Exhibit 20
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REIMBURSEMENT AGREEMENT
by and among
MEMC ELECTRONIC MATERIALS, INC.
as Borrower,
TPG PARTNERS III, L.P.,
TCW/CRESCENT MEZZANINE PARTNERS III, L.P.,
TCW/CRESCENT MEZZANINE TRUST III,
GREEN EQUITY INVESTORS III, L.P.
and GREEN EQUITY INVESTORS SIDE III, L.P.
as Fund Guarantors
and
CITICORP USA, INC.
as Collateral Agent
dated as of December 21, 2001
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definitions...........................................1
Section 1.02. General Interpretive Principles.......................7
ARTICLE II
REIMBURSEMENT
Section 2.01. Obligation to Reimburse...............................8
Section 2.02. Interest..............................................8
Section 2.03. Computations..........................................8
Section 2.04. Payments Due and Currency.............................8
Section 2.05. Bankruptcy and Similar Procedures
of Borrower...........................................9
Section 2.06. Obligations Absolute..................................9
Section 2.07. Waiver by Borrower....................................9
Section 2.08. Taxes.................................................9
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Authority; Enforceability............................10
Section 3.02. Governmental Approvals; No Conflicts.................11
Section 3.03. Proceedings..........................................11
Section 3.04. Default..............................................11
Section 3.05. Subsidiaries.........................................11
Section 3.06. Properties...........................................11
Section 3.07. Consolidated Backlog; Principal Customers............12
ARTICLE IV
CONDITIONS
Section 4.01. Effective Date.......................................12
ARTICLE V
COVENANTS
Section 5.01. Maintenance of Corporate Existence...................13
Section 5.02. Compliance with Laws.................................14
Section 5.03. Books and Records; Inspection and Audit Rights.......14
Section 5.04. Maintenance of Security Interest.....................14
Section 5.05. Notice of Default....................................14
Section 5.06. Information Regarding Collateral.....................14
Section 5.07. Maintenance of Properties............................15
Section 5.08. Insurance............................................15
Section 5.09. Casualty and Condemnation............................15
Section 5.10. Additional Subsidiaries..............................15
Section 5.11. Further Assurances; Transfer of Joint
Venture Stock........................................15
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default....................................16
Section 6.02. Consequences of Default..............................18
Section 6.03. Right of Setoff and Disposition by the
Fund Guarantors......................................18
ARTICLE VII
COLLATERAL AGENT
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Acknowledgment of Security Interest..................21
Section 8.02. Termination..........................................22
Section 8.03. Notices..............................................22
Section 8.04. Counterparts.........................................23
Section 8.05. Entire Agreement.....................................23
Section 8.06. GOVERNING LAW; JURISDICTION;
CONSENT TO SERVICE OF PROCESS........................24
Section 8.07. Severability.........................................24
Section 8.08. No Third Party Rights; Assignment....................24
Section 8.09. Waivers and Amendments...............................25
Section 8.10. Rights Not Exclusive.................................25
Section 8.11. Expenses; Indemnity; Damage Waiver...................25
Section 8.12. Confidentiality......................................26
TABLE OF CONTENTS
ANNEXES:
Annex 1 -- Accounts
SCHEDULES:
Schedule I Fund Guarantor Percentages
Schedule 1.01 -- Mortgaged Properties
Schedule 3.02 -- Conflicts
Schedule 3.05 -- Subsidiaries
Schedule 3.06 -- Real Property
EXHIBITS:
Exhibit A -- Guarantee Agreement
Exhibit B -- Indemnity, Subrogation and Contribution Agreement
Exhibit C -- Pledge Agreement
Exhibit D -- Security Agreement
Exhibit E-1 -- Form of Opinion of Borrower's Counsel
Exhibit E-2 -- Form of Opinion of Local Counsel
REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT (the "Agreement"), dated as of December 21,
2001, by and among MEMC ELECTRONIC MATERIALS, INC., a Delaware corporation (the
"Borrower"), TPG PARTNERS III, L.P. (together with its successors and assigns,
the "TPG Guarantor"), TCW/CRESCENT MEZZANINE PARTNERS III, L.P. (together with
its successors and assigns, "TCW"), TCW/CRESCENT MEZZANINE TRUST III (together
with its successors and assigns, "TCW Trust" and together with TCW, the "TCW
Guarantors"), GREEN EQUITY INVESTORS SIDE III, L.P. (together with its
successors and assigns, "GEI Side") and GREEN EQUITY INVESTORS III, L.P.
(together with its successors and assigns, "GEI" and together with GEI Side, the
"GEI Guarantors") (collectively, the "Fund Guarantors"), and CITICORP USA, INC.
as collateral agent (in such capacity, the "Collateral Agent").
WHEREAS, the Borrower, contemporaneously herewith, is entering into a
Revolving Credit Agreement, dated as of December 21, 2001 with the lenders party
thereto (the "Lenders") and Citicorp USA, Inc. as administrative agent (in such
capacity, the "Administrative Agent") (as such agreement may be further amended,
restated, modified or supplemented at any time and from time to time hereafter,
the "Revolving Credit Agreement"), pursuant to which the Lenders will provide
the Borrower with a revolving credit facility in an initial aggregate amount not
to exceed U.S. $150,000,000;
WHEREAS, contemporaneously herewith, the TPG Guarantor is entering
into a Guaranty (the "TPG Guaranty"), the TCW Guarantors are entering into a
Guaranty (the "TCW Guaranty") and the GEI Guarantors are entering into a
Guaranty (the "GEI Guaranty" and together with the TPG Guaranty and the TCW
Guaranty, the "Guaranty") each dated as of December 21, 2001 with Citicorp USA,
Inc., as Administrative Agent, pursuant to which the Fund Guarantors will
guarantee the obligations of the Borrower under the Revolving Credit Agreement;
WHEREAS, the Borrower has agreed to reimburse the Fund Guarantors for
any and all payments made by the Fund Guarantors under the Guaranty; and
WHEREAS, the Security Documents (as hereinafter defined) shall have
been executed and delivered and shall secure the obligations of the Borrower
under this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, the Fund Guarantors, the Borrower and the
Collateral Agent hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Unless the context otherwise requires, all
capitalized terms used but not defined herein shall have the meanings set forth
in the Revolving Credit Agreement. The following terms, as used in this
Agreement, shall have the following meanings:
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
Notwithstanding the foregoing, no individual shall be deemed to be an Affiliate
of a Person solely by reason of his or her being an officer or director of such
Person.
"Agreement" has the meaning set forth in the preamble hereof.
"Borrower" has the meaning set forth in the preamble hereof.
"Collateral" means any and all "Collateral", as defined in any
applicable Security Document.
"Collateral Agent" has the meaning set forth in the preamble hereof.
"Collateral and Guarantee Requirement" means the requirement that:
(a) the Collateral Agent shall have received from each Reimbursement
Party either (i) a counterpart of each of the Guarantee Agreement, the
Indemnity, Subrogation and Contribution Agreement, the Pledge Agreement and the
Security Agreement duly executed and delivered on behalf of such Reimbursement
Party or (ii) in the case of any Person that becomes a Reimbursement Party after
the Effective Date, a supplement to each of the Guarantee Agreement, the
Indemnity, Subrogation and Contribution Agreement, the Pledge Agreement and the
Security Agreement, in each case in the form specified therein, duly executed
and delivered on behalf of such Reimbursement Party;
(b) all outstanding Equity Interests of the Borrower and each
Subsidiary owned directly by or directly on behalf of any Reimbursement Party,
shall have been pledged pursuant to the Pledge Agreement (except that the
Reimbursement Parties shall not be required to pledge (i) more than 65% of the
outstanding voting stock of any Foreign Subsidiary, (ii) the Equity Interests in
MEMC Southwest Inc., or (iii) the Joint Venture Stock) and the Collateral Agent
shall have received certificates or other instruments representing all such
Equity Interests, together with stock powers or other instruments of transfer
with respect thereto endorsed in blank;
(c) all Indebtedness of the Borrower and each Subsidiary that is owing
to any Reimbursement Party shall be evidenced by a promissory note and shall
have been pledged pursuant to the Pledge Agreement and the Collateral Agent
shall have received all such promissory notes, together with instruments of
transfer with respect thereto endorsed in blank;
(d) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the Collateral
Agent to be filed, registered or recorded to create the Liens intended to be
created by the Security Agreement and the Pledge Agreement (including any
supplements thereto), and perfect such Liens to the extent required by, and with
the priority required by, the Security Agreement and the Pledge Agreement, shall
have been filed, registered or recorded or delivered to the Collateral Agent for
filing, registration or recording;
(e) the Collateral Agent shall have received (i) counterparts of a
Mortgage with respect to each Mortgaged Property providing that the
Reimbursement Obligations shall be secured by a Lien on such Mortgaged Property,
signed on behalf of the record owner of such Mortgaged Property, (ii) a policy
or policies of title insurance issued by a nationally recognized title insurance
company, insuring the Lien of each such Mortgage as a valid first Lien on the
Mortgaged Property, described therein, free of any other Liens except as
expressly permitted by Section 6.02 of the Revolving Credit Agreement, together
with such endorsements, coinsurance and reinsurance as the Collateral Agent or
the Fund Guarantors may reasonably request, and (iii) such surveys, abstracts,
appraisals, legal opinions and other documents as the Collateral Agent or the
Fund Guarantors may reasonably request with respect to any such Mortgage or
Mortgaged Property, as the case may be; and
(f) each Reimbursement Party shall have obtained all material consents
and approvals required to be obtained by it in connection with the execution and
delivery of all Security Documents (or supplements thereto) to which it is a
party, the performance of its obligations thereunder and the granting by it of
the Liens thereunder.
"Contracts" means any and all agreements, commitments or other binding
undertakings (whether written or oral).
"Default" means any condition, event or act which constitutes an Event
of Default or which, with the giving of notice or the lapse of time or both,
would, unless cured or waived, become an Event of Default.
"Dollars" or "U.S.$" means the lawful currency of the United States of
America.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 8.09).
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"Event of Default" has the meaning set forth in Section 6.01 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Foreign Subsidiary" means any Subsidiary that is organized under the
laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"Fund Guarantor Percentages" means the TPG Percentage, the TCW
Percentage and the Green Percentage.
"Fund Guarantors" has the meaning set forth in the preamble hereof.
"GEI" has the meaning set forth in the preamble hereof.
"GEI Guarantors" has the meaning set forth in the preamble hereof.
"GEI Guaranty" has the meaning set forth in the recitals hereof.
"GEI Side" has the meaning set forth in the preamble hereof.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Green Percentage" means the percentage assigned to such term on
Schedule I hereto, as such schedule may be amended from time to time.
"Guarantee Agreement" means the Amended and Restated Guarantee
Agreement, attached hereto as Exhibit A, among the Subsidiary Reimbursement
Parties and the Collateral Agent for the benefit of the Secured Parties.
"Guarantee Amounts" has the meaning set forth in Section 2.01 hereof.
"Guaranty" has the meaning set forth in the recitals hereof.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid, (d)
all obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (f) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person
of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
Notwithstanding anything to the contrary in this paragraph, the term
"Indebtedness" shall not include (a) obligations under Hedging Agreements or (b)
agreements providing for indemnification, purchase price adjustments or similar
obligations incurred or assumed in connection with the acquisition or
disposition of assets or stock.
"Indemnity, Subrogation and Contribution Agreement" means the Amended
and Restated Indemnity, Subrogation and Contribution Agreement, attached hereto
as Exhibit B, among the Borrower, the Subsidiary Reimbursement Parties and the
Collateral Agent.
"Indenture Obligations" has the meaning assigned to such term in the
Indenture Documentation.
"Intercreditor Agreement" means the Intercreditor Agreement, dated as
of December 21, 2001, by and among the Fund Guarantors, the Administrative Agent
and the Collateral Agent, as amended from time to time.
"Law" means any law, treaty, statute, ordinance, code, rule or
regulation of a Governmental Authority or judgment, decree, order, writ, award,
injunction or determination of an arbitrator or court or other Governmental
Authority.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, properties, financial condition, contingent
liabilities or prospects of the Reimbursement Parties taken as a whole, (b) the
ability of the Reimbursement Parties to perform their obligations under the
Related Agreements or (c) any rights of or benefits available to the Fund
Guarantors under the Related Agreements.
"Mortgage" means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Reimbursement Obligation. Each Mortgage shall
be reasonably satisfactory in form and substance to the Collateral Agent.
"Mortgaged Property" means, initially, each parcel of real property
and the improvements thereto owned by a Reimbursement Party and identified on
Schedule 1.01, and includes each other parcel of real property and improvements
thereto with respect to which a Mortgage is granted pursuant to Section 5.10 or
5.11.
"Perfection Certificate" means a certificate in the form of Annex 2 to
the Security Agreement or any other form approved by the Borrower and the
Collateral Agent.
"Permits" means all permits, authorizations, approvals, registrations
or licenses granted by or obtained from any Governmental Authority.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Pledge Agreement" means the Amended and Restated Pledge Agreement,
attached hereto as Exhibit C, among the Reimbursement Parties and the Collateral
Agent for the benefit of the Secured Parties.
"Proceedings" means any actions, claims, suits, arbitrations,
proceedings, or investigations.
"Reimbursement Documents" means this Agreement, the Guarantee
Agreement, the Indemnity, Subrogation and Contribution Agreement and the
Security Documents.
"Reimbursement Obligations" has the meaning assigned to such term in
the Security Agreement.
"Reimbursement Parties" means the Borrower and the Subsidiary
Reimbursement Parties.
"Reimbursement Transaction" means the execution, delivery and
performance by each Reimbursement Party of the Reimbursement Documents to which
it is to be a party.
"Related Agreements" means the Guaranty, the Revolving Credit Loan
Documentation, the Reimbursement Documents and any other agreement or instrument
relating thereto.
"Revolving Credit Agreement" has the meaning set forth in the recitals
hereof.
"Revolving Credit Loan Documentation" means, collectively, (i) the
Revolving Credit Agreement, together with any amendment or restatement thereof
or any supplement thereto, (ii) the guarantee agreement, the security agreement,
the pledge agreement and the indemnity, subrogation and contribution agreement
attached as exhibits to such Revolving Credit Agreement and (iii) any other
security documents or other ancillary documents executed in connection
therewith.
"Secured Parties" has the meaning assigned to such term in the
Security Agreement.
"Security Agreement" means the Amended and Restated Security
Agreement, attached hereto as Exhibit D, among the Borrower, the Subsidiary
Reimbursement Parties and the Collateral Agent for the benefit of the Secured
Parties.
"Security Documents" means the Security Agreement, the Pledge
Agreement, the Mortgages and each other security agreement or other instrument
or document executed and delivered pursuant to Section 5.10 or 5.11 to secure
any of the Reimbursement Obligations.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Reimbursement Party" means any Subsidiary that is not a
Foreign Subsidiary or a Receivable Subsidiary.
"TCW" has the meaning set forth in the preamble hereof.
"TCW Guarantors" has the meaning set forth in the preamble hereof.
"TCW Guaranty" has the meaning set forth in the recitals hereof.
"TCW Trust" has the meaning set forth in the preamble hereof.
"TCW Percentage" means the percentage assigned to such term on
Schedule I hereto, as such schedule may be amended from time to time.
"TPG Guarantor" has the meaning set forth in the preamble hereof.
"TPG Guaranty" has the meaning set forth in the recitals hereof.
"TPG Percentage" means the percentage assigned to such term on
Schedule I hereto, as such schedule may be amended from time to time.
"Uniform Commercial Code" has the meaning assigned to such term in the
Security Agreement.
"U.S." means the United States of America.
Section 1.02. General Interpretive Principles. The definitions of
terms herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation". The word "will" shall be construed to have the same meaning and
effect as the word "shall". Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
ARTICLE II
REIMBURSEMENT
Section 2.01. Obligation to Reimburse. The Borrower agrees to
reimburse each Fund Guarantor for any and all amounts paid by such Fund
Guarantors under or pursuant to the Guaranty (including without limitation any
amounts paid from a cash collateral account established by such Fund Guarantor
pursuant to the Guaranty) (the "Guarantee Amounts"), on demand, which demand may
be made prior to, on or after the date of any such payments, to the account of
each such Fund Guarantor set forth on Annex 1 hereto or such account as each
such Fund Guarantor may designate in writing from time to time. If such demand
is made after 11:00 a.m. (Central time), such payment shall be due on the next
succeeding Business Day. If any Fund Guarantor makes a demand prior to the date
of any such payment, reimbursement from the Borrower will be due on the date of
any such payment.
Section 2.02. Interest. The Borrower agrees to pay interest on any and
all amounts remaining unpaid by the Borrower hereunder for each day unpaid, from
the date such amounts are owed until payment in full (after as well as before
judgment or arbitral award), payable on demand, at the rate of interest for
overdue principal set forth in the Revolving Credit Agreement, provided that if
such interest exceeds the maximum amount permitted to be paid under applicable
Law, then such interest shall be reduced to such maximum permitted amount.
Section 2.03. Computations. All interest shall be computed on the
basis of a year of 360 days and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which such interest is
payable.
Section 2.04. Payments Due and Currency. If any payment hereunder
becomes due and payable on a day other than a Business Day, the same shall be
payable on the next succeeding Business Day, and interest shall continue to
accrue during such extension. All amounts under this Agreement shall be
denominated, made available and payable in Dollars in immediately available
funds. The Borrower shall make each payment required to be made by it hereunder
(whether pursuant to Section 2.01, 2.02 or 2.08 or otherwise) directly to the
Fund Guarantor entitled to receive such payment. If at any time insufficient
funds are received by the Fund Guarantors to pay fully all amounts due
hereunder, such funds shall be applied (a) first, to pay those amounts due under
Sections 2.01 and 2.02 then due hereunder, ratably among the Fund Guarantors
entitled thereto in accordance with such amounts then due to such Fund
Guarantors and (b) second, to pay any other remaining amounts then due
hereunder, ratably among the Fund Guarantors entitled thereto in accordance with
such amounts then due to such Fund Guarantors. If any Fund Guarantor shall
obtain payment for any amounts due under Sections 2.01 and 2.02 in a greater
proportion than as set forth in the preceding sentence, such Fund Guarantor
agrees to ratably share such payment with the other Fund Guarantors.
Section 2.05. Bankruptcy and Similar Procedures of Borrower. The
Borrower's obligations hereunder shall not be affected by the fact that any
obligations of the Borrower are unenforceable or not allowable due to the
existence of bankruptcy, insolvency, liquidation, reorganization or other
similar procedure involving the Borrower. The obligation to reimburse hereunder
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of such obligation is rescinded or reduced in
amount or must otherwise be restored or returned by any Person receiving such
payment upon the bankruptcy, insolvency, liquidation or reorganization of the
Borrower, all as though such payment or part thereof had not been made.
Section 2.06. Obligations Absolute. The obligations of the Borrower
under this Agreement shall be absolute, indivisible, unconditional and
irrevocable, and shall be discharged strictly in accordance with the terms of
this Agreement, under all circumstances whatsoever, including the following
circumstances:
(a) any lack of validity or enforceability of any Related Agreement;
(b) any amendment or waiver of or any consent to departure from any
Related Agreement;
(c) the existence of any claim, counterclaim, setoff, deduction,
recoupment, defense or other rights which the Borrower may have at any time
against the Fund Guarantors or any other Person for any reason whatsoever,
whether in connection with this Agreement or any Related Agreement or otherwise;
(d) any statement or any other document presented under any Related
Agreement proving to be forged, fraudulent, invalid or insufficient in any
respect whatsoever or any statement therein being untrue or inaccurate in any
respect whatsoever; and
(e) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.
Section 2.07. Waiver by Borrower. The Borrower hereby waives, with
respect to its obligations under this Agreement, any presentment, demand,
protest, notice of the occurrence of a default under any Related Agreement, and
any other notice of any kind whatsoever and promptness in making any claim or
demand hereunder. The Borrower's obligations hereunder shall not be discharged
or impaired or otherwise affected by (i) the failure of the Fund Guarantors to
assert any claim or demand or to enforce any right or remedy under the
provisions of any Related Agreement, (ii) any extension or renewal of the
Guaranty, or (iii) any other act or thing or omission or delay to do any other
act or thing which may in any manner or to any extent vary the risk of the Fund
Guarantors or would otherwise operate as a discharge of the Borrower as a matter
of Law, unless and until the obligations hereunder are performed in full.
Section 2.08. Taxes. (a) All amounts payable to the Fund Guarantors
hereunder shall be paid in full and free and clear of any Taxes. If any Tax is
required to be withheld or deducted from, or is otherwise payable by the
Borrower in connection with, any payment to the Fund Guarantors hereunder, the
Borrower (i) shall, if required, withhold or deduct the amount of such Tax from
such payment and shall, in any case, pay such Tax to the appropriate taxing
authority in accordance with applicable Law, and (ii) shall pay to the Fund
Guarantors such additional amounts as may be necessary so that the net amount
received by the Fund Guarantors with respect to such payment, after withholding
or deducting all Taxes required to be withheld or deducted (including any Taxes
required to be withheld or deducted as a result of payments made by the Borrower
(whether made to a taxing authority or to the Fund Guarantors) pursuant to this
Section 2.08(a)) is equal to the full amount payable hereunder. If any Tax is
withheld or deducted from, or is otherwise payable by the Borrower in connection
with, any payment payable to the Fund Guarantors hereunder, the Borrower shall,
as soon as reasonably possible after the date of such payment, furnish to the
Fund Guarantors the original or a certified copy of a receipt for such Tax from
the applicable taxing authority. If any payment due to the Fund Guarantors
hereunder is or is expected to be made without withholding or deducting
therefrom, or otherwise paying in connection therewith, any Tax payable to any
taxing authority, the Borrower shall, within thirty (30) days after any request
from the Fund Guarantors, furnish to the Fund Guarantors a certificate from such
taxing authority, or an opinion of counsel acceptable to the Fund Guarantors, in
either case stating that no Tax payable to such taxing authority was or is, as
the case may be, required to be withheld or deducted from, or otherwise paid by
the Borrower in connection with, such payment.
(b) The Borrower shall, promptly upon request by the Fund Guarantors
for the payment thereof, pay to the Fund Guarantors (i) all Taxes payable by the
Fund Guarantors with respect to any payment due to the Fund Guarantors
hereunder, (ii) all Taxes payable by the Fund Guarantors as a result of payments
made by the Borrower (whether made to a taxing authority or to the Fund
Guarantor) pursuant to this Section 2.08 and (iii) all Taxes on or in respect of
this Agreement, any Related Agreement or any other document or instrument
relating hereto or thereto, or the recording, registration, notarization or
other formalization of any of the foregoing, the enforcement of any of the
foregoing, or the introduction of any of the foregoing in any judicial
proceedings, or otherwise in respect thereof, other than, in any event, any
Excluded Taxes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The representations made by the Borrower pursuant to the Security
Documents are hereby incorporated by reference herein, and the Borrower shall be
deemed to have made such representations hereby to the Fund Guarantors as of the
date of such agreements. The Borrower hereby represents and warrants to the Fund
Guarantors on the date hereof as follows:
Section 3.01. Authority; Enforceability. Each of the Reimbursement
Parties is duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization, has all requisite power and authority
to carry on its business as now conducted and, except where the failure to do
so, individually or in the aggregate, would not reasonably be expected to result
in a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required. The
Reimbursement Transactions entered into and to be entered into by each
Reimbursement Party are within such Reimbursement Party's powers and have been
duly authorized by all necessary action. This Agreement has been duly executed
and delivered by the Borrower and constitutes, and each other Reimbursement
Document to which any Reimbursement Party is to be a party, when executed and
delivered by such Reimbursement Party, will constitute, a legal, valid and
binding obligation of the Borrower or such Reimbursement Party (as the case may
be), enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
Section 3.02. Governmental Approvals; No Conflicts. The Reimbursement
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by or before, any Governmental Authority,
except such as have been obtained or made and are in full force and effect and
except filings necessary to perfect Liens created under the Reimbursement
Documents, (b) will not violate any applicable law or regulation or the charter,
by-laws or other organizational documents of the Borrower or any of the
Subsidiaries or any order of any Governmental Authority, (c) except as set forth
on Schedule 3.02, will not violate or result in a default under any material
indenture, agreement or other instrument binding upon the Borrower or any of the
Subsidiaries or any of their assets, or give rise to a right thereunder to
require any payment to be made by the Borrower or any of the Subsidiaries, and
(d) will not result in the creation or imposition of any Lien on any asset of
the Borrower or any of the Subsidiaries, except Liens created under the Loan
Documents and the Reimbursement Documents.
Section 3.03. Proceedings. There are no actions, suits or proceedings
by or before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
of the Subsidiaries (i) as to which there is a reasonable possibility of an
adverse determination and that, if adversely determined, would, individually or
in the aggregate, result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Reimbursement Documents or the
Reimbursement Transactions.
Section 3.04. Default. No default or event of default under the
Revolving Credit Agreement has occurred and is continuing, and the
representations and warranties made by the Borrower pursuant to the Revolving
Credit Loan Documentation are true and correct as of the date hereof.
Section 3.05. Subsidiaries. Schedule 3.05 sets forth the name of, and
the ownership interest of the Borrower in, each Subsidiary and identifies each
Subsidiary that is a Subsidiary Reimbursement Party, in each case as of the
Effective Date.
Section 3.06. Properties. As of the Effective Date, neither the
Borrower or any of the Subsidiaries has received notice of, or has knowledge of,
any material pending or contemplated condemnation proceeding affecting any
Mortgaged Property or any sale or disposition thereof in lieu of condemnation.
Except as set forth on Schedule 3.06, none of the Mortgaged Property or any
interest therein is subject to any right of first refusal, option or other
contractual right to purchase any such Mortgaged Property or interest therein.
Section 3.07. Consolidated Backlog; Principal Customers. (a) The
Borrower has heretofore furnished to the Fund Guarantors or one or more of their
Related Parties daily reports of Consolidated Backlog from October 11, 2001
through November 12, 2001. Each such report as of its date was complete and
accurate in all material respects.
(b) Except as heretofore communicated to the Fund Guarantors or one or
more of their Related Parties by the Borrower in writing or as otherwise
reflected in the customer specific revenue and volume information communicated
in writing to the Fund Guarantors or one or more of their Related Parties, since
December 31, 2000 none of the 20 largest customers of the Borrower and its
Subsidiaries (as of December 31, 2000 or September 30, 2001) has indicated
orally or in writing its intention or desire to materially alter or discontinue,
in whole or in material part, its relationship with the Borrower and its
Subsidiaries.
ARTICLE IV
CONDITIONS
Section 4.01. Effective Date. The Fund Guarantors shall not be
obligated to issue the Guaranty until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 8.09):
(a) The Fund Guarantors (or their counsel) shall have received from
the Borrower either (i) a counterpart of this Agreement signed on behalf of such
party or (ii) written evidence satisfactory to the Fund Guarantors (which may
include telecopy transmission of a signed signature page of this Agreement) that
such party has signed a counterpart of this Agreement.
(b) The Fund Guarantors shall have received a favorable written
opinion (addressed to each Fund Guarantor and dated the Effective Date) of each
of (i) ▇▇▇▇▇ ▇▇▇▇ LLP, counsel for the Borrower, substantially in the form of
Exhibit E-1, and (ii) local counsel in each jurisdiction where a Mortgaged
Property is located, substantially in the form of Exhibit E-2, and, in the case
of each such opinion required by this paragraph, covering such other matters
relating to the Reimbursement Parties, the Reimbursement Documents or the
Reimbursement Transactions as the Fund Guarantors shall reasonably request. The
Borrower hereby requests such counsel to deliver such opinions.
(c) The Fund Guarantors shall have received such documents and
certificates as the Fund Guarantors or their counsel may reasonably request
relating to the organization, existence and good standing of each Reimbursement
Party, the authorization of the Reimbursement Transactions and any other legal
matters relating to the Reimbursement Parties, the Reimbursement Documents or
the Reimbursement Transactions, all in form and substance satisfactory to the
Fund Guarantors and their counsel.
(d) The Fund Guarantors shall have received all fees and other amounts
due and payable on or prior to the Effective Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses (including
reasonable fees, charges and disbursements of counsel) required to be reimbursed
or paid by any Reimbursement Party hereunder or under any other Reimbursement
Document.
(e) The Collateral and Guarantee Requirement shall have been satisfied
and the Fund Guarantors shall have received a completed Perfection Certificate
dated the Effective Date and signed by an executive officer or Financial Officer
of the Borrower, together with all attachments contemplated thereby, including
the results of a search of the Uniform Commercial Code (or equivalent) filings
made with respect to the Reimbursement Parties (including any Subsidiary
Reimbursement Parties formed in connection with or resulting from the
Acquisition) in the jurisdictions contemplated by the Perfection Certificate and
copies of the financing statements (or similar documents) disclosed by such
search and evidence reasonably satisfactory to the Fund Guarantors that the
Liens indicated by such financing statements (or similar documents) are
permitted by Section 6.02 of the Revolving Credit Agreement or have been
released.
(f) The Fund Guarantors shall have received evidence that the
insurance required by Section 5.08 and the Security Documents is in effect.
(g) The Fund Guarantors shall have been afforded the timely
opportunity to review all other documentation relating to the Reimbursement
Transactions and the other transactions contemplated hereby and shall be
reasonably satisfied in all respects with such documentation.
(h) There shall not have occurred any material adverse change in the
business, assets, operations, properties, financial condition, contingent
liabilities or prospects of the Borrower or the Borrower and its subsidiaries,
taken as a whole, since September 30, 2001.
ARTICLE V
COVENANTS
Section 5.01. Maintenance of Corporate Existence. The Borrower will,
and will cause each of the Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, contracts, licenses, permits, privileges, franchises,
patents, copyrights, trademarks and trade names material to the conduct of the
business of the Borrower and its Subsidiaries, taken as a whole, provided that
the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.03 of the Revolving Credit Agreement or
any sale of assets permitted under Section 6.05 of the Revolving Credit
Agreement; provided, further, that neither Borrower nor any of its Subsidiaries
shall be obligated to maintain any of the foregoing assets in the event that the
Board of Directors of Borrower adopts a resolution to the effect that the
maintenance of such asset is no longer necessary or desirable in the conduct of
the business of the Borrower and its Subsidiaries.
Section 5.02. Compliance with Laws. The Borrower will, and will cause
each of the Subsidiaries to, comply with all Laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, would not result in a
Material Adverse Effect.
Section 5.03. Books and Records; Inspection and Audit Rights. The
Borrower will, and will cause each of the Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all
material dealings and transactions in relation to its business and activities.
The Borrower will, and will cause each of the Subsidiaries to, permit any
representatives designated by the Collateral Agent or any Fund Guarantor, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and at such reasonable intervals as may be reasonably
requested.
Section 5.04. Maintenance of Security Interest. The Borrower covenants
and agrees with the Fund Guarantors that its obligations under this Agreement
shall be secured under the Security Documents for so long as the Guaranty is in
force.
Section 5.05. Notice of Default. The Borrower shall promptly give
notice to the Fund Guarantors of any default or event of default under the
Revolving Credit Loan Documentation upon a Financial Officer of Borrower
obtaining knowledge thereof.
Section 5.06. Information Regarding Collateral. (a) The Borrower will
furnish to the Fund Guarantors prompt written notice of any change (i) in any
Reimbursement Party's corporate name or in any trade name used to identify it in
the conduct of its business or in the ownership of its properties, (ii) in the
location of any Reimbursement Party's chief executive office, its principal
place of business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it
is located (including the establishment of any such new office or facility),
(iii) in any Reimbursement Party's identity, jurisdiction of organization or
corporate structure or (iv) in any Reimbursement Party's Federal Taxpayer
Identification Number. The Borrower agrees not to effect or permit any change
referred to in the preceding sentence unless all filings have been made, or will
have been made within any statutory period, under the Uniform Commercial Code or
otherwise that are required in order for the Fund Guarantors to continue at all
times following such change to have a valid, legal and perfected security
interest in all the Collateral for the benefit of the Secured Parties. The
Borrower also agrees promptly to notify the Fund Guarantors if any material
portion of the Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial statements
with respect to the preceding fiscal year pursuant to paragraph (a) of Section
5.01 of the Revolving Credit Agreement, the Borrower shall deliver to the Fund
Guarantors a certificate of a Financial Officer of the Borrower (i) setting
forth the information required pursuant to Section 2 of the Perfection
Certificate or confirming that there has been no change in such information
since the date of the Perfection Certificate delivered on the Effective Date or
the date of the most recent certificate delivered pursuant to this Section and
(ii) certifying that all Uniform Commercial Code financing statements (including
fixture filings, as applicable) or other appropriate filings, recordings or
registrations, including all refilings, rerecordings and reregistrations,
containing a description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction
identified pursuant to clause (i) above to the extent necessary to protect and
perfect the security interests under the Security Agreement for a period of not
less than 18 months after the date of such certificate (except as noted therein
with respect to any continuation statements to be filed within such period).
Section 5.07. Maintenance of Properties. The Borrower will, and will
cause each of the Subsidiaries to, keep and maintain all property material to
the conduct of the business of the Borrower and the Subsidiaries, taken as a
whole, in good working order and condition, ordinary wear and tear excepted.
Section 5.08. Insurance. The Borrower will, and will cause each of the
Subsidiaries to, maintain, with financially sound and reputable insurance
companies (a) insurance in such amounts (with no greater risk retention) and
against such risks as are customarily maintained by companies of established
repute engaged in the same or similar businesses operating in the same or
similar locations and (b) all insurance required to be maintained pursuant to
the Security Documents. The Borrower will furnish to the Fund Guarantors, upon
request in writing of the Fund Guarantors, information in reasonable detail as
to the insurance so maintained.
Section 5.09. Casualty and Condemnation. The Borrower (a) will furnish
to the Fund Guarantors prompt written notice of any casualty or other insured
damage to any material portion of any Collateral or the commencement of any
action or proceeding for the taking of any Collateral or any part thereof or
interest therein under power of eminent domain or by condemnation or similar
proceeding and (b) will cause the Net Proceeds of any such event (whether in the
form of insurance proceeds, condemnation awards or otherwise) to be applied in
accordance with the applicable provisions of the Security Documents.
Section 5.10. Additional Subsidiaries. If any additional Subsidiary is
formed or acquired after the Effective Date, the Borrower will, within ten (10)
Business Days after such Subsidiary is formed or acquired, notify the Fund
Guarantors and cause the Collateral and Guarantee Requirement to be satisfied
with respect to such Subsidiary (if it is a Subsidiary Reimbursement Party) and
with respect to any Equity Interest in or Indebtedness of such Subsidiary owned
by or on behalf of any Reimbursement Party.
Section 5.11. Further Assurances; Transfer of Joint Venture Stock. (a)
The Borrower will, and will cause each Subsidiary Reimbursement Party to,
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, such further instruments as may reasonably be required for carrying
out the intention, or facilitating the performance, of this Agreement and the
Related Agreements.
(b) The Borrower will, and will cause each Subsidiary Reimbursement
Party to, execute any and all further documents, financing statements,
agreements and instruments, and take all such further actions (including the
filing and recording of financing statements, fixture filings, mortgages, deeds
of trust and other documents), that may be required under any applicable Law, or
which the Fund Guarantors may reasonably request, to cause the Collateral and
Guarantee Requirement to be and remain satisfied, all at the expense of the
Reimbursement Parties. The Borrower also agrees to provide to the Fund
Guarantors, from time to time upon request, evidence reasonably satisfactory to
the Fund Guarantors as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.
(c) If any material assets (including any real property or
improvements thereto or any interest therein) are acquired by the Borrower or
any Subsidiary Reimbursement Party after the Effective Date (other than assets
constituting Collateral under the Security Agreement or the Pledge Agreement
that become subject to the Lien of the Security Agreement or the Pledge
Agreement upon acquisition thereof), the Borrower will notify the Fund
Guarantors, and, if requested by the Fund Guarantors, the Borrower will cause
such assets to be subjected to a Lien securing the Reimbursement Obligations and
will take, and cause the Subsidiary Reimbursement Parties to take, such actions
as shall be necessary or reasonably requested by the Fund Guarantors to grant
and perfect such Liens, including actions described in paragraph (a) of this
Section, all at the expense of the Reimbursement Parties. Notwithstanding the
foregoing, in no event shall the Borrower or any Subsidiary Reimbursement Party
be required to ▇▇▇▇▇ ▇ ▇▇▇▇ on any of the Texas Instruments Agreements (as
defined in the Security Agreement).
(d) The Borrower will, and will cause each applicable Subsidiary to,
execute any and all further documents, financing statements, agreements and
instruments, and take all such further actions that may be required under any
applicable Law, or which the Fund Guarantors may reasonably request, to cause
the transfer of all the Equity Interests in MEMC Kulim Electronic Materials,
Sdn. Bhd. from the Borrower to MEMC International, Inc. no later than
seventy-five (75) Business Days after the Effective Date.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. "Event of Default," wherever used
herein, means any one of the following events (whatever the reason for such
event and whether it shall be voluntary or involuntary or be effected by
operation of Law, pursuant to any judgment, decree or order of any court or
pursuant to any order, rule or regulation of any Governmental Authority):
(a) the Borrower fails to pay when due any amount hereunder in
accordance with the terms hereof;
(b) there shall have occurred and be continuing any "Event of Default"
(as defined in the Revolving Credit Agreement);
(c) any Fund Guarantor is required to make any payment under the
Guaranty;
(d) the Borrower or any of the Subsidiary Reimbursement Parties fails
to observe or perform any of the covenants, terms or agreements contained in any
Related Agreement and such breach, default or failure is continuing for a period
of 30 days after notice thereof from any Fund Guarantor or the Collateral Agent
to the Borrower;
(e) any Lien purported to be created under any Security Document shall
cease to be, or shall be asserted by any Reimbursement Party not to be, a valid
and perfected Lien on Collateral having, in the aggregate, a value in excess of
$500,000, with the priority required by the applicable Security Document, except
(i) as a result of the sale or other disposition of the applicable Collateral in
a transaction permitted under the Reimbursement Documents or the Revolving
Credit Loan Documentation, (ii) any action taken by the Collateral Agent to
release any such Lien in compliance with the provisions of any Reimbursement
Document or the Revolving Credit Loan Documentation, or (iii) as a result of the
Collateral Agent's failure to maintain possession of any stock certificates,
promissory notes or other instruments delivered to it under the Pledge
Agreement;
(f) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (f) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Subsidiary or for a substantial part of
its assets, (iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary or its debts, or of a substantial
part of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed for
forty-five (45) days or an order or decree approving or ordering any of the
foregoing shall be entered;
(h) one or more judgments for the payment of money in an aggregate
amount in excess of $2,500,000 (net of amounts covered by insurance as to which
the insurer has admitted liability in writing) shall be rendered against the
Borrower, any Subsidiary or any combination thereof and the same shall remain
undischarged for a period of thirty (30) consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Borrower or any
Subsidiary to enforce any such judgment;
(i) any decree, order, consent, Permit, license, approval, exemption
or authorization or notarization of, or any registration, filing or declaration
with, any Governmental Authority or any other act of such Governmental Authority
necessary to enable the Borrower to comply with its payment obligations under
this Agreement or any Related Agreement shall be revoked, rescinded, restricted,
overruled, withdrawn or shall otherwise cease to be in full force and effect, or
it otherwise becomes unlawful for the Borrower to perform all or any of its
obligations under this Agreement or any Related Agreement;
(j) any representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary in or in connection with any Related Agreement
or any amendment or modification thereof or waiver thereunder, or in any
certificate or other document furnished pursuant to or in connection with any
Related Agreement or any amendment or modification thereof or waiver thereunder,
shall prove to have been incorrect in any material respect when made or deemed
made; or
(k) a Change in Control shall occur.
Section 6.02. Consequences of Default. If an Event of Default occurs
and is continuing, any Fund Guarantor may (i) declare by notice to the Borrower
the Guarantee Amounts, together with any accrued interest thereon, to be
immediately due and payable, in which case, all such amounts will be immediately
due and payable, (ii) demand by notice to the Borrower the deposit of cash
collateral pursuant to this Section 6.02, in which case, the Borrower shall
deposit cash collateral in an amount equal to the principal of and accrued
interest on the loans and all other amounts due under the Revolving Credit
Agreement and (iii) enforce all rights and remedies to which it is entitled
under the Reimbursement Documents. Notwithstanding the foregoing, upon the
occurrence of an Event of Default described in Section 6.01(f) or (g), the
Guaranteed Amounts together with any accrued interest thereon shall
automatically be immediately due and payable without any notice or demand and
the Borrower shall automatically be obligated to immediately deposit cash
collateral in the amount described in clause (ii) of the preceding sentence
without any notice or demand. Any cash collateral deposited may be deposited
with any Fund Guarantor and such deposit shall be held by such Fund Guarantor or
transferred in part or in whole to any other Fund Guarantor. The Fund Guarantors
shall hold any such cash collateral for, and may apply such cash collateral to,
the payment and performance of the obligations of the Borrower under this
Agreement. The provisions of Section 2.04 hereof shall apply to any cash
collateral held by any Fund Guarantor and to any cash collateral applied by any
Fund Guarantor to the payment of obligations owing to such Fund Guarantor.
Section 6.03. Right of Setoff and Disposition by the Fund Guarantors.
If any amount payable by the Borrower hereunder (including any amount due under
Section 8.11 of this Agreement) is not paid as and when due, the Borrower
authorizes the Fund Guarantors to proceed, at any time and from time to time, to
the fullest extent permitted by applicable Law, without prior notice, to set off
against any indebtedness or other obligation owing by the Fund Guarantors to the
Borrower or to dispose of or otherwise realize upon any assets of the Borrower
that may at any time be in the possession of or pledged to the Fund Guarantors
to the full extent of all amounts payable to the Fund Guarantors hereunder,
irrespective of whether or not the Fund Guarantors shall have made any demand
hereunder and whether or not such indebtedness or obligation is matured, and
apply the proceeds thereof, if any, to such amounts as are due and payable.
ARTICLE VII
COLLATERAL AGENT
Each of the Fund Guarantors hereby irrevocably appoints the Collateral
Agent as its agent and authorizes the Collateral Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Collateral Agent
by the terms of the Reimbursement Documents and the Intercreditor Agreement,
together with such actions and powers as are reasonably incidental thereto.
Each bank serving as Collateral Agent hereunder and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of banking,
trust or other business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Collateral Agent hereunder and may accept fees and
other consideration from the Borrower for services in connection with the
Reimbursement Documents or otherwise without having to account for the same to
the Fund Guarantors.
The Collateral Agent shall not have any duties or obligations except
those expressly set forth in the Reimbursement Documents and the Intercreditor
Agreement. Without limiting the generality of the foregoing, (a) the Collateral
Agent shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default has occurred and is continuing, (b) the Collateral Agent
shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated by the Reimbursement Documents and the Intercreditor Agreement that
the Collateral Agent is required to exercise in writing by the Fund Guarantors,
and (c) except as expressly set forth in the Reimbursement Documents and the
Intercreditor Agreement, the Collateral Agent shall not have any duty to
disclose, nor be liable for the failure to disclose, any information relating to
the Borrower or any of the Subsidiaries that is communicated to or obtained by
the bank serving as Collateral Agent or any of their Affiliates in any capacity.
The Collateral Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Fund Guarantors or otherwise in the
absence of its own gross negligence or willful misconduct as determined in a
final judgment by a court of competent jurisdiction. The Collateral Agent shall
not be deemed to have knowledge of any Default unless and until written notice
thereof is given to the Collateral Agent by the Borrower or a Fund Guarantor,
and the Collateral Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with the Reimbursement Documents, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection with
the Reimbursement Documents, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in the
Reimbursement Documents, (iv) the validity, enforceability, effectiveness or
genuineness of the Reimbursement Documents or any other agreement, instrument or
document, or the validity, perfection, or priority of any Lien created by any of
the Reimbursement Documents, or (v) the satisfaction of any condition set forth
in Section 4.01 or elsewhere in the Reimbursement Documents, other than to
confirm receipt of items expressly required to be delivered to the Collateral
Agent.
The Collateral Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Collateral Agent also
may rely upon any statement made to it orally or by telephone and believed by it
to be made by the proper Person, and shall not incur any liability for relying
thereon. The Collateral Agent may consult with legal counsel (who may be counsel
for the Borrower), independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.
The Collateral Agent may perform any of and all its duties and
exercise its rights and powers by or through any one or more sub-agents or
attorneys-in-fact appointed by the Collateral Agent. The Collateral Agent and
any such sub-agent or attorney-in-fact may perform any and all its duties and
exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent or attorney-in-fact and to the Related Parties of the Collateral Agent
and any such sub-agent or attorney-in-fact, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Collateral Agent.
Subject to the appointment and acceptance of a successor Collateral
Agent as provided in this paragraph, the Collateral Agent may resign at any time
by notifying the Fund Guarantors and the Borrower and the Collateral Agent may
be removed at any time with or without cause by the Fund Guarantors. Upon any
such resignation, the Fund Guarantors shall have the right, in consultation with
the Borrower, to appoint a successor. If no successor shall have been so
appointed by the Fund Guarantors and shall have accepted such appointment within
30 days after the retiring Collateral Agent gives notice of its resignation,
then the retiring Collateral Agent may, on behalf of the Fund Guarantors,
appoint a successor Collateral Agent that shall be a bank with an office in New
York, New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Collateral Agent by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Collateral Agent, and the retiring Collateral Agent shall be discharged
from its duties and obligations under the Reimbursement Documents. The fees
payable by the Borrower and/or the Fund Guarantors to a successor Collateral
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrower and/or the Fund Guarantors, as the case may be, and
such successor. After a Collateral Agent's resignation, the provisions of this
Article shall continue in effect for the benefit of such retiring Collateral
Agent, its sub-agents and attorneys-in-fact and their respective Related Parties
in respect of any actions taken or omitted to be taken by any of them while it
was acting as Collateral Agent.
Each Fund Guarantor acknowledges that it has, independently and
without reliance upon the Collateral Agent or any other Fund Guarantor and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Fund Guarantor
also acknowledges that it will, independently and without reliance upon the
Collateral Agent or any other Fund Guarantor and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon the
Reimbursement Documents or related agreement or any document furnished hereunder
or thereunder.
Except for action expressly required of the Collateral Agent by the
Reimbursement Documents, the Collateral Agent shall in all cases be fully
justified in failing or refusing to act under the Reimbursement Documents unless
it shall receive further assurances to its satisfaction from the Borrower of its
indemnification obligations under Section 8.11 in respect of such action.
Without limiting the foregoing, the Collateral Agent shall not have
any liability or responsibility with respect to the sufficiency of the documents
furnished pursuant to Section 4.01 and shall not be required to, and shall not,
take any action to enforce any of its or the Fund Guarantors' rights under, nor
waive or amend any provision of, the Reimbursement Documents or any collateral,
nor give any notice or make any request or demand or filing thereunder, except
in each instance as and to the extent instructed to do so by the Fund
Guarantors, and the Collateral Agent shall not have any liability for failure to
take any action in the absence of such instructions, provided that the
Collateral Agent will promptly send to the Fund Guarantors a copy of each
notice, request or other document delivered to the Collateral Agent pursuant to
the terms of the Reimbursement Documents and will take such actions contemplated
by the Reimbursement Documents as the Fund Guarantors may reasonably instruct,
except that nothing in the Reimbursement Documents shall require the Collateral
Agent to take any action that in the reasonable opinion of the Collateral Agent
would be contrary to the terms of the Reimbursement Documents or applicable law
or subject the Collateral Agent to personal liability for which it would have no
claim for indemnification hereunder.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Acknowledgment of Security Interest. The Borrower and
the Fund Guarantors acknowledge that the Borrower has secured its obligations
under this Agreement pursuant to the Security Documents.
Section 8.02. Termination. This Agreement may be terminated if the
Fund Guarantors and the Borrower so mutually agree in writing. This Agreement
shall terminate and the liens and security interests created by the Security
Documents shall be released upon the termination of the Revolving Credit
Agreement and the Borrower's indefeasible payment in full of its obligations
hereunder and under the Revolving Credit Agreement.
Section 8.03. Notices. All notices or other communications required or
permitted by this Agreement shall be effective upon receipt and shall be in
writing and delivered personally or by overnight courier, or sent by facsimile
(with confirmation copies delivered personally or by courier within three (3)
Business Days), as follows:
(a) If to the Borrower, to:
MEMC Electronic Materials, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Fund Guarantors, to:
Texas Pacific Group
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Partners, L.P.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
TCW/Crescent Mezzanine Partners III, L.P.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If to the Collateral Agent, to:
Citicorp USA, Inc.
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as hereafter shall be furnished as provided in this
Section 8.03 by any of the parties hereto to the other parties hereto.
Section 8.04. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute a single instrument.
Section 8.05. Entire Agreement. This Agreement and the Related
Agreements set forth the entire understanding and agreement between the parties
as to the matters covered herein and therein and supersede and replace any prior
understanding, agreement or statement of intent (written or oral) with respect
thereto.
Section 8.06. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.
(a) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to any
Reimbursement Document, 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 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 or any other Reimbursement Document shall affect any
right that the Collateral Agent or any Fund Guarantor may otherwise have to
bring any action or proceeding relating to this Agreement or any other
Reimbursement Document against the Borrower or its properties in the courts of
any jurisdiction.
(b) The Borrower hereby 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 any Related Agreement in any
court referred to in paragraph (a) of this Section. 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.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 8.03. Nothing in this
Agreement or any other Related Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
Section 8.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
Section 8.08. No Third Party Rights; Assignment. This Agreement is
intended to be solely for the benefit of the parties hereto and is not intended
to confer any benefits upon, or create any rights in favor of, any Person other
than the parties hereto. All rights and obligations hereunder shall not be
assignable without the prior written consent of the other parties. Any attempted
assignment of rights or obligations in violation of this Section 8.08 shall be
null and void.
Section 8.09. Waivers and Amendments. No modification of or amendment
to this Agreement shall be valid unless in a writing signed by the parties
hereto referring specifically to this Agreement and stating the parties'
intention to modify or amend the same. Any waiver of any term or condition of
this Agreement must be in a writing signed by the party sought to be charged
with such waiver referring specifically to the term or condition to be waived,
and no such waiver shall be deemed to constitute the waiver of any other breach
of the same or of any other term or condition of this Agreement.
Section 8.10. Rights Not Exclusive. The rights provided for herein,
including under Section 6.03, are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by Law.
Section 8.11. Expenses; Indemnity; Damage Waiver. (a) The Borrower
agrees to pay or reimburse the Fund Guarantors and the Collateral Agent for any
reasonable costs and expenses (including any expenses paid by Fund Guarantors
pursuant to Section 6.03 of the Guaranty) incurred by the Fund Guarantors and
the Collateral Agent in connection with the transactions contemplated hereby
including for (i) all reasonable out-of-pocket costs and expenses in connection
with negotiating and entering into this Agreement and the Related Agreements
(including the Guaranty) and any modification, supplement or waiver (whether or
not the same shall become effective) of any of the terms of this Agreement or
the Related Agreements (including attorney's fees and expenses); (ii) all
reasonable and documented out-of-pocket costs and expenses of the Fund
Guarantors (including attorney's fees and expenses) in connection with (A) any
enforcement or collection proceedings in connection with the negotiation of any
restructuring or "work-out" (whether or not consummated) of the obligations of
the Borrower hereunder and under the Related Agreements and (B) the enforcement
of this Agreement and the Related Agreements; and (iii) all transfer, stamp,
documentary or other similar Taxes, assessments or charges levied by any
Governmental Authority in respect of this Agreement and the Related Agreements
or any other document referred to herein or therein.
(b) Any claim under this Section 8.11 shall be asserted by written
notice to the Borrower. If the Borrower does not respond within sixty (60) days
after receipt of such notice, it shall have no further right to contest the
validity of such claim. Any uncontested claim or portion thereof shall be paid
by the Borrower within sixty (60) days of receipt of notice of such claim.
(c) The Borrower shall indemnify the Collateral Agent and each Fund
Guarantor, and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee") against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including the reasonable fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of any
Reimbursement Document or any other agreement or instrument contemplated hereby,
the performance by the parties to the Reimbursement Documents of their
respective obligations thereunder or the consummation of the Reimbursement
Transactions, (ii) any loan received under the Revolving Credit Agreement or the
proceeds therefrom, (iii) any presence, Release or threatened Release of
Hazardous Materials on, at, under or from any Mortgaged Property or any other
property currently or formerly owned or operated by the Borrower or any of the
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of the Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto, provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses resulted from the gross negligence or willful misconduct of
such Indemnitee or any Related Person of such Indemnitee as determined in a
final judgment by a court of competent jurisdiction.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and each hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement or any agreement or instrument contemplated hereby,
the Reimbursement Transactions, any loan received under the Revolving Credit
Agreement or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
Section 8.12. Confidentiality. Each of the Collateral Agent and the
Fund Guarantors agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or any other Reimbursement Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to any assignee of, or any prospective assignee
of, any of its rights or obligations under this Agreement, or to any direct or
indirect contractual counterparties in swap agreements or such contractual
counterparties' professional advisors, (g) with the consent of the Borrower or
(h) to the extent such Information (i) becomes publicly available other than as
a result of a breach of this Section or (ii) becomes available to the Collateral
Agent or any Fund Guarantor on a nonconfidential basis from a source other than
the Borrower. For the purposes of this Section, the term "Information" means all
information received from the Borrower relating to the Borrower or its business,
other than any such information that is available to the Collateral Agent or any
Fund Guarantor on a nonconfidential basis prior to disclosure by the Borrower.
Any Person required to maintain the confidentiality of Information as provided
in this Section shall be considered to have complied with its obligation to do
so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first written above.
MEMC ELECTRONIC MATERIALS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
CITICORP USA, INC.,
as administrative and collateral agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: vice President
SIGNATURE PAGE TO THE
REIMBURSEMENT AGREEMENT DATED
AS OF DECEMBER 21, 2001, among
MEMC ELECTRONIC MATERIALS, INC.,
THE FUND GUARANTORS, and
CITICORP USA, INC., as Administrative
Agent and Collateral Agent.
Name of Institution: TPG PARTNERS III, L.P.
By: TPG GenPar III, L.P.
Its General Partner
By: TPG Advisors III, Inc.
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO THE
REIMBURSEMENT AGREEMENT DATED
AS OF DECEMBER 21, 2001, among
MEMC ELECTRONIC MATERIALS, INC.,
THE FUND GUARANTORS, and
CITICORP USA, INC., as Administrative
Agent and Collateral Agent.
Name of Institutions: TCW/CRESCENT MEZZANINE PARTNERS III, L.P. AND
TCW/CRESCENT MEZZANINE TRUST III
By: TCW/Crescent Mezzanine Management III,
L.L.C., as its Investment Manager
By: TCW Asset Management Company, as
Its Sub-Advisor
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
SIGNATURE PAGE TO THE
REIMBURSEMENT AGREEMENT DATED
AS OF DECEMBER 21, 2001, among
MEMC ELECTRONIC MATERIALS, INC.,
THE FUND GUARANTORS, and
CITICORP USA, INC., as Administrative
Agent and Collateral Agent.
Name of Institution: GREEN EQUITY INVESTORS III, L.P.
By: GEI Capital III, LLC, as its
General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
Name of Institution: GREEN EQUITY INVESTORS SIDE III, L.P.
By: GEI Capital III, LLC, as its
General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
Exhibit A
AMENDED AND RESTATED GUARANTEE AGREEMENT
THIS AMENDED AND RESTATED GUARANTEE AGREEMENT (this
"Agreement"), dated as of December 21, 2001, is made among MEMC ELECTRONIC
MATERIALS, INC., a Delaware corporation ("Borrower"), each of the subsidiaries
listed on Schedule I hereto (each such subsidiary, individually, a "Subsidiary"
or a "Guarantor" and, collectively, the "Subsidiaries" or the "Guarantors") and
CITICORP USA, INC. as collateral agent (the "Collateral Agent") for the Secured
Parties (as defined in the Amended and Restated Security Agreement). Unless the
context otherwise requires, all capitalized terms used but not defined herein
shall have the meanings set forth in the Reimbursement Agreement.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Guarantors and the Collateral Agent are parties
to that certain guarantee agreement, dated as of November 13, 2001, pursuant to
which the Guarantors agreed to guarantee the Borrower's obligations under a
revolving credit agreement, dated as of November 13, 2001, among the Borrower,
the lenders party thereto, and Citicorp USA, Inc., as administrative agent and
collateral agent.
WHEREAS, the Borrower, contemporaneously herewith, is entering
into the Revolving Credit Agreement, dated as of December 21, 2001(as such
agreement may be further amended, restated, modified or supplemented at any time
and from time to time hereafter, the "Revolving Credit Agreement"), with the
lenders party thereto (the "Lenders") and Citicorp USA, Inc. as administrative
agent (in such capacity, the "Administrative Agent"), pursuant to which the
Lenders will provide the Borrower with a revolving credit facility in an initial
aggregate amount not to exceed U.S. $150,000,000;
WHEREAS, contemporaneously herewith, the TPG Guarantor is
entering into the TPG Guaranty, the TCW Guarantors are entering into the TCW
Guaranty and the GEI Guarantors are entering into the GEI Guaranty (together
with the TPG Guaranty and the TCW Guaranty, the "Guaranty") each dated as of
December 21, 2001 with the Administrative Agent, pursuant to which the Fund
Guarantors will guarantee the obligations of the Borrower under the Revolving
Credit Agreement;
WHEREAS, the Borrower is, contemporaneously herewith, entering
into a Reimbursement Agreement, dated as of December 21, 2001 (as such agreement
may be further amended, restated, modified or supplemented at any time and from
time to time hereafter, the "Reimbursement Agreement"), with the Fund Guarantors
and the Collateral Agent, pursuant to which the Borrower agrees to reimburse the
Fund Guarantors for any and all payments made by the Fund Guarantors under the
Guaranty;
WHEREAS, to induce the Fund Guarantors to enter into the
Guaranty, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, (a) each of the Guarantors agrees
to grant to the Collateral Agent, for the ratable benefit of the Secured
Parties, the Security Interests (as defined in the Amended and Restated Security
Agreement) in the Collateral to secure the obligations of the Borrower under the
Reimbursement Agreement, and (b) each of the Guarantors agrees to guarantee the
obligations of the Borrower under the Reimbursement Agreement;
WHEREAS, each of the Subsidiaries is a direct or indirect
subsidiary of the Borrower and acknowledges that it will derive substantial
benefit from the making of the Guaranty by the Fund Guarantors; and
WHEREAS, the obligations of the Fund Guarantors under the
Guaranty are conditioned on, among other things, the execution and delivery by
the Guarantors of an Amended and Restated Guarantee Agreement in the form
hereof;
NOW, THEREFORE, in consideration of the benefits accruing to
the Borrower and the Guarantors, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Guarantee. Each Guarantor unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not
merely as a surety, (a) the due and punctual payment of (i) all Guarantee
Amounts (as defined in the Reimbursement Agreement) and interest (including
interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) thereon, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise and (ii)
all other monetary obligations, including fees, costs, expenses and indemnities,
whether primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Reimbursement Parties to the Secured
Parties under the Reimbursement Agreement and the other Reimbursement Documents,
(b) the due and punctual performance of all covenants, agreements, obligations
and liabilities of the Reimbursement Parties under or pursuant to the
Reimbursement Agreement and the other Reimbursement Documents, (c) unless
otherwise agreed to in writing by the applicable Fund Guarantor thereto, the due
and punctual payment and performance of all obligations of the Borrower or any
other Reimbursement Party, monetary or otherwise, under each Hedging Agreement
entered into with a counterparty that was a Fund Guarantor (or an Affiliate of a
Fund Guarantor) at the time such Hedging Agreement was entered into and (d) the
due and punctual payment and performance of all obligations in respect of
overdrafts and related liabilities owed to the Administrative Agent or any of
its Affiliates and arising from treasury, depositary and cash management
services in connection with any automated clearing house transfers of funds (all
the monetary and other obligations referred to in the preceding clauses (a)
through (d) being collectively called the "Reimbursement Obligations"). Each
Guarantor further agrees that the Reimbursement Obligations may be extended or
renewed, in whole or in part, without notice to or further assent from it, and
that it will remain bound upon its guarantee notwithstanding any extension or
renewal of any Reimbursement Obligation. Each Guarantor agrees to pay, in
addition to the amounts stated above, any and all expenses (including reasonable
counsel fees and expenses) incurred by the Secured Parties in enforcing any
rights under this Agreement.
SECTION 2. Reimbursement Obligations Not Waived. To the fullest extent
permitted by applicable law, each Guarantor waives presentment to, demand of
payment from and protest to the Borrower of any of the Reimbursement
Obligations, and also waives notice of acceptance of its guarantee and notice of
protest for nonpayment. To the fullest extent permitted by applicable law, the
obligations of each Guarantor hereunder shall not be affected by (a) the failure
of the Collateral Agent or any other Secured Party to assert any claim or demand
or to enforce or exercise any right or remedy against the Borrower or any
Guarantor under the provisions of the Reimbursement Agreement, any other
Reimbursement Document or otherwise; (b) any recision, waiver (except the effect
of any waiver obtained pursuant to Section 12(b)), amendment or modification of,
or any release from any terms or provisions of any other Reimbursement Document,
any other Guarantee or any other agreement, including with respect to any other
Guarantor under this Agreement, (c) the failure to perfect any security interest
in, or release of, any of the security held by or on behalf of the Collateral
Agent or any other Secured Party, or (d) any change in ownership of the
Borrower.
SECTION 3. Security. Each of the Guarantors authorizes the Collateral
Agent and each of the other Secured Parties to (a) take and hold security for
the payment of this Guarantee and the Reimbursement Obligations as set forth in
the Amended and Restated Security Agreement, and exchange, enforce, waive and
release any such security, (b) apply such security and direct the order or
manner of sale thereof as they in their sole discretion may determine and (c)
release or substitute any one or more endorsees, other Guarantors or other
obligors.
SECTION 4. Guarantee of Payment. Each Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Collateral Agent or
any other Secured Party to any of the security held for payment of the
Reimbursement Obligations or to any balance of any deposit account or credit on
the books of the Collateral Agent or any other Secured Party in favor of the
Borrower or any other Person.
SECTION 5. No Discharge or Diminishment of Guarantee. The obligations
of each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Reimbursement Obligations), including any claim of waiver,
release, surrender, alteration or compromise of any of the Reimbursement
Obligations, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Reimbursement Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Guarantor hereunder
shall not be discharged or impaired or otherwise affected by the failure of the
Collateral Agent or any other Secured Party to assert any claim or demand or to
enforce any remedy under the Reimbursement Agreement, any other Reimbursement
Document or any other agreement, by any waiver or modification of any provision
of any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the Reimbursement Obligations, or the failure to perfect any
security interest in, or the release of, any of the security held by or on
behalf of the Collateral Agent or any other Secured Party, or by any other act
or omission that may or might in any manner or to any extent vary the risk of
any Guarantor or that would otherwise operate as a discharge of each Guarantor
as a matter of law or equity (other than the indefeasible payment in full in
cash of all the Reimbursement Obligations).
SECTION 6. Defenses of Borrower Waived. To the fullest extent permitted
by applicable law, each of the Guarantors waives any defense based on or arising
out of any defense of the Borrower or the unenforceability of the Reimbursement
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower, other than the final and indefeasible payment
in full in cash of the Reimbursement Obligations. The Collateral Agent and the
other Secured Parties may, at their election, foreclose on any security held by
one or more of them by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure, compromise or adjust any
part of the Reimbursement Obligations, make any other accommodation with the
Borrower or any other guarantor or exercise any other right or remedy available
to them against the Borrower or any other guarantor, without affecting or
impairing in any way the liability of any Guarantor hereunder except to the
extent the Reimbursement Obligations have been fully, finally and indefeasibly
paid in cash. Pursuant to applicable law, each of the Guarantors waives any
defense arising out of any such election even though such election operates,
pursuant to applicable law, to impair or to extinguish any right of
reimbursement or subrogation or other right or remedy of such Guarantor against
the Borrower or any other Guarantor or guarantor, as the case may be, or any
security.
SECTION 7. Agreement to Pay. In furtherance of the foregoing and not in
limitation of any other right that the Collateral Agent or any other Secured
Party has at law or in equity against any Guarantor by virtue hereof, upon the
failure of the Borrower or any other Reimbursement Party to pay any
Reimbursement Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, each
Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the
Collateral Agent or such other Secured Party as designated thereby in cash the
amount of such unpaid Reimbursement Obligations. Upon payment by any Guarantor
of any sums to the Collateral Agent or any Secured Party as provided above, all
rights of such Guarantor against the Borrower arising as a result thereof by way
of right of subrogation, contribution, reimbursement, indemnity or otherwise
shall in all respects be subordinate and junior in right of payment to the prior
indefeasible payment in full in cash of all the Reimbursement Obligations. If
any amount shall erroneously be paid to any Guarantor on account of such
subrogation, contribution, reimbursement, indemnity or similar right, such
amount shall be held in trust for the benefit of the Secured Parties and shall
forthwith be paid to the Collateral Agent to be credited against the payment of
the Reimbursement Obligations, whether matured or unmatured, in accordance with
the terms of the Reimbursement Documents.
SECTION 8. Information. Each of the Guarantors assumes all
responsibility for being and keeping itself informed of the Borrower's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Reimbursement Obligations and the nature, scope and extent of
the risks that such Guarantor assumes and incurs hereunder, and agrees that none
of the Collateral Agent or the other Secured Parties will have any duty to
advise any of the Guarantors of information known to it or any of them regarding
such circumstances or risks.
SECTION 9. Representations and Warranties. Each of the Guarantors
represents and warrants as to itself that all representations and warranties
relating to it contained in the Reimbursement Agreement and other Reimbursement
Documents are true and correct in all material respects.
SECTION 10. Termination. The Guarantees made hereunder (a) shall
terminate when all the Reimbursement Obligations have been indefeasibly paid in
full and the Fund Guarantors have no further obligation under the Guaranty, and
(b) shall continue to be effective or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any Reimbursement Obligation is
rescinded or must otherwise be restored by any Secured Party or any Guarantor
upon the bankruptcy or reorganization of the Borrower, any Guarantor or
otherwise.
SECTION 11. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Guarantors that are contained in
this Agreement shall bind and inure to the benefit of each party hereto and
their respective successors and assigns. This Agreement shall become effective
as to any Guarantor when a counterpart hereof executed on behalf of such
Guarantor shall have been delivered to the Collateral Agent, and a counterpart
hereof shall have been executed on behalf of the Collateral Agent, and
thereafter shall be binding upon such Guarantor and the Collateral Agent and
their respective successors and assigns, and shall inure to the benefit of such
Guarantor, the Collateral Agent and the other Secured Parties, and their
respective successors and assigns, except that no Guarantor shall have the right
to assign its rights or obligations hereunder or any interest herein (and any
such attempted assignment shall be void). In the event that a Guarantor ceases
to be a Subsidiary pursuant to a transaction permitted under the Reimbursement
Documents, such Guarantor shall be released from its obligations under this
Agreement without further action. This Agreement shall be construed as a
separate agreement with respect to each Guarantor and may be amended, modified,
supplemented, waived or released with respect to any Guarantor without the
approval of any other Guarantor and without affecting the obligations of any
other Guarantor hereunder.
SECTION 12. Intercreditor Agreement. Notwithstanding anything to the
contrary contained in this Agreement, all rights, obligations and remedies of
the Collateral Agent set forth in this Agreement and shall be subject to the
provisions set forth in the Intercreditor Agreement.
SECTION 13. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the other Secured Parties under the other Reimbursement Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or consent to any
departure by any Guarantor therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on any Guarantor in any case shall entitle such
Guarantor to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Guarantors with respect to which such waiver, amendment or modification
relates and the Collateral Agent, subject to any consent required in accordance
with Section 8.09 of the Reimbursement Agreement.
SECTION 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 15. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 8.03 of the Reimbursement Agreement.
All communications and notices hereunder to each Guarantor shall be given to it
at its address or telecopy number set forth in Schedule I, with a copy to the
Borrower.
SECTION 16. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by the Guarantors herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Reimbursement Document shall be
considered to have been relied upon by the Collateral Agent and the other
Secured Parties and shall survive the making of the Guaranty by the Fund
Guarantors regardless of any investigation made by the Secured Parties or on
their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Reimbursement or any other fee or
amount payable under this Agreement or any other Reimbursement Document is
outstanding and unpaid and as long as the Guaranty has not been terminated.
(b) In the event any one or more of the provisions contained in this
Agreement or in any other Reimbursement Document should be held invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 17. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract, and shall become effective as
provided in Section 11. Delivery of an executed signature page to this Agreement
by facsimile transmission shall be as effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 18. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Reimbursement Agreement shall be applicable to
this Agreement.
SECTION 19. Jurisdiction; Consent to Service of Process. (a) Each
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Reimbursement Documents, 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 such New York State 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 the Collateral Agent or any other Secured Party may otherwise have to
bring any action or proceeding relating to this Agreement or the other
Reimbursement Documents against any Guarantor or its properties in the courts of
any jurisdiction.
(b) Each Guarantor hereby 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 other
Reimbursement Documents 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.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 15. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 20. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER REIMBURSEMENT DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER REIMBURSEMENT DOCUMENTS, AS APPLICABLE, BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 20.
SECTION 21. Limitation on Guaranteed Amounts. Anything contained in
this Agreement to the contrary notwithstanding, the obligation of each Guarantor
hereunder shall be limited to a maximum aggregate amount equal to the greatest
amount that would not render such Guarantor's obligations hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11
of the United States Code or any provisions of applicable state law
(collectively, the "Fraudulent Transfer Laws"), in each case after giving effect
to all liabilities of such Guarantor, contingent or otherwise, that would be
taken into account in determining whether the incurrence of the obligation would
constitute a fraudulent conveyance under the Fraudulent Transfer Laws and after
giving effect, both in determining such Guarantor's probable debt hereunder and
in determining its assets, to the existence of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights of such Guarantor
pursuant to (a) applicable law or (b) any agreement, including the Indemnity,
Subrogation and Contribution Agreement.
SECTION 22. Additional Guarantors. Pursuant to Section 5.10 of the
Reimbursement Agreement, each Subsidiary Reimbursement Party that was not in
existence or not a Subsidiary Reimbursement Party on the date of the
Reimbursement Agreement is required to enter into this Agreement as a Guarantor
upon becoming a Subsidiary Reimbursement Party. Upon execution and delivery
after the date hereof by the Collateral Agent and such a Subsidiary of an
instrument in the form of Annex 1, such Subsidiary shall become a Guarantor
hereunder with the same force and effect as if originally named as a Guarantor
herein. The execution and delivery of any instrument adding an additional
Guarantor as a party to this Agreement shall not require the consent of any
other Guarantor hereunder. The rights and obligations of each Guarantor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Guarantor as a party to this Agreement.
SECTION 23. Successor Guarantors. Any Person may merge with any
Guarantor in a transaction in which the surviving entity is a Subsidiary of the
Borrower; provided that if the surviving entity is not the Guarantor, the
surviving entity must be a corporation, partnership or limited liability company
organized and existing under the laws of the United States of America, any State
thereof or the District of Columbia, and such surviving entity must expressly
assume, by execution of appropriate Reimbursement Documents (or counterparts or
supplements thereto), executed and delivered to the Collateral Agent (in form
reasonably satisfactory to the Collateral Agent, as applicable) all the
obligations of such Guarantor under this Amended and Restated Guarantee
Agreement and the other applicable Reimbursement Documents; and further provided
that prior to the consummation of such transaction, the Borrower must provide
the Collateral Agent with an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or transfer complies with the
Reimbursement Documents.
SECTION 24. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Secured Party 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 Secured Party to
or for the credit or the account of any Guarantor against any or all the
obligations of such Guarantor then existing under this Agreement and the other
Reimbursement Documents held by such Secured Party, irrespective of whether or
not such Secured Party shall have made any demand under this Agreement or any
other Reimbursement Document. The rights of each Secured Party under this
Section 24 are in addition to other rights and remedies (including any other
rights of setoff) which such Secured Party may have.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
MEMC ELECTRONIC MATERIALS, INC.
By
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer
By
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
EACH OF THE OTHER SUBSIDIARIES LISTED
ON SCHEDULE I HERETO,
By
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, in his capacity as
Treasurer for each of the other
Subsidiaries listed on Schedule I hereto
CITICORP USA, INC., as Collateral Agent
By
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director and Vice President
Schedule I to the
Amended and Restated
Guarantee Agreement
GUARANTORS
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Annex 1 to the
Amended and Restated
Guarantee Agreement
SUPPLEMENT NO. [ ] dated as of [ ], to the Amended and Restated
Guarantee Agreement dated as of December 21, 2001, among MEMC
ELECTRONIC MATERIALS, INC., a Delaware corporation ("Borrower"), each
of the subsidiaries listed on Schedule I thereto (each such
subsidiary, individually, a "Subsidiary" or a "Guarantor" and,
collectively, the "Subsidiaries" or "Guarantors") and CITICORP USA,
INC., as collateral agent (the "Collateral Agent") for the Secured
Parties (as defined in the Amended and Restated Security Agreement).
A. Reference is made to the Reimbursement Agreement dated as of
December 21, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Reimbursement Agreement"), among the Borrower, the Fund Guarantors
and CITICORP USA, INC. as collateral agent (in such capacity, the "Collateral
Agent").
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Amended and Restated Guarantee
Agreement and the Reimbursement Agreement.
C. The Guarantors have entered into the Amended and Restated Guarantee
Agreement in order to induce the Fund Guarantors to guarantee the obligation of
the Borrower under the Revolving Credit Agreement. Pursuant to Section 5.10 of
the Reimbursement Agreement, each Subsidiary Reimbursement Party that was not in
existence or not a Subsidiary Reimbursement Party on the date of the
Reimbursement Agreement is required to enter into the Amended and Restated
Guarantee Agreement as a Guarantor upon becoming a Subsidiary Reimbursement
Party. Section 22 of the Amended and Restated Guarantee Agreement provides that
additional Subsidiaries may become Guarantors under the Amended and Restated
Guarantee Agreement by execution and delivery of an instrument in the form of
this Supplement. The undersigned Subsidiary (the "New Guarantor") is executing
this Supplement in accordance with the requirements of the Reimbursement
Agreement to become a Guarantor under the Guarantee Agreement in order to induce
the Fund Guarantors to make additional guarantees and as consideration for
guarantees previously made.
Accordingly, the Collateral Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 22 of the Amended and Restated
Guarantee Agreement, the New Guarantor by its signature below becomes a
Guarantor under the Amended and Restated Guarantee Agreement with the same force
and effect as if originally named therein as a Guarantor and the New Guarantor
hereby (a) agrees to all the terms and provisions of the Amended and Restated
Guarantee Agreement applicable to it as a Guarantor thereunder and (b)
represents and warrants that the representations and warranties made by it as a
Guarantor thereunder are true and correct on and as of the date hereof except to
the extent a representation and warranty expressly relates solely to a specific
date in which case such representation and warranty shall be true and correct on
such date. Each reference to a "Guarantor" in the Amended and Restated Guarantee
Agreement shall be deemed to include the New Guarantor. The Amended and Restated
Guarantee Agreement is hereby incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Collateral Agent shall have received counterparts of this Supplement that, when
taken together, bear the signatures of the New Guarantor and the Collateral
Agent. Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Amended and
Restated Guarantee Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Amended and Restated Guarantee Agreement shall not in any way
be affected or impaired thereby (it being understood that the invalidity of a
particular provision hereof in a particular jurisdiction shall not in and of
itself affect the validity of such provision in any other jurisdiction). The
parties hereto shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 14 of the Amended and Restated Guarantee
Agreement. All communications and notices hereunder to the New Guarantor shall
be given to it at the address set forth under its signature below, with a copy
to the Borrower.
SECTION 8. The New Guarantor agrees to reimburse the Collateral Agent
for its out-of-pocket expenses in connection with this Supplement, including the
reasonable fees, disbursements and other charges of counsel for the Collateral
Agent.
IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have
duly executed this Supplement to the Amended and Restated Guarantee Agreement as
of the day and year first above written.
[NAME OF NEW GUARANTOR],
By
-------------------------------
Name:
Title:
Address:
CITICORP USA, INC., as Collateral Agent,
By
-------------------------------
Name:
Title:
Exhibit B
AMENDED AND RESTATED INDEMNITY, SUBROGATION
AND CONTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED INDEMNITY, SUBROGATION and
CONTRIBUTION AGREEMENT (this "Agreement"), dated as of December 21, 2001, is
made among MEMC ELECTRONIC MATERIALS, INC., a Delaware corporation (the
"Borrower"), each subsidiary of Borrower listed on Schedule I hereto (each such
subsidiary individually, a "Subsidiary" and or a "Guarantor" and, collectively,
the "Guarantors") and CITICORP USA, INC. as collateral agent (in such capacity,
the "Collateral Agent") for the Secured Parties (as defined in the Amended and
Restated Security Agreement). Unless the context otherwise requires, all
capitalized terms used but not defined herein shall have the meanings set forth
in the Reimbursement Agreement.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Guarantors and the Collateral Agent are parties
to that certain indemnity, subrogation and contribution agreement, dated as of
November 13, 2001, which set forth the rights of indemnity, subrogation and
contribution of the Borrower and the Guarantors in connection with the guarantee
of the Borrower's obligations under a revolving credit agreement, dated as of
November 13, 2001, among the Borrower, the lenders party thereto, and Citicorp
USA, Inc., as administrative agent and collateral agent.
WHEREAS, the Borrower, contemporaneously herewith, is entering
into the Revolving Credit Agreement, dated as of December 21, 2001(as such
agreement may be further amended, restated, modified or supplemented at any time
and from time to time hereafter, the "Revolving Credit Agreement"), with the
lenders party thereto (the "Lenders") and Citicorp USA, Inc. as administrative
agent (in such capacity, the "Administrative Agent"), pursuant to which the
Lenders will provide the Borrower with a revolving credit facility in an initial
aggregate amount not to exceed U.S. $150,000,000;
WHEREAS, contemporaneously herewith, the TPG Guarantor is
entering into the TPG Guaranty, the TCW Guarantors are entering into the TCW
Guaranty and the GEI Guarantors are entering into the GEI Guaranty (together
with the TPG Guaranty and the TCW Guaranty, the "Guaranty") each dated as of
December 21, 2001 with the Administrative Agent, pursuant to which the Fund
Guarantors will guarantee the obligations of the Borrower under the Revolving
Credit Agreement;
WHEREAS, the Borrower is, contemporaneously herewith, entering
into a Reimbursement Agreement, dated as of December 21, 2001 (as such agreement
may be further amended, restated, modified or supplemented at any time and from
time to time hereafter, the "Reimbursement Agreement"), with the Fund Guarantors
and the Collateral Agent, pursuant to which the Borrower agrees to reimburse the
Fund Guarantors for any and all payments made by the Fund Guarantors under the
Guaranty;
WHEREAS, to induce the Fund Guarantors to enter into the
Guaranty, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, (a) each of the Guarantors agrees
to grant to the Collateral Agent, for the ratable benefit of the Secured
Parties, the Security Interests (as defined herein) in the Collateral to secure
the obligations of the Borrower under the Reimbursement Agreement, and (b) each
of the Guarantors agrees to guarantee the obligations of the Borrower under the
Reimbursement Agreement;
WHEREAS, the Guarantors have guaranteed the Reimbursement
Obligations (as defined in the Amended and Restated Guarantee Agreement)
pursuant to the Amended and Restated Guarantee Agreement, and the Guarantors
have granted Liens on and security interests in certain of their assets to
secure such guarantees pursuant to (a) the Amended and Restated Pledge Agreement
and (b) the Amended and Restated Security Agreement; and
WHEREAS, the obligations of the Fund Guarantors under the
Guaranty are conditioned on, among other things, the execution and delivery by
the Borrower and the Guarantors of an agreement in the form hereof;
NOW, THEREFORE, in consideration of the benefits accruing to
the Guarantors, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
SECTION 1. Indemnity and Subrogation. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 3), the Borrower agrees that (a) in the event a payment shall
be made by any Guarantor under the Amended and Restated Guarantee Agreement, the
Borrower shall indemnify such Guarantor for the full amount of such payment and
such Guarantor shall be subrogated to the rights of the Person to whom such
payment shall have been made to the extent of such payment and (b) in the event
any assets of any Guarantor shall be sold pursuant to any Security Document to
satisfy a claim of any Secured Party, the Borrower shall indemnify such
Guarantor in an amount equal to the greater of the book value or the fair market
value of the assets so sold.
SECTION 2. Contribution and Subrogation. Each Guarantor (a
"Contributing Guarantor") agrees (subject to Section 3) that, in the event a
payment shall be made by any other Guarantor under the Amended and Restated
Guarantee Agreement or assets of any other Guarantor shall be sold pursuant to
any Security Document to satisfy a claim of any Secured Party and such other
Guarantor (the "Claiming Guarantor") shall not have been fully indemnified by
the Borrower as provided in Section 1, the Contributing Guarantor shall
indemnify the Claiming Guarantor in an amount equal to the amount of such
payment or the greater of the book value or the fair market value of such
assets, as the case may be, in each case multiplied by a fraction of which the
numerator shall be the net worth of the Contributing Guarantor on the date
hereof and the denominator shall be the aggregate net worth of all the
Guarantors on the date hereof (or, in the case of any Guarantor becoming a party
hereto pursuant to Section 12, the date of the Supplement hereto executed and
delivered by such Guarantor). Any Contributing Guarantor making any payment to a
Claiming Guarantor pursuant to this Section 2 shall be subrogated to the rights
of such Claiming Guarantor under Section 1 to the extent of such payment.
SECTION 3. Subordination. Notwithstanding any provision of this
Agreement to the contrary, all rights of each of the Guarantors under Sections 1
and 2 and all other rights of each of the Guarantors in respect of indemnity,
contribution or subrogation from any other Reimbursement Party under applicable
law or otherwise shall be fully subordinated to the indefeasible payment in full
in cash of all Reimbursement Obligations which are then due and payable whether
at maturity, by acceleration or otherwise. No failure on the part of the
Borrower or any Guarantor to make the payments required by Sections 1 and 2 (or
any other payments required under applicable law or otherwise) shall in any
respect limit the obligations and liabilities of any Guarantor with respect to
its obligations hereunder, and each Guarantor shall remain liable for the full
amount of the obligations of such Guarantor hereunder.
SECTION 4. Termination. This Agreement shall survive and be in full
force and effect so long as any Reimbursement Obligation is outstanding and has
not been indefeasibly paid in full in cash and the Guaranty and the
Reimbursement Agreement have not been terminated, and shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any Reimbursement Obligation is rescinded or must otherwise be
restored by any Secured Party or any Guarantor upon the bankruptcy or
reorganization of the Borrower, any Guarantor or otherwise.
SECTION 5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. No Waiver; Amendment. (a) No failure on the part of the
Collateral Agent or any Guarantor to exercise, and no delay in exercising, any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or remedy by the
Collateral Agent or any Guarantor preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law. None of
the Collateral Agent and the Guarantors shall be deemed to have waived any
rights hereunder unless such waiver shall be in writing and signed by such
parties.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Borrower, the Guarantors and the Collateral Agent, subject to any consent
required in accordance with Section 8.09 of the Reimbursement Agreement.
SECTION 7. Intercreditor Agreement. Notwithstanding anything to the
contrary contained in this Agreement, all rights, obligations and remedies of
the Collateral Agent set forth in this Agreement and any other Security Document
shall be subject to the provisions set forth in the Intercreditor Agreement.
SECTION 8. Notices. All communications and notices hereunder shall be
in writing and given as provided in the Amended and Restated Guarantee Agreement
and addressed as specified therein.
SECTION 9. Binding Agreement; Assignments. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the parties that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns. Neither the Borrower nor any Guarantor may assign or transfer any of
its rights or obligations hereunder (and any such attempted assignment or
transfer shall be void) without the consent required in accordance with Section
8.09 of the Reimbursement Agreement. Notwithstanding the foregoing, at the time
any Guarantor is released from its obligations under the Amended and Restated
Guarantee Agreement in accordance with such Amended and Restated Guarantee
Agreement and the Reimbursement Agreement, such Guarantor will cease to have any
rights or obligations under this Agreement.
SECTION 10. Survival of Agreement; Severability. (a) All covenants and
agreements made by the Borrower and each Guarantor herein and in the
certificates or other instruments prepared or delivered in connection with this
Agreement or the other Reimbursement Documents shall be considered to have been
relied upon by the Collateral Agent, the other Secured Parties and each
Guarantor and shall survive the making of Guaranty by the Fund Guarantors and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Guarantee Amounts or any other fee or amount payable
under the Reimbursement Agreement or this Agreement or under any of the other
Reimbursement Documents is outstanding and unpaid and as long as the Guaranty
has not been terminated.
(b) In case any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, no
party hereto shall be required to comply with such provision for so long as such
provision is held to be invalid, illegal or unenforceable, but the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 11. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement shall be effective with
respect to any Guarantor when a counterpart bearing the signature of such
Guarantor shall have been delivered to the Collateral Agent. Delivery of an
executed signature page to this Agreement by facsimile transmission shall be as
effective as delivery of a manually signed counterpart of this Agreement.
SECTION 12. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Reimbursement Agreement shall be applicable to
this Agreement.
SECTION 13. Additional Guarantors. Pursuant to Section 5.10 of the
Reimbursement Agreement, each Subsidiary Reimbursement Party that was not in
existence or not a Subsidiary Reimbursement Party on the date of the
Reimbursement Agreement is required to enter into the Amended and Restated
Guarantee Agreement as a Guarantor upon becoming a Subsidiary Reimbursement
Party. Upon execution and delivery, after the date hereof, by the Collateral
Agent and such a Subsidiary of an instrument in the form of Annex 1 hereto, such
Subsidiary shall become a Guarantor hereunder with the same force and effect as
if originally named as a Guarantor hereunder. The execution and delivery of any
instrument adding an additional Guarantor as a party to this Agreement shall not
require the consent of any Guarantor hereunder. The rights and obligations of
each Guarantor hereunder shall remain in full force and effect notwithstanding
the addition of any new Guarantor as a party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first appearing above.
MEMC ELECTRONIC MATERIALS, INC.
By
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer
By
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title Treasurer
EACH OF THE OTHER SUBSIDIARIES LISTED ON
SCHEDULE I HERETO,
By
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, in his capacity as
Treasurer for each of the other
Subsidiaries listed on Schedule I
hereto
CITICORP USA, INC., as Collateral Agent
By
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director and Vice
President
Schedule I to the
Amended and Restated
Indemnity, Subrogation and
Contribution Agreement
GUARANTOR
Name Address
---- -------
Annex 1 to the
Amended and Restated
Indemnity, Subrogation and
Contribution Agreement
SUPPLEMENT NO. [ ] dated as of [ ], to the Amended and Restated
Indemnity, Subrogation and Contribution Agreement dated as of December
21, 2001, among MEMC ELECTRONIC MATERIALS, INC., a Delaware
corporation (the "Borrower"), each subsidiary of Borrower listed on
Schedule I hereto (each such subsidiary individually, a "Subsidiary"
or a "Guarantor" and, collectively, the "Guarantors") and CITICORP
USA, INC., as collateral agent (in such capacity, the "Collateral
Agent") for the Secured Parties (as defined in the Amended and
Restated Security Agreement).
A. Reference is made to (a) the Reimbursement Agreement dated as of
December 21, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Reimbursement Agreement"), among the Borrower, the Fund Guarantors
and CITICORP USA, INC. as collateral agent (in such capacity, the "Collateral
Agent") and (b) the Amended and Restated Guarantee Agreement.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Amended and Restated Indemnity,
Subrogation and Contribution Agreement and the Reimbursement Agreement.
C. The Borrower and the Guarantors have entered into the Amended and
Restated Indemnity, Subrogation and Contribution Agreement in order to induce
the Fund Guarantors to enter into the Guaranty. Pursuant to Section 5.10 of the
Reimbursement Agreement, each Subsidiary Reimbursement Party that was not in
existence or not a Subsidiary Reimbursement Party on the date of the Revolving
Credit Agreement is required to enter into the Indemnity, Subrogation and
Contribution Agreement as a Guarantor upon becoming a Subsidiary Reimbursement
Party. Section 13 of the Amended and Restated Indemnity, Subrogation and
Contribution Agreement provides that additional Subsidiaries may become
Guarantors under the Amended and Restated Indemnity, Subrogation and
Contribution Agreement by execution and delivery of an instrument in the form of
this Supplement. The undersigned Subsidiary (the "New Guarantor") is executing
this Supplement in accordance with the requirements of the Reimbursement
Agreement to become a Guarantor under the Amended and Restated Indemnity,
Subrogation and Contribution Agreement in order to induce the Fund Guarantors to
make additional guarantees and as consideration for guarantees previously made.
Accordingly, the Collateral Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 13 of the Amended and Restated
Indemnity, Subrogation and Contribution Agreement, the New Guarantor by its
signature below becomes a Guarantor under the Amended and Restated Indemnity,
Subrogation and Contribution Agreement with the same force and effect as if
originally named therein as a Guarantor and the New Guarantor hereby agrees to
all the terms and provisions of the Amended and Restated Indemnity, Subrogation
and Contribution Agreement applicable to it as a Guarantor thereunder. Each
reference to a "Guarantor" in the Amended and Restated Indemnity, Subrogation
and Contribution Agreement shall be deemed to include the New Guarantor. The
Amended and Restated Indemnity, Subrogation and Contribution Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Guarantor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Amended and
Restated Indemnity, Subrogation and Contribution Agreement shall remain in full
force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Amended and Restated Indemnity, Subrogation and Contribution
Agreement shall not in any way be affected or impaired (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). The parties hereto shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 7 of the Amended and Restated Indemnity,
Subrogation and Contribution Agreement. All communications and notices hereunder
to the New Guarantor shall be given to it at the address set forth under its
signature below, with a copy to the Borrower.
SECTION 8. The New Guarantor agrees to reimburse the Collateral Agent
for its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have
duly executed this Supplement to the Amended and Restated Indemnity, Subrogation
and Contribution Agreement as of the day and year first above written.
[NAME OF NEW GUARANTOR],
By
--------------------------------
Name:
Title:
CITICORP USA, INC., as Collateral Agent
By
--------------------------------
Name:
Title:
Schedule I to Supplement No. [ ]
to the Amended and Restated
Indemnity, Subrogation and
Contribution Agreement
GUARANTOR
Name Address
---- -------
Exhibit C
AMENDED AND RESTATED PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AGREEMENT, dated as of
December 21, 2001, is made among MEMC ELECTRONIC MATERIALS, INC., a Delaware
corporation ("Borrower"), each subsidiary of the Borrower listed on Schedule I
hereto (each such subsidiary individually a "Subsidiary Pledgor" and
collectively, the "Subsidiary Pledgors"; the Borrower and the Subsidiary
Pledgors are referred to herein individually as a "Pledgor" and collectively as
the "Pledgors") and CITICORP USA, INC., as collateral agent (in such capacity,
the "Collateral Agent") for the Secured Parties (as defined in the Amended and
Restated Security Agreement). Unless the context otherwise requires, all
capitalized terms used but not defined herein shall have the meanings set forth
in the Reimbursement Agreement.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Pledgors and the Collateral Agent are parties to
that certain pledge agreement, dated as of November 13, 2001, pursuant to which
the pledgors agreed to pledge and grant to the Collateral Agent a security
interest in the Collateral to secure the Borrower's obligations under a
revolving credit agreement, dated as of November 13, 2001, among the Borrower,
the lenders party thereto, and Citicorp USA, Inc., as administrative agent and
collateral agent.
WHEREAS, the Borrower, contemporaneously herewith, is entering
into the Revolving Credit Agreement, dated as of December 21, 2001(as such
agreement may be further amended, restated, modified or supplemented at any time
and from time to time hereafter, the "Revolving Credit Agreement"), with the
lenders party thereto (the "Lenders") and Citicorp USA, Inc. as administrative
agent (in such capacity, the "Administrative Agent"), pursuant to which the
Lenders will provide the Borrower with a revolving credit facility in an initial
aggregate amount not to exceed U.S. $150,000,000;
WHEREAS, contemporaneously herewith, the TPG Guarantor is
entering into the TPG Guaranty, the TCW Guarantors are entering into the TCW
Guaranty and the GEI Guarantors are entering into the GEI Guaranty (together
with the TPG Guaranty and the TCW Guaranty, the "Guaranty") each dated as of
December 21, 2001 with the Administrative Agent, pursuant to which the Fund
Guarantors will guarantee the obligations of the Borrower under the Revolving
Credit Agreement;
WHEREAS, the Borrower is, contemporaneously herewith, entering
into a Reimbursement Agreement, dated as of December 21, 2001, with the Fund
Guarantors and the Collateral Agent, pursuant to which the Borrower agrees to
reimburse the Fund Guarantors for any and all payments made by the Fund
Guarantors under the Guaranty; and
WHEREAS, to induce the Fund Guarantors to enter into the
Guaranty, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the Pledgors desires to
pledge and grant to the Collateral Agent, for the ratable benefit of the Secured
Parties, the Pledged Interests (as defined herein) in the Collateral to secure
the obligations of the Borrower under the Reimbursement Agreement;
NOW, THEREFORE, in consideration of the benefits accruing to
the Grantors, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Grant of Security Interest
The Borrower has agreed, upon the terms specified in the
Reimbursement Agreement, to reimburse the Fund Guarantors for any and all
amounts paid by the Fund Guarantors under the Guaranty. The Pledgors have agreed
to guarantee, among other things, all the obligations of the Borrower under the
Reimbursement Agreement. The willingness of the Fund Guarantors to deliver the
Guaranty is conditioned upon, among other things, the execution and delivery by
the Pledgors of an Amended and Restated Pledge Agreement in the form hereof to
secure (a) the due and punctual payment of (i) all Guarantee Amounts (as defined
in the Reimbursement Agreement) and interest (including interest accruing during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding)
thereon, when and as due, whether at maturity, by acceleration, upon one or more
dates set for prepayment or otherwise and (ii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
the Reimbursement Parties to the Secured Parties under the Reimbursement
Agreement and the other Reimbursement Documents, (b) the due and punctual
performance of all covenants, agreements, obligations and liabilities of the
Reimbursement Parties under or pursuant to the Reimbursement Agreement and the
other Reimbursement Documents, (c) unless otherwise agreed to in writing by the
applicable Fund Guarantor thereto, the due and punctual payment and performance
of all obligations of the Borrower or any other Reimbursement Party, monetary or
otherwise, under each Hedging Agreement entered into with a counterparty that
was a Fund Guarantor (or an Affiliate of a Fund Guarantor) at the time such
Hedging Agreement was entered into and (d) the due and punctual payment and
performance of all obligations in respect of overdrafts and related liabilities
owed to the Administrative Agent or any of its Affiliates and arising from
treasury, depositary and cash management services in connection with any
automated clearing house transfers of funds (all the monetary and other
obligations referred to in the preceding clauses (a) through (d) being referred
to collectively as the "Reimbursement Obligations").
Accordingly, the Pledgors and the Collateral Agent, on behalf of itself
and each Secured Party (and each of their respective successors or assigns),
hereby further agree as follows:
SECTION 1. Pledge. As security for the payment and performance, as the
case may be, in full of the Reimbursement Obligations, each Pledgor hereby
pledges and grants to the Collateral Agent, its successors and assigns, and
hereby grants to the Collateral Agent, its successors and assigns, for the
ratable benefit of the Secured Parties, a security interest in all of such
Pledgor's right, title and interest in, to and under (a) the Equity Interests
owned by it which are listed on Schedule II hereto and any Equity Interests
obtained in the future by such Pledgor and the certificates representing all
such Equity Interests (the "Pledged Interests"); provided that the Pledged
Interests shall not include (i) more than 65% of the issued and outstanding
voting stock of any Foreign Subsidiary, (ii) the outstanding voting stock of
MEMC Korea Company, MEMC Kulim Electronic Materials, Sdn. Bhd., MEMC Southwest
Inc. and Taisil Electronic Materials Corporation or (iii) to the extent that
applicable law requires that a Subsidiary of such Pledgor issue directors'
qualifying shares, such qualifying shares; (b)(i) the debt securities owned by
it which are listed opposite the name of such Pledgor on Schedule II hereto,
(ii) any debt securities in the future issued to such Pledgor and (iii) the
promissory notes and any other instruments evidencing such debt securities (the
"Pledged Debt Securities"); (c) all other property that may be delivered to and
held by the Collateral Agent pursuant to the terms hereof; (d) subject to
Section 5, all payments of principal or interest, dividends, cash, instruments
and other property from time to time received, receivable or otherwise
distributed, in respect of, in exchange for or upon the conversion of the
securities referred to in clauses (a) and (b) above; (e) subject to Section 5,
all rights and privileges of such Pledgor with respect to the securities and
other property referred to in clauses (a), (b), (c) and (d) above; and (f) all
proceeds of any of the foregoing (the items referred to in clauses (a) through
(f) above being collectively referred to as the "Collateral"). Upon delivery to
the Collateral Agent, (a) any Pledged Interests, any Pledged Debt Securities or
any stock certificates, notes or other securities now or hereafter included in
the Collateral (the "Pledged Securities") shall be accompanied by stock powers
duly executed in blank or other instruments of transfer satisfactory to the
Collateral Agent and by such other instruments and documents as the Collateral
Agent may reasonably request and (b) all other property comprising part of the
Collateral shall be accompanied by proper instruments of assignment duly
executed by the applicable Pledgor and such other instruments or documents as
the Collateral Agent may reasonably request. Each delivery of Pledged Securities
shall be accompanied by a schedule describing the securities theretofore and
then being pledged hereunder, which schedule shall be attached hereto as
Schedule II and made a part hereof. Each schedule so delivered shall supersede
any prior schedules so delivered. The pledge of the Pledged Securities is
subject to the terms and conditions of that certain Option Agreement dated
September 21, 1998, as amended on September 22, 2000, September 25, 2001, and
October 25, 2001, among Tokuyama Corporation, Marubeni Corporation, Marubeni
America Corporation, the Borrower and MEMC Pasadena.
TO HAVE AND TO HOLD the Collateral, together with all right, title,
interest, powers, privileges and preferences pertaining or incidental thereto,
unto the Collateral Agent, its successors and assigns, for the ratable benefit
of the Secured Parties, forever; subject, however, to the terms, covenants and
conditions hereinafter set forth.
SECTION 2. Delivery of the Collateral. (a) Each Pledgor agrees promptly
to deliver or cause to be delivered to the Collateral Agent any and all Pledged
Securities, and any and all certificates or other instruments or documents
representing the Collateral.
(b) Each Pledgor will cause any Indebtedness for borrowed money owed to
the Pledgor by any Person to be evidenced by a duly executed promissory
note that is pledged and delivered to the Collateral Agent pursuant to the
terms thereof.
SECTION 3. Representations, Warranties and Covenants. Each Pledgor
hereby represents, warrants and covenants, as to itself and the Collateral
pledged by it hereunder, to and with the Collateral Agent that:
(a) the Pledged Interests represent that percentage as set forth on
Schedule II of the issued and outstanding shares of each class of the
Equity Interests of the issuer with respect thereto;
(b) except for the security interest granted hereunder, such Pledgor
(i) is and will at all times continue to be the direct owner, beneficially
and of record, of the Pledged Securities indicated on Schedule II, (ii)
holds the same free and clear of all Liens, (iii) will make no assignment,
pledge, hypothecation or transfer of, or create or permit to exist any
security interest in or other Lien on, the Collateral, other than pursuant
hereto, and (iv) subject to Section 5, will cause any and all Collateral,
whether for value paid by such Pledgor or otherwise, to be forthwith
deposited with the Collateral Agent and pledged or assigned hereunder;
(c) such Pledgor (i) has the power and authority to pledge the
Collateral in the manner hereby done or contemplated and (ii) will defend
its title or interest thereto or therein against any and all Liens (other
than the Lien created by this Agreement), however arising, of all Persons
whomsoever;
(d) no consent of any other Person (including stockholders or creditors
of any Pledgor) and no consent or approval of any Governmental Authority
or any securities exchange was or is necessary to the validity of the
pledge effected hereby;
(e) by virtue of the execution and delivery by the Pledgors of this
Agreement, when the Pledged Securities, certificates or other documents
representing or evidencing the Collateral are delivered to the Collateral
Agent in accordance with this Agreement, the Collateral Agent will have a
valid and perfected first lien upon and security interest in such Pledged
Securities as security for the payment and performance of the
Reimbursement Obligations;
(f) the pledge effected hereby is effective to vest in the Collateral
Agent, on behalf of the Secured Parties, the rights of the Collateral
Agent in the Collateral as set forth herein;
(g) all of the Pledged Interests have been duly authorized and validly
issued and are fully paid and nonassessable;
(h) all information set forth herein relating to the Pledged Interests
is accurate and complete in all material respects as of the date hereof;
and
(i) the pledge of the Pledged Interests pursuant to this Agreement does
not violate Regulation T, U or X of the Federal Reserve Board or any
successor thereto as of the date hereof.
SECTION 4. Registration in Nominee Name; Denominations. The Collateral
Agent, on behalf of the Secured Parties, shall have the right (in its sole and
absolute discretion) to hold the Pledged Securities in its own name as pledgee,
the name of its nominee (as pledgee or as sub-agent) or the name of the
Pledgors, endorsed or assigned in blank or in favor of the Collateral Agent.
Each Pledgor will promptly give to the Collateral Agent copies of any notices or
other communications received by it with respect to Pledged Securities
registered in the name of such Pledgor. The Collateral Agent shall at all times
have the right to exchange the certificates representing Pledged Securities for
certificates of smaller or larger denominations for any purpose consistent with
this Agreement.
SECTION 5. Voting Rights; Dividends and Interest, etc. (a) Unless and
until an Event of Default shall have occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any and all voting
and/or other consensual rights and powers inuring to an owner of
Pledged Securities or any part thereof for any purpose consistent with
the terms of this Agreement, the Reimbursement Agreement and the other
Reimbursement Documents; provided, however, that such Pledgor will not
be entitled to exercise any such right if the result thereof could
materially and adversely affect the rights inuring to a holder of the
Pledged Securities or the rights and remedies of any of the Secured
Parties under this Agreement or the Reimbursement Agreement or any
other Reimbursement Document or the ability of the Secured Parties to
exercise the same.
(ii) The Collateral Agent shall execute and deliver to each
Pledgor, or cause to be executed and delivered to each Pledgor, all
such proxies, powers of attorney and other instruments as such Pledgor
may reasonably request for the purpose of enabling such Pledgor to
exercise the voting and/or consensual rights and powers it is entitled
to exercise pursuant to subparagraph (i) above and to receive the cash
dividends it is entitled to receive pursuant to subparagraph (iii)
below.
(iii) Each Pledgor shall be entitled to receive and retain any
and all cash dividends, interest and principal paid on the Pledged
Securities to the extent and only to the extent that such cash
dividends, interest and principal are permitted by, and otherwise paid
in accordance with, the terms and conditions of the Reimbursement
Agreement, the other Reimbursement Documents and applicable laws. All
noncash dividends, interest and principal, and all dividends, interest
and principal paid or payable in cash or otherwise in connection with a
partial or total liquidation or dissolution, return of capital, capital
surplus or paid-in surplus, and all other distributions (other than
distributions referred to in the preceding sentence) made on or in
respect of the Pledged Securities, whether paid or payable in cash or
otherwise, whether resulting from a subdivision, combination or
reclassification of the outstanding capital stock of the issuer of any
Pledged Securities or received in exchange for Pledged Securities or
any part thereof, or in redemption thereof, or as a result of any
merger, consolidation, acquisition or other exchange of assets to which
such issuer may be a party or otherwise, shall be and become part of
the Collateral, and, if received by any Pledgor, shall not be
commingled by such Pledgor with any of its other funds or property but
shall be held separate and apart therefrom, shall be held in trust for
the benefit of the Collateral Agent and shall be forthwith delivered to
the Collateral Agent in the same form as so received (with any
necessary endorsement).
(iv) With regard to the pledge of the shares of MEMC Electronic
Materials S.p.A, the Collateral Agent shall take all reasonable actions
required by applicable mandatory provisions of Italian law in order to
enable the Pledgors to exercise all the rights to which the Pledgors
are entitled under this Section 5.
(b) Upon the occurrence and during the continuance of an Event of Default,
all rights of any Pledgor to dividends, interest or principal that such Pledgor
is authorized to receive pursuant to paragraph (a)(iii) above shall cease, and
all such rights shall thereupon become vested in the Collateral Agent, which
shall subject to the provisions of this paragraph (b) have the sole and
exclusive right and authority to receive and retain such dividends, interest or
principal. All dividends, interest or principal received by the Pledgor contrary
to the provisions of this Section 5 shall be held in trust for the benefit of
the Collateral Agent, shall be segregated from other property or funds of such
Pledgor and shall be forthwith delivered to the Collateral Agent upon demand in
the same form as so received (with any necessary endorsement). Any and all money
and other property paid over to or received by the Collateral Agent pursuant to
the provisions of this paragraph (b) shall be retained by the Collateral Agent
in an account to be established by the Collateral Agent upon receipt of such
money or other property and shall be applied in accordance with the provisions
of Section 7. After all Events of Default have been cured or waived, the
Collateral Agent shall promptly repay to each Pledgor all cash dividends,
interest or principal (without interest), that such Pledgor would otherwise be
permitted to retain pursuant to the terms of paragraph (a)(iii) above and which
remain in such account.
(c) Upon the occurrence and during the continuance of an Event of Default,
all rights of any Pledgor to exercise the voting and consensual rights and
powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section
5, and the obligations of the Collateral Agent under paragraph (a)(ii) of this
Section 5, shall cease, and all such rights shall thereupon become vested in the
Collateral Agent, which shall have the sole and exclusive right and authority to
exercise such voting and consensual rights and powers, provided that, unless
otherwise directed by the Fund Guarantors, the Collateral Agent shall have the
right from time to time following and during the continuance of an Event of
Default to permit the Pledgors to exercise such rights. After all Events of
Default have been cured or waived, each Pledgor will have the right to exercise
the voting and consensual rights and powers that it would otherwise be entitled
to exercise pursuant to the terms of paragraph (a)(i) above.
SECTION 6. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default, subject to applicable regulatory and legal
requirements, the Collateral Agent may sell the Collateral, or any part thereof,
at public or private sale or at any broker's board or on any securities
exchange, for cash, upon credit or for future delivery as the Collateral Agent
shall deem appropriate. The Collateral Agent shall be authorized at any such
sale (if it deems it advisable to do so) to restrict the prospective bidders or
purchasers to Persons who will represent and agree that they are purchasing the
Collateral for their own account for investment and not with a view to the
distribution or sale thereof, and upon consummation of any such sale the
Collateral Agent shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof the Collateral so sold. Each such purchaser at
any such sale shall hold the property sold absolutely free from any claim or
right on the part of any Pledgor, and, to the extent permitted by applicable
law, the Pledgors hereby waive all rights of redemption, stay, valuation and
appraisal any Pledgor now has or may at any time in the future have under any
rule of law or statute now existing or hereafter enacted.
The Collateral Agent shall give a Pledgor 10 days' prior written notice
(which each Pledgor agrees is a "reasonable authenticated notification of
disposition" within the meaning of Section 9-611 of the UCC (as defined in the
Security Agreement) of the Collateral Agent's intention to make any sale of such
Pledgor's Collateral. Such notice, in the case of a public sale, shall state the
time and place for such sale and, in the case of a sale at a broker's board or
on a securities exchange, shall state the board or exchange at which such sale
is to be made and the day on which the Collateral, or portion thereof, will
first be offered for sale at such board or exchange. Any such public sale shall
be held at such time or times within ordinary business hours and at such place
or places as the Collateral Agent may fix and state in the notice of such sale.
At any such sale, the Collateral, or portion thereof, to be sold may be sold in
one lot as an entirety or in separate parcels, as the Collateral Agent may (in
its sole and absolute discretion) determine. The Collateral Agent shall not be
obligated to make any sale of any Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of such Collateral shall have been
given. The Collateral Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the
Collateral Agent until the sale price is paid in full by the purchaser or
purchasers thereof, but the Collateral Agent shall not incur any liability in
case any such purchaser or purchasers shall fail to take up and pay for the
Collateral so sold and, in case of any such failure, such Collateral may be sold
again upon like notice. At any public (or, to the extent permitted by applicable
law, private) sale made pursuant to this Section 6, any Secured Party may bid
for or purchase, free from any right of redemption, stay or appraisal on the
part of any Pledgor (all said rights being also hereby waived and released), the
Collateral or any part thereof offered for sale and may make payment on account
thereof by using any Reimbursement Obligation then due and payable to it from
such Pledgor as a credit against the purchase price, and it may, upon compliance
with the terms of sale, hold, retain and dispose of such property without
further accountability to such Pledgor therefor. For purposes hereof, (a) a
written agreement to purchase the Collateral or any portion thereof shall be
treated as a sale thereof, (b) the Collateral Agent shall be free to carry out
such sale pursuant to such agreement and (c) such Pledgor shall not be entitled
to the return of the Collateral or any portion thereof subject thereto,
notwithstanding the fact that after the Collateral Agent shall have entered into
such an agreement all Events of Default shall have been remedied and the
Reimbursement Obligations paid in full. As an alternative to exercising the
power of sale herein conferred upon it, the Collateral Agent may proceed by a
suit or suits at law or in equity to foreclose upon the Collateral and to sell
the Collateral or any portion thereof pursuant to a judgment or decree of a
court or courts having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver.
SECTION 7. Application of Proceeds of Sale. The Collateral Agent shall
apply the proceeds of any collection or sale of the Collateral, as well as any
Collateral consisting of cash, as follows:
FIRST, to the payment of all costs and reasonable expenses
incurred by the Collateral Agent (in its capacity as such hereunder or
under any other Reimbursement Document) in connection with such
collection or sale or otherwise in connection with this Agreement or
any of the Reimbursement Obligations, including all court costs and the
reasonable fees and expenses of its agents and legal counsel, the
repayment of all advances made by the Collateral Agent hereunder or
under any other Reimbursement Document on behalf of any Pledgor and any
other costs or expenses incurred in connection with the exercise of any
right or remedy hereunder or under any other Reimbursement Document;
SECOND, to the payment in full of the Reimbursement
Obligations and the Revolving Credit Obligations in accordance with
Section 5.04 of the Intercreditor Agreement (the amounts so applied to
be distributed among the secured parties pro rata in accordance with
the amounts of the Reimbursement Obligations and/or Revolving Credit
Obligations owed to them on the date of any such distribution);
THIRD, to the payment in full of the Indenture Obligations
outstanding; and
FOURTH, to the Pledgors, their successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the purchase money by the Collateral Agent or of the officer
making the sale shall be a sufficient discharge to the purchaser or purchasers
of the Collateral so sold and such purchaser or purchasers shall not be
obligated to see to the application of any part of the purchase money paid over
to the Collateral Agent or such officer or be answerable in any way for the
misapplication thereof.
SECTION 8. Reimbursement of Collateral Agent. (a) Each Pledgor agrees to
pay upon demand to the Collateral Agent the amount of any and all reasonable
expenses, including the reasonable fees, other charges and disbursements of its
counsel and of any experts or agents, that the Collateral Agent may incur in
connection with (i) the administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Collateral, (iii) the exercise or enforcement of any of the rights of the
Collateral Agent hereunder or (iv) the failure by such Pledgor to perform or
observe any of the provisions hereof.
(b) Without limitation of its indemnification obligations under the other
Reimbursement Documents, each Pledgor agrees to indemnify the Collateral Agent
and the Indemnitees (as defined in Section 8.11 of the Reimbursement Agreement)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees,
other charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the execution
or delivery of this Agreement or any other Reimbursement Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations thereunder or the consummation of
the other transactions contemplated thereby or (ii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto, provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) Any amounts payable as provided hereunder shall be additional
Reimbursement Obligations secured hereby and by the other Security Documents.
The provisions of this Section 8 shall remain operative and in full force and
effect regardless of the termination of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Reimbursement
Obligations, the invalidity or unenforceability of any term or provision of this
Agreement or any other Reimbursement Document or any investigation made by or on
behalf of the Collateral Agent or any other Secured Party. All amounts due under
this Section 8 shall be payable on written demand therefor and shall bear
interest at the rate specified in Section 2.10(c) of the Revolving Credit
Agreement.
SECTION 9. Collateral Agent Appointed Attorney-in-Fact. Each Pledgor
hereby appoints the Collateral Agent the attorney-in-fact of such Pledgor for
the purpose of carrying out the provisions of this Agreement and taking any
action and executing any instrument that the Collateral Agent may deem necessary
or advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest. Without limiting the generality of the foregoing,
the Collateral Agent shall have the right, upon the occurrence and during the
continuance of an Event of Default, with full power of substitution either in
the Collateral Agent's name or in the name of such Pledgor, to ask for, demand,
▇▇▇ for, collect, receive and give acquittance for any and all moneys due or to
become due under and by virtue of any Collateral, to endorse checks, drafts,
orders and other instruments for the payment of money payable to the Pledgor
representing any interest or dividend or other distribution payable in respect
of the Collateral or any part thereof or on account thereof and to give full
discharge for the same, to settle, compromise, prosecute or defend any action,
claim or proceeding with respect thereto, and to sell, assign, endorse, pledge,
transfer and to make any agreement respecting, or otherwise deal with, the same;
provided, however, that nothing herein contained shall be construed as requiring
or obligating the Collateral Agent to make any commitment or to make any inquiry
as to the nature or sufficiency of any payment received by the Collateral Agent,
or to present or file any claim or notice, or to take any action with respect to
the Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby. The Collateral Agent and the other
Secured Parties shall be accountable only for amounts actually received as a
result of the exercise of the powers granted to them herein, and neither they
nor their officers, directors, employees or agents shall be responsible to any
Pledgor for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct.
SECTION 10. Waivers; Amendment. (a) No failure or delay of the Collateral
Agent in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Collateral Agent hereunder and of
the other Secured Parties under the other Reimbursement Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provisions of this Agreement or consent to any departure by any
Pledgor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on any Pledgor in any case shall entitle such Pledgor to any
other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to a written agreement entered into between the
Collateral Agent and the Pledgor or Pledgors with respect to which such waiver,
amendment or modification is to apply, subject to any consent required in
accordance with Section 8.09 of the Reimbursement Agreement.
SECTION 11. Securities Act, etc. In view of the position of the Pledgors
in relation to the Pledged Securities, or because of other current or future
circumstances, a question may arise under the Securities Act of 1933, as now or
hereafter in effect, or any similar statute hereafter enacted analogous in
purpose or effect (such Act and any such similar statute as from time to time in
effect being called the "Federal Securities Laws") with respect to any
disposition of the Pledged Securities permitted hereunder. Each Pledgor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Collateral Agent if the Collateral Agent were
to attempt to dispose of all or any part of the Pledged Securities, and might
also limit the extent to which or the manner in which any subsequent transferee
of any Pledged Securities could dispose of the same. Similarly, there may be
other legal restrictions or limitations affecting the Collateral Agent in any
attempt to dispose of all or part of the Pledged Securities under applicable
Blue Sky or other state securities laws or similar laws analogous in purpose or
effect. Each Pledgor recognizes that in light of such restrictions and
limitations the Collateral Agent may, with respect to any sale of the Pledged
Securities, limit the purchasers to those who will agree, among other things, to
acquire such Pledged Securities for their own account, for investment, and not
with a view to the distribution or resale thereof. Each Pledgor acknowledges and
agrees that in light of such restrictions and limitations, the Collateral Agent,
in its sole and absolute discretion, (a) may proceed to make such a sale whether
or not a registration statement for the purpose of registering such Pledged
Securities or part thereof shall have been filed under the Federal Securities
Laws and (b) may approach and negotiate with a single potential purchaser to
effect such sale, in either case in accordance with a valid exemption from
registration under the Federal Securities Laws. Each Pledgor acknowledges and
agrees that any such sale might result in prices and other terms less favorable
to the seller than if such sale were a public sale without such restrictions. In
the event of any such sale, the Collateral Agent shall incur no responsibility
or liability for selling all or any part of the Pledged Securities at a price
that the Collateral Agent, in its sole and absolute discretion, may in good
▇▇▇▇▇ ▇▇▇▇ reasonable under the circumstances, notwithstanding the possibility
that a substantially higher price might have been realized if the sale were
deferred until after registration as aforesaid or if more than a single
purchaser were approached. The provisions of this Section 11 will apply
notwithstanding the existence of a public or private market upon which the
quotations or sales prices may exceed substantially the price at which the
Collateral Agent sells.
SECTION 12. Registration, etc. Each Pledgor agrees that, upon the
occurrence and during the continuance of an Event of Default, if for any reason
the Collateral Agent desires to sell any of the Pledged Securities at a public
sale, it will, at any time and from time to time, upon the written request of
the Collateral Agent, use its reasonable best efforts to take or to cause the
issuer of such Pledged Securities to take such action and prepare, distribute
and/or file such documents, as are required or advisable in the reasonable
opinion of counsel for the Collateral Agent to permit the public sale of such
Pledged Securities. Each Pledgor further agrees to indemnify, defend and hold
harmless the Collateral Agent, each other Secured Party, any underwriter and
their respective officers, directors, affiliates and controlling Persons from
and against all loss, liability, expenses, costs of counsel (including, without
limitation, reasonable fees and expenses to the Collateral Agent of legal
counsel), and claims (including the costs of investigation) that they may incur
insofar as such loss, liability, expense or claim arises out of or is based upon
any alleged untrue statement of a material fact contained in any prospectus (or
any amendment or supplement thereto) or in any notification or offering
circular, or arises out of or is based upon any alleged omission to state a
material fact required to be stated therein or necessary to make the statements
in any thereof not misleading, except insofar as the same may have been caused
by any untrue statement or omission based upon information furnished in writing
to such Pledgor or the issuer of such Pledged Securities by the Collateral Agent
or any other Secured Party expressly for use therein. Each Pledgor further
agrees, upon such written request referred to above, to use its reasonable best
efforts to qualify, file or register, or cause the issuer of such Pledged
Securities to qualify, file or register, any of the Pledged Securities under the
Blue Sky or other securities laws of such states as may be requested by the
Collateral Agent and keep effective, or cause to be kept effective, all such
qualifications, filings or registrations. Each Pledgor will bear all costs and
expenses of carrying out its obligations under this Section 12. Each Pledgor
acknowledges that there is no adequate remedy at law for failure by it to comply
with the provisions of this Section 12 and that such failure would not be
adequately compensable in damages, and therefore agrees that its agreements
contained in this Section 12 may be specifically enforced.
SECTION 13. Intercreditor Agreement. Notwithstanding anything to the
contrary contained in this Agreement, all rights, obligations and remedies of
the Collateral Agent set forth in this Agreement and any other Security
Documents shall be subject to the provisions set forth in the Intercreditor
Agreement.
SECTION 14. Security Interest Absolute. All rights of the Collateral Agent
hereunder, the grant of a security interest in the Collateral and all
obligations of each Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Reimbursement
Agreement, any other Reimbursement Document, any agreement with respect to any
of the Reimbursement Obligations or any other agreement or instrument relating
to any of the foregoing, (b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Reimbursement Obligations, or any
other amendment or waiver of or any consent to any departure from the
Reimbursement Agreement, any other Reimbursement Document or any other agreement
or instrument relating to any of the foregoing, (c) any exchange, release or
nonperfection of any other collateral, or any release or amendment or waiver of
or consent to or departure from any guaranty, for all or any of the
Reimbursement Obligations or (d) any other circumstance that might otherwise
constitute a defense available to, or a discharge of, any Pledgor in respect of
the Reimbursement Obligations or in respect of this Agreement (other than the
indefeasible payment in full of all the Reimbursement Obligations).
SECTION 15. Termination or Release. (a) This Agreement and the security
interests granted hereby shall terminate when all the Reimbursement Obligations
have been indefeasibly paid in full and the Fund Guarantors have no further
obligations under the Guaranty.
(b) Upon any sale or other transfer by any Pledgor of any Collateral that
is permitted under the Reimbursement Agreement to any Person that is not a
Pledgor, or, upon the effectiveness of any written consent to the release of the
security interest granted hereby in any Collateral pursuant to Section 8.09 of
the Reimbursement Agreement, the security interest in such Collateral shall be
automatically released.
(c) In connection with any termination or release pursuant to paragraph
(a) or (b) or Section 18, the Collateral Agent shall execute and deliver to any
Pledgor, at such Pledgor's expense, all documents that such Pledgor shall
reasonably request to evidence such termination or release. Any execution and
delivery of documents pursuant to this Section 15 shall be without recourse to
or warranty by the Collateral Agent.
SECTION 16. Notices. All communications and notices hereunder shall be in
writing and given as provided in Section 8.03 of the Reimbursement Agreement.
All communications and notices hereunder to any Subsidiary Pledgor shall be
given to it at the address or telecopy number set forth on Schedule I, with a
copy to the Borrower.
SECTION 17. Further Assurances. Each Pledgor agrees to do such further
acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Collateral Agent may at any time
reasonably request in connection with the administration and enforcement of this
Agreement or with respect to the Collateral or any part thereof or in order
better to assure and confirm unto the Collateral Agent its rights and remedies
hereunder.
SECTION 18. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of any Pledgor that are contained in
this Agreement shall bind and inure to the benefit of its successors and
assigns. This Agreement shall become effective as to any Pledgor when a
counterpart hereof executed on behalf of such Pledgor shall have been delivered
to the Collateral Agent and a counterpart hereof shall have been executed on
behalf of the Collateral Agent, and thereafter shall be binding upon such
Pledgor and the Collateral Agent and their respective successors and assigns,
and shall inure to the benefit of such Pledgor, the Collateral Agent and the
other Secured Parties, and their respective successors and assigns, except that
no Pledgor shall have the right to assign its rights hereunder or any interest
herein or in the Collateral (and any such attempted assignment shall be void),
except as expressly contemplated by this Agreement or the other Reimbursement
Documents. In the event that a Pledgor ceases to be a Subsidiary pursuant to a
transaction permitted under the Reimbursement Documents, such Pledgor shall be
released from its obligations under this Agreement without further action. This
Agreement shall be construed as a separate agreement with respect to each
Pledgor and may be amended, modified, supplemented, waived or released with
respect to any Pledgor without the approval of any other Pledgor and without
affecting the obligations of any other Pledgor hereunder.
SECTION 19. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by each Pledgor herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Reimbursement Document shall be
considered to have been relied upon by the Collateral Agent and the other
Secured Parties and shall survive the making of the Guaranty by the Fund
Guarantors regardless of any investigation made by the Secured Parties or on
their behalf, and shall continue in full force and effect as long as any
Reimbursement Obligation remains unpaid and as long as the Commitments have not
been terminated.
(b) In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute a single contract, and shall become effective
as provided in Section 18. Delivery of an executed counterpart of a signature
page to this Agreement by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 22. Rules of Interpretation. The rules of interpretation specified
in Section 1.02 of the Reimbursement Agreement shall be applicable to this
Agreement. Section headings used herein are for convenience of reference only,
are not part of this Agreement and are not to affect the construction of, or to
be taken into consideration in interpreting this Agreement.
SECTION 23. Jurisdiction; Consent to Service of Process. (a) Each Pledgor
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 other Reimbursement Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that, to the extent permitted by applicable law, all
claims in respect of any such action or proceeding may be heard and determined
in such New York State 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 the Collateral Agent or
any other Secured Party may otherwise have to bring any action or proceeding
relating to this Agreement or the other Reimbursement Documents against any
Pledgor or its properties in the courts of any jurisdiction.
(b) Each Pledgor hereby 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 other Reimbursement
Documents 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.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 16. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 24. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 25. Limitation on Security Interest. Anything contained in this
Agreement to the contrary notwithstanding, the obligation hereunder secured by
each Subsidiary Pledgor shall be limited to a maximum aggregate amount equal to
the greatest amount that would not render such Subsidiary Pledgor's secured
obligations hereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of Title 11 of the United States Code or any
provisions of applicable state law (collectively, the "Fraudulent Transfer
Laws"), in each case after giving effect to all liabilities of such Subsidiary
Pledgor, contingent or otherwise, that would be taken into account in
determining whether the incurrence of the obligation would constitute a
fraudulent conveyance under the Fraudulent Transfer Laws and after giving
effect, both in determining such Subsidiary Pledgor's probable debt hereunder
and in determining its assets, to the existence of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights of such Subsidiary
Pledgor pursuant to (a) applicable law or (b) any agreement, including the
Indemnity, Subrogation and Contribution Agreement.
SECTION 26. Additional Pledgors. Pursuant to Section 5.10 of the
Reimbursement Agreement, each Subsidiary Reimbursement Party that was not in
existence or not a Subsidiary Reimbursement Party on the date of the
Reimbursement Agreement is required to enter into this Agreement as a Subsidiary
Pledgor upon becoming a Subsidiary Reimbursement Party. Upon execution and
delivery by the Collateral Agent and a Subsidiary of an instrument in the form
of Annex 1, such Subsidiary shall become a Subsidiary Pledgor hereunder with the
same force and effect as if originally named as a Subsidiary Pledgor herein. The
execution and delivery of such instrument shall not require the consent of any
Pledgor hereunder. The rights and obligations of each Pledgor hereunder shall
remain in full force and effect notwithstanding the addition of any new
Subsidiary Pledgor as a party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
MEMC ELECTRONIC MATERIALS, INC.
By
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer
By
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
EACH OF THE OTHER SUBSIDIARIES LISTED ON
SCHEDULE I HERETO,
By
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, in his capacity as
Treasurer for each of the other
Subsidiaries listed on Schedule I
hereto
CITICORP USA, INC., as Collateral Agent
By
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director and Vice
President
Schedule I to the
Amended and Restated
Pledge Agreement
SUBSIDIARY PLEDGORS
Name Address
---- -------
1.
2.
3.
4.
5.
6.
Schedule II to the
Amended and Restated
Pledge Agreement
CAPITAL STOCK OR OTHER EQUITY INTERESTS
Number and Percentage
Class of Of
Shares Shares
or Other or Other
Number of Registered Equity Equity
Issuer Certificate Owner Interests Interests
------ ----------- ----- --------- ---------
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
------ ------ ------------ -------------
Annex 1 to the
Amended and Restated
Pledge Agreement
SUPPLEMENT NO. [ ] dated as of [ ] to The Amended and
Restated Pledge Agreement dated as of December 21, 2001,
among MEMC ELECTRONIC MATERIALS, INC., a Delaware
corporation "Borrower"), each subsidiary of Borrower listed
on Schedule I thereto (each such subsidiary individually a
"Subsidiary Pledgor"and collectively, the "Subsidiary
Pledgors"; the Borrower and the Subsidiary Pledgors are
referred to herein individually as a "Pledgor" and
collectively as the "Pledgors") and CITICORP USA, INC., as
collateral agent (in such capacity, the "Collateral Agent")
for the Secured Parties (as defined in the Amended and
Restated Security Agreement).
A. Reference is made to (a) the Reimbursement Agreement dated as of
December 21, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Reimbursement Agreement"), among the Borrower, the Fund Guarantors
and CITICORP USA, INC. as collateral agent (in such capacity, the "Collateral
Agent") and (b) the Amended and Restated Guarantee Agreement dated as of
December 21, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Amended and Restated Guarantee Agreement") among the Subsidiary
Pledgors and the Collateral Agent.
B. Capitalized terms used herein and not defined herein shall have
meanings assigned to such terms in the Reimbursement Agreement.
C. The Pledgors have entered into the Amended and Restated Pledge
Agreement in order to induce the Fund Guarantors to guarantee the Borrower's
obligations under the Revolving Credit Agreement. Pursuant to Section 5.10 of
the Reimbursement Agreement, each Subsidiary Reimbursement Party that was not in
existence or not a Subsidiary Reimbursement Party on the date of the
Reimbursement Agreement is required to enter into the Amended and Restated
Pledge Agreement as a Subsidiary Pledgor upon becoming a Subsidiary
Reimbursement Party. Section 26 of the Amended and Restated Pledge Agreement
provides that such Subsidiaries may become Subsidiary Pledgors under the Amended
and Restated Pledge Agreement by execution and delivery of an instrument in the
form of this Supplement. The undersigned Subsidiary (the "New Pledgor") is
executing this Supplement in accordance with the requirements of the
Reimbursement Agreement to become a Subsidiary Pledgor under the Amended and
Restated Pledge Agreement in order to induce the Fund Guarantors to make
additional guarantees and as consideration for the guarantees previously made.
Accordingly, the Collateral Agent and the New Pledgor agree as follows:
SECTION 1. In accordance with Section 26 of the Amended and Restated
Pledge Agreement, the New Pledgor by its signature below becomes a Pledgor under
the Amended and Restated Pledge Agreement with the same force and effect as if
originally named therein as a Pledgor and the New Pledgor hereby agrees (a) to
all the terms and provisions of the Amended and Restated Pledge Agreement
applicable to it as a Pledgor thereunder and (b) represents and warrants that
the representations and warranties made by it as a Pledgor thereunder are true
and correct on and as of the date hereof except to the extent a representation
and warranty expressly relates solely to a specific date in which case such
representation and warranty shall be true and correct on such date. In
furtherance of the foregoing, the New Pledgor, as security for the payment and
performance in full of the Reimbursement Obligations (as defined in the Pledge
Agreement), does hereby create and grant to the Collateral Agent, its successors
and assigns, for the benefit of the Secured Parties, their successors and
assigns, a security interest in and lien on all of the New Pledgor's right,
title and interest in and to the Collateral (as defined in the Pledge Agreement)
of the New Pledgor. Each reference to a "Subsidiary Pledgor" or a "Pledgor" in
the Pledge Agreement shall be deemed to include the New Pledgor. The Pledge
Agreement is hereby incorporated herein by reference.
SECTION 2. The New Pledgor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Collateral Agent shall have received counterparts of this Supplement that, when
taken together, bear the signatures of the New Pledgor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. The New Pledgor hereby represents and warrants that set
forth on Schedule I attached hereto is a true and correct schedule of all its
Pledged Securities.
SECTION 5. Except as expressly supplemented hereby, the Amended and
Restated Pledge Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Amended and Restated Pledge Agreement shall not in any way be
affected or impaired (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 15 of the Amended and Restated Pledge
Agreement. All communications and notices hereunder to the New Pledgor shall be
given to it at the address set forth under its signature hereto, below, with a
copy to the Borrower.
SECTION 9. The New Pledgor agrees to reimburse the Collateral Agent for
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
IN WITNESS WHEREOF, the New Pledgor and the Collateral Agent have duly
executed this Supplement to the Amended and Restated Pledge Agreement as of the
day and year first above written.
[NAME OF NEW PLEDGOR],
By
----------------------------------
Name:
Title:
Address:
CITICORP USA, INC., as Collateral Agent,
By
----------------------------------
Name:
Title:
Schedule I to
Supplement No. [ ]
to the Amended and Restated
Pledge Agreement
Pledged Securities of the New Pledgor
CAPITAL STOCK OR OTHER EQUITY INTERESTS
Number and Percentage
Class of of
Shares Shares
or Other or Other
Number of Registered Equity Equity
Issuer Certificate Owner Interests Interests
------ ----------- ----- --------- ---------
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
------ ------ ------------ -------------
Exhibit D
AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT (this
"Agreement"), dated as of December 21, 2001, is made among MEMC ELECTRONIC
MATERIALS, INC., a Delaware corporation (the "Borrower"), each subsidiary of the
Borrower listed on Schedule I hereto (each such subsidiary individually a
"Subsidiary" or "Guarantor" and, collectively, the "Subsidiaries" or
"Guarantors"; and the Guarantors and Borrower are referred to collectively
herein as the "Grantors") and CITICORP USA, INC. as collateral agent (in such
capacity, the "Collateral Agent") for the Secured Parties (as defined herein).
Unless the context otherwise requires, all capitalized terms used but not
defined herein shall have the meanings set forth in the Reimbursement Agreement.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Grantors and the Collateral Agent are parties to
that certain security agreement, dated as of November 13, 2001, pursuant to
which the Grantors agreed to grant to the Collateral Agent a security interest
in the Collateral to secure the Borrower's obligations under a revolving credit
agreement, dated as of November 13, 2001, among the Borrower, the lenders party
thereto, and Citicorp USA, Inc., as administrative agent and collateral agent.
WHEREAS, the Borrower, contemporaneously herewith, is entering
into the Revolving Credit Agreement, dated as of December 21, 2001(as such
agreement may be further amended, restated, modified or supplemented at any time
and from time to time hereafter, the "Revolving Credit Agreement"), with the
lenders party thereto (the "Lenders") and Citicorp USA, Inc. as administrative
agent (in such capacity, the "Administrative Agent"), pursuant to which the
Lenders will provide the Borrower with a revolving credit facility in an initial
aggregate amount not to exceed U.S. $150,000,000;
WHEREAS, contemporaneously herewith, the TPG Guarantor is
entering into the TPG Guaranty, the TCW Guarantors are entering into the TCW
Guaranty and the GEI Guarantors are entering into the GEI Guaranty (together
with the TPG Guaranty and the TCW Guaranty, the "Guaranty") each dated as of
December 21, 2001 with the Administrative Agent, pursuant to which the Fund
Guarantors will guarantee the obligations of the Borrower under the Revolving
Credit Agreement;
WHEREAS, the Borrower is, contemporaneously herewith, entering
into a Reimbursement Agreement, dated as of December 21, 2001 (as such agreement
may be further amended, restated, modified or supplemented at any time and from
time to time hereafter, the "Reimbursement Agreement"), with the Fund Guarantors
and the Collateral Agent, pursuant to which the Borrower agrees to reimburse the
Fund Guarantors for any and all payments made by the Fund Guarantors under the
Guaranty; and
WHEREAS, to induce the Fund Guarantors to enter into the
Guaranty, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, (a) each of the Grantors agrees to
grant to the Collateral Agent, for the ratable benefit of the Secured Parties,
the Security Interests (as defined herein) in the Collateral to secure the
obligations of the Borrower under the Reimbursement Agreement, and (b) each of
the Guarantors agrees to guarantee, pursuant to the Amended and Restated
Guarantee Agreement, dated as of December 21, 2001, among the Guarantors and the
Collateral Agent, the obligations of the Borrower under the Reimbursement
Agreement;
NOW, THEREFORE, in consideration of the benefits accruing to
the Grantors, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
GRANT OF SECURITY INTEREST
The Borrower has agreed, on the terms specified in the
Reimbursement Agreement, to reimburse the Fund Guarantors for any and all
amounts paid by the Fund Guarantors under the Guaranty. Each of the Guarantors
has agreed to guarantee, among other things, all the obligations of the Borrower
under the Reimbursement Agreement. The willingness of the Fund Guarantors to
deliver the Guaranty is conditioned upon, among other things, the execution and
delivery by the Grantors of an agreement in the form hereof to secure (a) the
due and punctual payment of (i) all Guarantee Amounts (as defined in the
Reimbursement Agreement) and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding)
thereon, when and as due, whether at maturity, by acceleration, upon one or more
dates set for prepayment or otherwise and (ii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
the Reimbursement Parties to the Secured Parties under the Reimbursement
Agreement and the other Reimbursement Documents, (b) the due and punctual
performance of all covenants, agreements, obligations and liabilities of the
Reimbursement Parties under or pursuant to the Reimbursement Agreement and the
other Reimbursement Documents, (c) unless otherwise agreed to in writing by the
applicable Fund Guarantor thereto, the due and punctual payment and performance
of all obligations of the Borrower or any other Reimbursement Party, monetary or
otherwise, under each Hedging Agreement entered into with a counterparty that
was a Fund Guarantor (or an Affiliate of a Fund Guarantor) at the time such
Hedging Agreement was entered into and (d) the due and punctual payment and
performance of all obligations in respect of overdrafts and related liabilities
owed to the Collateral Agent or any of its Affiliates and arising from treasury,
depositary and cash management services in connection with any automated
clearing house transfers of funds (all the monetary and other obligations
described in the preceding clauses (a) through (d) being collectively called the
"Reimbursement Obligations").
Accordingly, the Grantors and the Collateral Agent, on behalf of itself
and each Secured Party (and each of their respective successors or assigns),
hereby further agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definition of Certain Terms Used Herein. As used herein,
the following terms shall have the following meanings:
"Account Debtor" means any Person who is or who may become obligated to
any Grantor under, with respect to or on account of an Account.
"Accounts" means all "accounts" (as defined in UCC) of any Grantor and
shall include any and all right, title and interest of any Grantor to payment
for goods and services sold or leased, including any such right evidenced by
Chattel Paper, whether due or to become due, whether or not it has been earned
by performance, and whether now or hereafter acquired or arising in the future,
including accounts receivable from Affiliates of the Grantors.
"Accounts Receivable" means all Accounts and all right, title and
interest in any returned goods, together with all rights, titles, securities and
guarantees with respect thereto, including any rights to stoppage in transit,
replevin, reclamation and resales, and all related security interests, liens and
pledges, whether voluntary or involuntary, in each case whether now existing or
owned or hereafter arising or acquired.
"Chattel Paper" has the meaning assigned to such term in the UCC.
"Collateral" means all (a) Accounts Receivable, (b) Documents, (c)
Equipment, (d) General Intangibles, (e) Inventory, (f) cash and cash accounts,
(g) Investment Property (h) Chattel Paper, (i) Instruments, (j) Deposit Accounts
and (k) Proceeds.
"Commodity Account" means an account maintained by a Commodity
Intermediary in which a Commodity Contract is carried out for a Commodity
Customer.
"Commodity Contract" means a commodity futures contract, an option on a
commodity futures contract, a commodity option or any other contract that, in
each case, is (a) traded on or subject to the rules of a board of trade that has
been designated as a contract market for such a contract pursuant to the federal
commodities laws or (b) traded on a foreign commodity board of trade, exchange
or market, and is carried on the books of a Commodity Intermediary for a
Commodity Customer.
"Commodity Customer" means a Person for whom a Commodity Intermediary
carries a Commodity Contract on its books.
"Commodity Intermediary" means (a) a Person who is registered as a
futures commission merchant under the federal commodities laws or (b) a Person
who in the ordinary course of its business provides clearance or settlement
services for a board of trade that has been designated as a contract market
pursuant to federal commodities laws.
"Copyright License" means any written agreement, now or hereafter in
effect, granting any right to any third party under any Copyright now or
hereafter owned by any Grantor or which such Grantor otherwise has the right to
license, or granting any right to such Grantor under any Copyright now or
hereafter owned by any third party, and all rights of such Grantor under any
such agreement.
"Copyrights" means all of the following: (a) all copyright rights in
any work subject to the copyright laws of the United States or any other
country, whether as author, assignee, transferee or otherwise, and (b) all
registrations and applications for registration of any such copyright in the
United States or any other country, including registrations, recordings,
supplemental registrations and pending applications for registration in the
United States Copyright Office, including those listed on Schedule II.
"Deposit Accounts" has the meaning assigned to such term in the UCC.
"Documents" means all instruments, promissory notes, files, records,
ledger sheets and documents covering or relating to any of the Collateral.
"Entitlement Holder" means a Person identified in the records of a
Securities Intermediary as the Person having a Security Entitlement against the
Securities Intermediary. If a Person acquires a Security Entitlement by virtue
of Section 8-501(b)(2) or (3) of the UCC, such Person is the Entitlement Holder.
"Equipment" means "equipment" (as defined in the UCC) of any Grantor
and shall include all equipment, furniture and furnishings, and all tangible
personal property similar to any of the foregoing, including tools, parts and
supplies of every kind and description, and all improvements, accessions or
appurtenances thereto, that are now or hereafter owned by any Grantor. The term
Equipment shall include Fixtures.
"Financial Asset" means (a) a Security, (b) an obligation of a Person
or a share, participation or other interest in a Person or in property or an
enterprise of a Person, which is, or is of a type, dealt with in or traded on
financial markets, or which is recognized in any area in which it is issued or
dealt in as a medium for investment or (c) any property that is held by a
Securities Intermediary for another Person in a Securities Account if the
Securities Intermediary has expressly agreed with the other Person that the
property is to be treated as a Financial Asset under Article 8 of the UCC. As
the context requires, the term Financial Asset means either the interest itself
or the means by which a Person's claim to it is evidenced, including a
certificated or uncertificated Security, a certificate representing a Security
or a Security Entitlement.
"Fixtures" means all items of Equipment, whether now owned or hereafter
acquired, of any Grantor that become so related to particular real estate that
an interest in them arises under any real estate law applicable thereto.
"General Intangibles" means all "general intangibles" (as defined in
the UCC) of any Grantor and shall include choses in action and causes of action
and all other intangible personal property of any Grantor of every kind and
nature (other than Accounts Receivable) now owned or hereafter acquired by any
Grantor, including corporate or other business records, indemnification claims,
contract rights (including rights under leases, whether entered into as lessor
or lessee, Hedging Agreements and other agreements), Intellectual Property,
goodwill, registrations, franchises, tax refund claims and any letter of credit,
guarantee, claim, security interest or other security held by or granted to any
Grantor to secure payment by an Account Debtor of any of the Accounts
Receivable.
"Instrument" has the meaning assigned to such term in the UCC.
"Intellectual Property" means all intellectual and similar property of
any Grantor of every kind and nature now owned or hereafter acquired by any
Grantor, including inventions, designs, Patents, Copyrights, Licenses,
Trademarks, trade secrets, confidential or proprietary technical and business
information, know-how, show-how or other data or information, software and
databases and all embodiments or fixations thereof and related documentation,
registrations and franchises, and all additions, improvements and accessions to,
and books and records describing or used in connection with, any of the
foregoing.
"Inventory" means "inventory" (as defined in the UCC) of any Grantor
and shall include all goods of any Grantor, whether now owned or hereafter
acquired, held for sale or lease, or furnished or to be furnished by any Grantor
under contracts of service, or consumed in any Grantor's business, including raw
materials, intermediates, work in process, packaging materials, finished goods,
semi-finished inventory, scrap inventory, manufacturing supplies and spare
parts, and all such goods that have been returned to or repossessed by or on
behalf of any Grantor.
"Investment Property" means all Securities (whether certificated or
uncertificated), Security Entitlements, Securities Accounts, Commodity Contracts
and Commodity Accounts of any Grantor, whether now owned or hereafter acquired
by any Grantor.
"License" means any Patent License, Trademark License, Copyright
License or other license or sublicense to which any Grantor is a party,
including those listed on Schedule III (other than those license agreements in
existence on the date hereof and listed on Schedule III and those license
agreements entered into after the date hereof, which by their terms prohibit
assignment or a grant of a security interest by such Grantor as licensee
thereunder).
"Patent License" means any written agreement, now or hereafter in
effect, granting to any third party any right to make, use or sell any invention
on which a Patent, now or hereafter owned by any Grantor or which any Grantor
otherwise has the right to license, is in existence, or granting to any Grantor
any right to make, use or sell any invention on which a Patent, now or hereafter
owned by any third party, is in existence, and all rights of any Grantor under
any such agreement.
"Patents" means all of the following now owned or hereafter acquired by
any Grantor: (a) all letters patent of the United States or any other country,
all registrations and recordings thereof, and all applications for letters
patent of the United States or any other country, including registrations,
recordings and pending applications in the United States Patent and Trademark
Office or any similar offices in any other country, including those listed on
Schedule IV, and (b) all reissues, continuations, divisions,
continuations-in-part, renewals or extensions thereof, and the inventions
disclosed or claimed therein, including the right to make, use and/or sell the
inventions disclosed or claimed therein.
"Perfection Certificate" means a certificate substantially in the form
of Annex 2 hereto, completed and supplemented with the schedules and attachments
contemplated thereby, and duly executed by an executive officer or Financial
Officer of the Borrower.
"Proceeds" means "proceeds" (as defined in the UCC) of any Grantor and
shall include any consideration received from the sale, exchange, license, lease
or other disposition of any asset or property that constitutes Collateral, any
value received as a consequence of the possession of any Collateral and any
payment received from any insurer or other Person or entity as a result of the
destruction, loss, theft, damage or other involuntary conversion of whatever
nature of any asset or property which constitutes Collateral, any property
collected on or distributed on account of the Collateral, any rights arising out
of the Collateral, and shall include , (a) any claim of any Grantor against any
third party for (and the right to ▇▇▇ and recover for and the rights to damages
or profits due or accrued arising out of or in connection with) (i) past,
present or future infringement of any Patent now or hereafter owned by any
Grantor, or licensed under a Patent License, (ii) past, present or future
infringement or dilution of any Trademark now or hereafter owned by any Grantor
or licensed under a Trademark License or injury to the goodwill associated with
or symbolized by any Trademark now or hereafter owned by any Grantor, (iii)
past, present or future breach of any License and (iv) past, present or future
infringement of any Copyright now or hereafter owned by any Grantor or licensed
under a Copyright License and (b) any and all other amounts from time to time
paid or payable under or in connection with any of the Collateral.
"Reimbursement Agreement" has the meaning set forth in the recitals
hereof.
"Reimbursement Obligations" has the meaning assigned to such term in
the preliminary statement of this Agreement.
"Revolving Credit Agreement" has the meaning set forth in the recitals
hereof.
"Secured Parties" means (a) the Fund Guarantors, (b) the Collateral
Agent, (c) each counterparty to a Hedging Agreement entered into with the
Borrower or any Reimbursement Party if such counterparty was a Fund Guarantor
(or an Affiliate of a Fund Guarantor) at the time the Hedging Agreement was
entered into, (d) the beneficiaries of each indemnification obligation
undertaken by any Grantor under any Reimbursement Document and (e) the
successors and assigns of each of the foregoing.
"Securities" means any obligations of an issuer or any shares,
participations or other interests in an issuer or in property or an enterprise
of an issuer which (a) are represented by a certificate representing a security
in bearer or registered form, or the transfer of which may be registered upon
books maintained for that purpose by or on behalf of the issuer, (b) are one of
a class or series or by its terms is divisible into a class or series of shares,
participations, interests or obligations and (c)(i) are, or are of a type, dealt
with or traded on securities exchanges or securities markets or (ii) are a
medium for investment and by their terms expressly provide that they are a
security governed by Article 8 of the UCC.
"Securities Account" means an account to which a Financial Asset is or
may be credited in accordance with an agreement under which the Person
maintaining the account undertakes to treat the Person for whom the account is
maintained as entitled to exercise rights that comprise the Financial Asset.
"Security Entitlements" means the rights and property interests of an
Entitlement Holder with respect to a Financial Asset.
"Security Interest" has the meaning assigned to such term in Section
2.01.
"Securities Intermediary" means (a) a clearing corporation or (b) a
Person, including a bank or broker, that in the ordinary course of its business
maintains securities accounts for others and is acting in that capacity.
"Texas Instruments Agreements" means the Shareholders' Agreement dated
as of May 16, 1995, by and between Texas Instruments Incorporated and the
Borrower, as amended; Technology Transfer Agreement dated as of June 30, 1995,
by and between Texas Instruments Incorporated, the Borrower and MEMC Southwest
Inc.; Texas Instruments Incorporated Purchase Agreement dated as of June 30,
1995, by and between Texas Instruments Incorporated, MEMC Southwest Inc. and the
Borrower, as amended; Master Services Agreement dated as of June 30, 1995, by
and between Texas Instruments Incorporated and MEMC Southwest Inc.; Chemical
Services Agreement dated as of June 30, 1995, by and between Texas Instruments
Incorporated and MEMC Southwest Inc.; Information Systems and Services Agreement
dated as of June 30, 1995, by and between Texas Instruments Incorporated and
MEMC Southwest Inc.; Telephone Services Agreement dated as of June 30, 1995, by
and between Texas Instruments Incorporated and MEMC Southwest Inc.; Medical
Services Agreement dated as of June 30, 1995, by and between Texas Instruments
Incorporated and MEMC Southwest Inc.; Purchasing and Inventory Services
Agreement dated as of June 30, 1995, by and between Texas Instruments
Incorporated and MEMC Southwest Inc.; Environmental, Health and Safety Services
Agreement dated as of June 30, 1995, by and between Texas Instruments
Incorporated and the Borrower; Agreement Regarding Health & Dental
Administrative Expenses dated as of June 30, 1995, by and between Texas
Instruments Incorporated and the Borrower.
"Trademark License" means any written agreement, now or hereafter in
effect, granting to any third party any right to use any Trademark now or
hereafter owned by any Grantor or which any Grantor otherwise has the right to
license, or granting to any Grantor any right to use any Trademark now or
hereafter owned by any third party, and all rights of any Grantor under any such
agreement.
"Trademarks" means all of the following: (a) all trademarks, service
marks, trade names, corporate names, company names, business names, fictitious
business names, trade styles, trade dress, logos, other source or business
identifiers, designs and general intangibles of like nature, now existing or
hereafter adopted or acquired, all registrations and recordings thereof, and all
registration and recording applications filed in connection therewith, including
registrations and registration applications in the United States Patent and
Trademark Office, any State of the United States or any similar offices in any
other country or any political subdivision thereof, and all extensions or
renewals thereof, including those listed on Schedule V, (b) all goodwill
associated therewith or symbolized thereby and (c) all other assets, rights and
interests that uniquely reflect or embody such goodwill.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the state of New York.
SECTION 1.02. Rules of Interpretation. The rules of interpretation
specified in Section 1.01 of the Reimbursement Agreement shall be applicable to
this Agreement.
ARTICLE II
Security Interest
SECTION 2.01. Security Interest. As security for the payment or
performance, as the case may be, in full of the Reimbursement Obligations, each
Grantor hereby bargains, sells, conveys, assigns, sets over, mortgages, pledges,
hypothecates and transfers to the Collateral Agent, its successors and assigns,
for the ratable benefit of the Secured Parties, and hereby grants to the
Collateral Agent, its successors and assigns, for the ratable benefit of the
Secured Parties, a security interest in, all of such Grantor's right, title and
interest in, to and under the Collateral (the "Security Interest"), provided
that the Security Interest shall not include (i) more than 65% of the issued and
outstanding voting stock of any Foreign Subsidiary, (ii) the outstanding voting
stock of MEMC Korea Company, MEMC Kulim Electronic Materials, Sdn. Bhd., MEMC
Southwest Inc. and Taisil Electronic Materials Corporation, (iii) the Texas
Instruments Agreements, or (iv) any General Intangible that is, by its terms,
not assignable, so long as the failure of the Grantors to maintain such General
Intangible would not result in a Material Adverse Effect. Without limiting the
foregoing, the Collateral Agent is hereby authorized to file one or more
financing statements (including fixture filings), continuation statements,
filings with the United States Patent and Trademark Office or United States
Copyright Office (or any successor office or any similar office in any other
country) or other documents for the purpose of perfecting, confirming,
continuing, enforcing or protecting the Security Interest granted by each
Grantor, without the signature of any Grantors, and naming any Grantor or the
Grantors as debtors and the Collateral Agent as secured party.
SECTION 2.02. No Assumption of Liability. The Security Interest is
granted as security only and shall not subject the Collateral Agent or any other
Secured Party to, or in any way alter or modify, any obligation or liability of
any Grantor with respect to or arising out of the Collateral.
ARTICLE III
Representations and Warranties
The Grantors jointly and severally represent and warrant to the
Collateral Agent and the Secured Parties that:
SECTION 3.01. Title and Authority. Each Grantor has good and valid
rights in and title to the Collateral with respect to which it has purported to
grant a Security Interest hereunder and has full power and authority to grant to
the Collateral Agent the Security Interest in such Collateral pursuant hereto
and to execute, deliver and perform its obligations in accordance with the terms
of this Agreement, without the consent or approval of any other Person other
than any consent or approval which has been obtained. The Security Interest
granted hereby is subject to the terms and conditions of that certain Option
Agreement dated September 21, 1998, as amended on September 22, 2000, September
25, 2001, and October 25, 2001, among Tokuyama Corporation, Marubeni
Corporation, Marubeni America Corporation, the Borrower and MEMC Pasadena.
SECTION 3.02. Filings. (a) The Perfection Certificate has been duly
prepared, completed and executed and the information set forth therein is
correct and complete in all material respects. Appropriately completed UCC
financing statements (including fixture filings, as applicable) or other
appropriate filings, recordings or registrations containing a description of the
Collateral have been delivered to the Collateral Agent for filing in each
governmental, municipal or other office specified in Schedule 5 to the
Perfection Certificate, which are all the filings, recordings and registrations
(other than filings required to be made in the United States Patent and
Trademark Office and the United States Copyright Office in order to perfect the
Security Interest in Collateral consisting of United States Patents, Trademarks
and Copyrights) that are necessary to publish notice of and protect the validity
of and to establish a legal, valid and perfected security interest in favor of
the Collateral Agent (for the ratable benefit of the Secured Parties) in respect
of all Collateral in which the Security Interest may be perfected by filing,
recording or registration in the United States (or any political subdivision
thereof) and its territories and possessions, and no further or subsequent
filing, refiling, recording, rerecording, registration or reregistration is
necessary in any such jurisdiction, except as provided under applicable law with
respect to the filing of continuation statements.
(b) Each Grantor shall ensure that fully executed security agreements
in the form hereof (or short-form supplements to this Agreement in form and
substance satisfactory to the Collateral Agent) and containing a description of
all Collateral consisting of Intellectual Property shall have been received and
recorded within three months after the execution of this Agreement with respect
to United States Patents and United States registered Trademarks (and Trademarks
for which United States registration applications are pending) and within one
month after the execution of this Agreement with respect to United States
registered Copyrights have been delivered to the Collateral Agent for recording
by the United States Patent and Trademark Office and the United States Copyright
Office pursuant to 35 U.S.C. ss. 261, 15 U.S.C. ss. 1060 or 17 U.S.C. ss. 205
and the regulations thereunder, as applicable, and otherwise as may be required
pursuant to the laws of any other necessary jurisdiction in the United States
(or any political subdivision thereof) and its territories and possessions, to
protect the validity of and to establish a legal, valid and perfected security
interest in favor of the Collateral Agent (for the ratable benefit of the
Secured Parties) in respect of all Collateral consisting of Patents, Trademarks
and Copyrights in which a security interest may be perfected by filing,
recording or registration in the United States (or any political subdivision
thereof) and its territories and possessions, or in any other necessary
jurisdiction, and no further or subsequent filing, refiling, recording,
rerecording, registration or reregistration is necessary in any such
jurisdiction (other than such actions as are necessary to perfect the Security
Interest with respect to any Collateral consisting of Patents, Trademarks and
Copyrights (or registration or application for registration thereof) acquired or
developed after the date hereof).
SECTION 3.03. Validity of Security Interest. The Security Interest
constitutes (a) a legal and valid security interest in all the Collateral
securing the payment and performance of the Reimbursement Obligations, (b)
subject to the filings described in Section 3.02 above, a perfected security
interest in all Collateral in which a security interest may be perfected by
filing, recording or registering a financing statement or analogous document in
the United States (or any political subdivision thereof) and its territories and
possessions pursuant to the UCC or other analogous applicable law in such
jurisdictions and (c) a security interest that shall be perfected in all
Collateral in which a security interest may be perfected upon the receipt and
recording of this Agreement with the United States Patent and Trademark Office
and the United States Copyright Office, as applicable, within the three month
period (commencing as of the date hereof) pursuant to 35 U.S.C. ss.261 or 15
U.S.C. ss.1060 or the one month period (commencing as of the date hereof)
pursuant to 17 U.S.C. ss.205 and otherwise as may be required to pursuant to the
laws of any other necessary jurisdiction in the United States (or any political
subdivision thereof) and its territories and possessions. The Security Interest
is and shall be prior to any other Lien on any of the Collateral, other than
Liens expressly permitted pursuant to Section 6.02 of the Revolving Credit
Agreement.
SECTION 3.04. Absence of Other Liens. The Collateral is owned by the
Grantors free and clear of any Lien, except for Liens expressly permitted
pursuant to Section 6.02 of the Revolving Credit Agreement. The Grantor has not
filed or consented to the filing of (a) any financing statement or analogous
document under the UCC or any other applicable laws covering any Collateral, (b)
any assignment in which any Grantor assigns any Collateral or any security
agreement or similar instrument covering any Collateral with the United States
Patent and Trademark Office or the United States Copyright Office or (c) any
assignment in which any Grantor assigns any Collateral or any security agreement
or similar instrument covering any Collateral with any foreign governmental,
municipal or other office, which financing statement or analogous document,
assignment, security agreement or similar instrument is still in effect, except,
in each case, for Liens expressly permitted pursuant to Section 6.02 of the
Revolving Credit Agreement.
ARTICLE IV
Covenants
SECTION 4.01. Changes with respect to Collateral. Each of the Grantors
shall promptly notify the Collateral Agent in writing of any change (i) in its
legal name, (ii) in its jurisdiction of organization or formation, (iii) in the
location of its chief executive office or principal place of business, (iv) in
its identity or legal or organizational structure or (v) in its organization
identification number or its Federal Taxpayer Identification Number. None of the
Grantors shall effect or permit any change referred to in the preceding sentence
unless all filings have been made under the UCC or otherwise that are required
in order for the Collateral Agent to continue at all times following such change
to have a valid, legal and perfected first priority security interest in all the
Collateral (subject only to Liens expressly permitted pursuant to Section 6.02
of the Revolving Credit Agreement). Each Grantor shall promptly notify the
Collateral Agent if any material portion of the Collateral owned or held by or
on behalf of such Grantor is damaged or destroyed.
SECTION 4.02. Records. Each Grantor agrees to maintain, at its own cost
and expense, such complete and accurate records with respect to the Collateral
owned by it as is consistent with its current practices, but in any event to
include complete accounting records indicating all payments and proceeds
received with respect to any part of the Collateral, and, at such time or times
as the Collateral Agent may reasonably request, promptly to prepare and deliver
to the Collateral Agent an updated Perfection Certificate, noting all material
changes, if any, since the date of the most recent Perfection Certificate.
SECTION 4.03. Protection of Security. Each Grantor shall, at its own
cost and expense, take any and all actions reasonably necessary to defend title
to the Collateral against all Persons and to defend the Security Interest of the
Collateral Agent for the ratable benefit of the Secured Parties in the
Collateral and the priority thereof against any Lien not expressly permitted
pursuant to Section 6.02 of the Revolving Credit Agreement.
SECTION 4.04. Further Assurances. Each Grantor agrees, at its own
expense, to execute, acknowledge, deliver and cause to be duly filed all such
further instruments and documents and take all such actions as are necessary or
as the Collateral Agent may from time to time request to better assure,
preserve, protect and perfect the Security Interest and the rights and remedies
created hereby, including the payment of any fees and taxes required in
connection with the execution and delivery of this Agreement, the granting of
the Security Interest and the filing of any financing statements (including
fixture filings) or other documents in connection herewith or therewith. If any
amount payable under or in connection with any of the Collateral shall be or
become evidenced by any promissory note or other instrument, such note or
instrument shall be promptly pledged and delivered to the Collateral Agent, duly
endorsed in a manner satisfactory to the Collateral Agent.
SECTION 4.05. Inspection and Verification. The Collateral Agent and
such Persons as the Collateral Agent may reasonably designate shall have the
right to inspect the Collateral, all records related thereto (and to make
extracts and copies from such records) and the premises upon which any of the
Collateral is located, at reasonable times and intervals during normal business
hours upon reasonable advance notice to the respective Grantor and to verify
under reasonable procedures the validity, amount, quality, quantity, value,
condition and status of the Collateral. The Collateral Agent shall have the
absolute right to share any information it gains from such inspection or
verification with any Secured Party in accordance with and subject to the
provisions set forth in Section 8.12 of the Reimbursement Agreement.
SECTION 4.06. Taxes; Encumbrances. At its option, the Collateral Agent
may discharge past due taxes, assessments, charges, fees, Liens, security
interests or other encumbrances at any time levied or placed on the Collateral
and not permitted pursuant to Section 6.02 of the Revolving Credit Agreement,
and may pay for the maintenance and preservation of the Collateral, in each case
to the extent any Grantor fails to do so as required by the Reimbursement
Agreement or this Agreement and such failure shall continue beyond any
applicable notice and cure period, and each Grantor jointly and severally agrees
to reimburse the Collateral Agent on demand for any payment made or any expense
incurred by the Collateral Agent pursuant to the foregoing authorization;
provided, however, that nothing in this Section 4.06 shall be interpreted as
excusing any Grantor from the performance of, or imposing any obligation on the
Collateral Agent or any Secured Party to cure or perform, any covenants or other
promises of any Grantor with respect to taxes, assessments, charges, fees,
liens, security interests or other encumbrances and maintenance as set forth
herein or in the other Reimbursement Documents.
SECTION 4.07. Assignment of Security Interest. If at any time any
Grantor shall take a security interest in any property of an Account Debtor or
any other Person to secure payment and performance of an Account, such Grantor
shall promptly assign such security interest to the Collateral Agent to the
extent permitted by any contracts or arrangements to which such property is
subject. Such assignment need not be filed of public record unless necessary to
continue the perfected status of the security interest against creditors of and
transferees from the Account Debtor or other Person granting the security
interest.
SECTION 4.08. Continuing Obligations of the Grantors. Each Grantor
shall remain liable to observe and perform all the conditions and obligations to
be observed and performed by it under each contract, agreement or instrument
relating to the Collateral, all in accordance with the terms and conditions
thereof, and each Grantor jointly and severally agrees to indemnify and hold
harmless the Collateral Agent and the Secured Parties from and against any and
all liability for such performance, provided that such indemnity shall not be
available, as to the Collateral Agent and the Secured Parties, to the extent
that such liability resulted from the gross negligence or willful misconduct of
the Collateral Agent or a Secured Party.
SECTION 4.09. Use and Disposition of Collateral. None of the Grantors
shall make or permit to be made an assignment, pledge or hypothecation of the
Collateral or shall grant any other Lien in respect of the Collateral, except as
expressly permitted by Section 6.02 of the Revolving Credit Agreement. None of
the Grantors shall make or permit to be made any transfer of the Collateral and
each Grantor shall remain at all times in possession of the Collateral owned by
it, except that (a) Inventory may be sold or consigned in the ordinary course of
business and (b) unless and until the Collateral Agent shall notify the Grantors
that an Event of Default shall have occurred and be continuing and that during
the continuance thereof the Grantors shall not sell, convey, lease, assign,
transfer or otherwise dispose of any Collateral (which notice may be given by
telephone if promptly confirmed in writing), the Grantors may use and dispose of
the Collateral in any lawful manner not inconsistent with the provisions of this
Agreement, the Reimbursement Agreement or any other Reimbursement Document.
Without limiting the generality of the foregoing, each Grantor agrees that it
shall not permit any material Inventory to be in the possession or control of
any warehouseman, bailee, agent or processor at any time unless such
warehouseman, bailee, agent or processor shall have been notified of the
Security Interest and shall have agreed in writing to hold the Inventory subject
to the Security Interest and the instructions of the Collateral Agent and to
waive and release any Lien held by it with respect to such Inventory, whether
arising by operation of law or otherwise.
SECTION 4.10. Limitation on Modification of Accounts. None of the
Grantors will, without the Collateral Agent's prior written consent, which
consent shall not be unreasonably withheld, grant any extension of the time of
payment of any of the Accounts Receivable, compromise, compound or settle the
same for less than the full amount thereof, release, wholly or partly, any
Person liable for the payment thereof or allow any credit or discount whatsoever
thereon, other than extensions, credits, discounts, compromises or settlements
granted or made in the ordinary course of business and consistent with its
current practices.
SECTION 4.11. Insurance. The Grantors, at their own expense, shall
maintain or cause to be maintained insurance covering physical loss or damage to
the Inventory and Equipment in accordance with Section 5.08 of the Reimbursement
Agreement. Each Grantor irrevocably makes, constitutes and appoints the
Collateral Agent (and all officers, employees or agents designated by the
Collateral Agent) as such Grantor's true and lawful agent (and attorney-in-fact)
for the purpose, during the continuance of an Event of Default, of making,
settling and adjusting claims in respect of Collateral under policies of
insurance, endorsing the name of such Grantor on any check, draft, instrument or
other item of payment for the proceeds of such policies of insurance and for
making all determinations and decisions with respect thereto. In the event that
any Grantor at any time or times shall fail to obtain or maintain any of the
policies of insurance required hereby or to pay any premium in whole or part
relating thereto, the Collateral Agent may, but is under no obligation to,
without waiving or releasing any obligation or liability of the Grantors
hereunder or any Event of Default, in its reasonable discretion, obtain and
maintain such policies of insurance and pay such premium and take any other
actions with respect thereto as the Collateral Agent deems advisable. All sums
disbursed by the Collateral Agent in connection with this Section 4.11,
including reasonable attorneys' fees, court costs, expenses and other charges
relating thereto, shall be payable, upon demand, by the Grantors to the
Collateral Agent and shall be additional Reimbursement Obligations secured
hereby.
SECTION 4.12. Legend. If any Accounts Receivable of any Grantor are
evidenced by Chattel Paper, such Grantor shall legend, in form and manner
reasonably satisfactory to the Collateral Agent, such Accounts Receivable and
its books, records and documents evidencing or pertaining thereto with an
appropriate reference to the fact that such Accounts Receivable have been
assigned to the Collateral Agent for the benefit of the Secured Parties and that
the Collateral Agent has a security interest therein.
SECTION 4.13. Covenants Regarding Patent, Trademark and Copyright
Collateral. (a) Each Grantor agrees that it will not, and will not permit any of
its licensees to, do any act, or omit to do any act, whereby any Patent which is
material to the conduct of such Grantor's business may become invalidated or
dedicated to the public, and agrees that it shall continue to ▇▇▇▇, to the
extent permitted by existing technology, any products covered by a Patent with
the relevant patent number as necessary and sufficient to establish and preserve
its maximum rights under applicable patent laws pursuant to which each such
Patent is issued.
(b) Each Grantor (either itself or through its licensees or its
sublicensees) will, for each Trademark material to the conduct of such Grantor's
business, (i) maintain such Trademark in full force free from any claim of
abandonment or invalidity for non-use, (ii) maintain the quality of products and
services offered under such Trademark sufficient to preclude any findings of
abandonment, (iii) display such Trademark with notice of Federal or foreign
registration to the extent necessary and sufficient to establish and preserve
its maximum rights under applicable law pursuant to which each such Trademark is
issued and (iv) not knowingly use or knowingly permit the use of such Trademark
in violation of any third party rights.
(c) Each Grantor (either itself or through licensees) will, for each
work covered by a material Copyright, continue to publish, reproduce, display,
adopt and distribute the work with appropriate copyright notice as necessary and
sufficient to establish and preserve its maximum rights under applicable
copyright laws pursuant to which each such Copyright is issued.
(d) Each Grantor shall notify the Collateral Agent immediately if it
knows or has reason to know that any such Patent, Trademark or Copyright
material to the conduct of its business may become abandoned, lost or dedicated
to the public, or of any adverse determination or development (including the
institution of, or any such determination or development in, any proceeding in
the United States Patent and Trademark Office, United States Copyright Office or
any court or similar office of any country) regarding such Grantor's ownership
of any such Patent, Trademark or Copyright, its right to register the same, or
to keep and maintain the same.
(e) In no event shall any Grantor, either itself or through any agent,
employee, licensee or designee, file an application for any Patent, Trademark or
Copyright (or for the registration of any Trademark or Copyright) with the
United States Patent and Trademark Office, United States Copyright Office or any
office or agency in any political subdivision of the United States or in any
other country or any political subdivision thereof, unless it promptly
thereafter informs the Collateral Agent, and, upon request of the Collateral
Agent, executes and delivers any and all agreements, instruments, documents and
papers as are necessary or as the Collateral Agent may request to evidence and
perfect the Collateral Agent's security interest in such Patent, Trademark or
Copyright, and each Grantor hereby appoints the Collateral Agent as its
attorney-in-fact to execute and file such writings for the foregoing purposes,
all acts of such attorney being hereby ratified and confirmed; such power, being
coupled with an interest, is irrevocable.
(f) Each Grantor will take all necessary steps that are consistent with
the practice in any proceeding before the United States Patent and Trademark
Office, United States Copyright Office or any office or agency in any political
subdivision of the United States or in any other country or any political
subdivision thereof, to maintain and pursue each material application relating
to the Patents, Trademarks and/or Copyrights (and to obtain the relevant grant
or registration) and to maintain each issued Patent and each registration of the
Trademarks and Copyrights that is material to the conduct of any Grantor's
business, including timely filings of applications for renewal, affidavits of
use, affidavits of incontestability and payment of maintenance fees, and, if
consistent with good business judgment, to initiate opposition, interference and
cancellation proceedings against third parties.
(g) In the event that any Grantor has reason to believe that any
Collateral consisting of a Patent, Trademark or Copyright material to the
conduct of any Grantor's business has been or is about to be infringed,
misappropriated or diluted by a third party, such Grantor promptly shall notify
the Collateral Agent and shall, if consistent with good business judgment,
promptly ▇▇▇ for infringement, misappropriation or dilution and to recover any
and all damages for such infringement, misappropriation or dilution, and take
such other actions as are appropriate under the circumstances to protect such
Collateral.
(h) Upon and during the continuance of an Event of Default, each
Grantor shall use its best efforts to obtain all requisite consents or approvals
from the licensor of each Copyright License, Patent License or Trademark License
to effect the assignment of all of such Grantor's right, title and interest
thereunder to the Collateral Agent or its designee.
ARTICLE V
Power of Attorney
Each Grantor irrevocably makes, constitutes and appoints the Collateral
Agent (and all officers, employees or agents designated by the Collateral Agent)
as such Grantor's true and lawful agent and attorney-in-fact, and in such
capacity the Collateral Agent shall have the right, with power of substitution
for each Grantor and in each Grantor's name or otherwise, for the use and
benefit of the Collateral Agent and the Secured Parties, upon the occurrence and
during the continuance of an Event of Default (a) to receive, endorse, assign
and/or deliver any and all notes, acceptances, checks, drafts, money orders or
other evidences of payment relating to the Collateral or any part thereof; (b)
to demand, collect, receive payment of, give receipt for and give discharges and
releases of all or any of the Collateral; (c) to sign the name of any Grantor on
any invoice or ▇▇▇▇ of lading relating to any of the Collateral; (d) to send
verifications of Accounts Receivable to any Account Debtor; (e) to commence and
prosecute any and all suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect or otherwise realize on all or any of
the Collateral or to enforce any rights in respect of any Collateral; (f) to
settle, compromise, compound, adjust or defend any actions, suits or proceedings
relating to all or any of the Collateral; (g) to notify, or to require any
Grantor to notify, Account Debtors to make payment directly to the Collateral
Agent; and (h) to use, sell, assign, transfer, pledge, make any agreement with
respect to or otherwise deal with all or any of the Collateral, and to do all
other acts and things necessary to carry out the purposes of this Agreement, as
fully and completely as though the Collateral Agent were the absolute owner of
the Collateral for all purposes; provided, however, that nothing herein
contained shall be construed as requiring or obligating the Collateral Agent or
any Secured Party to make any commitment or to make any inquiry as to the nature
or sufficiency of any payment received by the Collateral Agent or any Secured
Party, or to present or file any claim or notice, or to take any action with
respect to the Collateral or any part thereof or the moneys due or to become due
in respect thereof or any property covered thereby, and no action taken or
omitted to be taken by the Collateral Agent or any Secured Party with respect to
the Collateral or any part thereof shall give rise to any defense, counterclaim
or offset in favor of any Grantor or to any claim or action against the
Collateral Agent or any Secured Party. It is understood and agreed that the
appointment of the Collateral Agent as the agent and attorney-in-fact of the
Grantors for the purposes set forth above is coupled with an interest and is
irrevocable. The provisions of this Section shall in no event relieve any
Grantor of any of its obligations hereunder or under any other Reimbursement
Document with respect to the Collateral or any part thereof or impose any
obligation on the Collateral Agent or any Secured Party to proceed in any
particular manner with respect to the Collateral or any part thereof, or in any
way limit the exercise by the Collateral Agent or any Secured Party of any other
or further right which it may have on the date of this Agreement or hereafter,
whether hereunder, under any other Reimbursement Document, by law or otherwise.
ARTICLE VI
Remedies
SECTION 6.01. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default, each Grantor agrees to deliver each item of
Collateral to the Collateral Agent on demand, and it is agreed that the
Collateral Agent shall have the right to take any of or all the following
actions at the same or different times: (a) with respect to any Collateral
consisting of Intellectual Property, on demand, to cause the Security Interest
to become an assignment, transfer and conveyance of any of or all such
Collateral by the applicable Grantors to the Collateral Agent (except to the
extent assignment, transfer or conveyance thereof would result in a loss of said
Intellectual Property), or to license or sublicense, whether general, special or
otherwise, and whether on an exclusive or non-exclusive basis, any such
Collateral throughout the world on such terms and conditions and in such manner
as the Collateral Agent shall determine (other than in violation of any
then-existing licensing arrangements to the extent that waivers cannot be
obtained), and (b) with or without legal process and with or without prior
notice or demand for performance, to take possession of the Collateral and
without liability for trespass to enter any premises where the Collateral may be
located for the purpose of taking possession of or removing the Collateral and,
generally, to exercise any and all rights afforded to a secured party under the
UCC or other applicable law. Without limiting the generality of the foregoing,
each Grantor agrees that the Collateral Agent shall have the right, subject to
the mandatory requirements of applicable law, to sell or otherwise dispose of
all or any part of the Collateral, at public or private sale or at any broker's
board or on any securities exchange, for cash, upon credit or for future
delivery as the Collateral Agent shall deem appropriate. The Collateral Agent
shall be authorized at any such sale (if it deems it advisable to do so) to
restrict the prospective bidders or purchasers to Persons who will represent and
agree that they are purchasing the Collateral for their own account for
investment and not with a view to the distribution or sale thereof, and upon
consummation of any such sale the Collateral Agent shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any such sale shall hold the property
sold absolutely, free from any claim or right on the part of any Grantor, and
each Grantor hereby waives (to the extent permitted by law) all rights of
redemption, stay and appraisal which such Grantor now has or may at any time in
the future have under any rule of law or statute now existing or hereafter
enacted.
The Collateral Agent shall give the Grantors 10 days' written notice
(which each Grantor agrees is a "reasonable authenticated notification of
disposition" within the meaning of Section 9-611 of the UCC or its equivalent in
other jurisdictions) of the Collateral Agent's intention to make any sale of
Collateral. Such notice, in the case of a public sale, shall state the time and
place for such sale and, in the case of a sale at a broker's board or on a
securities exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Collateral, or portion thereof, will first be
offered for sale at such board or exchange. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or places
as the Collateral Agent may fix and state in the notice (if any) of such sale.
At any such sale, the Collateral, or portion thereof, to be sold may be sold in
one lot as an entirety or in separate parcels, as the Collateral Agent may (in
its sole and absolute discretion) determine. The Collateral Agent shall not be
obligated to make any sale of any Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of such Collateral shall have been
given. The Collateral Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the
Collateral Agent until the sale price is paid by the purchaser or purchasers
thereof, but the Collateral Agent shall not incur any liability in case any such
purchaser or purchasers shall fail to take up and pay for the Collateral so sold
and, in case of any such failure, such Collateral may be sold again upon like
notice. At any public (or, to the extent permitted by law, private) sale made
pursuant to this Section, any Secured Party may bid for or purchase, free (to
the extent permitted by law) from any right of redemption, stay, valuation or
appraisal on the part of any Grantor (all said rights being also hereby waived
and released to the extent permitted by law), the Collateral or any part thereof
offered for sale and may make payment on account thereof by using any
Reimbursement Obligation then due and payable to such Secured Party from any
Grantor as a credit against the purchase price, and such Secured Party may, upon
compliance with the terms of sale, hold, retain and dispose of such property
without further accountability to any Grantor therefor. For purposes hereof a
written agreement to purchase the Collateral or any portion thereof shall be
treated as a sale thereof; the Collateral Agent shall be free to carry out such
sale pursuant to such agreement and no Grantor shall be entitled to the return
of the Collateral or any portion thereof subject thereto, notwithstanding the
fact that after the Collateral Agent shall have entered into such an agreement
all Events of Default shall have been remedied and the Reimbursement Obligations
paid in full. As an alternative to exercising the power of sale herein conferred
upon it, the Collateral Agent may proceed by a suit or suits at law or in equity
to foreclose this Agreement and to sell the Collateral or any portion thereof
pursuant to a judgment or decree of a court or courts having competent
jurisdiction or pursuant to a proceeding by a court-appointed receiver.
SECTION 6.02. Application of Proceeds. The Collateral Agent shall apply
the proceeds of any collection or sale of the Collateral, as well as any
Collateral consisting of cash, as follows:
FIRST, to the payment of all costs and reasonable expenses
incurred by the Collateral Agent (in its capacity as such hereunder or
under any other Reimbursement Document) in connection with such
collection or sale or otherwise in connection with this Agreement or
any of the Reimbursement Obligations, including all court costs and the
reasonable fees and expenses of its agents and legal counsel, the
repayment of all advances made by the Collateral Agent hereunder or
under any other Reimbursement Document on behalf of any Grantor and any
other costs or expenses incurred in connection with the exercise of any
right or remedy hereunder or under any other Reimbursement Document;
SECOND, to the payment in full of the Reimbursement
Obligations and the Revolving Credit Obligations in accordance with
Section 5.04 of the Intercreditor Agreement (the amounts so applied to
be distributed among the secured parties pro rata in accordance with
the amounts of the Reimbursement Obligations and/or Revolving Credit
Obligations owed to them on the date of any such distribution);
THIRD, to the payment in full of the Indenture Obligations
outstanding; and
FOURTH, to the Grantors, their successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the Collateral Agent or of the officer making the sale shall be a
sufficient discharge to the purchaser or purchasers of the Collateral so sold
and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Collateral Agent
or such officer or be answerable in any way for the misapplication thereof.
SECTION 6.03. Grant of License to Use Intellectual Property. For the
purpose of enabling the Collateral Agent to exercise rights and remedies under
this Article at such time as the Collateral Agent shall be lawfully entitled to
exercise such rights and remedies, each Grantor hereby grants to the Collateral
Agent an irrevocable, non-exclusive license (exercisable without payment of
royalty or other compensation to the Grantors) to use, license or sub-license
any of the Collateral consisting of Intellectual Property now owned or hereafter
acquired by such Grantor, and wherever the same may be located, and including in
such license reasonable access to all media in which any of the licensed items
may be recorded or stored and to all computer software and programs used for the
compilation or printout thereof. The use of such license by the Collateral Agent
shall be exercised, at the option of the Collateral Agent, upon the occurrence
and during the continuation of an Event of Default; provided that any license,
sub-license or other transaction entered into by the Collateral Agent in
accordance herewith shall be binding upon the Grantors notwithstanding any
subsequent cure of an Event of Default.
ARTICLE VII
Miscellaneous
SECTION 7.01. Notices. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in Section 8.03 of the Reimbursement Agreement. All communications and
notices hereunder to any Guarantor shall be given to it at its address or
telecopy number set forth on Schedule I, with a copy to the Borrower.
SECTION 7.02. Intercreditor Agreement. Notwithstanding anything to the
contrary contained in this Security Agreement, all rights, obligations and
remedies of the Collateral Agent set forth in this Agreement and any other
Security Documents shall be subject to the provisions set forth in the
Intercreditor Agreement
SECTION 7.03. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the Security Interest and all obligations of the Grantors
hereunder shall be absolute and unconditional irrespective of (a) any lack of
validity or enforceability of the Reimbursement Agreement, any other
Reimbursement Document, any agreement with respect to any of the Reimbursement
Obligations or any other agreement or instrument relating to any of the
foregoing, (b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Reimbursement Obligations, or any other
amendment or waiver of or any consent to any departure from the Reimbursement
Agreement, any other Reimbursement Document or any other agreement or
instrument, (c) any exchange, release or non-perfection of any Lien on other
collateral, or any release or amendment or waiver of or consent under or
departure from any guarantee, securing or guaranteeing all or any of the
Reimbursement Obligations, or (d) any other circumstance that might otherwise
constitute a defense available to, or a discharge of, any Grantor in respect of
the Reimbursement Obligations or this Agreement.
SECTION 7.04. Survival of Agreement. All covenants, agreements,
representations and warranties made by any Grantor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Secured Parties and shall survive the making of the Guaranty by the Fund
Guarantors, and the execution and delivery to the Fund Guarantors of any
agreements, notes, instruments or documents evidencing such Guaranty, regardless
of any investigation made by the Fund Guarantors or on their behalf, and shall
continue in full force and effect until this Agreement shall terminate.
SECTION 7.05. Binding Effect; Several Agreement. This Agreement shall
become effective as to any Grantor when a counterpart hereof executed on behalf
of such Grantor shall have been delivered to the Collateral Agent and a
counterpart hereof shall have been executed on behalf of the Collateral Agent,
and thereafter shall be binding upon such Grantor and the Collateral Agent and
their respective successors and assigns, and shall inure to the benefit of such
Grantor, the Collateral Agent and the other Secured Parties and their respective
successors and assigns, except that no Grantor shall have the right to assign or
transfer its rights or obligations hereunder or any interest herein or in the
Collateral (and any such assignment or transfer shall be void) except as
expressly contemplated by this Agreement or the other Reimbursement Documents.
This Agreement shall be construed as a separate agreement with respect to each
Grantor and may be amended, modified, supplemented, waived or released with
respect to any Grantor without the approval of any other Grantor and without
affecting the obligations of any other Grantor hereunder.
SECTION 7.06. Successors and Assigns. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of any Grantor or the Collateral Agent that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
SECTION 7.07. Collateral Agent's Fees and Expenses; Indemnification.
(a) Each Grantor jointly and severally agrees to pay upon demand to the
Collateral Agent the amount of any and all reasonable expenses, including the
reasonable fees, disbursements and other charges of its counsel and of any
experts or agents, which the Collateral Agent may incur in connection with (i)
the administration of this Agreement, (ii) the custody or preservation of, or
the sale of, collection from or other realization upon any of the Collateral,
(iii) the exercise, enforcement or protection of any of the rights of the
Collateral Agent hereunder or (iv) the failure of any Grantor to perform or
observe any of the provisions hereof applicable to it.
(b) Without limitation of its indemnification obligations under the
other Reimbursement Documents, each Grantor jointly and severally agrees to
indemnify the Collateral Agent and the other Indemnitees against, and hold each
of them harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable fees, disbursements and other charges of
counsel, incurred by or asserted against any of them arising out of, in any way
connected with, or as a result of, the execution, delivery or performance of
this Agreement or any claim, litigation, investigation or proceeding relating
hereto or to the Collateral, whether or not any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
have resulted from the gross negligence or willful misconduct of such Indemnitee
as determined in a final judgment by a court of competent jurisdiction.
(c) Any such amounts payable as provided hereunder shall be additional
Reimbursement Obligations secured hereby and by the other Security Documents.
The provisions of this Section 7.07 shall remain operative and in full force and
effect regardless of the termination of this Agreement or any other
Reimbursement Document, the consummation of the transactions contemplated
hereby, the repayment of any of the Guarantee Amounts, the invalidity or
unenforceability of any term or provision of this Agreement or any other
Reimbursement Document, or any investigation made by or on behalf of the
Collateral Agent or any Fund Guarantors. All amounts due under this Section 7.07
shall be payable on written demand therefor.
SECTION 7.08. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.09. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the Collateral Agent and the Fund Guarantors under the other
Reimbursement Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provisions of this
Agreement or any other Reimbursement Document or consent to any departure by any
Grantor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice to or demand on any Grantor in any case shall entitle such Grantor or any
other Grantor to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Collateral Agent and the Grantor or Grantors with respect to
which such waiver, amendment or modification is to apply, subject to any consent
required in accordance with Section 8.09 of the Reimbursement Agreement.
SECTION 7.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER REIMBURSEMENT
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER REIMBURSEMENT DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 7.10.
SECTION 7.11. Limitation on Security Interest. Anything contained in
this Agreement to the contrary notwithstanding, the obligation hereunder secured
by each Guarantor shall be limited to a maximum aggregate amount equal to the
greatest amount that would not render such Guarantor's secured obligations
hereunder subject to avoidance as a fraudulent transfer or conveyance under
Section 548 of Title 11 of the United States Code or any provisions of
applicable state law (collectively, the "Fraudulent Transfer Laws"), in each
case after giving effect to all liabilities of such Guarantor, contingent or
otherwise, that would be taken into account in determining whether the
incurrence of the obligation would constitute a fraudulent conveyance under the
Fraudulent Transfer Laws and after giving effect, both in determining such
Guarantor's probable debt hereunder and in determining its assets, to the
existence of any rights to subrogation, contribution, reimbursement, indemnity
or similar rights of such Guarantor pursuant to (a) applicable law or (b) any
agreement, including the Indemnity, Subrogation and Contribution Agreement.
SECTION 7.12. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7.13 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract (subject to Section 7.05),
and shall become effective as provided in Section 7.05. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
SECTION 7.14. Headings. Article and Section headings used herein are
for the purpose of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
SECTION 7.15. Jurisdiction; Consent to Service of Process. (a) Each
Grantor 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 other Reimbursement Documents, 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 such New York State or,
to the extent permitted by law, in such Federal court. Each Grantor 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 the
Collateral Agent or any Fund Guarantor may otherwise have to bring any action or
proceeding relating to this Agreement or the other Reimbursement Documents
against any Grantor or its properties in the courts of any jurisdiction.
(b) Each Grantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which 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 other Reimbursement
Documents in any New York State or Federal court. Each Grantor 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.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 7.01. Nothing in this
Agreement will affected the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 7.16. Termination. This Agreement and the Security Interest
shall terminate when all the Reimbursement Obligations have been indefeasibly
paid in full and the Fund Guarantors have no further obligations under the
Guaranty, at which time the Collateral Agent shall execute and deliver to the
Grantors, at the Grantors' expense, all UCC termination statements and similar
documents which the Grantors shall reasonably request to evidence such
termination. Any execution and delivery of termination statements or documents
pursuant to this Section 7.16 shall be without recourse to or warranty by the
Collateral Agent. A Grantor shall automatically be released from its obligations
hereunder and the Security Interest in the Collateral of such Grantor shall be
automatically released in the event that such Grantor ceases to be a Subsidiary
pursuant to a transaction permitted under the Reimbursement Documents, at which
time the Collateral Agent shall execute and deliver to any Grantor, at such
Grantor's expense, all documents that such Grantor shall reasonably request to
evidence such release.
SECTION 7.17. Additional Grantors. Pursuant to Section 5.10 of the
Reimbursement Agreement, each Subsidiary Reimbursement Party that was not in
existence or not a Subsidiary Reimbursement Party on the date of the
Reimbursement Agreement is required to enter into this Agreement as a Grantor
upon becoming a Subsidiary Reimbursement Party. Upon execution and delivery by
the Collateral Agent and a Subsidiary of an instrument in the form of Annex 3
hereto, such Subsidiary shall become a Grantor hereunder with the same force and
effect as if originally named as a Grantor herein. The execution and delivery of
any such instrument shall not require the consent of any Grantor hereunder. The
rights and obligations of each Grantor hereunder shall remain in full force and
effect notwithstanding the addition of any new Grantor as a party to this
Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
MEMC ELECTRONIC MATERIALS, INC.
By
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer
By
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
EACH OF THE OTHER GUARANTORS LISTED ON
SCHEDULE I HERETO,
By
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, in his capacity as
Treasurer for each of the other
Guarantors listed on Schedule I
hereto
CITICORP USA, INC., as Collateral Agent
By
------------------------------
Name:
Title:
Schedule I to the
Amended and Restated
Security Agreement
GUARANTORS
Schedule II to the
Amended and Restated
Security Agreement
COPYRIGHTS
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DOCKET DESCRIPTION MW#
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Schedule III to the
Amended and Restated
Security Agreement
LICENSES
TITLE OF AGREEMENT OR ITEM EFFECTIVE DATE
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Schedule IV to the
Amended and Restated
Security Agreement
PATENTS
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DOCKET # TITLE FIRST INVENTOR
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Schedule V to the
Amended and Restated
Security Agreement
TRADEMARKS
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TRADEMARK COUNTRIES STATUS
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Annex 1 to the
Amended and Restated
Security Agreement
[Form of]
PERFECTION CERTIFICATE
Reference is made to (a) the Reimbursement Agreement, dated as of
December 21, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Reimbursement Agreement"), among MEMC ELECTRONIC MATERIALS, INC. (the
"Borrower"), the Fund Guarantors and CITICORP USA, INC., as collateral agent (in
such capacity, the "Collateral Agent"), and (b) the Amended and Restated
Security Agreement, dated as of December 21, 2001 (as amended, supplemented or
otherwise modified from time to time, the "Amended and Restated Security
Agreement") among the Grantors and the Collateral Agent. Capitalized terms used
herein but not defined herein having the respective meanings set forth in the
Reimbursement Agreement and the Amended and Restated Security Agreement.
The undersigned, a Financial Officer of Borrower, hereby certify to the
Collateral Agent and each other Secured Party as follows:
1. Names. (a) The exact corporate name and jurisdiction of organization
of each Grantor, as such name appears in its respective certificate of
incorporation, is as follows:
(b) Set forth below is each other corporate name each Grantor has had
in the past five years, together with the date of the relevant change:
(c) Except as set forth in Schedule 1 hereto, no Grantor has changed
its identity or corporate structure in any way within the past five years.
Changes in identity or corporate structure would include mergers, consolidations
and acquisitions, as well as any change in the form, nature or jurisdiction of
corporate organization. If any such change has occurred, include in Schedule 1
the information required by Sections 1 and 2 of this certificate as to each
acquiree or constituent party to a merger or consolidation.
(d) The following is a list of all other names (including trade names
or similar appellations) used by each Grantor or any of its divisions or other
business units in connection with the conduct of its business or the ownership
of its properties at any time during the past five years:
(e) Set forth below is the Federal Taxpayer Identification Number of
each Grantor:
2. Current Locations. (a) The chief executive office of each Grantor is
located at the address set forth opposite its name below:
Grantor Mailing Address County State
------- --------------- ------ -----
(b) Set forth below opposite the name of each Grantor are all locations
where such Grantor maintains any books or records relating to any Accounts
Receivable, Instruments and Documents (with each location at which Chattel
Paper, if any, is kept being indicated by an "*"):
Grantor Mailing Address County State
------- --------------- ------ -----
(c) Set forth below opposite the name of each Grantor are all the
places of business of such Grantor not identified in paragraph (a) or (b) above:
Grantor Mailing Address County State
------- --------------- ------ -----
(d) Set forth below opposite the name of each Grantor are all the
locations where such Grantor maintains any Collateral not identified above:
Grantor Mailing Address County State
------- --------------- ------ -----
(e) Set forth below opposite the name of each Grantor are the names and
addresses of all Persons other than such Grantor that have possession of any of
the Collateral of such Grantor:
Grantor Mailing Address County State
------- --------------- ------ -----
3. Unusual Transactions. All Accounts Receivable have been originated
by the Grantors and all Inventory has been acquired by the Grantors in the
ordinary course of business.
4. UCC Filings. Financing statements in substantially the form of
Schedule 4 hereto have been prepared for filing in the UCC filing office in each
jurisdiction where a Grantor is organized as identified in Section 1 hereof and
where any Collateral constituting fixtures is located as identified in Section 2
hereof.
5. Schedule of Filings. Attached hereto as Schedule 5 is a schedule
setting forth, with respect to the ilings described in Section 4 above, each
filing and the filing office in which such filing is to be made.
6. Filing Fees. All filing fees and taxes payable in connection with
the filings described in Section 4 above have been paid or provided for.
7. Stock Ownership. Attached hereto as Schedule 7 is a true and correct
list of all the duly authorized, issued and outstanding Equity Interests of each
Subsidiary (including the Borrower) and the record and beneficial owners of such
Equity Interests. Also set forth on Schedule 7 is each Equity Interest of the
Borrower and each Subsidiary that represents 50% or less of the equity of the
entity in which such investment was made.
8. Notes. Attached hereto as Schedule 8 is a true and correct list of
all notes held by the Borrower and each Subsidiary and all intercompany notes
between the Borrower and each Subsidiary and between each Subsidiary and each
other such Subsidiary.
9. Advances. Attached hereto as Schedule 9 is (a) a true and correct
list of all advances made by the Borrower to any Subsidiary or made by any
Subsidiary to the Borrower or to any other Subsidiary, which advances will be on
and after the date hereof evidenced by one or more intercompany notes pledged to
the Collateral Agent under the Pledge Agreement and (b) a true and correct list
of all unpaid intercompany transfers of goods sold and delivered by or to the
Borrower or any Subsidiary.
10. Mortgage Filings. Attached hereto as Schedule 10 is a schedule
setting forth, with respect to each Mortgaged Property, (i) the exact corporate
name of the entity that owns such property as such name appears in its
certificate of formation, (ii) if different from the name identified pursuant to
clause (i), the exact name of the current record owner of such property
reflected in the records of the filing office for such property identified
pursuant to the following clause and (iii) the filing office in which a Mortgage
with respect to such property must be filed or recorded in order for the
Collateral Agent to obtain a perfected security interest therein.
IN WITNESS WHEREOF, the undersigned have duly executed this certificate
on this [ ]th day of December, 2001.
MEMC ELECTRONIC MATERIALS, INC.
By
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer
Annex 3 to the
Amended and Restated
Security Agreement
SUPPLEMENT NO. [ ] dated as of [ ], to the Amended and
Restated Security Agreement dated as of December 21, 2001, among
MEMC ELECTRONIC MATERIALS, INC., a Delaware corporation (the
"Borrower"), each subsidiary of Borrower listed on Schedule I
thereto (each such subsidiary individually a "Subsidiary" or a
"Guarantor" and, collectively, the "Subsidiaries" or
"Guarantors"; the Guarantors and the Borrower are referred to
collectively herein as the "Grantors") and CITICORP USA, INC. as
collateral agent (in such capacity, the "Collateral Agent") for
the Secured Parties (as defined herein).
A. Reference is made to (a) the Reimbursement Agreement dated as of
December 21, 2001 (as amended, supplemented or otherwise modified from time to
time) among the Borrower, the Fund Guarantors and CITICORP USA, INC., as
collateral agent (in such capacity, the "Collateral Agent") and (b) the Amended
and Restated Guarantee Agreement dated as of December 21, 2001 (as amended,
supplemented or otherwise modified from time to time, the "Amended and Restated
Guarantee Agreement"), among the Guarantors and the Collateral Agent.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Amended and Restated Security
Agreement and the Reimbursement Agreement.
C. The Grantors have entered into the Amended and Restated Security
Agreement in order to induce the Fund Guarantors to guarantee the Borrower's
obligations under the Revolving Credit Agreement. Pursuant to Section 5.10 of
the Reimbursement Agreement, each Subsidiary Reimbursement Party that was not in
existence or not a Subsidiary Reimbursement Party on the date of the
Reimbursement Agreement is required to enter into this Agreement as a Grantor
upon becoming a Subsidiary Reimbursement Party. Section 7.17 of the Amended and
Restated Security Agreement provides that such Subsidiaries may become Grantors
under the Amended and Restated Security Agreement by execution and delivery of
an instrument in the form of this Supplement. The undersigned Subsidiary (the
"New Grantor") is executing this Supplement in accordance with the requirements
of the Reimbursement Agreement to become a Grantor under the Amended and
Restated Security Agreement in order to induce the Fund Guarantors to make
additional guarantees and as consideration for guarantees previously made.
Accordingly, the Collateral Agent and the New Grantor agree as follows:
SECTION 1. In accordance with Section 7.17 of the Amended and Restated
Security Agreement, the New Grantor by its signature below becomes a Grantor
under the Amended and Restated Security Agreement with the same force and effect
as if originally named therein as a Grantor and the New Grantor hereby (a)
agrees to all the terms and provisions of the Amended and Restated Security
Agreement applicable to it as a Grantor thereunder and (b) represents and
warrants that the representations and warranties made by it as a Grantor
thereunder are true and correct on and as of the date hereof except to the
extent a representation and warranty expressly relates solely to a specific date
in which case such representation and warranty shall be true and correct on such
date. In furtherance of the foregoing, the New Grantor, as security for the
payment and performance in full of the Reimbursement Obligations (as defined in
the Amended and Restated Security Agreement), does hereby create and grant to
the Collateral Agent, its successors and assigns, for the benefit of the Secured
Parties, their successors and assigns, a security interest in and lien on all of
the New Grantor's right, title and interest in and to the Collateral of the New
Grantor. Each reference to a "Grantor" in the Amended and Restated Security
Agreement shall be deemed to include the New Grantor. The Amended and Restated
Security Agreement is hereby incorporated herein by reference.
SECTION 2. The New Grantor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Grantor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. The New Grantor hereby represents and warrants that (a) set
forth on Schedule I attached hereto is a true and correct statement of the exact
corporate name and jurisdiction of organization of the New Grantor and a true
and correct schedule of the location of any and all Collateral of the New
Grantor and (b) set forth under its signature hereto, is the true and correct
location of the chief executive office of the New Grantor.
SECTION 5. Except as expressly supplemented hereby, the Amended and
Restated Security Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Amended and Restated Security Agreement shall not in any way
be affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
hereto shall endeavor in good-faith negotiations to replace the invalid, illegal
or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 7.01 of the Amended and Restated Security
Agreement. All communications and notices hereunder to the New Grantor shall be
given to it at the address set forth under its signature below, with a copy to
the Borrower.
SECTION 9. The New Grantor agrees to reimburse the Collateral Agent for
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
IN WITNESS WHEREOF, the New Grantor and the Collateral Agent have duly
executed this Supplement to the Amended and Restated Security Agreement as of
the day and year first above written.
[NAME OF NEW GUARANTOR],
By
-------------------------------
Name:
Title:
CITICORP USA, INC., as Collateral Agent
By
-------------------------------
Name:
Title:
Schedule I
to Supplement No. [ ]
to the Amended and Restated
Security Agreement
LOCATION OF COLLATERAL
Description Location
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