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EXHIBIT 10-ZZZ
REVOLVING CREDIT AGREEMENT
Dated as of September 23, 1998
MEMC ELECTRONIC MATERIALS, INC., a Delaware corporation, as the borrower
(the "Borrower"), and VEBA AG, a company formed under the laws of the Federal
Republic of Germany ("VEBA"), as the initial lender (the "Initial Lender") and
as agent (together with any successor appointed pursuant to Article VII, the
"Agent") for the Lenders (as hereinafter defined), hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" has the meaning specified in Section 2.01.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the
voting stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
voting stock, by contract or otherwise.
"Agent" has the meaning specified in the recital of parties to this
Agreement.
"Agent's Account" means the Dollar account of the Agent maintained
with such bank as the Agent shall specify in writing to the Borrower and
the Lenders from time to time.
"Applicable Spread" means a percentage per annum equal to the excess
of (a) the Bloomberg fair market sector curves (adjusted for the chosen
interest rate method) applicable two business days prior to October 1,
1998, to a B3 rated industrial borrower for the period from October 1,
1998, through the latest possible Termination Date (taking into account, if
applicable, the latest Extension Termination Date) over (b) the
corresponding Swap Rate for such period.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee and accepted by the Agent, in
substantially the form of Exhibit C hereto.
"Bank" means any Lender other than the Initial Lender or any Affiliate
of the Initial Lender.
"Borrower" has the meaning specified in the recital of parties to this
Agreement.
"Borrowing" means the borrowing consisting of the Advances made by the
Lenders.
"Borrowing Notice" has the meaning specified in Section 2.02(a).
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable
business day relates to any Advances, on which dealings are carried on in
the London interbank market.
"Change of Control" means the Initial Lender or any Affiliate of the
Initial Lender, through any transaction or series of transactions or
otherwise, no longer has beneficial ownership, directly or indirectly, of
more than 50% of the shares of common stock of the Borrower.
"Change of Control Date" means the date of occurrence of a Change of
Control; provided, that if such occurrence is on or prior to January 1,
2001, the occurrence shall be deemed to have occurred on January 1, 2001.
"Commitment" has the meaning specified in Section 2.01.
"Confidential Information" means information that the Borrower
furnishes to the Agent or any Lender in a writing designated as
confidential, but does not include any such information that is or becomes
generally available to the public or that is or becomes available to the
Agent or such Lender from a source other than the Borrower, an Affiliate of
the Borrower or an Affiliate of the Initial Lender.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Debt" means (a) indebtedness for borrowed money, (b) obligations
evidenced by bonds, debentures, notes or other similar instruments, (c)
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obligations to pay the deferred purchase price of property or services, (d)
obligations as lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles, recorded as
capital leases, and (e) obligations under direct or indirect guaranties in
respect of, and obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against loss in
respect of, indebtedness or obligations of others of the kinds referred to
in clause (a) through (d) of this definition..
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Dollars" and the sign "$" each means lawful money of the United
States of America.
"EBIT" means, with respect to the Borrower and its Subsidiaries for
any period, the sum of (a) net income (or net loss), (b) interest expense
and (c) income tax expense, in each case determined in accordance with GAAP
for such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means any Person approved by all of the Lenders;
provided, however, that neither the Borrower nor any Subsidiary of the
Borrower shall qualify as an Eligible Assignee.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Eurodollar Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Eurodollar Lending Office" in the
Assignment and Acceptance pursuant to which it became a Lender, or such
other office of such Bank as such Bank may from time to time specify to the
Borrower and the Agent.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Advances comprising part of the same Borrowing means the reserve percentage
applicable two Business Days before the first day of such Interest Period
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of
the Federal Reserve System in New York City with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (or with respect
to any other category of liabilities that includes deposits by reference to
which the interest rate on Advances is determined) having a term equal to
such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Certificate" has the meaning specified in Section 2.15.
"Extension Request Notice" has the meaning set forth in Section 2.15.
"Extension Termination Date", if any, means the earlier of (a) either
(i) the first anniversary of October 1, 1999, or (ii) if there has been an
applicable Extension Termination Date on or prior to December 31, 2000, the
first anniversary of such prior Extension Termination Date, and (b) the
termination in whole of the Commitments pursuant to Section 2.04 or Section
6.01; provided, that in no event shall an Extension Termination Date be
after October 1, 2001.
"GAAP" has the meaning specified in Section 1.03.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any federal, state, local or
foreign court or governmental, executive, legislative, judicial,
administrative or regulatory agency, department, authority,
instrumentality, commission, board or similar body.
"Indemnified Party" has the meaning specified in Section 8.04(b).
"Initial Lender" has the meaning specified in the recital of parties
to this Agreement.
"Interest Coverage Ratio" means, with respect to the Borrower and its
Subsidiaries on a Consolidated basis for any period, a ratio of (a)
Consolidated EBIT of the Borrower and its Subsidiaries for such period to
(b) interest payable on all Debt during such period.
"Interest Period" means, for each Advance comprising part of the same
Borrowing, the period commencing on the date of such Advance and ending on
the last day of the period selected by the Borrower pursuant to the
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provisions below and, thereafter, each subsequent period commencing on the
last day of the immediately preceding Interest Period and ending on the
last day of the period selected by the Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be one week or one,
two, three or twelve months, as the Borrower may, upon notice received by
the Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(a) the Borrower may not select any Interest Period that ends
after the Termination Date;
(b) Interest Periods commencing on the same date for Advances
comprising part of the same Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a day
of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Interest Rate" for any Interest Period means a rate per annum at all
times equal to the sum of (i) the British Bankers' Association (BBA) LIBOR
rate (as shown on the Reuters page FRBD or comparable pages) for such
Interest Period for such Advance, divided by a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage for such Interest Period, plus
(ii) the Applicable Spread.
"Lender" means the Initial Lender and each Person that shall become a
party hereto pursuant to Section 8.07.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower or the Borrower and its
Subsidiaries taken as a whole.
"Note" means a promissory note of the Borrower payable to the order of
any Lender, substantially in the form of Exhibit A hereto, evidencing the
Debt of the Borrower to such Lender resulting from the Advance made by such
Lender.
"Other Taxes" has the meaning specified in Section 2.12(b).
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Register" has the meaning specified in Section 8.07(c).
"Replacement Financing Arrangement" means a financing arrangement with
any Person who is not an Affiliate of the Borrower or the Agent or any
Lender on substantially the terms which would apply hereunder during the
period from the then applicable Termination Date to the latest possible
Extension Termination Date, provided that the interest rate of such
Replacement Financing Arrangement shall be no higher than the Interest Rate
and, if no lesser interest rate is available, shall be the Interest Rate.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such limited liability company, partnership or joint venture or
(c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries; provided, however, that the term "Subsidiary" shall not
include any joint venture of the Borrower with respect to any action or
decision of the board of directors of such joint venture if, by written
agreement, such action or decision requires a vote in excess of the number
of members of such board of directors elected or controlled by the
Borrower.
"Swap Rate" means the US-Dollar denominated interbank interest rate
swap rates/LIBOR offered rates as shown on Reuters page ICAP and other
comparable brokerage pages, adjusted for the chosen interest rate method
(annual/semi-annual compounding, etc.).
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"Taxes" has the meaning specified in Section 2.12(a).
"Termination Date" means the earlier of (a) either October 1, 1999 or,
if applicable, the Extension Termination Date and (b) the termination in
whole of the Commitments pursuant to Section 2.04 or Section 6.01.
"United States" and "U.S." each means the United States of America.
The words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation."
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding."
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make advances (each, an "Advance") to the
Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an amount not to exceed the amount
set forth opposite such Lender's name on the signature pages hereof or, if such
Lender has entered into any Assignment and Acceptance, set forth for such Lender
in the Register maintained by the Agent pursuant to Section 8.07(c), as such
amount may be reduced pursuant to Section 2.04 (such Lender's "Commitment").
Each Borrowing shall be in an aggregate amount of $5,000,000 or an integral
multiple of $5,000,000 in excess thereof and shall be made simultaneously by the
Lenders ratably according to their respective Commitments. Within the limits of
each Lender's Commitment, the Borrower may borrow and reborrow under this
Section 2.01.
SECTION 2.02. Making the Advances. (a) Each Borrowing shall be made on
notice, given not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Borrowing by the Borrower to the
Agent, which shall give to each Lender prompt notice thereof by telecopier or
telex. Each notice of a Borrowing (a "Borrowing Notice") shall be by telephone,
confirmed immediately in writing, or telecopier or telex, in substantially the
form of Exhibit B hereto, specifying therein, among other things, the requested
(i) date of such Borrowing, (ii) the amount of such Borrowing and (iii) the
initial Interest Period for such Advances. Each Lender shall, before 11:00 A.M.
(New York City time) on the date of such Borrowing, make available for the
account of its Eurodollar Lending Office to the Agent at the Agent's Account, in
same day funds, such Lender's ratable portion of such Borrowing. After the
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Agent will make such funds available to the
Borrower by depositing the proceeds of the Advances in such Dollar account of
the Borrower (or of such Person as the Borrower shall specify to the Lender in
the Borrowing Notice or by other written notice to the Lender given
simultaneously with or prior to such Borrowing Notice) maintained with such bank
as the Borrower shall specify to the Agent in such Borrowing Notice.
The parties hereto understand and agree that the Initial Lender may, in its
sole discretion (but shall have no obligation to), designate a financial
institution or another Person to perform the Initial Lender's obligations
hereunder in accordance with the terms hereof. The Borrower agrees that
performance of any such obligation by any such designee of the Initial Lender
shall be deemed to constitute performance by the Initial Lender for all purposes
of this Agreement and the Note and shall discharge the Initial Lender from such
obligation to the extent of such performance.
(b) Anything in subsection (a) of this Section 2.02 to the contrary
notwithstanding, the Borrower may not request a Borrowing if the obligation of
the Lenders to make Advances shall then be suspended pursuant to Section 2.10.
(c) Each Borrowing Notice delivered by the Borrower to the Agent shall be
irrevocable and binding on the Borrower. The Borrower shall indemnify each
Lender against any loss, cost or expense incurred by such Lender as a result of
any failure to fulfill on or before the date specified in such Borrowing Notice
for such Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Advance to be made
by such Lender as part of such Borrowing when such Advance, as a result of such
failure, is not made on such date.
(d) The Agent shall only make available to the Borrower on the date of any
Borrowing the ratable portion of such Borrowing of each Lender that such Lender
has made available to the Agent on or prior to the date of such Borrowing.
(e) The failure of any Lender to make the Advance to be made by it as part
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of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
SECTION 2.03. Commitment Fee. The Borrower agrees to pay to the Agent for
the account of each Lender a commitment fee on the unused portion of such
Lender's Commitment from the Effective Date in the case of the Initial Lender
and from the effective date specified in the Assignment and Acceptance pursuant
to which it became a Lender in the case of each other Lender until the
Termination Date at a rate per annum equal to 1/4 of 1%, payable in arrears
quarterly on the last day of each March, June, September and December,
commencing December 31, 1998, and on the Termination Date.
SECTION 2.04. Optional Termination or Reduction of the Commitments. The
Borrower shall have the right, upon at least three Business Days' notice to the
Agent, to terminate in whole or reduce ratably in part the unused portions of
the respective Commitments of the Lenders, provided that each partial reduction
shall be in the aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.
SECTION 2.05. Repayment. The Borrower shall repay to the Agent for the
ratable account of the Lenders on the Termination Date the aggregate principal
amount of the Advances then outstanding.
SECTION 2.06. Interest. (a) Interest on the Advances. The Borrower shall
pay interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall have been paid
in full at an interest rate per annum equal to the Interest Rate, payable in
arrears on the last day of such Interest Period and on the date such Advance
shall be paid in full.
(b) Interest on Overdue Amounts. In the event that any principal amount of
any Advance or any interest, fees, costs, expenses or other amounts payable
hereunder are not paid when due, the Borrower shall pay interest on such unpaid
amount from the date such amount is due until the date such amount is paid in
full, payable on demand, at an interest rate per annum equal to the interest
rate referred to in subsection (a) of this Section 2.06 then in effect plus 2%.
SECTION 2.07. Reserved.
SECTION 2.08. Interest Rate Determination. (a) The Agent shall give prompt
notice to the Borrower and the Lenders of the applicable interest rate
determined by the Agent for purposes of Section 2.06(a).
(b) If the Borrower shall fail to select the duration of any Interest
Period for any Advances in accordance with the provisions contained in the
definition of "Interest Period" in Section 1.01, the Agent will forthwith so
notify the Borrower and the Lenders and such Advances will automatically, on the
last day of the then existing Interest Period therefor, convert into an Advance
bearing interest at the Interest Rate applicable to Advances of the same
aggregate amount having an Interest Period of twelve months.
(c) On the date on which the aggregate unpaid principal amount of Advances
comprising any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $5,000,000, such Advances shall automatically convert
into an Advance bearing interest at the Interest Rate applicable to Advances of
the same aggregate amount having an Interest Period of twelve months.
SECTION 2.09. Increased Costs, Etc. If due to either (a) the introduction
of or any change (including, without limitation, any change by way of imposition
or increase of reserve requirements) in or in the interpretation of any law or
regulation or (b) the compliance with any guideline or request from any central
bank or other Governmental Authority (whether or not having the force of law),
there shall be any increase in the cost to any Bank of agreeing to make or
making, funding or maintaining an Advance, then the Borrower shall from time to
time, upon demand by such Bank (with a copy of such demand to the Agent), pay to
the Agent for the account of such Bank additional amounts sufficient (as
applicable) to compensate such Bank for such increased cost. A certificate as to
the amount of such increased cost, submitted to the Borrower by such Bank, shall
be conclusive and binding for all purposes, absent manifest error.
SECTION 2.10. Illegality. Notwithstanding any other provision of this
Agreement, if any Bank shall notify the Borrower that any law or regulation, or
the introduction of or any change in or in the interpretation of any law or
regulation, makes it unlawful, or any central bank or other Governmental
Authority asserts that it is unlawful, for such Bank to perform its obligations
hereunder to make an Advance or to fund or maintain an Advance hereunder, (a)
the obligation of such Bank to make, fund and maintain any Advance shall be
suspended until such Bank shall notify the Borrower that the circumstances
causing such suspension no longer exist, (b) such Bank shall promptly notify the
Borrower of such circumstances and such suspension, and (c) unless the Borrower
and such Bank shall have otherwise agreed within ten Business Days of such
notice, the Borrower shall forthwith on such tenth Business Day prepay in full
the Advances then outstanding together with interest accrued thereon.
SECTION 2.11. Payments and Computations. (a) The Borrower shall make each
payment hereunder and under the Notes not later than 1:00 P.M. (New York City
time) on the day when due in Dollars to the Agent at the Agent's Account, in
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each case in immediately available funds. The Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest or fees ratably (other than amounts payable pursuant to Section 2.09,
2.12 or 8.04(c)) to the Lenders for the account of their respective Eurodollar
Lending Offices, and like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its Eurodollar Lending
Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 8.07(d),
from and after the effective date specified in such Assignment and Acceptance,
the Agent shall make all payments hereunder and under the Notes in respect of
the interest assigned thereby to the Lender assignee thereunder, and the parties
to such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) All computations of interest and of fees shall be made in good faith by
the Agent on the basis of a year of 360 days for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or fees are payable.
(c) Whenever any payment hereunder or under the Notes shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fee, as the case may be;
provided, however, that, if such extension would cause payment of interest on or
principal of any Advances to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.
(d) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Lenders hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower hereunder or
under the Notes shall be made in accordance with Section 2.11, free and clear of
and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, net income taxes that are
imposed by the United States and net income taxes (or franchise taxes imposed in
lieu thereof) that are imposed on such Lender or the Agent by the state or
foreign jurisdiction under the laws of which such Lender or the Agent (as the
case may be) is organized or any political subdivision thereof and, in the case
of each Lender, net income taxes (or franchise taxes imposed in lieu thereof)
that are imposed on such Lender by the state or foreign jurisdiction of such
Lender's Eurodollar Lending Office or any political subdivision thereof (all
such nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note, (i) the sum payable shall be increased as may be necessary so that, after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.12), such Lender or the Agent receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp,
documentary, excise, property or other taxes, charges or levies that arise from
any payment made hereunder or under the Notes or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or the Notes
(hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender and the Agent for the full
amount of Taxes or Other Taxes and for the full amount of Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 2.12 imposed
on or paid by such Lender or the Agent (as the case may be) or any liability
(including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted. This indemnification shall be made within 30 days from the
date such Lender or the Agent makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
shall furnish to the Agent, at its address referred to in Section 8.02, the
original receipt of payment or a certified copy of such receipt. If no Taxes are
payable in respect of any payment hereunder or under the Notes, the Borrower
shall furnish to the Agent, at such address, a certificate from each appropriate
taxing authority, or an opinion of counsel acceptable to the Lenders, in either
case stating that such payment is exempt from or not subject to Taxes.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States shall, on the Effective Date in the case of the Initial Lender and
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on the date of the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender, and from time to time thereafter if
requested in writing by the Borrower or the Agent (but only so long as such
Lender remains lawfully able to do so), provide each of the Borrower and the
Agent with Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments of interest pursuant to this Agreement or the Notes.
If the form provided by such Lender at the time such Lender becomes a party to
this Agreement indicates a United States interest withholding tax rate in excess
of zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender provides the appropriate form certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to which
a Lender becomes a party to this Agreement, the Lender assignor was entitled to
payments under Section 2.12(a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender assignee on such date. If any
form or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001 or
4224, that the Lender reasonably considers to be confidential, the Lender shall
give notice thereof to the Borrower and shall not be obligated to include in
such form or document such confidential information.
(f) For any period with respect to which a Lender has failed to provide the
Borrower with the appropriate form described in Section 2.12(e) (other than if
such failure is due to a change in law occurring subsequent to the date on which
a form originally was required to be provided, or if such form otherwise is not
required under the first sentence of Section 2.12(e) above), such Lender shall
not be entitled to indemnification under Section 2.12(a) with respect to Taxes
imposed by the United States; provided, however, that should such Lender become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
SECTION 2.13. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
setoff, or otherwise) on account of the Advance owing to it (other than pursuant
to Section 2.09, 2.12 or 8.04(c)) in excess of its ratable share of payments on
account of the Advances obtained by all the Lenders, such Lender shall forthwith
purchase from the other Lenders such participations in the Advances owing to
them as shall be necessary to cause such purchasing Lender to share the excess
payment ratably with each of them; provided, however, that if all or any portion
of such excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (a) the amount of such Lender's required repayment to (b) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.13 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of setoff) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.14. Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) solely for
general corporate purposes of the Borrower and its Subsidiaries.
SECTION 2.15. Extension. If the then applicable Termination Date is a date
on or before December 31, 2000 and the Borrower may desire that the Lenders
extend the then applicable Termination Date to the Extension Termination Date,
then (a) the Borrower shall give written notice of said fact (the "Extension
Request Notice") to the Agent and the Lenders no later than four (4) months
before the Termination Date, (b) the Borrower shall use its best efforts to
obtain and enter into on or before the date which is two months prior to the
Termination Date a Replacement Financing Arrangement with an interest rate no
higher than the Interest Rate and (c) if the Borrower shall not have entered
into a Replacement Financing Arrangement on or before the date which is two
months prior to the Termination Date, the Borrower shall deliver to the Agent
and the Lenders a certificate of the Borrower (the "Extension Certificate") (x)
certifying that the Borrower has not entered into a Replacement Financing
Arrangement, but the Borrower used its best efforts to do so as required by
clause (b) and setting forth such evidence and back-up detail as necessary to
demonstrate the efforts made, including a written letter from each bank from
which a Replacement Financing Arrangement as required by clause (b) was
requested, indicating that Borrower made such a request and that the request was
denied, and (y) requesting that the Termination Date be extended to the
Extension Termination Date. For purposes of this Section, the Borrower shall be
deemed to have complied with the requirement to use its "best efforts" by
requesting from and, if applicable, diligently negotiating a Replacement
Financing Arrangement as required by clause (b) with each of three (3)
commercial banks that are nationally recognized in the United States and each
have total assets in excess of $20,000,000,000. The Agent shall have the right
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to designate, within ten (10) Business Days after receipt of an Extension
Request Notice, one of the three banks referred to in the preceding sentence.
For purposes of this Section, diligent negotiation shall mean negotiation in
good faith and without denial or unreasonable delay of any reasonable request by
any such bank for information in connection with its consideration of providing
a Replacement Financing Arrangement to Borrower. For the avoidance of doubt,
nothing herein is intended to prevent Borrower from obtaining a Replacement
Financing Arrangement on terms equal to or better than those provided hereunder.
Following receipt of the Extension Certificate, the Agent and/or the
Lenders shall have the right (without any obligation to do so) to obtain for the
Borrower a Replacement Financing Arrangement on terms equal to or better than
those provided hereunder.
If the Borrower has (a) delivered the Extension Request Notice within the
time period specified above, (b) used its best efforts to obtain and enter into
a Replacement Financing Arrangement with an interest rate no higher than the
Interest Rate and delivered the Extension Certificate within the time period
specified above and (c) not unreasonably or in bad faith refused to enter into a
Replacement Financing Arrangement (with terms equal to or better than those
provided hereunder) obtained for the Borrower by the Agent or any of the Lenders
pursuant to the preceding paragraph, the Termination Date shall be extended to
the Extension Termination Date and the interest rate shall be the Interest Rate.
The Borrower shall be responsible for the payment of any customary
commitment fee and other fees in connection with obtaining a Replacement
Financing Arrangement.
For the avoidance of doubt, in no event shall an Extension Termination Date
be requested by the Borrower after October 1, 2000 or be on a date after October
1, 2001.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied:
(a) There shall have occurred no Material Adverse Change since June
30, 1998.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Borrower or any of its Subsidiaries pending or
threatened in writing before any court, governmental agency or arbitrator
that (i) may materially adversely affect the financial condition or
operations of the Borrower or any of its subsidiaries or (ii) purports to
affect the legality, validity or enforceability of this Agreement or any
Note or the consummation of the transactions contemplated hereby.
(c) On the Effective Date, the following statements shall be true and
the Agent shall have received a certificate signed by a duly authorized
officer of the Borrower, dated the Effective Date, stating that:
(i) the representations and warranties contained in Section 4.01
are correct on and as of the Effective Date, and
(ii) no event has occurred and is continuing that constitutes a
Default.
(d) The Agent shall have received on or before the Effective Date the
following, each dated such date, in form and substance satisfactory to the
Lenders (except for the Notes):
(i) executed counterparts of this Agreement duly executed and
delivered by the Borrower;
(ii) the Notes to the order of the Lenders;
(iii) certified copies of the resolutions of the board of
directors of the Borrower approving this Agreement and the Notes, and
of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and the
Notes; and
(iv) a certificate of the Secretary or an Assistant Secretary of
the Borrower certifying the names and true signatures of the officers
of the Borrower authorized to sign this Agreement and the Notes and
the other documents to be delivered hereunder.
SECTION 3.02. Conditions Precedent to each Borrowing. The obligation of
each Lender to make an Advance on the occasion of each Borrowing shall be
subject to the conditions precedent that the Effective Date shall have occurred
and on the date of such Borrowing the following statements shall be true (and
each of the giving of the applicable Borrowing Notice and the acceptance by the
Borrower of the proceeds of such Borrowing shall constitute a representation and
warranty by the Borrower that on the date of such Borrowing such statements are
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true):
(a) the representations and warranties contained in Section 4.01
(other than the last sentence of subsection (e) thereof) are correct on and
as of the date of such Borrowing, before and after giving effect to such
Borrowing and to the application of the proceeds therefrom, as though made
on and as of such date, and
(b) no event has occurred and is continuing, or would result from such
Borrowing or from the application of the proceeds therefrom, that
constitutes a Default.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's charter or by-laws or (ii) any law or any
contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no notice to
or filing with, any Governmental Authority is required for the due
execution, delivery and performance by the Borrower of this Agreement and
the Notes.
(d) This Agreement has been, and the Notes when delivered hereunder
will have been, duly executed and delivered by the Borrower. This Agreement
is, and each of the Notes when delivered hereunder will be, legal, valid
and binding obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms.
(e) The Consolidated balance sheets of the Borrower and its
Subsidiaries as at December 31, 1997 and June 30, 1998, and the related
Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the fiscal year and the six months then ended, copies of
which have been furnished to the Lenders, fairly present the financial
condition of the Borrower and its Subsidiaries as at such date and the
results of the operations of the Borrower and its Subsidiaries for the
period ended on such date, all in accordance with GAAP. Since June 30,
1998, there has been no Material Adverse Change.
(f) There is no pending or threatened action or proceeding affecting
the Borrower or any of its Subsidiaries before any court, governmental
agency or arbitrator, that (i) may materially adversely affect the
financial condition or operations of the Borrower or any of its
Subsidiaries or (ii) purports to affect the legality, validity or
enforceability of this Agreement or the Notes or the consummation of the
transactions contemplated hereby.
(g) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the meaning
of Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any Advance will be used to purchase or carry
any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
(h) The Advances and all related obligations of the Borrower under
this Agreement and the Notes rank pari passu with all other unsecured
obligations of the Borrower that are not, by their terms, expressly
subordinate to such other obligations of the Borrower.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. On and after the Change of Control
Date and so long as any Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will, unless the Lenders shall otherwise
consent in writing:
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(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA and environmental laws.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might
by law become a lien upon its property; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to pay or discharge
any such tax, assessment, charge or claim that is being contested in good
faith and by proper proceedings and as to which appropriate reserves are
being maintained, unless and until any lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises; provided,
however, that neither the Borrower nor any of its Subsidiaries shall be
required to preserve any right or franchise if the board of directors of
the Borrower or such Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Borrower or such Subsidiary, as the case may be, and that the loss thereof
is not disadvantageous in any material respect to the Borrower, such
Subsidiary or the Lenders.
(d) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of
the Borrower and each such Subsidiary in accordance with GAAP or, in the
case of any Subsidiary organized under the laws of a jurisdiction other
than the United States or any state thereof, the equivalent of GAAP
applicable in such jurisdiction.
(e) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
(f) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, Consolidated balance sheets of the Borrower and its
Subsidiaries as of the end of such quarter and Consolidated statements
of income and cash flows of the Borrower and its Subsidiaries for the
period commencing at the end of the previous fiscal year and ending
with the end of such quarter, duly certified (subject to year-end
audit adjustments) by the chief financial officer of the Borrower as
having been prepared in accordance with GAAP and setting forth in
reasonable detail the calculations necessary to demonstrate compliance
with subsections (g), (h) and (i) of this Section 4.01;
(ii) as soon as available and in any event within 90 days after
the end of each fiscal year of the Borrower, a copy of the annual
report for such year for the Borrower and its Subsidiaries, containing
Consolidated balance sheets of the Borrower and its Subsidiaries as of
the end of such fiscal year and Consolidated statements of income and
cash flows of the Borrower and its Subsidiaries for such fiscal year,
in each case accompanied by an opinion acceptable to the Lenders by
KPMG Peat Marwick or other independent public accountants reasonably
acceptable to the Lenders and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with subsections (g),
(h) and (i) of this Section 4.01;
(iii) as soon as possible and in any event within ten days after
the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer of the Borrower
setting forth details of such Default and the action that the Borrower
has taken and proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies of all
reports which the Borrower sends to any of its securityholders, and
copies of all reports and registration statements which the Borrower
or any of its Subsidiaries files with the Securities and Exchange
Commission or any national securities exchange;
(v) promptly after the filing or receiving thereof, copies of all
reports and notices which the Borrower or any Subsidiary files under
ERISA with the Internal Revenue Service or the Pension Benefit
Guaranty Corporation or the U.S. Department of Labor or which the
Borrower or any Subsidiary receives from the Pension Benefit Guaranty
Corporation;
(vi) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Borrower or any of its Subsidiaries of the
type described in Section 4.01(f); and
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(vii) such other information respecting the Borrower or any of
its Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
(g) Working Capital. Maintain an excess of Consolidated current assets
over Consolidated current liabilities of the Borrower and its Subsidiaries
of not less than $50,000,000 and a ratio of Consolidated current assets to
Consolidated current liabilities of the Borrower and its Subsidiaries of
not less than 1.25 to 1. Consolidated current liabilities shall include the
current portion of the Debt resulting from the Notes.
(h) Net Worth. Maintain an excess of Consolidated total assets over
Consolidated total liabilities of the Borrower and its Subsidiaries of not
less than $400,000,000.
(i) Interest Coverage Ratio. Maintain an Interest Coverage Ratio of
not less than 4.0 to 1.
SECTION 5.02. Negative Covenants. On and after October 1, 1998 and so long
as any Advance shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will not, unless the Lenders shall otherwise consent in
writing:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any lien, security interest or
other charge or encumbrance, or any other type of preferential arrangement,
upon or with respect to any of its properties, whether now owned or
hereafter acquired, or assign, or permit any of its Subsidiaries to assign,
any right to receive income, in each case to secure any Debt of any Person,
other than:
(i) purchase money liens or purchase money security interests
upon or in any property acquired or held by the Borrower or any
Subsidiary in the ordinary course of business to secure the purchase
price of such property or to secure indebtedness incurred solely for
the purpose of financing the acquisition of such property;
(ii) liens or security interests existing on such property at the
time of its acquisition (other than any such lien or security interest
created in contemplation of such acquisition);
(iii) liens for taxes, assessments and governmental charges or
levies to the extent not required to be paid under Section 5.01(b)
hereof;
(iv) liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's liens and other similar liens
arising in the ordinary course of business securing obligations that
are not overdue for a period of more than 30 days;
(v) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations;
(vi) easements, rights of way and other encumbrances on title to
real property that do not render title to the property encumbered
thereby unmarketable or materially adversely affect the use of such
property for its present purposes; and
(vii) liens incurred or deposits made in the ordinary course of
business to secure the performance of letters of credit, bids,
tenders, sales contracts, leases, surety, appeal and performance bonds
and other similar obligations not incurred in connection with the
borrowing of money;
provided that the aggregate principal amount of the Debt, other
indebtedness, taxes, assessments, governmental charges or levies and other
obligations secured by the liens or security interests referred to in
clauses (i) through (vii) of this Section 5.02(a) shall not exceed
$45,000,000 in the aggregate at any time outstanding.
(b) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as allowed by generally accepted accounting
principles.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) the Borrower shall fail to pay (i) any principal of any Advance
when the same becomes due and payable or (ii) any interest on any Advance
or any other amount payable under this Agreement or any Note within ten
days from the date the same becomes due and payable; or
12
(b) any representation or warranty made by the Borrower herein or by
the Borrower (or any of its officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or
(c) (i) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in subsection (c), (g), (h) or (i) of
Section 5.01 or in Section 5.02 or (ii) the Borrower shall fail to perform
or observe any other term, covenant or agreement contained in this
Agreement or any Note on its part to be performed or observed if such
failure shall remain unremedied for 30 days after written notice thereof
shall have been given to the Borrower by the Agent or any Lender; or
(d) the Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal amount of at least $5,000,000 in the aggregate (but excluding
Debt outstanding hereunder) of the Borrower or such Subsidiary (as the case
may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified
in the agreement or instrument relating to such Debt; or any other event
shall occur or condition shall exist under any agreement or instrument
relating to any such Debt and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the effect of
such event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), redeemed, purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Debt shall be required to be made,
in each case prior to the stated maturity thereof; or
(e) the Borrower or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its inability
to pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against
the Borrower or any of its Subsidiaries seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official for
it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 60 days, or
any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of
a receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower or any of
its Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this Section 6.01(e); or
(f) any judgment or order for the payment of money in excess of
$5,000,000 shall be rendered against the Borrower or any of its
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall
be any period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Lenders, by notice to the Borrower, declare the obligation of
each Lender to make Advances to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with the consent, of
the Lenders, by notice to the Borrower, declare the Notes, all interest thereon
and all other amounts payable under this Agreement to be forthwith due and
payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an actual or deemed entry of
an order for relief with respect to the Borrower under the Federal Bankruptcy
Code, (A) the obligation of each Lender to make Advances shall automatically be
terminated and (B) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Lenders, and such instructions shall be binding upon all Lenders and all
13
holders of Notes; provided, however, that the Agent shall not be required to
take any action that exposes the Agent to personal liability or that is contrary
to this Agreement or applicable law. The Agent agrees to give to each Lender
prompt notice of each notice given to it by the Borrower pursuant to the terms
of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (a) may treat the
payee of any Note as the holder thereof until the Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, as provided in Section
8.07; (b) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (d) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement on the part of the Borrower or
to inspect the property (including the books and records) of the Borrower; (e)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, this Agreement or any other instrument
or document furnished pursuant hereto; and (f) shall incur no liability under or
in respect of this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. VEBA. With respect to its Commitment, the Advance made by it
and the Note issued to it, VEBA shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it were not
the Agent; and the term "Lender" or "Lenders" shall, unless otherwise expressly
indicated, include VEBA in its individual capacity.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the Agent (to
the extent not reimbursed by the Borrower), ratably according to the respective
principal amounts of the Notes then held by each of them (or if no Notes are at
the time outstanding or if any Notes are held by Persons that are not Lenders,
ratably according to the respective amounts of their Commitments), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against the
Agent in any way relating to or arising out of this Agreement or any action
taken or omitted by the Agent under this Agreement, provided that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent promptly
upon demand for its ratable share of any out-of-pocket expenses (including
counsel fees) incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, to the
extent that the Agent is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be removed at any
time with or without cause by the all of the Lenders. Upon any such resignation
or removal, the Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Lenders, and shall have
accepted such appointment, within 30 days after the retiring Agent's giving of
notice of resignation or the Lenders' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which
shall be a commercial bank organized under the laws of the United States or of
any state thereof and having a long-term senior unsecured debt rating by S&P of
"A" or better. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article VII shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
14
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders, do any of the following: (a) waive any of
the conditions specified in Section 3.01, (b) increase the Commitments of the
Lenders or subject the Lenders to any additional obligations, (c) reduce the
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, (d) postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, (e)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Notes, or the number of Lenders, that shall be required for the
Lenders or any of them to take any action hereunder or (f) amend this Section
8.01; and provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Lenders required above to
take such action, affect the rights or duties of the Agent under this Agreement
or any Note.
SECTION 8.02. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telecopier, telegraphic or telex
communication) and mailed, telecopied, telegraphed, telexed or delivered, if to
the Borrower, at its address at βββ βββββ βββββ, ββ. ββββββ, ββββββββ βββββ,
Attention: Treasurer (telecopier number (βββ) βββ-ββββ); if to the Initial
Lender or the Agent, at ββββββββββββββ β, β-βββββ, ββββββββββ, βββββββ;
Attention: Treasury (telecopier number βββ-βββ-ββββ-βββ); if to any other Lender
or any Bank, at its Eurodollar Lending Office specified in the Assignment and
Acceptance pursuant to which it became a Lender; or, as to any party, at such
other address as shall be designated by such party in a written notice to the
other parties. All such notices and communications shall, when mailed,
telecopied, telegraphed or telexed, be effective when received by the party to
whom such notice is addressed, except that notices and communications pursuant
to Section 2.08 shall not be effective until confirmed in writing by the party
to whom such notice is addressed. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender or
the Agent to exercise, and no delay in exercising, any right hereunder or under
any Note shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on demand
all reasonable costs and expenses of the Agent in connection with the
preparation, execution, delivery, modification and amendment of this Agreement,
the Notes and the other documents to be delivered hereunder, including, without
limitation, the reasonable fees and expenses of counsel for the Agent with
respect thereto and with respect to advising the Agent as to its rights and
responsibilities under this Agreement. The Borrower further agrees to pay on
demand all costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable counsel fees and expenses), in connection with
the enforcement (whether through negotiations, legal proceedings or otherwise)
of this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Agent and each Lender in connection with the enforcement of rights under this
Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Agent and each
Lender and each of their Affiliates and their officers, directors, employees,
agents and advisors (each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of, or in connection with the preparation for
a defense of, any investigation, litigation or proceeding arising out of,
related to or in connection with the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances, whether or not such investigation, litigation or proceeding is
brought by the Borrower, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated, except to the extent such claim, damage, loss, liability or expense
is found in a final, nonappealable judgment by a court of competent jurisdiction
to have resulted from such Indemnified Party's gross negligence or willful
misconduct. The Borrower also agrees not to assert any claim against the Agent,
any Lender, any of their Affiliates, or any of their respective directors,
officers, employees, attorneys and agents, on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or otherwise
relating to the Notes, this Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Advances.
15
(c) If any payment of principal of any Advance is made by the Borrower to
or for the account of a Lender other than on the last day of the Interest Period
for such Advance, as a result of a payment pursuant to Section 2.08(b),
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, the Borrower shall, upon demand by such Lender (with a copy of
such demand to the Agent), pay to the Agent for the account of such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment including,
without limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.09, 2.12 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Setoff. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement and the Note held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Borrower
after any such setoff and application, provided that the failure to give such
notice shall not affect the validity of such setoff and application. The rights
of each Lender and its Affiliates under this Section 8.05 are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) that such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective (other
than Section 2.01, which shall only become effective upon satisfaction of the
conditions precedent set forth in Section 3.01) when it shall have been executed
by the Borrower, the Agent and the Initial Lender and thereafter shall be
binding upon and inure to the benefit of the Borrower, the Agent and the Initial
Lender and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may assign to
one or more Persons all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Advance owing to it and the Note or Notes held by it); provided, however,
that (i) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement, (ii) except in
the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, (iii) each such assignment shall be to an Eligible Assignee, and (iv)
the parties to each such assignment shall execute and deliver to the Agent, for
its acceptance and recording in the Register, an Assignment and Acceptance,
together with any Note subject to such assignment. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (A) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (B) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
16
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in Section 8.02 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Advances owing to, each Lender from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the Agent
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the Agent
in exchange for the surrendered Note a new Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, a new Note to the order of the assigning Lender in an amount equal to
the Commitment retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of Exhibit A
hereto.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and the
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of this Agreement or any Note, or any consent to any
departure by the Borrower therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, in each case to the extent subject
to such participation, or postpone any date fixed for any payment of principal
of, or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 8.07, disclose to
the assignee or participant or proposed assignee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information relating to the Borrower
received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and the Note held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
(h) In connection with the initial assignment or proposed initial
assignment by the Initial Lender pursuant to this Section 8.07, the Borrower
shall, upon the request of the Initial Lender, furnish to the Initial Lender a
favorable opinion of counsel for the Borrower acceptable to the Initial Lender,
in form and substance reasonably satisfactory to the Initial Lender.
SECTION 8.08. Confidentiality. Neither the Agent nor any Lender shall
disclose any Confidential Information to any Person without the consent of the
Borrower, other than (a) to the Agent's or such Lender's Affiliates and their
officers, directors, employees, agents and advisors and to actual or prospective
assignees and participants, and then, in each case, only on a confidential and
17
need-to-know basis, (b) as required by any law, rule or regulation or judicial
process and (c) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 8.10. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Agreement or
the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the Notes in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives effective as of the day and
year first above written.
MEMC ELECTRONIC MATERIALS, INC., as Borrower
By: /s/ βββββββ β. βββββ
________________________________________
Name: βββββββ β. βββββ
Title: Treasurer
VEBA AG, as Agent
By: /s/ ββββββ β. βββββ
________________________________________
Name: ββββββ β. βββββ
Title: Attorney-in-Fact
pursuant to Power of Attorney
dated September 21, 1998
VEBA AG, as Initial Lender
By: /s/ ββββββ β. βββββ
________________________________________
Name: ββββββ β. βββββ
Title: Attorney-in-Fact
pursuant to Power of Attorney
dated September 21, 1998
18
EXHIBIT A TO THE
REVOLVING CREDIT AGREEMENT
FORM OF PROMISSORY NOTE
U. S. $____________________ Dated: __________________, ______
FOR VALUE RECEIVED, the undersigned, MEMC ELECTRONIC MATERIALS, INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
[NAME OF LENDER], a [JURISDICTION OF INCORPORATION ] corporation (the "Lender")
for its account on the Termination Date (as defined in the Credit Agreement
referred to below) the principal SUM Of U.S.$[AMOUNT OF THE LENDER'S COMMITMENT
IN FIGURES] or, if less, the principal amount of the Advances made by the Lender
to the Borrower pursuant to the Revolving Credit Agreement dated as of September
23, 1998 between the Borrower and VEBA, as the Lender and as Agent (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement";
the terms defined therein being used herein as therein defined) outstanding on
the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount of the
Advances from the date of the Advances until such principal amount is paid in
full, at such interest rates, and payable at such times, as are specified in the
Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to VEBA, as Agent, at the Agent's Account, in same day funds.
The Advances owing to the Lender by the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is entitled to
the benefits of, the Credit Agreement. The Credit Agreement, among other things,
(i) provides for the making of Advances by the Lender to the Borrower from time
to time in an aggregate amount not to exceed at any time outstanding the Dollar
amount first above mentioned, the indebtedness of the Borrower resulting from
the Advances being evidenced by this Promissory Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified.
MEMC ELECTRONIC MATERIALS, INC.
By:_____________________________
Title:
19
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of Principal Unpaid Principal
Date Amount of Advance Paid or Prepaid Balance Notation Made By
------------------------ ---------------------- ---------------------- ------------------------ --------------------
------------------------ ---------------------- ---------------------- ------------------------ --------------------
------------------------ ---------------------- ---------------------- ------------------------ --------------------
------------------------ ---------------------- ---------------------- ------------------------ --------------------
------------------------ ---------------------- ---------------------- ------------------------ --------------------
------------------------ ---------------------- ---------------------- ------------------------ --------------------
------------------------ ---------------------- ---------------------- ------------------------ ====================
20
EXHIBIT B TO THE
REVOLVING CREDIT AGREEMENT
FORM OF NOTICE OF BORROWING
VEBA AG, as Agent
for the Lenders parties
to the Credit Agreement
referred to below
ββββββββββββββ β
β-βββββ ββββββββββ, βββββββ [Date]
Attention: _________________________
Ladies and Gentlemen:
The undersigned, MEMC ELECTRONIC MATERIALS, INC., refers to the Revolving
Credit Agreement, dated as of September 23, 1998 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), between the undersigned and VEBA
AG, as Initial Lender and as Agent for the Lenders thereunder, and hereby gives
you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement, that
the undersigned hereby requests a Borrowing under the Credit Agreement, and in
that connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(a) The Business Day of the Proposed Borrowing is _______________,
________.
(b) The initial Interest Period for each Advance made as part of the
Proposed Borrowing is [one week] [one month] [two months] [three months]
[twelve months].
(c) The aggregate amount of the Proposed Borrowing is
$________________.
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on and as of the date of the Proposed
Borrowing:
(i) the representations and warranties contained in Section 4.01
[(other than the representations set forth in the last sentence of
subsection (e) thereof)]* of the Credit Agreement are correct, before and
after giving effect to the Proposed Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date; and
(ii) no event has occurred and is continuing, or would result from
such Proposed Borrowing or from the application of the proceeds therefrom,
that constitutes a Default.
Very truly yours,
MEMC ELECTRONIC MATERIALS, INC.
By:___________________________
Title:
____________
* To be included in any Borrowing Notice requesting a Borrowing to be
made on any Business Day other than the Effective Date.
21
EXHIBIT C TO THE
REVOLVING CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Revolving Credit Agreement dated as of September
23, 1998 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") between MEMC ELECTRONIC MATERIALS, INC., a Delaware
corporation (the "Borrower"), and VEBA AG, a company formed under the laws of
the Federal Republic of Germany ("VEBA"), as Initial Lender and as Agent (the
"Agent") for the Lenders thereunder (each as defined in the Credit Agreement).
Terms defined in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Credit Agreement as of
the date hereof equal to the percentage interest specified on Schedule 1
hereto of all outstanding rights and obligations under the Credit
Agreement. After giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Advances owing to the Assignee will be as
set forth on Schedule 1 hereto.
2. The Assignor (a) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
the Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (c) makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under the Credit Agreement or any
other instrument or document furnished pursuant thereto; and (d) attaches
the Note held by the Assignor and requests that the Agent exchange such
Note for a new Note payable to the order of the Assignee in an amount equal
to the Commitment assumed by the Assignee pursuant hereto or new Notes
payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto and the Assignor in an amount equal
to the Commitment retained by the Assignor under the Credit Agreement,
respectively, as specified on Schedule 1 hereto.
3. The Assignee (a) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (b) agrees that it will, independently
and without reliance upon the Agent, the Assignor or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement; (c) confirms that it is an Eligible
Assignee; (d) appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers and discretion under the
Credit Agreement as are delegated to the Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental
thereto; (e) agrees that it will perform in accordance with their terms all
of the obligations that by the terms of the Credit Agreement are required
to be performed by it as a Lender; and (f) attaches any U.S. Internal
Revenue Service forms required under Section 2.12 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date")
shall be the date of acceptance hereof by the Agent, unless otherwise
specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (a) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Acceptance, have the
rights and obligations of a Lender thereunder and (b) the Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit
Agreement and the Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and
facility fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the
Credit Agreement and the Notes for periods prior to the Effective Date
directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
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8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery
of an executed counterpart of Schedule 1 to this Assignment and Acceptance
by telecopier shall be effective as delivery of a manually executed
counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
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Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _______%
Assignee's Commitment: $_______________
Aggregate outstanding principal amount of Advances assigned: $_______________
Principal amount of Note payable to Assignee: $_______________
Principal amount of Note payable to Assignor: $_______________
Effective Date* : ___________________, _____
[NAME OF ASSIGNOR], as Assignor
By:_____________________________
Title:
Date: ___________________, _____
[NAME OF ASSIGNEE], as Assignee
By:_____________________________
Title:
Eurodollar Lending Office
[ADDRESS]
____________
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
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Accepted this ______ day
of _______________, ____
VEBA AG, as Agent
By:_______________________
Title: