a) may treat
the payee of any Note as the holder thereof until the 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 8.07; (b) may consult with legal counsel (including counsel for the
Borrower), 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; (c)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (d) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of the Borrower
or to inspect the property (including the books and records) of the Borrower;
(e) shall not be responsible to any Lender for the due 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, this Agreement or any other instrument
or document furnished pursuant hereto; and (f) shall incur no liability under or
in respect of this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. VEBA. With respect to its Commitment, the
Advance made by it and the Note issued to it, VEBA shall have the same rights
and powers under this Agreement as any other Lender and may exercise the same as
though it were not the Agent; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include VEBA in its individual capacity.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, 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 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.
SECTION 7.05. Indemnification. The Lenders agree to indemnify
the Agent (to the extent not reimbursed by the Borrower), ratably according to
the respective principal amounts of the Notes then held by each of them (or if
no Notes are at the time outstanding or if any Notes are held by Persons that
are not Lenders, ratably according to the respective 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 Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this Agreement,
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its ratable share of
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any out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agent. The 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 or without cause by the all of the Lenders. Upon any
such resignation or removal, the Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation or the Lenders' removal of the
retiring Agent, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States or of any state thereof and having a long-term senior
unsecured debt rating by S&P of "A" or better. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article VII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. 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, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the number of Lenders, that shall be
required for the Lenders or any of them to take any action hereunder or (f)
amend this Section 8.01; and provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic or telex communication) and mailed, telecopied, telegraphed, telexed
or delivered, if to the Borrower, at its address at βββ βββββ βββββ, ββ. ββββββ,
ββββββββ βββββ, Attention: Treasurer (telecopier number (βββ) βββ-ββββ); if to
the Initial Lender or the Agent, at βββ βββββ ββββββ, βββ ββββ, βββ ββββ, βββββ,
Attention: President (telecopier
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number (βββ) βββ-ββββ); if to any other Lender or any Bank, at its Eurodollar
Lending Office specified in the Assignment and Acceptance pursuant to which it
became a Lender; or, as to any party, at such other address as shall be
designated by such party in a written notice to the other parties. All such
notices and communications shall, when mailed, telecopied, telegraphed or
telexed, be effective when received by the party to whom such notice is
addressed, except that notices and communications pursuant to Section 2.08 shall
not be effective until confirmed in writing by the party to whom such notice is
addressed. Delivery by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement or the Notes or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as delivery of a
manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the 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 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand all reasonable costs and expenses of the Agent in connection with
the preparation, execution, delivery, modification and amendment of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and expenses of counsel for
the Agent with respect thereto and with respect to advising the Agent as to its
rights and responsibilities under this Agreement. The Borrower further agrees to
pay on demand all costs and expenses of the Agent and the Lenders, if any
(including, without limitation, reasonable counsel fees and expenses), in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Agreement, the Notes and the other documents to be
delivered hereunder, including, without limitation, reasonable fees and expenses
of counsel for the Agent and each Lender in connection with the enforcement of
rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, 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 Notes, this Agreement, any
of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances, whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, shareholders or creditors
or an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto 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, nonappealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. The Borrower also agrees not to assert any claim against the
Agent, any Lender, any of their Affiliates, or any of their respective
directors, officers, employees, attorneys and agents, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise
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relating to the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Advances.
(c) If any payment of principal of any Advance is made by the Borrower
to or for the account of a Lender other than on the last day of the Interest
Period for such Advance, as a result of a payment pursuant to Section 2.08(b),
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, the Borrower shall, upon demand by such Lender (with a copy of
such demand to the Agent), pay to the Agent for the account of such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment including,
without limitation, any loss (including loss of anticipated profits), 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 Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.09, 2.12 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Setoff. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 to authorize the Agent
to declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply 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 Lender or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement and the Note held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Borrower
after any such setoff and application, provided that the failure to give such
notice shall not affect the validity of such setoff and application. The rights
of each Lender and its Affiliates under this Section 8.05 are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) that such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Section 2.01, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower, the Agent and the Initial Lender and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Agent and the Initial Lender and their respective successors and 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 the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender
may assign to one or more Persons all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Advance owing to it and the Note or Notes held by it); provided,
however, that (i) each such assignment shall be of a constant, and not a
varying, percentage of all rights and obligations under this Agreement, (ii)
except in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
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21
obligations under this Agreement, 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 or an integral multiple of $1,000,000 in excess
thereof, (iii) each such assignment shall be to an Eligible Assignee, and (iv)
the parties to each such assignment shall execute and deliver to the Agent, for
its acceptance and recording in the Register, an Assignment and Acceptance,
together with any Note subject to such assignment. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (A) the assignee thereunder shall be a party
hereto 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 (B) 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, 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).
(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 this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 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 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 confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in Section 8.02
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 Advances owing to, each Lender from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the Agent
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this
25
22
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.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) 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 Agent
in exchange for the surrendered Note a new Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, a new Note to the order of the assigning Lender in an amount equal to
the Commitment retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of Exhibit A
hereto.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and the
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Borrower hereunder) 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 Agent 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 this Agreement or any Note, or any consent to any
departure by the Borrower therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, in each case to the extent subject
to such participation, or postpone any date fixed for any payment of principal
of, or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 8.07, 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; 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 relating to the Borrower
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, without limitation, the Advances
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.
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23
(h) In connection with the initial assignment or proposed initial
assignment by the Initial Lender pursuant to this Section 8.07, the Borrower
shall, upon the request of the Initial Lender, furnish to the Initial Lender a
favorable opinion of counsel for the Borrower acceptable to the Initial Lender,
in form and substance reasonably satisfactory to the Initial Lender.
SECTION 8.08. Confidentiality. Neither the Agent nor any
Lender shall disclose any Confidential Information to any Person without the
consent of the Borrower, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and to
actual or prospective assignees and participants, and then, in each case, only
on a confidential and need-to-know basis, (b) as required by any law, rule or
regulation or judicial process and (c) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 8.10. 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 telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties
hereto 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 Agreement or the Notes, or for recognition or enforcement of
any judgment, and each of the parties hereto 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. Each of the parties hereto
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. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
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24
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives effective as
of the day and year first above written.
MEMC ELECTRONIC MATERIALS, INC., as Borrower
/s/ βββββββ β. βββββ
By: ___________________________________________
Name: βββββββ β. βββββ
Title: Treasurer
VEBA CORPORATION, as Agent
/s/ βββββ ββββββ ββββββββ
By: ___________________________________________
Name: βββββ ββββββ ββββββββ
Title: President
/s/ A. ββββ βββββββββββ, ββ.
By: ___________________________________________
Name: A. ββββ βββββββββββ, ββ.
Title: Vice President and General Counsel
VEBA CORPORATION, as Initial Lender
/s/ βββββ ββββββ ββββββββ
By: ___________________________________________
Name: βββββ ββββββ ββββββββ
Title: President
/s/ A. ββββ βββββββββββ, ββ.
By: ___________________________________________
Name: A. ββββ βββββββββββ, ββ.
Title: Vice President and General Counsel
28
EXHIBIT A TO THE
REVOLVING CREDIT AGREEMENT
FORM OF PROMISSORY NOTE
U. S. $____________________ Dated: __________________, ______
FOR VALUE RECEIVED, the undersigned, MEMC ELECTRONIC
MATERIALS, INC., a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY
to the order of [NAME OF LENDER], a [JURISDICTION OF INCORPORATION ] corporation
(the "Lender") for its account on the Termination Date (as defined in the Credit
Agreement referred to below) the principal SUM Of U.S.$[AMOUNT OF THE LENDER'S
COMMITMENT IN FIGURES] or, if less, the principal amount of the Advances made by
the Lender to the Borrower pursuant to the Revolving Credit Agreement dated as
of February 26, 1999 between the Borrower and VEBA, as the Lender and as Agent
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as therein defined)
outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of the Advances from the date of the Advances until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to VEBA, as Agent, at the Agent's Account, in same day
funds. The Advances owing to the Lender by the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Advances 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 the Advances being evidenced by this Promissory 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.
MEMC ELECTRONIC MATERIALS, INC.
By: ____________________________________
Title:
29
2
ADVANCES AND PAYMENTS OF PRINCIPAL
_______________________________________________________________________________
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION MADE
DATE ADVANCE OR PREPAID BALANCE BY
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
30
2
EXHIBIT B TO THE
REVOLVING CREDIT AGREEMENT
FORM OF NOTICE OF BORROWING
VEBA CORPORATION, as Agent
for the Lenders parties
to the Credit Agreement
referred to below
βββ βββββ ββββββ
βββ ββββ, ββ βββββ [Date]
Attention: _________________________
Ladies and Gentlemen:
The undersigned, MEMC ELECTRONIC MATERIALS, INC., refers to
the Revolving Credit Agreement, dated as of February 26, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement",
the terms defined therein being used herein as therein defined), between the
undersigned and VEBA CORPORATION, as Initial Lender and as Agent for the Lenders
thereunder, and hereby gives you notice, irrevocably, pursuant to Section 2.02
of the Credit Agreement, that the undersigned hereby requests a Borrowing under
the Credit Agreement, and in that connection sets forth below the information
relating to such Borrowing (the "Proposed Borrowing") as required by Section
2.02(a) of the Credit Agreement:
(a) The Business Day of the Proposed Borrowing
is _______________, ________.
(b) The initial Interest Period for each Advance made as part
of the Proposed Borrowing is [one week] [one month] [two months] [three months]
[four months].
(c) The aggregate amount of the Proposed Borrowing is
$________________.
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on and as of the date of the
Proposed Borrowing:
(i) the representations and warranties contained in Section
4.01 [(other than the representations set forth in the last sentence of
subsection (e) thereof)]* of the Credit Agreement
_______________
* To be included in any Borrowing Notice requesting a Borrowing to be
made on any Business Day other than the Effective Date.
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2
are 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; and
(ii) no event has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
MEMC ELECTRONIC MATERIALS, INC.
By: ____________________________________
Title:
32
EXHIBIT C TO THE
REVOLVING CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Revolving Credit Agreement dated as
of February 26, 1999 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement") between MEMC ELECTRONIC MATERIALS, INC., a
Delaware corporation (the "Borrower"), and VEBA CORPORATION, a corporation
formed under the laws of the State of Delaware, ("VEBA"), as Initial Lender and
as Agent (the "Agent") for the Lenders thereunder (each as defined in the Credit
Agreement). Terms defined in the Credit Agreement are used herein with the same
meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the
Credit Agreement as of the date hereof equal to the percentage interest
specified on Schedule 1 hereto of all outstanding rights and
obligations under the Credit Agreement. After giving effect to such
sale and assignment, the Assignee's Commitment and the amount of the
Advances owing to the Assignee will be as set forth on Schedule 1
hereto.
2. The Assignor (a) represents and warrants that 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 any statements, warranties or
representations made in or in connection with the Credit Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument or
document furnished pursuant thereto; (c) makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under the Credit Agreement or any
other instrument or document furnished pursuant thereto; and (d)
attaches the Note held by the Assignor and requests that the Agent
exchange such Note for a new Note payable to the order of the Assignee
in an amount equal to the Commitment assumed by the Assignee pursuant
hereto or new Notes payable to the order of the Assignee in an amount
equal to the Commitment assumed by the Assignee pursuant hereto and the
Assignor in an amount equal to the Commitment retained by the Assignor
under the Credit Agreement, respectively, as specified on Schedule 1
hereto.
3. The Assignee (a) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements
referred to in Section 4.01 thereof 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 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
Credit Agreement; (c) confirms that it is an Eligible Assignee; (d)
appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Credit
Agreement as are delegated to
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2
the 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 that
by the terms of the Credit Agreement are required to be performed by it
as a Lender; and (f) attaches any U.S. Internal Revenue Service forms
required under Section 2.12 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Agent for acceptance and recording by the
Agent. The effective date for this Assignment and Acceptance (the
"Effective Date") shall be the date of acceptance hereof by the Agent,
unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (a) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and
Acceptance, 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 Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the
Credit Agreement and the Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal,
interest and facility fees with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Agreement and the Notes for periods prior to
the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance 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 Schedule 1 to
this Assignment and Acceptance by telecopier shall be effective as
delivery of a manually executed counterpart of this Assignment and
Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
34
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _______%
Assignee's Commitment: $_______________
Aggregate outstanding principal amount of Advances assigned: $_______________
Principal amount of Note payable to Assignee: $_______________
Principal amount of Note payable to Assignor: $_______________
Effective Date* : ___________________, _____
[NAME OF ASSIGNOR], as Assignor
By: ____________________________________
Title:
Date: ___________________, _____
[NAME OF ASSIGNEE], as Assignee
By: ____________________________________
Title:
Eurodollar Lending Office
[ADDRESS]
________________
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
35
Accepted this ______ day
of _______________, ____
VEBA CORPORATION, as Agent
By: ___________________________
Title: