Exhibit 21
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT, dated as of December 21, 2001 (as amended,
supplemented, amended and restated or otherwise modified from time to time, this
"Agreement"), by and among (i) TPG PARTNERS III, L.P., TCW/CRESCENT MEZZANINE
PARTNERS III, L.P., TCW/CRESCENT MEZZANINE TRUST III, GREEN EQUITY INVESTORS
III, L.P. and GREEN EQUITY INVESTORS SIDE III, L.P., as fund guarantors under
the Guaranty defined below (collectively, the "Fund Guarantors"), (ii) CITICORP
USA, INC., as administrative agent (in such capacity, the "Administrative
Agent"), acting on behalf of itself and for the other financial institutions
(the "Lenders") that are or may from time to time become parties to the
Revolving Credit Agreement, dated as of December 21, 2001 (as amended,
supplemented, amended and restated or otherwise modified from time to time, the
"Revolving Credit Agreement") by and among MEMC ELECTRONIC MATERIALS, INC., a
Delaware corporation (the "Borrower"), the Lenders and the Administrative Agent,
and (iii) CITICORP USA, INC., as collateral agent under the Revolving Credit
Security Documents and the Reimbursement Security Documents (each as defined
below) (in such capacity, the "Collateral Agent").
W I T N E S S E T H
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to the Revolving Credit Agreement pursuant to which the Lenders will
provide the Borrower with a revolving credit facility in an initial aggregate
amount not to exceed U.S. $150,000,000;
WHEREAS, the Collateral Agent, for the benefit of the secured parties
under the Revolving Credit Security Documents (the "Revolving Credit Secured
Parties"), holds certain liens and other security interests granted by the
Borrower and the Subsidiary Loan Parties pursuant to the Loan Documents, as
security for the obligations of the Borrower under the Revolving Credit
Agreement and certain other documents entered into in connection therewith;
WHEREAS, each of the Fund Guarantors has entered into a Guaranty
(collectively, the "Guaranty") dated as of December 21, 2001 with the
Administrative Agent, pursuant to which the Fund Guarantors have agreed to
guarantee the obligations of the Borrower under the Revolving Credit Agreement
on the terms set forth therein;
WHEREAS, the Borrower has entered into a Reimbursement Agreement dated
as of December 21, 2001, with the Fund Guarantors and the Collateral Agent (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the "Reimbursement Agreement"), pursuant to which the Borrower agrees to
reimburse the Fund Guarantors for any and all payments made under the Guaranty;
WHEREAS, the Collateral Agent, for the benefit of the Fund Guarantors
(the "Reimbursement Secured Parties"), holds certain liens and other security
interests granted by the Borrower and the Subsidiary Reimbursement Parties
pursuant to the Reimbursement Documentation, as security for the obligations of
the Borrower under the Reimbursement Agreement and certain other documents
entered into in connection therewith;
WHEREAS, the obligations of the Borrower under the Revolving Credit
Agreement and the Reimbursement Agreement rank senior to the Borrower's Senior
Subordinated Secured Notes Due 2007, issued pursuant to the Indenture dated as
of November 13, 2001 (as amended, restated, supplemented, otherwise modified or
replaced from time to time, the "Indenture") by and among the Borrower,
Citibank, N.A., as trustee (in such capacity, the "Trustee") and the Citicorp
USA, Inc., as collateral agent for the secured parties under the Indenture;
WHEREAS, in order to provide for the orderly administration of the
Revolving Credit Agreement, the Reimbursement Agreement, the Guaranty and the
obligations of the Borrower to the Secured Parties, to coordinate in giving
notices, if any, to the Trustee under the Indenture and to coordinate the
enforcement of the respective rights of the Secured Parties in the Collateral,
the parties hereto wish to enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Unless the context otherwise requires, all
capitalized terms used but not defined herein shall have the meanings set forth
in the Revolving Credit Agreement. The following terms, as used in this
Agreement, shall have the following meanings:
"Agreement" means this Intercreditor Agreement.
"Blockage Notice" has the meaning assigned to such term in the
Indenture.
"Collateral Proceeds" has the meaning assigned to such term in Section
5.04.
"Decision Period" means, with respect to any decision to be made
hereunder, the period designated in a notice delivered by the Collateral Agent
pursuant to Section 4.01(a) or 5.02 subject to the following: (i) if the
decision relates to a Default and there is no applicable cure period with
respect to such Default or if the applicable cure period with respect to such
Default has expired, or if the number of days remaining in the applicable cure
period with respect to such Default is 29 or fewer, the Decision Period shall
end not earlier than 5 days nor later than 10 days after the date of such
notice, and (ii) if the decision relates to a Default and the number of days
remaining in the applicable cure period with respect to such Default is 30 or
more, the Decision Period shall end not earlier than 10 days after the date of
such notice nor later than the end of such cure period; provided, that if in the
judgment of the Collateral Agent the interests of the Secured Parties or any of
them would likely be prejudiced by the observance of clause (i) or (ii) above,
the Decision Period shall be such shorter period (but in any event no less than
two (2) Business Days, unless otherwise agreed by the party instructing the
Collateral Agent) as the Collateral Agent may designate.
"Default" means any Reimbursement Default and/or any Revolving Credit
Default.
"Defaulting Guarantor" has the meaning assigned to such term in the
Guaranty.
"Event of Default" means any Reimbursement Event of Default and/or any
Revolving Credit Event of Default.
"Fund Guarantor Percentages" means the TPG Percentage, the TCW
Percentage and the Green Percentage listed on Schedule I hereto, as such
schedule may be amended from time to time.
"Guarantor Default" has the meaning assigned to such term in the
Guaranty.
"Guaranteed Obligations" has the meaning assigned to such term in the
Guaranty.
"Indenture" has the meaning set forth in the recitals hereof.
"Notice of Default" has the meaning assigned to such term in Section
5.01.
"Non-Defaulting Guarantors" means, in the event of a Partial Guarantor
Default, those Fund Guarantors, if any, that have satisfied their respective
obligations under the Guaranty.
"Non-Defaulting Payment" has the meaning assigned to such term in
Section 5.04(b).
"Partial Guarantor Default" means the occurrence of a Guarantor Default
that is not a Total Guarantor Default.
"Reimbursement Default" means any Default (as defined in the
Reimbursement Agreement) under the Reimbursement Agreement.
"Reimbursement Event of Default" means any Event of Default (as defined
in the Reimbursement Agreement) under the Reimbursement Agreement.
"Reimbursement Security Documents" means the Amended and Restated
Security Agreement and the Amended and Restated Pledge Agreement in
substantially the form attached as Exhibit D and Exhibit E, respectively, to the
Reimbursement Agreement, and each other security agreement or other instrument
or document executed and delivered to secure any of the Reimbursement
Obligations.
"Reimbursement Secured Parties" has the meaning set forth in the
recitals hereof.
"Revolving Credit Default" means any Default (as defined in the
Revolving Credit Agreement) under the Revolving Credit Agreement.
"Revolving Credit Event of Default" means any Event of Default (as
defined in the Revolving Credit Agreement) under the Revolving Credit Agreement.
"Revolving Credit Secured Parties" has the meaning set forth in the
recitals hereof.
"Revolving Credit Security Documents" means the Security Agreement,
Pledge Agreement and each other security agreement or other instrument or
document executed and delivered to secure any of the Revolving Credit
Obligations.
"Secured Parties" means, collectively, the Reimbursement Secured
Parties and the Revolving Credit Secured Parties.
"Security Documents" means, collectively, the Revolving Credit Security
Documents and the Reimbursement Security Documents.
"Total Guarantor Default" means the occurrence of a Guarantor Default
by all Fund Guarantors under the Guaranty contemporaneously.
"TPG Guarantor" has the meaning assigned to such term in the
Reimbursement Agreement.
"Transaction Documents" means the Reimbursement Documentation, the Loan
Documents and the Guaranty.
"Trustee" has the meaning assigned to such term in the recitals hereof.
ARTICLE II
COMMUNICATION
Section 2.01. Sharing of Information. Each of the parties hereto shall
use reasonable efforts to make available promptly to the other parties hereto
any material information it receives pursuant to any Loan Document or any
Reimbursement Documentation, as applicable, regarding (i) the operation and
financial condition or business of the Borrower or any Related Party, (ii) the
ability of the Borrower or any Subsidiary Loan Party or Subsidiary Reimbursement
Party, as the case may be, to pay or perform under the Revolving Credit
Obligations or the Reimbursement Obligations when due, (iii) the security
interests granted by or pursuant to the Security Documents or the Reimbursement
Documentation, (iv) the occurrence of a Guarantor Default or a Reimbursement
Event of Default or a Revolving Credit Event of Default, or (v) any other matter
regarding the Borrower or any Related Parties, the Revolving Credit Obligations
or the Reimbursement Obligations which such party considers to be of common
interest to the Fund Guarantors, the Administrative Agent, the Collateral Agent
and the Lenders; provided, that (i) this Section 2.01 shall not require any Fund
Guarantor or Lender to make available information which, in such party's
reasonable judgment, is not of common interest to Fund Guarantors and the
Lenders or is subject to confidentiality restrictions which prohibit such
disclosure and (ii) no party hereto shall have any liability for any failure to
make available to the other parties hereto such information or for any
inaccuracy or incompleteness of any such information made available by it in
good faith.
Section 2.02. Enforcement and Other Notices. In the event (and at the
time) that any party hereto issues any notice to the Collateral Agent, it shall
send a copy of such notice to each other party hereto. Each Secured Party agrees
that, if and when requested by another Secured Party, it will provide such
information to such other Secured Party as may be necessary to enable such other
Secured Party to make any calculation required under the Reimbursement
Documentation or the Loan Documents (as the case may be); provided, that (i)
this Section 2.02 shall not require any Fund Guarantor to make available
information which, in such party's reasonable judgment, is not of common
interest to the Fund Guarantors and the Lenders or is subject to confidentiality
restrictions which prohibit such disclosure and (ii) neither the Fund Guarantors
nor the Administrative Agent shall have any liability for any failure to make
available to the other parties hereto such information or for any inaccuracy or
incompleteness of any such information made available by it in good faith.
Section 2.03. Notices to the Trustee under the Indenture.
(a) The Fund Guarantors and the Lenders hereby appoint the Collateral
Agent as their representative for the purpose of giving Blockage Notices or
other notices, if any, to the Trustee under the Indenture. The parties hereto
hereby agree that, in giving such notices, the Collateral Agent shall abide by
instructions given pursuant to Section 5.03 of this Agreement. In the event (and
at the time) that the Collateral Agent, acting in its capacity as a
representative of the other parties hereunder, issues any notice to the Trustee
under the Indenture, it shall send a copy of such notice to each other party
hereto.
(b) Notwithstanding the foregoing, the Fund Guarantors, acting by the
written instruction of Fund Guarantors holding 50% or more of the Fund Guarantor
Percentages, may appoint a person other than the Collateral Agent to act as
their representative for the purpose of giving Blockage Notices or other
notices, if any, to the Trustee under the Indenture. The parties hereto hereby
agree that, in giving such notices, such representative shall abide by
instructions given pursuant to Section 5.03 of this Agreement. In the event (and
at the time) that such representative, acting in its capacity as a
representative of the Fund Guarantors, issues any notice to the Trustee under
the Indenture, it shall send a copy of such notice to each other party hereto.
ARTICLE III
NOTICE FOR CERTAIN ACTIONS
The Administrative Agent (on behalf of itself and each of the Lenders)
shall inform the Fund Guarantors promptly following its determination to take
any of the following actions (it being understood that the provisions in this
Article III shall not affect any of the provisions under Section 5 of the
Guaranty):
(a) the termination of all or any portion of the Commitments;
(b) the occurrence of a Revolving Credit Event of Default;
(c) the acceleration of the maturity of any Loan;
(d) the commencement of proceedings to collect or enforce any or all
of the Revolving Credit Obligations;
(e) the giving of any waiver or consent by the Administrative Agent on
behalf of the Lenders or the Required Lenders under any Loan Document;
(f) any material amendment or modification of any Loan Document; and
(g) the taking of any other action by the Administrative Agent or any
Lender which the Administrative Agent in its good faith judgment believes
would be of interest to the Fund Guarantors; and
(h) the issuance of instructions to the Collateral Agent regarding the
issuance of a Blockage Notice under the Indenture; provided that such
instructions shall be issued by the Administrative Agent only when it is
within the authority of the Administrative Agent to do so under Section
5.03.
ARTICLE IV
DECISIONMAKING
Section 4.01. Decisionmaking in Respect of the Collateral Agent.
(a) With respect to the matters covered by this Agreement, and
notwithstanding any provision of any Loan Document or Reimbursement
Documentation, (1) no Secured Party may exercise any right or power, enforce any
remedy, give any direction, consent or waiver or make any determination, under
or in respect of any provision of any Reimbursement Documentation or Loan
Document (including the issuance of a Blockage Notice under the Indenture),
except in accordance with this Agreement, and (2) the Collateral Agent shall not
exercise any discretion conferred on it under any Reimbursement Documentation or
Loan Document with respect to the exercise of any right or power, the
enforcement of any remedy, the giving of any direction, consent or waiver or the
making of any determination, under or in respect of any provision of any
Reimbursement Documentation or Loan Document, except in accordance with this
Agreement; provided, that:
(i) subject to Section 4.01(b), if, at any time, the Collateral Agent
proposes to exercise any discretion conferred on it under any Reimbursement
Documentation or Loan Document, then the Collateral Agent shall promptly
notify the Fund Guarantors of the matter in question, specifying:
(A) the manner in which the Collateral Agent proposes to exercise its
discretion, or the manner in which it is proposed that the Collateral Agent
exercise its discretion, with respect to the matter in question; and
(B) the Decision Period determined by the Collateral Agent within
which the Fund Guarantors must provide the Collateral Agent with
instructions with respect to the matter in question, and
(ii) the Fund Guarantors shall provide a certificate to the Collateral
Agent setting forth instructions for responding to each matter for which
instructions are sought by the Collateral Agent under Section 4.01(a)(i)
within the Decision Period therefor specified pursuant to Section
4.01(a)(i), which instructions shall be binding upon the Collateral Agent;
provided, that if the Fund Guarantors fail to provide a certificate setting
forth instructions for responding to any matter, the Collateral Agent shall
not take any action in respect of such matter; provided further that for so
long as the TPG Guarantor is a Non-Defaulting Guarantor, the TPG Guarantor
shall act on behalf of the Fund Guarantors, and if the TPG Guarantor is a
defaulting party, then the Non-Defaulting Guarantors (acting together, if
there is more than one) shall act on behalf of the Fund Guarantors.
(b) Notwithstanding anything to the contrary in this Agreement:
(i) the Administrative Agent shall not, without the consent of the
Fund Guarantors, have the right to consent or agree to amend, modify,
terminate, change or waive any provision of any Loan Document; and
(ii) the Fund Guarantors shall have the right in their sole discretion
to consent or agree to amend, modify, terminate, change or waive any
provision of the Reimbursement Documentation (including without limitation
actions resulting in the release, sale or pledging of the Collateral).
(c) Each decision made and each action taken by the Collateral Agent
in accordance with the provisions of this Agreement shall be binding upon
each of the Secured Parties.
(d) Nothing herein shall be deemed to prohibit the Administrative
Agent from accelerating the maturity of the Loans in the event of a
Guarantor Default.
ARTICLE V
DEFAULTS AND REMEDIES
Section 5.01. Notice of Default. Promptly after any party hereto
(whether independently or upon notice from a Lender pursuant to the Revolving
Credit Agreement) obtains actual knowledge of the occurrence of any Default or
Event of Default, as the case may be, such party shall promptly notify the
Collateral Agent and the other parties hereto thereof in a writing entitled
"Notice of Default" (a "Notice of Default"). Each such Notice of Default shall
describe such Default or Event of Default in reasonable detail (including, if
known by the party giving such notice, the date such Default or Event of Default
occurred). Upon receipt of any Notice of Default, the Collateral Agent shall
promptly deliver a copy thereof to the other parties hereto. Neither the
Administrative Agent nor the Collateral Agent shall be deemed to have knowledge
of any Default or Event of Default unless and until written notice thereof is
given to the Administrative Agent or the Collateral Agent, as applicable, by the
Borrower, a Lender, the other Agent or any other party hereto.
Section 5.02. Procedures Following Event of Default. After the
Collateral Agent shall have received a Notice of Default:
(a) At any time after the occurrence and during the continuance of a
Total Guarantor Default, the Administrative Agent may serve a notice on the
Collateral Agent which (i) describes the Event of Default with respect to
which the Administrative Agent is seeking to pursue remedies and (ii)
instructs the Collateral Agent to seek instructions from the Lenders as to
whether or not such Event of Default should be waived or any amendment
should be made to one or more of the Loan Documents in order to cure such
Event of Default. The Administrative Agent may and shall, if instructed to
do so by the Lenders, give any notice referred to in this Section 5.02 in
accordance with the Revolving Credit Agreement. If the Collateral Agent
receives any such notice from the Administrative Agent pursuant to this
Section 5.02(a), the Collateral Agent shall promptly notify the other
parties hereto and shall request instructions from the Administrative Agent
within the specified Decision Period as to whether or not the Event of
Default specified in such notice should be waived or any amendment should
be made to one or more of the Loan Documents in order to cure such Event of
Default.
(b) At any time after the occurrence and during the continuance of a
Partial Guarantor Default in which the TPG Guarantor is a not a defaulting
party, any Fund Guarantor or the Administrative Agent may serve a notice on
the Collateral Agent which (i) describes the Event of Default with respect
to which the Fund Guarantor or the Administrative Agent is seeking to
pursue remedies and (ii) instructs the Collateral Agent to seek
instructions from the TPG Guarantor as to whether or not such Event of
Default should be waived or any amendment should be made to the
Reimbursement Documentation and/or one or more of the Loan Documents in
order to cure such Event of Default. If the Collateral Agent receives any
notice from the TPG Guarantor pursuant to this Section 5.02(b), the
Collateral Agent shall promptly notify the other parties hereto and shall
request instructions from the TPG Guarantor within the specified Decision
Period as to whether or not the Event of Default specified in such notice
should be waived or any amendment should be made to the Reimbursement
Documentation and/or one or more of the Loan Documents in order to cure
such Event of Default.
(c) At any time after the occurrence and during the continuance of a
Partial Guarantor Default in which the TPG Guarantor is a defaulting party,
the Administrative Agent may serve a notice on the Collateral Agent which
(i) describes the Event of Default with respect to which the Administrative
Agent is seeking to pursue remedies and (ii) instructs the Collateral Agent
to seek instructions from the Non-Defaulting Guarantors as to whether or
not such Event of Default should be waived or any amendment should be made
to one or more of the Loan Documents in order to cure such Event of
Default. The Administrative Agent may and shall, if instructed to do so by
the Lenders, give any notice referred to in this Section 5.02 in accordance
with the Revolving Credit Agreement. If the Collateral Agent receives any
such notice from the Non-Defaulting Guarantors pursuant to this Section
5.02(a), the Collateral Agent shall promptly notify the other parties
hereto and shall request instructions from the Non-Defaulting Guarantors
within the specified Decision Period as to whether or not the Event of
Default specified in such notice should be waived or any amendment should
be made to one or more of the Loan Documents in order to cure such Event of
Default.
Nothing in this Section 5.02 shall be deemed to require the
Administrative Agent to waive a Guarantor Default.
Section 5.03. Exercise of Remedies. If the Collateral Agent has
received a Notice of Default pursuant to Section 5.01, and such Default or Event
of Default has not been waived and no amendment to the Loan Documents or
Reimbursement Documentation has been made to cure such Event of Default pursuant
to Section 5.02:
(a) At the instruction of the Non-Defaulting Guarantors, if any, or in
the case of a Total Guarantor Default, the Administrative Agent, the
Collateral Agent shall exercise the remedies specified in such instruction,
including (to the extent specified therein) (i) seeking to enforce the
Revolving Credit Security Documents or the Reimbursement Security
Documents, as the case may be, (ii) issuing a Blockage Notice or other
notices to the Trustee under the Indenture, (iii) seeking to realize upon
the Collateral or (iv) in the case of a proceeding against the Borrower or
any other Person under any applicable law relating to bankruptcy,
insolvency, liquidation, reorganization, moratorium, winding up or
composition or readjustment of debts or similar circumstances, seeking to
enforce the claims of the Secured Parties thereunder.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the Collateral Agent shall not, at the instruction of the
Administrative Agent or any Lender, commence or otherwise take any action
or proceeding to realize upon any or all of the Collateral or exercise any
other rights or enforce any other remedies available under the Loan
Documents or as a matter of law unless and until (i) a Guarantor Default
has occurred and is continuing, and (ii) the Administrative Agent has
exhausted all reasonably practical remedies available under the Guaranty.
Section 5.04. Application of Collateral Proceeds. Subject to Section
5.03, the proceeds of any collection, recovery, receipt, appropriation,
realization or sale of any or all of the Collateral (the "Collateral Proceeds")
shall be applied as follows:
(a) in the case of a Total Guarantor Default:
FIRST, to the payment of all costs and reasonable expenses incurred by
the Collateral Agent (in its capacity as such hereunder or under any other
Reimbursement Documentation) in connection with such collection or sale or
otherwise in connection with this Agreement or any of the Revolving Credit
Obligations, including all court costs and the reasonable fees and expenses
of its agents and legal counsel, the repayment of all advances made by the
Collateral Agent hereunder or under any other Loan Document on behalf of
any Grantor (as defined in Revolving Credit Security Documents) and any
other costs or expenses incurred in connection with the exercise of any
right or remedy hereunder or under any other Revolving Credit
Documentation;
SECOND, to the payment in full of the Revolving Credit Obligations
outstanding (the amounts so applied to be distributed among the Revolving
Credit Secured Parties pro rata in accordance with the amounts of the
Revolving Credit Obligations owed to them on the date of any such
distribution);
THIRD, to the payment in full of the Reimbursement Obligations
outstanding pro rata in accordance with the amounts, if any, of such
Reimbursement Obligations;
FOURTH, to the payment in full of the Indenture Obligations
outstanding; and
FIFTH, to the Grantors (as defined in Revolving Credit Security
Documents), their successors or assigns, or as a court of competent
jurisdiction may otherwise direct.
(b) in the case of a Partial Guarantor Default:
FIRST, to the payment of all costs and reasonable expenses incurred by
the Collateral Agent (in its capacity as such hereunder or under any other
Reimbursement Documentation) in connection with such collection or sale or
otherwise in connection with this Agreement, any of the Revolving Credit
Obligations and the Reimbursement Obligations, including all court costs
and the reasonable fees and expenses of its agents and legal counsel, the
repayment of all advances made by the Collateral Agent hereunder or under
any other Loan Document or Reimbursement Documentation on behalf of any
Grantor (as defined in Security Documents) and any other costs or expenses
incurred in connection with the exercise of any right or remedy hereunder
or under any other Loan Document and Reimbursement Documentation;
SECOND, (i) payment in full among such Non-Defaulting Guarantors in
accordance with the amounts paid under the Guaranty by such Non-Defaulting
Guarantors, in an aggregate amount equal to the product of (x) the
Collateral Proceeds and (y) a fraction the numerator of which shall be the
amount paid by all Non-Defaulting Guarantors under, pursuant to or in
connection with the Guaranty (the "Non-Defaulting Payment"), reduced by the
amount paid, if any, by the Borrower under, pursuant to and in connection
with the Reimbursement Agreement to reimburse any Non-Defaulting Guarantor,
and the denominator of which shall be the amount of the Guaranteed
Obligations (as defined in the Guaranty) then due and payable under the
Guaranty; and (ii) payment in full to the Administrative Agent for the
benefit of the Revolving Credit Secured Parties an amount equal to the
product of (x) the Collateral Proceeds and (y) a fraction the numerator of
which shall be the amount of all payments due and owing from the Borrower
under the Revolving Credit Agreement, reduced by the Non-Defaulting
Payment, and the denominator of which shall be the amount of the Guaranteed
Obligations (as defined in the Guaranty) then due and payable under the
Guaranty.
THIRD, to the payment in full of the Indenture Obligations
outstanding; and
FOURTH, to the Grantors (as defined in Revolving Credit Security
Documents), their successors or assigns, or as a court of competent
jurisdiction may otherwise direct.
(c) in the case of no Guarantor Default:
FIRST, to the payment of all costs and reasonable expenses incurred by
the Collateral Agent (in its capacity as such hereunder or under any other
Reimbursement Documentation) in connection with such collection or sale or
otherwise in connection with this Agreement or any of the Reimbursement
Obligations, including all court costs and the reasonable fees and expenses
of its agents and legal counsel, the repayment of all advances made by the
Collateral Agent hereunder or under any other Reimbursement Documentation
on behalf of any Grantor (as defined in Reimbursement Security Documents)
and any other costs or expenses incurred in connection with the exercise of
any right or remedy hereunder or under any other Reimbursement
Documentation;
SECOND, to the payment in full of the Reimbursement Obligations
outstanding pro rata in accordance with the amounts, if any, of such
Reimbursement Obligations;
THIRD, to the payment in full of the Revolving Credit Obligations
outstanding (the amounts so applied to be distributed among the Revolving
Credit Secured Parties pro rata in accordance with the amounts of the
Revolving Credit Obligations owed to them on the date of any such
distribution);
FOURTH, to the payment in full of the Indenture Obligations
outstanding; and
FIFTH, to the Grantors (as defined in Reimbursement Security
Documents), their successors or assigns, or as a court of competent
jurisdiction may otherwise direct.
ARTICLE VI
AMENDMENTS, TRANSFERS
Section 6.01. Amendments to this Agreement. No provision of this
Agreement may be amended, supplemented or otherwise modified except with the
prior written consent of the Fund Guarantors, the Administrative Agent (acting
at the direction of the Lenders pursuant to the Revolving Credit Agreement), and
the Collateral Agent; provided, that the Borrower shall be given notice of any
amendment to Section 5.04 hereof.
Section 6.02. Transfers of Obligations. In the event that any Fund
Guarantor, the Administrative Agent or any Lender proposes to sell or transfer
to one or more third parties all or part of its interest in the Reimbursement
Obligations or the Revolving Obligations (other than by the granting of a
participating interest therein), as the case may be, it (or, in the case of any
Lender, the Administrative Agent on its behalf) shall provide to such third
parties a copy of this Agreement, and no such sale or transfer shall be
undertaken if the effect thereof would be to cause any portion of such
Reimbursement Obligations or Revolving Credit Obligations to be held by any
person or entity which has not agreed to be bound by the terms of this
Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Notices. Any notice, request or other communication to be
given or made under this Agreement shall be in writing (it being understood that
telephone numbers are provided below for the purpose of confirmation only). The
notice, request or other communication may be delivered by hand, airmail,
facsimile or established courier service to the party's address specified below
or at such other address as such party notifies to the other parties from time
to time and will be effective upon receipt or, in the case of delivery by hand
or established courier service, upon refusal of the intended recipient to accept
delivery:
(a) If to the Fund Guarantors, to:
Texas Pacific Group
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Partners, L.P.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
TCW/Crescent Mezzanine Partners III, L.P.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Administrative Agent, to:
Citicorp USA, Inc.
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If to the Collateral Agent, to:
Citicorp USA, Inc.
▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(d) If to the Borrower, to:
MEMC Electronic Materials, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇'▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Section 7.02. Severability. If any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 7.03. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 7.04. Benefits of Agreement. Nothing in this Agreement, express
or implied, shall give to the Borrower, any other Related Party or any other
person or entity other than the parties hereto and their successors and
permitted assigns, any benefit or any legal or equitable right or remedy under
this Agreement. This Agreement shall be binding upon the parties hereto and
their respective successors, assigns or transferees who become Secured Parties
entitled to the benefits of the Collateral.
Section 7.05. Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all the counterparts shall together constitute one and the same instrument.
Section 7.06. No Partnership. Nothing contained in this Agreement and
no action by any Secured Party or the Collateral Agent is intended to constitute
or shall be deemed to constitute among such Secured Parties and the Collateral
Agent (or any of them) a partnership, association, joint venture or other
entity.
Section 7.07. No Impairments. Nothing in this Agreement is intended or
shall be construed to impair, diminish or otherwise adversely affect any other
rights the Secured Parties may have or may obtain against the Borrowers or any
other Related Party.
Section 7.08. Waivers. No waiver of any provision of this Agreement
shall be effective unless the same shall be in writing and signed by the Fund
Guarantors and the Administrative Agent (and, if such waiver increases the
obligations of the Collateral Agent, the Collateral Agent), and any such waiver
shall be effective only in the specific instance and for the specific purpose
for which given. No delay on the part of any Secured Party in the exercise of
any right, power or remedy shall operate as a waiver thereof, nor shall any
single or partial waiver by such Secured Party of any right, power or remedy
preclude any further exercise thereof, or the exercise of any other right, power
or remedy.
Section 7.09. Conflicts With Other Security Documents. In the event of
any conflict between the terms of this Agreement and any Reimbursement
Documentation or Loan Document, the provisions of this Agreement shall control.
For the avoidance of doubt, nothing in Section 5.02 shall be construed to
restrict the right of the Fund Guarantors, at any time, to elect to waive any
Event of Default other than a Guarantor Default or agree to any amendment of the
Reimbursement Documentation in order to cure such Event of Default, and nothing
in this Agreement shall be construed to restrict the unilateral exercise by any
Fund Guarantor of its rights under the Reimbursement Documentation. Nothing in
this Agreement shall be construed to restrict the exercise by the Administrative
Agent and the Lenders of their rights under the Guaranty.
Section 7.10. Integration. This Agreement represents the agreement of
the Secured Parties with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by any Secured Party
relative to subject matter hereof not expressly set forth or referred to herein
or in the Transaction Documents.
Section 7.11. Representations. Each of the parties hereto represents
and warrants, as to itself, that it has duly authorized, executed and delivered
this Agreement and that this Agreement is the legal, valid and binding
obligation of such party, enforceable against such party in accordance with its
terms.
Section 7.12. Termination. Upon the indefeasible payment in full of the
Guaranteed Obligations and the termination of the Commitments, this Agreement
shall terminate and shall be of no further force and effect.
Section 7.13. No Reliance. No Secured Party has relied on any
representation or warranty of any other Secured Party with respect to this
Agreement and the transactions contemplated hereunder unless such representation
or warranty has been set forth expressly in this Agreement.
Section 7.14. Certain Agreements. Nothing herein shall require the
Administrative Agent or the Collateral Agent to take any action that in the
reasonable opinion of the Administrative Agent or the Collateral Agent would be
contrary to the terms of this Agreement or applicable law or subject the
Administrative Agent or the Collateral Agent to personal liability. The
Administrative Agent or the Collateral Agent shall in all cases be fully
justified in failing or refusing to take such action unless it shall receive
further assurances to its reasonable satisfaction of any applicable
indemnification obligations in respect of such action.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Intercreditor Agreement as of the date first above written.
TPG PARTNERS III, L.P.
By: TPG GenPar III, L.P.
Its General Partner
By: TPG GenPar III, Inc.
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
TCW/CRESCENT MEZZANINE PARTNERS III, L.P.
AND TCW/CRESCENT MEZZANINE TRUST III
By: TCW/Crescent Mezzanine Management III,
L.L.C., as Its Investment Manager
By: TCW Asset Management Company,
as Its Sub-Advisor
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
GREEN EQUITY INVESTORS III, L.P.
By: GEI Capital III, LLC, as its
General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
GREEN EQUITY INVESTORS SIDE III, L.P.
By: GEI CAPITAL III, LLC,
as its General Partner
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
CITICORP USA, INC., as Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director and
Vice President
CITICORP USA, INC., as Collateral Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director and
Vice President
The undersigned hereby acknowledges and
agrees to the foregoing terms and
provisions. By acknowledging and
agreeing to this Agreement, the
undersigned acknowledges and
agrees to the provisions hereof as
they relate to the relative rights of the
Fund Guarantors, the Administrative Agent
and the Lenders.
ACKNOWLEDGED AND AGREED:
MEMC ELECTRONIC MATERIALS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
SCHEDULE I
--------------------------------------------------------------------------------
PARTY PERCENTAGE
================================================================================
Green Percentage 20%
--------------------------------------------------------------------------------
TPG Percentage 60%
--------------------------------------------------------------------------------
TCW Percentage 20%
--------------------------------------------------------------------------------