Exhibit 00.XXX
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 31, 2000
MEMC ELECTRONIC MATERIALS, INC., a Delaware corporation, as the borrower
(the "Borrower"), and E.ON AG, a company formed under the laws of the Federal
Republic of Germany ("E.ON"), 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:
Preliminary Statement
WHEREAS, Borrower and E.ON are parties to a Credit Agreement dated as of
July 10, 1995 (as amended by the First Amendment to Credit Agreement dated as of
July 1, 1998 and the Second Amendment to Credit Agreement dated as of September
1, 1998, the "Credit Agreement") pursuant to which E.ON agreed to extend up to
US$25,000,000 of credit to Borrower on a term basis;
WHEREAS, Borrower and E.ON wish to restructure the existing financing
provided by E.ON and its Affiliates to Borrower by extending the maturity dates
of certain of such loans until their respective anniversaries in 2002, providing
for 12-month adjustable interest rates commencing in 2001 for such loans and
otherwise amending the loan agreements relating to all of the loans; and
WHEREAS, as part of such restructuring, Borrower and E.ON desire to amend
the Credit Agreement herein set forth (this "Agreement").
NOW THEREFORE, in consideration of the foregoing premises and the mutual
covenants and conditions hereinafter set forth, the parties agree as follows:
ARTICLE I
AMENDMENT; DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Amendment. Subject to Section 8.06, the Credit Agreement
(including all Schedules and Exhibits thereto) is amended and restated in its
entirety as set forth in this Agreement.
SECTION 1.02. 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 50% 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.
"Amendment Effective Date" means December 31, 2000.
"Applicable Spread" means:
(a) for any extension period commencing before or on December 31,
2000, a percentage per annum equal to the excess of (i) the Bloomberg
fair market sector curves (adjusted for the chosen interest rate
method) applicable two business days prior to the Initial Termination
Date to a B3 rated industrial borrower for the period from the Initial
Termination Date through the latest possible Termination Date in 2001
(taking into account, if applicable, the latest Extension Termination
Date in 2001) over (ii) the corresponding Swap Rate for such period,
and
(b) for any extension period commencing on or after January 1,
2001, a percentage per annum equal to the excess of (i) the Bloomberg
fair market sector curves (adjusted for the chosen interest rate
method) applicable two business days prior to the Interest Rate
Measurement Date to a B3 rated industrial borrower for the
period from the Interest Rate Measurement Date through the latest
possible Termination Date in 2002 (taking into account, if applicable,
the latest Extension Termination Date in 2002) over (ii) the
corresponding Swap Rate for such period.
"Approved Capital Expenditures" means the aggregate amount for
Borrower and its Subsidiaries of (a) all purchases or acquisitions by
Borrower and its Subsidiaries of items considered to be capital items under
GAAP, which in any event shall include all expenditures capitalized in
accordance with GAAP relating to property, plant, equipment or software on
the consolidated balance sheet of Borrower and its Subsidiaries, and which
shall exclude any such purchases or acquisitions by a Subsidiary that were
purchased or acquired with Restricted Proceeds and/or with Restricted Net
Free Cash Flow, plus (b) any capital contributions or equity investments by
Borrower or its Subsidiaries in Borrower's unconsolidated joint ventures;
provided, that such expenditures, acquisitions, contributions or
investments were contained in the annual budget approved of in advance by
the board of directors of Borrower or were subsequently approved by the
board of directors of Borrower. For purposes of determining Approved
Capital Expenditures for a Subsidiary in a particular year, all Approved
Capital Expenditures in such year shall only be considered to have been
purchased or acquired by such Subsidiary with Restricted Proceeds and/or
with Restricted Net Free Cash Flow to the extent that the Consolidated Net
Free Cash Flow as determined for such Subsidiary on a stand-alone basis
(i.e., for that Subsidiary and its consolidated Subsidiaries only) for that
particular year is equal to or less than the amount of the Approved Capital
Expenditures by such Subsidiary during such year.
"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.
"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.
"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.
"Consolidated Net Free Cash Flow" shall mean, for any fiscal year, the
following amount:
(a) the sum of:
(i) Consolidated Net Income for such period, plus
(ii) Consolidated Working Capital Adjustment, plus
(iii) Consolidated depreciation and amortization expense
during such period, plus
(iv) the amount of cash dividends and distributions paid to
Borrower by Borrower's unconsolidated joint ventures during such
period, plus
(v) the excess, if any, of (i) the amount of expense for
contributions to be made to the MEMC Pension Plan and Borrower's
other retirement plans included in Consolidated Net Income, over
(ii) the amount of cash contributions made to the MEMC Pension
Plan and Borrower's other retirement plans, plus
(vi) any non-cash losses during such period not included in
the foregoing items (ii) through (v),
minus
(b) the sum of:
(i) the amount of Approved Capital Expenditures during
such period, plus
(ii) the aggregate amount of scheduled or required
permanent principal payments of Debt for borrowed money of
Borrower and its Subsidiaries during such period, plus
(iii) the aggregate amount of any voluntary permanent
repayments of principal by Borrower on E.ON Loans (which
repayments, in the case of any E.ON Loan that is a revolving
loan, are accompanied by a concurrent permanent reduction of the
revolving loan commitment) during such period, plus
(iv) the excess, if any, of (i) the amount of cash
contributions made to the MEMC Pension Plan and Borrower's other
retirement plans, but only to the extent such contributions are
required pursuant to such plans or to meet minimum funding
standards or to avoid participant notice requirements ERISA, over
(ii) the amount of expense for contributions to be made to the
MEMC Pension Plan and Borrower's other retirement plans included
in Consolidated Net Income, plus
(v) any non-cash income during such period not
included in items (i) through (iv).
Notwithstanding the foregoing, Consolidated Net Free Cash Flow shall
exclude any Restricted Net Free Cash Flow.
"Consolidated Net Income" means, for any period, the Consolidated net
income (or loss) of Borrower and its Subsidiaries for such period (on a
Consolidated basis in conformity with GAAP).
"Consolidated Working Capital" means, as at any date of determination,
the excess (or deficit) of (a) the total assets of Borrower and its
Subsidiaries on a Consolidated basis which may properly be classified as
current assets in conformity with GAAP, excluding the current portion of
deferred tax assets and cash and cash equivalents over (b) the total
liabilities of Borrower and its Subsidiaries on a Consolidated basis which
may properly be classified as current liabilities in conformity with GAAP,
excluding the current portions of Debt.
"Consolidated Working Capital Adjustment" means, for any period on a
Consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or
is less than) Consolidated Working Capital as of the end of such period.
"Debt" means (a) indebtedness for borrowed money, (b) obligations
evidenced by bonds, debentures, notes or other similar instruments, (c)
obligations to pay the deferred purchase price of property or services, (d)
obligations as lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles, recorded as
capital leases, and (e) obligations under direct or indirect guaranties
(other than guaranties of Debt of Borrower's Affiliates which Debt is
otherwise included in Debt) 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.
"Domestic Lending Office" means, with respect to any Bank, the office
of such Bank specified as its "Domestic 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.
"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.
"E.ON Loans" means any and all existing and future Debt of Borrower to
E.ON and its Affiliates, including without limitation the term loans and
revolving loans outstanding between Borrower and E.ON and its Affiliates on
the date hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Certificate" has the meaning specified in Section 2.15.
"Extension Period Interest Rate" means:
(a) for any extension period commencing before or on December 31,
2000, two business days prior to the Initial Termination Date, (i)
either the British Bankers' Association (BBA) LIBOR rate (as shown on
the Reuters page FRBD or comparable pages) for the 12-month period or
the Swap Rate for the 24-month period or the 36-month period
commencing from the Initial Termination Date as follows: (x) the
36-month period for Advances subject to an Initial Termination Date on
or prior to December 31, 1998, (y) the 24-month period for Advances
subject to an Initial Termination Date on or prior to December 31,
1999, or (z) the 12-month period for all other Advances, plus (ii) the
Applicable Spread, and
(b) for any extension period commencing on or after January 1,
2001, two business days prior to the Interest Rate Measurement Date,
(i) the British Bankers' Association (BBA) LIBOR rate (as shown on the
Reuters page FRBD or comparable pages) for the 12-month period
commencing from the Interest Rate Measurement Date plus (ii) the
Applicable Spread.
"Extension Request Notice" has the meaning set forth in Section 2.15.
"Extension Termination Date" means the earlier of (a) either (i) the
first anniversary of the earlier of (A) the Initial Termination Date or (B)
the 45th Business Day following the Change of Control Date, or (ii) if
there has been an earlier applicable Extension Termination Date on or prior
to December 31, 2000, the first anniversary of such prior Extension
Termination Date, or (iii) if there has been an earlier applicable
Extension Termination Date after December 31, 2000 and on or before
December 31, 2001, 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 December 31, 2002.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by the
Agent from three federal funds brokers of recognized standing selected by
it.
"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.
"Initial Termination Date" for any Advance means September 30, 1998.
"Interest Rate Measurement Date" means, with respect to each annual
extension and adjustment of interest rates pursuant to Section 2.15 on or
after January 1, 2001, (a) for Advances having an Initial Termination Date
on or after January 1, 2001, the earlier of (A) the Initial Termination
Date or (B) the 45th Business Day following the Change of Control Date and,
thereafter, the then applicable Extension Termination Date and (b) for all
other Advances, the then applicable Extension Termination Date.
"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.
"Net Proceeds" means, with respect to any issuance of debt securities
(including debt securities convertible into equity) or any incurrence of
Debt (other than non-interest bearing Debt not for borrowed money (i.e.,
customer deposits), other than Debt from E.ON or its Affiliates
and other than Debt to the extent incurred to refinance, in whole or in
part, Debt for borrowed money outstanding as of December 31, 2000), an
amount equal to the cash proceeds received in respect thereof (including
cash proceeds received as income or other proceeds of any noncash
proceeds), less any direct expenses reasonably incurred by Borrower and its
Subsidiaries in connection therewith and excluding any Restricted Proceeds.
"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.
"Reference Banks" means, collectively, no more than two banks
designated by the Agent and no more than two banks designated by the
Borrower for the purpose of determining the Applicable Margin.
"Register" has the meaning specified in Section 8.07(c).
"Repayment Date" means, with respect to the Advances comprising a
Borrowing, the date specified by the Borrower in the Borrowing Notice for
such Borrowing on which the Borrower agrees to repay the aggregate
principal amount of the Advances comprising such Borrowing; provided that
such date shall not be later than the Termination Date. Notwithstanding the
foregoing, if the Initial Termination Date or, if applicable, the Extension
Termination Date is extended to an Extension Termination Date, then the
"Repayment Date" shall also be extended to such Extension Termination Date.
"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
Extension Period Interest Rate and, if no lesser interest rate is
available, shall be the Extension Period Interest Rate.
"Required Lenders" means, at any time, Lenders owed at least 51% of
the then aggregate unpaid principal amount of Advances owing to Lenders or,
if no such principal amount is then outstanding, Lenders having at least
51% of the Commitments.
"Restricted Net Free Cash Flow" means Consolidated Net Free Cash Flow
as determined for a Subsidiary on a stand-alone basis (i.e., for that
Subsidiary and its consolidated Subsidiaries only), to the extent that the
declaration or payment of dividends or similar distributions by that
Subsidiary of such net free cash flow is not at that time permitted by
operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary.
"Restricted Proceeds" means cash proceeds received by a Subsidiary
from any issuance of debt securities or any incurrence of Debt, to the
extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of such proceeds is not at that time
permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc.
"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.).
"Taxes" has the meaning specified in Section 2.12(a).
"Termination Date" means the earlier of (a) either the Initial
Termination Date 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 1.03. 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 1.04. 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 $10,000,000 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. The Borrower is not
entitled to reborrow any repaid or prepaid portion of any Advance. As of the
Amendment Effective Date, the Lender's Commitments have been fully drawn by the
Borrower and no further Advances shall hereafter be made.
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 date of
such Borrowing, the amount of such Borrowing and the Repayment Date of the
Advances comprising such Borrowing. 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 Domestic 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) Any 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.
(c) 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.
(d) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on the date of
any Borrowing.
SECTION 2.03. Commitment Fee. The Borrower agrees to pay to the Agent for the
account of each Lender a commitment fee on the unused portion of such Lender's
Commitment from the Effective Date in the case of the Initial Lender and from
the effective date specified in the Assignment and Acceptance pursuant to which
it became a Lender in the case of each other Lender until the Termination Date
at a rate per annum equal to 1/4 of 1%, payable in arrears quarterly on the last
day of each March, June, September and December, commencing September 30, 1995,
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 in part the unused Commitments of the
Lenders, provided that each partial reduction shall be in the amount of
$1,000,000 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 the aggregate principal amount of the Advances then
outstanding comprising each Borrowing on the Repayment Date for such Borrowing.
SECTION 2.06. Interest. (a) Interest on the Advances. From December 31, 2000,
until such principal amount shall be paid in full, the Borrower shall pay
interest on the unpaid principal amount of the Advances, if any, which interest
shall be payable semiannually, at an interest rate per annum equal to the
applicable rate for each Advance as listed on Schedule I hereto under the
heading "Interest Rate"; provided, however, that if the Change of Control Date
occurs more than 45 Business Days prior to the Initial Termination Date, then as
of the date occurring 45 Business Days after the Change of Control Date, the
interest rate per annum shall be the higher of (x) the applicable rate for each
Advance as listed on Schedule I hereto under the heading "Interest Rate" and (y)
the rate determined under clause (b)(i) of the definition of Extension Period
Interest Rate, determined as of the Change of Control Date (rather than the
Initial Termination Date), plus the Applicable Spread; provided, that in the
event of an extension of the then applicable Termination Date to the Extension
Termination Date pursuant to Section 2.15 hereto, from the then applicable
Termination Date to the Extension Termination Date, the interest rate per annum
shall be equal to the Extension Period Interest Rate.
(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. Optional Prepayments and Reductions of Commitment. (a) The
Borrower may, upon at least three Business Days' notice to the Agent stating the
proposed date and the aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the outstanding principal amount of
the Advances in whole or ratably in part, together with (i) accrued interest to
the date of such prepayment on the principal amount prepaid and (ii) any amount
payable pursuant to Section 8.04(c); provided, however, that each such partial
prepayment shall be in an aggregate principal amount of not less than $5,000,000
or an integral multiple of $1,000,000 in excess thereof.
(b) Upon the prepayment in whole or in part of the Advances in
accordance with subsection (a) of this Section 2.08, the Commitments of the
Lenders shall be automatically reduced ratably by the amount of such
prepayment.
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
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 Domestic
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 Domestic 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.
(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 Domestic 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 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 W-8BEN 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 W-8BEN, 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, 2001 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 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
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 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 Extension Period 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 December 31, 2001 or be on a date after
December 31, 2002.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01. Section
2.01 of this Agreement became effective on and as of the first date (the
"Effective Date") on which the following conditions precedent were satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 1994.
(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 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. Effective as of
the Effective Date and, other than the last sentence of Section 4.01(e), as of
the date of each Borrowing, 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, 1994 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 December 31, 1994 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:
(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;
(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 LLP or other independent public accountants reasonably acceptable
to the Lenders;
(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
(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.
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.
SECTION 5.03. Mandatory Repayment of E.ON Loans. (a) In addition to any other
mandatory repayments or commitment reductions pursuant to this Agreement, within
90 days after the end of each fiscal year commencing with the fiscal year ending
December 31, 2000, Borrower shall pay E.ON an amount equal to 50% of the
Consolidated Net Free Cash Flow for such year as a mandatory repayment of
principal of outstanding E.ON Loans in accordance with the requirements of
Section 5.03(d). Within 80 days after the end of each fiscal year, Borrower
shall deliver to E.ON a certificate setting forth its calculation of the
Consolidated Net Free Cash Flow for the prior year and the components thereof,
together with documents supporting such calculation.
(b) In addition to any other mandatory repayments or commitment
reductions pursuant to this Agreement, on each date on or after the
Amendment Effective Date upon which any of Borrower or its Subsidiaries
receives any Net Proceeds, Borrower shall pay to E.ON an amount equal to
75% of the Net Proceeds as a mandatory repayment of principal of
outstanding E.ON Loans in accordance with the requirements of Section
5.03(d). At the time of each payment under the preceding sentence, Borrower
shall deliver to E.ON a certificate setting forth a calculation of the Net
Proceeds received by Borrower and its Subsidiaries in such financing,
together with documents supporting such calculation. Within 30 days after
the end of each fiscal year, Borrower shall deliver to E.ON a certificate
certifying that Borrower and its Subsidiaries have not received any Net
Proceeds during the prior fiscal year that would have been subject to this
Section 5.03(b) other than those for which Borrower made all payments
required by this Section 5.03(b).
(c) To the extent that any Subsidiary has Restricted Proceeds and/or
Restricted Net Free Cash Flow in a fiscal year, Borrower shall use
reasonable commercial efforts to obtain as soon as
practicable such Restricted Proceeds and/or Restricted Net Free Cash Flow
from such Subsidiary by way of loans, dividends or similar distributions
(taking into account tax consequences and such Subsidiary's reasonable
capital requirements) in subsequent fiscal years and, in the case of
Restricted Proceeds, in the same fiscal year. Any such Restricted Proceeds
and/or Restricted Net Free Cash Flow received by Borrower in subsequent
fiscal years by way of loans, dividends, reductions or repurchases of
equity, share redemptions or similar distributions shall be considered Net
Proceeds or Consolidated Net Free Cash Flow, as the case may be, in such
subsequent fiscal years, and within forty-five (45) days following the end
of the calendar quarter in which such funds have been received by Borrower,
Borrower shall pay to E.ON as a mandatory repayment of principal of
outstanding E.ON Loans an amount equal to 50% of the Restricted Net Free
Cash Flow so received by Borrower and 75% of the Restricted Proceeds so
received by Borrower. For purposes of this Section 5.03(c), the amount of
Restricted Net Free Cash Flow generated in a particular fiscal year shall
be limited to the lesser of (i) the Restricted Net Free Cash Flow for such
fiscal year and (ii) the sum of the Consolidated Net Free Cash Flow and the
Restricted Net Free Cash Flow for such fiscal year. By way of illustration,
if the Consolidated Net Free Cash Flow for a particular fiscal year is
negative $10 million and the Restricted Net Free Cash Flow for such fiscal
year is positive $30 million, then for purposes of this Section 5.03(c) the
Restricted Net Free Cash Flow considered to be generated in such fiscal
year shall be $20 million.
(d) Each amount required to be applied to repay E.ON Loans pursuant to
Sections 5.03(a), (b) or (c) shall be applied (i) first, to repay the
remaining scheduled principal payments of the then outstanding E.ON Loans
that are term loans, and (ii) second, if all outstanding E.ON Loans that
are term loans have been fully repaid, to repay the principal amount of any
then outstanding E.ON Loans that are revolving loans (and permanently
reduce the revolving loan commitment under such loan); provided, that in
each case, Borrower shall propose to E.ON, and Borrower and E.ON shall seek
to agree on, which term loan or revolving loan shall be repaid and which
advance or advances thereunder; provided, further, that if Borrower and
E.ON cannot agree on which term loan or revolving loan and which advances
shall be repaid, E.ON may make such determination in its sole discretion;
provided, further, that Borrower shall not be required to repay any loan
prior to its Initial Termination Date unless all other E.ON Loans with
earlier Initial Termination Dates have previously been repaid. In addition
to each amount required to be applied to repay E.ON Loans pursuant to
Sections 5.03(a), (b) or (c) Borrower shall pay accrued interest to the
date of such repayment on the principal amount repaid. Borrower shall not
be required to pay any amounts under Section 8.04(c) in connection with any
loans repaid pursuant to Sections 5.03(a), (b) or (c).
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) the Borrower shall fail to pay (i) any principal of any Advance
when the same becomes due and payable or (ii) any interest on any Advance
or any other amount payable under this Agreement or any Note within ten
days from the date the same becomes due and payable; or
(b) any representation or warranty made by the Borrower herein or by
the Borrower (or any of its officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or
(c) (i) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in subsection (c) 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
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 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. E.ON. With respect to its Commitment, the Advance made by it and
the Note issued to it, E.ON 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 E.ON 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.
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 000 Xxxxx Xxxxx, Xx. Xxxxxx, Xxxxxxxx 00000,
Attention: Treasurer (telecopier number (000) 000-0000); if to the Initial
Lender or the Agent, at Xxxxxxxxxxxxxx 0, X-00000 Xxxxxxxxxx, Xxxxxxx,
Attention: President (telecopier number 49 211 4579 354), with a copy to E.ON
North America, Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention:
Corporate Finance (telecopier number (000) 000-0000); if to any other Lender or
any Bank, at its Domestic 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 2.06 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 Schedule or 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.
(c) If any prepayment is made by Borrower pursuant to Section 2.08,
the Borrower shall, upon demand by the Initial Lender, pay to the Initial
Lender the amount required to compensate the Initial Lender for any loss of
anticipated profit, if any, incurred by reason of such prepayment equal to
the difference (but not less than $0) between (i) the present value of the
aggregate amount of interest payments that would have become due on the
principal amount prepaid had such amount not been prepaid and (ii) the
present value of the rate of return anticipated in respect of the
reemployment or investment of the proceeds of such principal amount prepaid
for the period of time equal to the period from the date of such prepayment
to the Repayment Date. The Initial Lender shall use good faith in the
reemployment or investment of the proceeds of such prepayment and the
determination of any amount payable by the Borrower under this Section
8.04(c).
(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 upon the
Amendment Effective Date. Prior to the Amendment Effective Date, the Credit
Agreement shall remain in full force and effect.
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 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 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.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
MEMC ELECTRONIC MATERIALS, INC.,
as Borrower
By /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
E.ON AG, as Agent
By /s/ Xxxxxx Xxxxxxxxxxx
------------------------------------
Name: Xx. Xxxxxx Xxxxxxxxxxx
Title: Chief Financial Oficer
By /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xx. Xxxxxxx Xxxxxxx
Title: Vice President
E.ON AG, as Initial Lender
By /s/ Xxxxxx Xxxxxxxxxxx
------------------------------------
Name: Xx. Xxxxxx Xxxxxxxxxxx
Title: Chief Financial Oficer
By /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xx. Xxxxxxx Xxxxxxx
Title: Vice President
Schedule I
to
Amended and Restated Credit Agreement
Interest Rate per Advance
Advance Date Advance Amount Interest Rate
October 1, 1996 $25,000,000 9.48%
Exhibit A to the
Credit Agreement
FORM OF PROMISSORY NOTE
U.S. $____________________ Dated: __________________, ______
FOR VALUE RECEIVED, the undersigned, MEMC ELECTRONIC MATERIALS, INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
[NAME OF LENDER], a [JURISDICTION] corporation (the "Lender") for its account on
the Termination Date (as defined in the Credit Agreement referred to below) the
principal SUM OF U.S.$[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 Credit Agreement dated as of July 10, 1995 between the Borrower
and E.ON AG, a company formed under the laws of the Federal Republic of Germany
("E.ON"), 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 E.ON, 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 on any
Business Day during the period from the Effective Date until the Termination
Date 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:
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of Principal Unpaid Principal Notation
Date Amount of Advance Paid or Prepaid Balance Made By
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Exhibit B to the
Credit Agreement
FORM OF NOTICE OF BORROWING
E.ON AG, as Agent
for the Lenders parties
to the Credit Agreement
referred to below
X-00000 Xxxxxxxxxx
[Date]
Attention: ______________________
Ladies and Gentlemen:
The undersigned, MEMC ELECTRONIC MATERIALS, INC., refers to the Credit
Agreement, dated as of July 10, 1995 (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 E.ON 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 aggregate amount of the Proposed Borrowing is
$________________.
(c) The Repayment Date of the Advances comprising such 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 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.
Exhibit C to the
Credit Agreement
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of July 10, 1995 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") between MEMC ELECTRONIC MATERIALS, INC., a Delaware corporation (the
"Borrower"), and E.ON AG, a company formed under the laws of the Federal
Republic of Germany ("E.ON"), 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.
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.
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:
Domestic Lending office
[ADDRESS]
Accepted this ______ day
of _______________, ____
E.ON AG, as Agent
By:____________________________
Title:
---------------
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
