Exhibit 16
REVOLVING CREDIT AGREEMENT
dated as of
December 21, 2001,
among
MEMC ELECTRONIC MATERIALS, INC. as Borrower,
The Lenders Party Hereto,
and
CITICORP USA, INC.,
as Administrative Agent and Collateral Agent
XXXXXXX XXXXX XXXXXX INC.,
as Arranger and Sole Bookrunner
Page
ARTICLE I
DEFINITIONS
Section 1.01. Defined Terms.................................................1
Section 1.02. Terms Generally..............................................22
Section 1.03. Accounting Terms; GAAP.......................................23
ARTICLE II
THE CREDITS
Section 2.01. Commitments..................................................23
Section 2.02. Loans and Borrowings.........................................23
Section 2.03. Requests for Borrowings......................................24
Section 2.04. Funding of Borrowings........................................24
Section 2.05. Interest Elections...........................................25
Section 2.06. Termination and Reduction of Commitments.....................26
Section 2.07. Repayment of Loans; Evidence of Debt.........................27
Section 2.08. Prepayment of Loans..........................................27
Section 2.09. Fees.........................................................30
Section 2.10. Interest.....................................................30
Section 2.11. Alternate Rate of Interest...................................31
Section 2.12. Increased Costs..............................................31
Section 2.13. Break Funding Payments.......................................32
Section 2.14. Taxes........................................................33
Section 2.15. Payments Generally; Pro Rata Treatment; Sharing of Set-offs..34
Section 2.16. Mitigation Obligations; Replacement of Lenders...............36
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Organization; Powers.........................................36
Section 3.02. Authorization; Enforceability................................37
Section 3.03. Governmental Approvals; No Conflicts.........................37
Section 3.04. Financial Condition; No Material Adverse Change..............37
Section 3.05. Properties...................................................37
Section 3.06. Litigation and Environmental Matters.........................38
Section 3.07. Compliance with Laws and Agreements..........................39
Section 3.08. Investment and Holding Company Status........................39
Section 3.09. Taxes........................................................39
Section 3.10. ERISA........................................................39
Section 3.11. Disclosure...................................................40
Section 3.12. Subsidiaries.................................................40
Section 3.13. Insurance....................................................40
Section 3.14. Labor Matters................................................40
ARTICLE IV
CONDITIONS
Section 4.01. Effective Date..............................................41
Section 4.02. Each Borrowing..............................................43
Section 4.03. Initial $30,000,000 of Borrowings...........................43
ARTICLE V
AFFIRMATIVE COVENANTS
Section 5.01. Financial Statements and Other Information..................44
Section 5.02. Notices of Material Events..................................45
Section 5.03. Information Regarding Collateral............................46
Section 5.04. Existence; Conduct of Business..............................46
Section 5.05. Payment of Obligations......................................47
Section 5.06. Maintenance of Properties...................................47
Section 5.07. Insurance...................................................47
Section 5.08. Casualty and Condemnation...................................47
Section 5.09. Books and Records; Inspection and Audit Rights..............47
Section 5.10. Compliance with Laws........................................47
Section 5.11. Use of Proceeds.............................................48
Section 5.12. Additional Subsidiaries.....................................48
Section 5.13. Further Assurances; Transfer of Joint Venture Stock.........48
ARTICLE VI
NEGATIVE COVENANTS
Section 6.01. Indebtedness; Certain Equity Securities.....................49
Section 6.02. Liens.......................................................50
Section 6.03. Fundamental Changes.........................................51
Section 6.04. Investments, Loans, Advances, Guarantees and Acquisitions...52
Section 6.05. Asset Sales.................................................54
Section 6.06. Sale and Leaseback Transactions.............................55
Section 6.07. Hedging Agreements..........................................55
Section 6.08. Restricted Payments; Certain Payments of Indebtedness.......55
Section 6.09. Transactions with Affiliates................................56
Section 6.10. Restrictive Agreements......................................56
Section 6.11. Amendment of Material Documents.............................57
Section 6.12. Minimum Quarterly Consolidated EBITDA.......................57
Section 6.13. Minimum Monthly Consolidated Backlog........................58
Section 6.14. Minimum Monthly Consolidated Revenue........................59
Section 6.15. Capital Expenditures........................................61
ARTICLE VII
EVENTS OF DEFAULT
ARTICLE VIII
THE AGENTS
ARTICLE IX
MISCELLANEOUS
Section 9.01. Notices.....................................................66
Section 9.02. Waivers; Amendments.........................................67
Section 9.03. Expenses; Indemnity; Damage Waiver..........................68
Section 9.04. Successors and Assigns......................................69
Section 9.05. Survival....................................................71
Section 9.06. Counterparts; Integration; Effectiveness....................71
Section 9.07. Severability................................................72
Section 9.08. Right of Setoff.............................................72
Section 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO
SERVICE OF PROCESS..........................................72
Section 9.10. WAIVER OF JURY TRIAL........................................73
Section 9.11. Headings....................................................73
Section 9.12. Confidentiality.............................................73
Section 9.13. Interest Rate Limitation....................................73
SCHEDULES:
Schedule 1.01 -- Mortgaged Properties
Schedule 2.01 -- Commitments
Schedule 3.03 -- Conflicts
Schedule 3.05 -- Real Property
Schedule 3.06 -- Disclosed Matters
Schedule 3.10(a) -- Borrower Benefit Plans
Schedule 3.10(b) -- Borrower Benefit Plan Representations
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 3.14 -- Labor Matters
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Existing Investments
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Borrower's Counsel
Exhibit B-2 -- Form of Opinion of Local Counsel
Exhibit C -- Guarantee Agreement
Exhibit D -- Indemnity, Subrogation and Contribution Agreement
Exhibit E -- Pledge Agreement
Exhibit F -- Security Agreement
Exhibit G -- Form of Borrowing Request
REVOLVING CREDIT AGREEMENT dated as of December 21, 2001 (this
"Agreement"), among MEMC ELECTRONIC MATERIALS, INC., the LENDERS party hereto,
and CITICORP USA, INC., as administrative agent and collateral agent hereunder.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Citicorp USA, Inc., in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
Notwithstanding the foregoing, no individual shall be deemed to be an Affiliate
of a Person solely by reason of his or her being an officer or director of such
Person.
"Agents" means the Administrative Agent and the Collateral
Agent.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, (a) 0.50% per annum, in
the case of an ABR Loan, or (b) 1.50% per annum, in the case of a Eurodollar
Loan.
"Approved Fund" means, with respect to any Lender that is a
fund that invests in bank loans and similar commercial extensions of credit, any
other fund that invests in bank loans and similar commercial extensions of
credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of (a) the Maturity Date and (b) the
date of termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means MEMC Electronic Materials, Inc., a Delaware
corporation.
"Borrower Benefit Plans" means each employee or director
benefit or compensation plan, arrangement or agreement, including pension,
savings, welfare, medical or life insurance, severance, fringe benefit,
executive compensation, deferred compensation, incentive, bonus and long-term
performance option and other equity-based compensation plans, arrangements or
agreements, including any "employee benefit plans" as defined in Section 3(3) of
ERISA, whether or not subject to ERISA, and each employment, retention,
consulting, change in control, termination or severance plan, program,
arrangement or agreement that was entered into or is maintained by or to which
the Borrower or any of its Subsidiaries contribute or is obligated to contribute
or with respect to which the Borrower or any of its Subsidiaries has any
liability, direct or indirect, contingent or otherwise, or otherwise providing
benefits to any current or former employee, officer or director of the Borrower
or any of its Subsidiaries.
"Borrowing" means Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed, provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Expenditures" means, for any period, without
duplication, (a) the additions to property, plant and equipment and other
capital expenditures of the Borrower and its consolidated Subsidiaries that are
(or would be) set forth in a consolidated statement of cash flows of the
Borrower for such period prepared in accordance with GAAP and (b) Capital Lease
Obligations incurred by the Borrower and its consolidated Subsidiaries during
such period, provided that the term "Capital Expenditures" (i) shall be net of
landlord construction allowances, (ii) shall not include expenditures made in
connection with the repair or restoration of assets with insurance or
condemnation proceeds and (iii) shall not include the purchase price of
equipment to the extent consideration therefor consists of used or surplus
equipment being traded in at such time or the proceeds of a concurrent sale of
such used or surplus equipment, in each case in the ordinary course of business.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital lease obligations on a balance sheet of such Person
under GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
"Certificate of Designations" means the Certificate of
Designations for the Cumulative Preferred Stock, as filed with the Secretary of
State of the State of Delaware.
"Change in Control" means (a) the failure by TPG to own (and
retain the right to vote), directly or indirectly, beneficially and of record,
Equity Interests in the Borrower representing greater than 15% of each of the
aggregate ordinary voting power and aggregate value represented by the issued
and outstanding Equity Interests in the Borrower; (b) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
group (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the
Effective Date), of Equity Interests representing a greater percentage of either
the aggregate ordinary voting power or the aggregate value represented by the
issued and outstanding Equity Interests in the Borrower then owned, directly or
indirectly, beneficially and of record, by TPG; or (c) occupation of a majority
of the seats (other than vacant seats) on the board of directors of the Borrower
by Persons who were neither (i) nominated by the board of directors of the
Borrower nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the Effective Date, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the Effective Date or (c) compliance by any Lender (or by any
lending office of such Lender or by such Lender's holding company, if any) with
any request, guideline or directive (whether or not having the force of law) of
any Governmental Authority first made or issued after the Effective Date.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral" means any and all "Collateral", as defined in any
applicable Security Document.
"Collateral Agent" means the "Collateral Agent", as defined in
any applicable Security Document.
"Collateral and Guarantee Requirement" means the requirement
that:
(a) the Agents shall have received from each Loan Party either
(i) a counterpart of each of the Guarantee Agreement, the Indemnity, Subrogation
and Contribution Agreement, the Pledge Agreement and the Security Agreement duly
executed and delivered on behalf of such Loan Party or (ii) in the case of any
Person that becomes a Loan Party after the Effective Date, a supplement to each
of the Guarantee Agreement, the Indemnity, Subrogation and Contribution
Agreement, the Pledge Agreement and the Security Agreement, in each case in the
form specified therein, duly executed and delivered on behalf of such Loan
Party;
(b) all outstanding Equity Interests of the Borrower and each
Subsidiary owned directly by or directly on behalf of any Loan Party, shall have
been pledged pursuant to the Pledge Agreement (except that the Loan Parties
shall not be required to pledge (i) more than 65% of the outstanding voting
stock of any Foreign Subsidiary, (ii) the Equity Interests in MEMC Southwest
Inc., or (iii) the Joint Venture Stock) and the Collateral Agent shall have
received certificates or other instruments representing all such Equity
Interests, together with stock powers or other instruments of transfer with
respect thereto endorsed in blank;
(c) all Indebtedness of the Borrower and each Subsidiary that
is owing to any Loan Party shall be evidenced by a promissory note and shall
have been pledged pursuant to the Pledge Agreement and the Collateral Agent
shall have received all such promissory notes, together with instruments of
transfer with respect thereto endorsed in blank;
(d) all documents and instruments, including Uniform
Commercial Code financing statements, required by law or reasonably requested by
the Collateral Agent to be filed, registered or recorded to create the Liens
intended to be created by the Security Agreement and the Pledge Agreement
(including any supplements thereto), and perfect such Liens to the extent
required by, and with the priority required by, the Security Agreement and the
Pledge Agreement, shall have been filed, registered or recorded or delivered to
the Collateral Agent for filing, registration or recording;
(e) the Collateral Agent shall have received (i) counterparts
of a Mortgage with respect to each Mortgaged Property providing that the Loans
(in addition to the other Revolving Credit Obligations) shall be secured by a
Lien on such Mortgaged Property, signed on behalf of the record owner of such
Mortgaged Property, (ii) a policy or policies of title insurance issued by a
nationally recognized title insurance company, insuring the Lien of each such
Mortgage as a valid first Lien on the Mortgaged Property, described therein,
free of any other Liens except as expressly permitted by Section 6.02, together
with such endorsements, coinsurance and reinsurance as the Agents or the
Required Lenders may reasonably request, and (iii) such surveys, abstracts,
appraisals, legal opinions and other documents as the Agents or the Required
Lenders may reasonably request with respect to any such Mortgage or Mortgaged
Property, as the case may be; and
(f) each Loan Party shall have obtained all material consents
and approvals required to be obtained by it in connection with the execution and
delivery of all Security Documents (or supplements thereto) to which it is a
party, the performance of its obligations thereunder and the granting by it of
the Liens thereunder.
"Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Loans hereunder, expressed as an
amount representing the maximum aggregate amount of such Lender's Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.06 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount of
each Lender's Commitment is set forth on Schedule 2.01 (as of the Effective
Date), or in the Assignment and Acceptance pursuant to which such Lender shall
have assumed its Commitment, as applicable. The initial aggregate amount of the
Lenders' Commitments is $150,000,000; provided, that in no event shall the
aggregate amount of the Commitments exceed (i) $50,000,000 at any time prior to
January 1, 2002, (ii) $75,000,000 at any time prior to Xxxxx 0, 0000, (xxx)
$100,000,000 at any time prior to July 1, 2002 or (iv) $125,000,000 at any time
prior to October 1, 2002.
"Consolidated Backlog" for any calendar month means, as of any
measurement date, the sum total of wafers (as measured in millions of square
inches) which has been shipped in respect of bona fide sales to third party
customers during such month to (and including) such measurement date and
remaining shipments which are reasonably expected by the Borrower to be made in
respect of bona fide sales to third party customers from (but excluding) such
measurement date through the last calendar day of the month by the Borrower and
its consolidated Subsidiaries. Amounts expected to be shipped shall be evidenced
by third party customer orders including purchase orders, purchase order
releases pursuant to blanket purchase orders and/or customer buy plans
communicated by electronic data interchange communications, e-mail messages or
via telephone to an MEMC customer service representative or salesperson.
"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period (but excluding any minority interest, equity in income or
loss of joint ventures and royalty income) plus, (a) without duplication and to
the extent deducted in determining such Consolidated Net Income, the sum of (i)
consolidated interest expense for such period, (ii) consolidated income tax
expense for such period, (iii) all amounts attributable to depreciation and
amortization for such period, (iv) all extraordinary charges during such period
and (v) all other noncash expenses or losses of the Borrower or any of the
Subsidiaries for such period (excluding any such charge that constitutes an
accrual of or a reserve for cash charges for any future period), and minus (b)
without duplication and to the extent included in determining such Consolidated
Net Income, (i) any extraordinary gains for such period, (ii) all noncash items
increasing Consolidated Net Income for such period (excluding any items that
represent the reversal of any accrual of, or cash reserve for, anticipated cash
charges in any prior period), (iii) foreign currency gains, (iv) interest
income, (v) gains from the sale of assets or capital stock, (vi) income tax
benefit, and (vii) any other income categories disclosed as nonoperating
(income) expense not otherwise specified, all determined on a consolidated basis
in accordance with GAAP.
"Consolidated Net Income" means, for any period, the net
income or loss of the Borrower and the Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP, provided that there shall be
excluded from such net income or loss (a) the income of any Person (other than a
consolidated Subsidiary) in which any other Person (other than the Borrower or
any consolidated Subsidiary or any director holding qualifying shares in
compliance with applicable law) owns an Equity Interest, except to the extent of
the amount of dividends or other distributions actually paid to the Borrower or
any of the consolidated Subsidiaries by such Person during such period, and (b)
the income or loss of any Person accrued prior to the date on which it becomes a
Subsidiary or is merged into or consolidated with the Borrower or any
consolidated Subsidiary or the date on which such Person's assets are acquired
by the Borrower or any consolidated Subsidiary.
"Consolidated Revenue" means, for any month, net sales of the
Borrower and its consolidated Subsidiaries, determined in accordance with GAAP
consistently applied, plus net sales of 300 millimeter product (also referred to
as 300 millimeter sales contra) for that same period to the extent not otherwise
included, determined in accordance with GAAP consistently applied. Net sales
shall be computed net of any discounts, returns or allowances. Net sales shall
also exclude sales made by the Borrower or by a Subsidiary to any Affiliate of
the Borrower that is Controlled by the Borrower (other than Taisil Electronic
Materials Corporation) whether or not consolidated with the Borrower under GAAP.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. The terms "Controlling" and "Controlled" have meanings correlative
thereto.
"Conversion Shares" has the meaning assigned to such term in
the Restructuring Agreement.
"Cumulative Preferred Stock" means the Borrower's Series A
Cumulative Convertible Preferred Stock, par value $0.01 per share, having the
rights, preferences, privileges and restrictions set forth in the Certificate of
Designations.
"Default" means any event or condition that constitutes an
Event of Default or that upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States
of America.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, directives or
binding agreements issued, promulgated or entered into by or with any
Governmental Authority, relating in any way to the environment, the protection,
preservation or restoration of natural resources, the management (including
generation, use, handling, transportation, storage, treatment and disposal) of
Hazardous Materials, the Release or threatened Release of any Hazardous
Materials into the environment, or health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any costs, obligations, expenses, losses or other liability
in connection with personal injury, strict liability, damages, diminution of
value, investigation, monitoring, remediation, administrative oversight costs,
fines, penalties or indemnities) of the Borrower or any Subsidiary directly or
indirectly arising or resulting from or based upon (a) violation of any
Environmental Law, (b) the management, including generation, use, handling,
transportation, storage, treatment or disposal, of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the Release or threatened Release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is retained, assumed or
imposed with respect to any of the foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means, at any time, each trade or business
(whether or not incorporated) that would, at the time, be treated together with
Borrower or any of its Subsidiaries as a single employer under Title IV or
Section 302 of ERISA or Section 412 of the Code.
"ERISA Event" means (a) any "reportable event" described in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than a "reportable event" not subject to the provision for 30-day
notice to the PBGC); (b) the existence with respect to any Plan of an
"accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived or the filing of an application
pursuant to Section 412(e) of the Code or Section 304 of ERISA for any extension
of an amortization period; (c) the provision or filing of a notice of intent to
terminate a Plan other than a standard termination within the meaning of Section
4041 of ERISA or the treatment of a Plan amendment as a distress termination
under Section 4041 of ERISA; (d) the filing pursuant to Section 412(d) of the
Code or Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (e) the incurrence by the Borrower or
any of its ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (f) the receipt by the Borrower or any
ERISA Affiliate from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan under Section 4042 of ERISA or the occurrence or existence
of any other event or condition which might reasonably be expected to constitute
grounds for the termination of, the appointment of a trustee to administer, any
Plan other than in a standard termination within the meaning of Section 4041 of
ERISA or the imposition of any lien on the assets of the Borrower or any of its
Subsidiaries or ERISA Affiliates under ERISA, including as a result of the
operation of Section 4069 of ERISA; (g) the incurrence by the Borrower, any of
its Subsidiaries or any of its ERISA Affiliates of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan or with
respect to the withdrawal from a Multiple Employer Plan during a plan year in
which it was a "substantial employer" as defined in Section 4001(a)(2) of ERISA
or by reason of the provisions of Section 4064 of ERISA upon the termination of
a Multiple Employer Plan; or (h) the receipt by the Borrower or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excluded Taxes" means, with respect to any Agent, any Lender
or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) doing business, income or franchise
taxes imposed on (or measured by) its net income, capital or any similar
alternate basis by the United States of America, or by the jurisdiction under
the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable lending office
is located, (b) any branch profits taxes imposed by the United States of America
or any similar tax imposed by any other jurisdiction described in clause (a)
above and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 2.16(b)), any withholding tax that
(i) is in effect and would apply to amounts payable to such Foreign Lender at
the time such Foreign Lender becomes a party to this Agreement (or designates a
new lending office), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to any withholding tax pursuant to Section 2.14(a), or (ii) is
attributable to such Foreign Lender's failure to comply with Section 2.14(e).
"Exposure" means, with respect to any Lender at any time, the
outstanding principal amount of such Lender's Loans.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding 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
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"First TPG Replacement Date" has the meaning assigned to such
term in Section 2.08(c).
"Foreign Company Benefit Plans" means each Borrower Benefit
Plan maintained for the benefit of the employees of the Borrower or any of its
Subsidiaries located outside the United States.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized
under the laws of a jurisdiction other than the United States of America or any
State thereof or the District of Columbia.
"Fund Guarantors" means, collectively, GEI, GEI Side, TCW, TCW
Trust and TPG.
"Funded Indebtedness" means, as of any date, without
duplication, (a) the aggregate principal amount of Indebtedness of the Borrower
and the Subsidiaries outstanding as of such date (other than any Indebtedness
with respect to which the Borrower is not obligated to pay or accrue any cash
interest expense as of such date), in the amount that would be reflected on a
balance sheet prepared as of such date on a consolidated basis in accordance
with GAAP, and (b) the aggregate amount of any Guarantee by the Borrower or any
Subsidiary of any such Indebtedness of any other Person.
"GAAP" means generally accepted accounting principles in the
United States of America consistently applied.
"GEI" means Green Equity Investors III, L.P., a Delaware
limited partnership, together with its successors and assigns.
"GEI Guaranty" means the Guaranty dated as of the date hereof
by and among GEI, GEI Side and the Administrative Agent, as from time to time
amended, or replaced as contemplated by Section 2.08(c)(ii).
"GEI Partnership Agreement" means the Amended and Restated
Green Equity Investors III, L.P. Agreement of Limited Partnership dated as of
September 25, 1998, as amended.
"GEI Replacement Date" has the meaning assigned to such term
in Section 2.08(c).
"GEI Side" means Green Equity Investors Side III, L.P., a
Delaware limited partnership, together with its successors and assigns.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation, provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantee Agreement" means the Guarantee Agreement, attached
hereto as Exhibit C, among the Subsidiary Loan Parties and the Collateral Agent
for the benefit of the Secured Parties.
"Guarantor Default" has the meaning assigned to such term in
the Guaranty.
"Guaranty" means, collectively, the GEI Guaranty, the TCW
Guaranty and the TPG Guaranty.
"Hazardous Materials" means any substance, pollutant,
contaminant, chemical or other material (including petroleum or any fraction
thereof, asbestos or asbestos containing material, polychlorinated biphenyls and
urea formaldehyde foam insulation) or waste that is classified or regulated
under any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid, (d)
all obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (f) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person
of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
Notwithstanding anything to the contrary in this paragraph, the term
"Indebtedness" shall not include (a) obligations under Hedging Agreements or (b)
agreements providing for indemnification, purchase price adjustments or similar
obligations incurred or assumed in connection with the acquisition or
disposition of assets or stock.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" means the
Indemnity, Subrogation and Contribution Agreement, attached hereto as Exhibit D,
among the Borrower, the Subsidiary Loan Parties and the Collateral Agent.
"Indenture" has the meaning assigned to such term in the
Restructuring Agreement, as amended and restated on and as of the date hereof.
"Indenture Documentation" means the Indenture together with
the related guarantee agreement, the security agreement, the pledge agreement
and the indemnity, subrogation and contribution agreement and any other security
documents executed in connection therewith, as amended from time to time.
"Indenture Obligations" has the meaning assigned to such term
in the Indenture Documentation.
"Intercreditor Agreement" means the intercreditor agreement,
dated as of December 21, 2001, by and among the Fund Guarantors, the
Administrative Agent and the Collateral Agent, as amended from time to time.
"Interest Election Request" means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 2.05.
"Interest Payment Date" means (a) with respect to any ABR
Loan, the last day of each March, June, September and December, and (b) with
respect to any Eurodollar Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect, provided that (a) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (b) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Italian Credit Agreement" means the euro55 million Amended
and Restated Credit Agreement dated as of September 22, 2001 under which the
Italian Issuer is the borrower, together with any amendment of, restatement of,
substitution for, or replacement of such agreement.
"Italian Issuer" means MEMC Electronic Materials S.p.A., a
societa per azioni, or joint stock company, organized under the laws of the
Republic of Italy.
"Italian Notes" means, collectively, the euro55 million
(aggregate principal amount) Promissory Notes Due 2031 to be issued by the
Italian Issuer under the Italian Credit Agreement as contemplated under the
Restructuring Agreement.
"Joint Venture Stock" has the meaning assigned to such term in
Section 6.03(d).
"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Telerate Service
of Bridge Information Services (or on any successor or substitute page of such
Service, or any successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such page of such Service,
as determined by the Administrative Agent from time to time in accordance with
its normal practice for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two (2) Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits with a maturity comparable to
such Interest Period. In the event that such rate is not available at such time
for any reason, then the LIBO Rate with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate at which dollar deposits of $5,000,000
and for a maturity comparable to such Interest Period are offered by the
principal London office of Citibank, N.A. in immediately available funds in the
London interbank market at approximately 11:00 a.m., London time, two (2)
Business Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, the Guarantee
Agreement, the Indemnity, Subrogation and Contribution Agreement and the
Security Documents.
"Loan Parties" means the Borrower and the Subsidiary Loan
Parties.
"Loan Transactions" means the execution, delivery and
performance by each Loan Party of the Loan Documents to which it is to be a
party, the borrowing of Loans and the use of the proceeds thereof.
"Loans" means the loans made and the loans continued by the
Lenders to the Borrower pursuant to this Agreement.
"Long-Term Indebtedness" means any Indebtedness that, in
accordance with GAAP, constitutes (or, when incurred, constituted) a long-term
liability.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, properties, financial condition,
contingent liabilities or prospects of the Loan Parties taken as a whole, (b)
the ability of the Loan Parties to perform their obligations under the Loan
Documents or (c) any rights of or benefits available to the Lenders under the
Loan Documents.
"Material Indebtedness" means Indebtedness (other than the
Loans), or obligations in respect of one or more Hedging Agreements, of any one
or more of the Borrower and the Subsidiaries in an aggregate principal amount
exceeding $2,500,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of the Borrower or any Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Borrower or such
Subsidiary would be required to pay if such Hedging Agreement were terminated at
such time.
"Maturity Date" means December 21, 2006.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, assignment of
leases and rents, leasehold mortgage or other security document granting a Lien
on any Mortgaged Property to secure the Revolving Credit Obligations. Each
Mortgage shall be reasonably satisfactory in form and substance to the
Collateral Agent.
"Mortgaged Property" means, initially, each parcel of real
property and the improvements thereto owned by a Loan Party and identified on
Schedule 1.01, and includes each other parcel of real property and improvements
thereto with respect to which a Mortgage is granted pursuant to Section 5.12 or
5.13.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Multiple Employer Plan" means an employee benefit plan
described in Section 4063 of ERISA.
"Net Proceeds" means, with respect to any event (a) the cash
proceeds received in respect of such event, including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in the
case of a casualty or other insured damage, insurance proceeds in excess of
$250,000, and (iii) in the case of a condemnation or similar event, condemnation
awards and similar payments, net of (b) the sum of (i) all reasonable fees and
out-of-pocket expenses (including reasonable attorneys fees, underwriting
discounts and commissions and collection expenses) paid or payable by the
Borrower and the Subsidiaries to third parties in connection with such event,
(ii) in the case of a sale, transfer or other disposition of an asset (including
pursuant to a sale and leaseback transaction or a casualty or a condemnation or
similar proceeding), the amount of all payments required to be made by the
Borrower and the Subsidiaries as a result of such event to repay Indebtedness
(other than Loans) secured by such asset or otherwise subject to mandatory
prepayment as a result of such event, (iii) the amount of all taxes paid (or
reasonably estimated to be payable) by the Borrower and the Subsidiaries, and
(iv) the amount of any reserves established by the Borrower and the Subsidiaries
to fund contingent liabilities reasonably estimated to be payable, in each case
during the year that such event occurred or the next succeeding year and that
are directly attributable to such event (as determined reasonably and in good
faith by the chief financial officer of the Borrower). Notwithstanding anything
to the contrary set forth above, the proceeds of any sale, transfer or other
disposition of Receivables or Related Property (or any interest therein)
pursuant to any Permitted Receivables Financing shall not be deemed to
constitute Net Proceeds except to the extent that such sale, transfer or other
disposition (a) is the initial sale, transfer or other disposition of
Receivables or Related Property (or any interest therein) in connection with the
establishment of such Permitted Receivables Financing or (b) occurs in
connection with an increase in the aggregate outstanding amount of such
Permitted Receivables Financing over the aggregate outstanding amount of such
Permitted Receivables Financing at the time of such initial sale, transfer or
other disposition.
"Notes" means the Senior Subordinated Secured Notes Due 2007
issued by the Borrower pursuant to the Indenture.
"Other Taxes" means any and all current or future recording,
stamp, documentary, excise, transfer, sales, property or similar taxes, charges
or levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of
Annex 2 to the Security Agreement or any other form approved by the Borrower and
the Agents.
"Permitted Acquisition" means any acquisition (whether by
purchase, merger, consolidation or otherwise) by the Borrower or any
consolidated Subsidiary of all or substantially all the assets of, or all the
Equity Interests in, a Person or division or line of business of a Person if, at
the time of and immediately after giving effect thereto, (a) no Default has
occurred and is continuing or would result therefrom, (b) the principal business
of such Person shall be reasonably related to a business in which the Borrower
and the Subsidiaries were engaged on the Effective Date or have entered
thereafter with the consent of the Administrative Agent, (c) each Subsidiary
formed for the purpose of or resulting from such acquisition shall be, or
contemporaneously become, a Subsidiary Loan Party and all of the Equity
Interests of such Subsidiary Loan Party shall be owned directly by the Borrower
or a consolidated Subsidiary Loan Party and all material actions required to be
taken with respect to such acquired or newly formed Subsidiary Loan Party under
Sections 5.12 and 5.13 shall have been taken (or shall be taken
contemporaneously with the closing of such acquisition or within the time period
set forth in Section 5.12), (d) the Borrower and the Subsidiaries are in
compliance, on a pro forma basis after giving effect to such acquisition
(without giving effect to any cost savings other than those actually realized as
of the date of such acquisition), with the covenants contained in Sections 6.12,
6.13 and 6.14 recomputed as at the last day of the most recently ended fiscal
quarter or month, as the case may be, of the Borrower for which financial
statements are available, as if such acquisition (and any related incurrence or
repayment of Indebtedness, with any new Indebtedness being deemed to be
amortized over the applicable testing period in accordance with its terms) had
occurred on the first day of each relevant period for testing such compliance
and (e) the Borrower has delivered to the Administrative Agent an officers'
certificate to the effect set forth in clauses (a), (b), (c) and (d) above,
together with all relevant financial information for the Person or assets to be
acquired and reasonably detailed calculations demonstrating satisfaction of the
requirement set forth in clause (d) above.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes or other governmental
charges that are not yet due or are being contested in compliance with Section
5.05;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary course
of business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment insurance and
other social security laws or regulations;
(d) Liens (other than Liens on Collateral) to secure the
performance of bids, trade contracts, leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature, in each
case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business and minor defects or irregularities in title that do not secure any
monetary obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business of the
Borrower or any Subsidiary;
(g) ground leases in respect of real property on which
facilities owned or leased by the Borrower or any of the Subsidiaries are
located;
(h) any interest or title of a lessor under any lease
permitted by this Agreement;
(i) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection with the
importation of goods;
(j) leases or subleases granted to other Persons and not
interfering in any material respect with the business of the Borrower and the
Subsidiaries, taken as a whole; and
(k) licenses of intellectual property, including patents and
trademarks held by the Borrower or any of its Subsidiaries, not interfering in
any material respect with the business of the Borrower and its Subsidiaries,
taken as a whole;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States of America);
(b) investments in commercial paper maturing not more than one
year after the date of acquisition thereof and having, at such date of
acquisition, one of the two highest credit ratings obtainable from S&P or from
Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing not more than one year after the date of
acquisition thereof issued or guaranteed by or placed with, and money market
deposit accounts and overnight bank deposits issued or offered by, any
commercial bank organized under the laws of the United States of America or any
State thereof or any foreign country recognized by the United States of America
that has a combined capital and surplus and undivided profits of not less than
$250,000,000 (or the foreign-currency equivalent thereof);
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above or clause (e)
or (f) below and entered into with a financial institution satisfying the
criteria described in clause (c) above;
(e) securities issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof having maturities of not more than six months from the
date of acquisition thereof and, at the time of acquisition, having one of the
two highest credit ratings obtainable from S&P or from Moody's;
(f) securities issued by any foreign government or any
political subdivision of any foreign government or any public instrumentality
thereof having maturities of not more than six months from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest credit ratings obtainable from S&P or from Moody's; and
(g) investments in funds that invest solely in one or more
types of securities described in clauses (a), (e) and (f) above.
"Permitted Receivables Financing" means any financing pursuant
to which (a) the Borrower or any Subsidiary sells, conveys or otherwise
transfers to a Receivables Subsidiary, in "true sale" transactions, and (b) such
Receivables Subsidiary sells, conveys or otherwise transfers to any other Person
or grants a security interest to any other Person in, any Receivables (whether
now existing or hereafter acquired) of the Borrower or any Subsidiary or any
undivided interest therein, and any assets related thereto (including all
collateral securing such Receivables), all contracts and all Guarantees or other
obligations in respect of such Receivables, proceeds of such Receivables and
other assets that are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization
transactions involving Receivables, provided that the board of directors of the
Borrower shall have determined in good faith that such Permitted Receivables
Financing is economically fair and reasonable to the Borrower and the
Subsidiaries, taken as a whole.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower,
any of its Subsidiaries or any ERISA Affiliate is an "employer" as defined in
Section 3(5) of ERISA.
"Plan Asset Regulations" means the Department of Labor
regulation Section 2510.3-101, 29 C.F.R. ss.2510.3-101.
"Pledge Agreement" means the Pledge Agreement, attached hereto
as Exhibit E, among the Loan Parties and the Collateral Agent for the benefit of
the Secured Parties.
"Prepayment Event" means:
(a) any sale, transfer or other disposition (including
pursuant to a Permitted Receivables Financing or a sale and leaseback
transaction) of any property or asset of the Borrower or any Subsidiary,
including any Equity Interest owned by it, other than (i) dispositions described
in clauses (a) and (b) of Section 6.05 and (ii) other dispositions resulting in
aggregate Net Proceeds not exceeding $250,000 during any fiscal year of the
Borrower; or
(b) any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar proceeding of, any
property or asset of the Borrower or any Subsidiary, but only to the extent that
the Net Proceeds therefrom have not been applied to repair, restore or replace
such property or asset within 365 days after such event; or
(c) the incurrence by the Borrower or any Subsidiary of any
Indebtedness, other than Indebtedness permitted by Section 6.01; or
(d) the issuance of any Equity Interests by the Borrower other
than (i) the Warrant Shares and the Conversion Shares, and (ii) pursuant to an
employee benefit plan in effect on the Effective Date or adopted after the
Effective Date with the consent of the Required Lenders;
provided that no receipt by MEMC Korea Company of Net Proceeds shall constitute
a Prepayment Event unless and until (and only to the extent that) such Net
Proceeds, or a portion thereof, are actually paid or legally payable as a
dividend or distribution to a Loan Party.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Citibank, N.A. as its base rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Purchase Agreement" means the purchase agreement, dated as of
September 30, 2001, by and among TPG Partners III, L.P., T3 Partners, L.P., T3
Partners II, L.P, TPG Wafer Holdings LLC, E.ON AG, E.ON International Finance
B.V., XXXXXXX Corporation, VEBA Zweite Verwaltungsgesellschaft mbH and E.ON
North America, Inc.
"Receivable" means the Indebtedness and payment obligations of
any Person to the Borrower or any of the Subsidiaries or acquired by the
Borrower or any of the Subsidiaries (including obligations constituting an
account or general intangible or evidenced by a note, instrument, contract,
security agreement, chattel paper or other evidence of indebtedness or security
but excluding intercompany obligations) arising from a sale of merchandise or
the provision of services by the Borrower or any Subsidiary or the Person from
which such Indebtedness and payment obligation were acquired by the Borrower or
any of the Subsidiaries, including (a) any right to payment for goods sold or
for services rendered and (b) the right to payment of any interest, sales taxes,
finance charges, returned check or late charges and other obligations of such
Person with respect thereto.
"Receivables Subsidiary" means a corporation or other entity
that is a newly formed, wholly owned, bankruptcy-remote, special purpose
subsidiary of the Borrower or any wholly owned Subsidiary (a) that engages in no
activities other than in connection with the financing of Receivables, all
proceeds thereof and all rights (contractual or other), collateral and other
assets relating thereto, and any business or activities incidental or related to
such business (including servicing of Receivables), (b) that is designated by
the board of directors of the Borrower (as provided below) as a Receivables
Subsidiary, (c) of which no portion of its Indebtedness or any other obligations
(contingent or otherwise) (i) is Guaranteed by the Borrower or any Subsidiary
(other than pursuant to Standard Securitization Undertakings), (ii) is recourse
to or obligates the Borrower or any Subsidiary in any way other than pursuant to
Standard Securitization Undertakings and other than any obligation to sell or
transfer Receivables or (iii) subjects any property or asset of the Borrower or
any Subsidiary, directly or indirectly, contingently or otherwise, to the
satisfaction thereof, (d) with which none of the Borrower or any Subsidiary has
any material contract, agreement, arrangement or understanding (except in
connection with a Permitted Receivables Financing), other than fees payable in
the ordinary course of business in connection with servicing Receivables, and
(e) to which none of the Borrower or any Subsidiary has any obligation to
maintain or preserve such entity's financial condition or cause such entity to
achieve certain levels of operating results. Upon any such designation, a
Financial Officer of the Borrower shall deliver a certificate to the
Administrative Agent certifying (a) the resolution of the board of directors of
the Borrower giving effect to such designation, (b) that, to the best of such
officer's knowledge and belief after consulting with counsel, such designation
complied with the foregoing conditions, (c) that after giving effect to such
designation (including any Indebtedness permitted to exist in connection with
such designation), the Borrower shall be in compliance, on a pro forma basis,
with the covenants set forth in Section 6.12, 6.13 and 6.14 and (d) immediately
after giving effect to such designation, no Default shall have occurred and be
continuing.
"Register" has the meaning set forth in Section 9.04(c).
"Reimbursement Agreement" means the Reimbursement Agreement,
dated as of December 21, 2001, by and among the Borrower, the Fund Guarantors
and the Collateral Agent, as amended from time to time.
"Reimbursement Documentation" means the Reimbursement
Agreement together with the related amended and restated guarantee agreement,
the security agreement, the pledge agreement and the indemnity, subrogation and
contribution agreement and any other security documents executed in connection
therewith.
"Reimbursement Obligations" has the meaning assigned to such
term in the Reimbursement Documentation.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Related Property" means, with respect to each Receivable:
(a) all the interest of the Borrower or any Subsidiary in the
goods, if any, sold and delivered to an obligor relating to the sale that gave
rise to such Receivable,
(b) all other security interests or Liens, and the interest of
the Borrower or any Subsidiary in the property subject thereto, from time to
time purporting to secure payment of such Receivable, together with all
financing statements signed by an obligor describing any collateral securing
such Receivable and
(c) all guarantees, insurance, letters of credit and other
agreements or arrangements of whatever character from time to time supporting or
securing payment of such Receivable,
in the case of clauses (b) and (c), whether pursuant to the contract related to
such Receivable or otherwise or pursuant to any obligations evidenced by a note,
instrument, contract, security agreement, chattel paper or other evidence of
Indebtedness or security and the proceeds thereof.
"Release" means any release, spill, emission, leaking,
dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching
or migration of any Hazardous Material in, on, onto or into the environment
(including ambient air, surface water, groundwater, land surface or subsurface
strata or within any building, structure, facility or fixture).
"Required Lenders" means, at any time, Lenders having
Exposures and unused Commitments representing more than 50% of the sum of the
total Exposures and unused Commitments at such time.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in the Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any Equity Interests in the Borrower or any Subsidiary or any
option, warrant or other right to acquire any such Equity Interests in the
Borrower or any Subsidiary.
"Restructuring Agreement" means that certain Restructuring
Agreement, dated as of November 13, 2001, between TPG Wafer Holdings LLC and the
Borrower.
"Revolving Credit Obligations" has the meaning assigned to
such term in the Security Agreement.
"S&P" means Standard & Poor's Rating Service.
"Second TPG Replacement Date" has the meaning assigned to such
term in Section 2.08(c).
"Secured Parties" has the meaning assigned to such term in the
Security Agreement.
"Security Agreement" means the Security Agreement, attached
hereto as Exhibit F, among the Borrower, the Subsidiary Loan Parties and the
Collateral Agent for the benefit of the Secured Parties.
"Security Documents" means the Security Agreement, the Pledge
Agreement, the Mortgages and each other security agreement or other instrument
or document executed and delivered pursuant to Section 5.12 or 5.13 to secure
any of the Revolving Credit Obligations.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into at any time by the Borrower
or any Subsidiary that are reasonably customary in an accounts receivable
transaction.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject, with respect to the Adjusted LIBO Rate, for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Loan Party" means any Subsidiary that is not a
Foreign Subsidiary or a Receivables Subsidiary.
"Surviving Representations" has the meaning assigned to such
term in the Guaranty.
"Taxes" means any and all current or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TCW" means TCW/Crescent Mezzanine Partners III, L.P., a
Delaware limited partnership, together with its successors and assigns.
"TCW Guaranty" means the Guaranty dated as of the date hereof
between TCW, TCW Trust and the Administrative Agent, as from time to time
amended, or replaced as contemplated by Section 2.08(c)(iii).
"TCW Partnership Agreement" means the Amended and Restated
TCW/Crescent Mezzanine Partners III, L.P. Agreement of Limited Partnership dated
as of March 7, 2001, as amended.
"TCW Replacement Date" has the meaning assigned to such term
in Section 2.08(c).
"TCW Trust" means TCW/Crescent Mezzanine Trust III, a Delaware
statutory business trust, together with its successors and assigns.
"TCW Trust Agreement" means the Declaration of Trust and Trust
Agreement of TCW/Crescent Mezzanine Partners III, L.P. dated as of March 7,
2001, as amended.
"TPG" means TPG Partners III, L.P. and its Affiliates,
provided that no such Affiliate shall be deemed a member of TPG to the extent it
ceases to be Controlled by, or under common Control with, TPG Partners III, L.P.
"TPG Guaranty" means the Guaranty dated as of the date hereof
between TPG and the Administrative Agent, as from time to time amended, or
replaced as contemplated by Section 2.08(c)(i).
"TPG Partnership Agreement" means the TPG Partners III, L.P.
Agreement of Limited Partnership dated as of December 15, 1999, as amended.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"U.S. Company Benefit Plans" means each Borrower Benefit Plan
maintained for the benefit of the employees of the Borrower or any of its
Subsidiaries located in the United States.
"Warrant Certificate" has the meaning assigned to such term in
the Restructuring Agreement.
"Warrant Shares" has the meaning assigned to such term in the
Restructuring Agreement.
"Warrants" has the meaning assigned to such term in the
Restructuring Agreement.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.03. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time, provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the Effective Date in GAAP or in the application thereof
on the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions
set forth herein, each Lender agrees to make Loans to the Borrower from time to
time during the Availability Period in an aggregate principal amount at any one
time outstanding that will not result in such Lender's Exposure exceeding such
Lender's Commitment. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be
made as part of a Borrowing consisting of Loans of the same Type made by the
Lenders ratably in accordance with their respective Commitments. The failure of
any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder, provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
(b) Subject to Section 2.11, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request in
accordance herewith, provided that all Borrowings made on the Effective Date
shall be ABR Borrowings. Each Lender at its option may make any Eurodollar Loan
by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan, provided that (i) any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement and (ii) the Borrower shall not be required to make any greater
payment under Section 2.14 to the applicable Lender than such Lender would have
been entitled to receive if such Lender had not exercised such option.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. At the time that
each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $500,000 and not less than $5,000,000, provided that
an ABR Borrowing may be in an aggregate amount that is equal to the entire
unused balance of the total Commitments. Borrowings of more than one Type may be
outstanding at the same time, provided that there shall not at any time be more
than a total of six Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Loan if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.03. Requests for Borrowings. To request a Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone
(a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York
City time, three (3) Business Days before the date of the proposed Borrowing, or
(b) in the case of an ABR Borrowing, not later than 10:00 a.m., New York City
time, on the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in the form
of Exhibit G or any other form approved by the Administrative Agent and signed
by the Borrower. Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section 2.02:
(i) the aggregate amount of such Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) subject to the proviso to the first sentence of Section
2.02(b), whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of Section
2.04.
If no election as to the Type of Borrowing is specified, then
the requested Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with respect to any requested Eurodollar Borrowing, then the Borrower
shall be deemed to have selected an Interest Period of one month's duration.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 1:00 p.m., New York City time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with Citibank, N.A. in New York
City and designated by the Borrower in the applicable Borrowing Request.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may (but shall not be obligated to), in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to
the Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii) in
the case of the Borrower, the interest rate applicable to ABR Loans. If such
Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
(c) Nothing in this Section 2.04 shall be deemed to relieve
any Lender from its obligation to fulfill its Commitments hereunder or to
prejudice any rights that the Borrower may have against any Lender as a result
of any default by any such Lender hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to fulfill
its Commitments hereunder).
SECTION 2.05. Interest Elections. (a) Each Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurodollar Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, the Borrower may elect to
convert such Borrowing to a different Type or to continue such Borrowing and, in
the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as
provided in this Section. The Borrower may elect different options with respect
to different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Borrowing of the Type resulting from such election to be made
on the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to clauses
(iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term "Interest
Period".
If any such Interest Election Request requests a Eurodollar
Borrowing but does not specify an Interest Period, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.06. Termination and Reduction of Commitments. (a)
Unless previously terminated, the Commitments shall terminate on the Maturity
Date.
(b) The Borrower may at any time, without premium or penalty,
terminate, or from time to time reduce, the Commitments, provided that (i) each
reduction of the Commitments shall be in an amount that is an integral multiple
of $1,000,000 and not less than $10,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any concurrent
prepayment of the Loans in accordance with Section 2.08, the sum of the
Exposures would exceed the total Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three (3) Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable, provided that a notice
of termination delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent.
Each reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender the then unpaid principal amount of each Loan of such
Lender on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof,
which accounts the Administrative Agent will make available to the Borrower upon
its reasonable request.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein absent manifest error,
provided that the failure of any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(e) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Borrower and the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
Section 2.08. Prepayment of Loans.
(a) The Borrower shall have the right at any time and from
time to time to prepay any Borrowing in whole or in part, without premium or
penalty (but subject to Section 2.13), subject to the requirements of this
Section.
(b) In the event and on each occasion that the sum of the
Exposures exceeds the total Commitments, the Borrower shall prepay Borrowings in
an aggregate amount equal to such excess.
(c) (i) In the event that (x) on or before the date falling 23
months after the Effective Date (the "First TPG Replacement Date") or (y) on or
before the date falling 47 months after the Effective Date (the "Second TPG
Replacement Date"), the Administrative Agent has not received a guaranty duly
executed by TPG or a replacement guarantor satisfactory to the Lenders and
having a stated term of at least two years, in the case of the First TPG
Replacement Date, or a guaranty duly executed by TPG and terminating at least 30
days after the Maturity Date, in the case of the Second TPG Replacement Date, in
each case pursuant to documentation in form and substance similar or identical
to the TPG Guaranty (such documentation to include such evidence of
authorization and such legal opinions with respect thereto as the Lenders may
reasonably request), then the Borrower shall within 10 Business Days of the
First TPG Replacement Date or, as the case may be, the Second TPG Replacement
Date prepay in full the aggregate outstanding Borrowings and the Commitment of
each Lender shall automatically terminate; provided, however, that no such
prepayment shall be required (and the Commitment of each Lender shall not
terminate) if, and for so long as TPG has validly and effectively pledged to the
Administrative Agent a blocked cash collateral account held in New York with
Citibank, N.A. in an amount, and pursuant to documentation in form and
substance, reasonably satisfactory to the Administrative Agent.
(ii) In the event that on or before the date falling
one month prior to the stated expiration date of the GEI
Guaranty (as in effect from time to time, the "GEI
Replacement Date"), the Administrative Agent has not
received a guaranty duly executed by GEI or a replacement
guarantor satisfactory to the Lenders and having a stated
maturity falling at least 364 days after the then current
GEI Replacement Date or, if sooner, 30 days after the
Maturity Date, pursuant to documentation in form and
substance similar or identical to the GEI Guaranty (such
documentation to include such evidence of authorization and
such legal opinions with respect thereto as the Lenders may
reasonably request), then the Borrower shall within 10
Business Days of the GEI Replacement Date prepay in full the
aggregate outstanding Borrowings and the Commitment of each
Lender shall automatically terminate; provided, however,
that no such prepayment shall be required (and the
Commitment of each Lender shall not terminate) if, and for
so long as GEI has validly and effectively pledged to the
Administrative Agent a blocked cash collateral account held
in New York with Citibank, N.A. in an amount, and pursuant
to documentation in form and substance, reasonably
satisfactory to the Administrative Agent.
(iii) In the event that on or before the date falling
one month prior to the stated expiration date of the TCW
Guaranty (as in effect from time to time, the "TCW Replacement
Date"), the Administrative Agent has not received a guaranty
duly executed by TCW or a replacement guarantor satisfactory
to the Lenders and having a stated maturity falling at least
364 days after the then current TCW Replacement Date or, if
sooner, 30 days after the Maturity Date, pursuant to
documentation in form and substance similar or identical to
the TCW Guaranty (such documentation to include such evidence
of authorization and such legal opinions with respect thereto
as the Lenders may reasonably request), then the Borrower
shall within 10 Business Days of the TCW Replacement Date
prepay in full the aggregate outstanding Borrowings and the
Commitment of each Lender shall automatically terminate;
provided, however, that no such prepayment shall be required
(and the Commitment of each Lender shall not terminate) if,
and for so long as TCW has validly and effectively pledged to
the Administrative Agent a blocked cash collateral account
held in New York with Citibank, N.A. in an amount, and
pursuant to documentation in form and substance, reasonably
satisfactory to the Administrative Agent.
(d) In the event and on each occasion that any Net Proceeds
are received by or on behalf of the Borrower or any Subsidiary in respect of any
Prepayment Event, the Borrower shall, within ten (10) Business Days after such
Net Proceeds are received, prepay Borrowings in an aggregate amount equal to (i)
in the case of an event described in clause (a) or (b) of the definition of
Prepayment Event, such Net Proceeds, or (ii) in the case of an event described
in clause (c) or (d) of the definition of Prepayment Event, 75% of such Net
Proceeds, provided that, in the case of any event described in clause (a) of the
definition of the term "Prepayment Event" occurring on or prior to the six-month
anniversary of the Effective Date (other than the sale, transfer or other
disposition of (x) Receivables in connection with a Permitted Receivables
Financing, or (y) other assets of the Borrower or any Subsidiary in connection
with the incurrence of Indebtedness in respect of an asset-backed financing
entered into with the consent of the Required Lenders), if the Borrower shall
deliver to the Administrative Agent a certificate of a Financial Officer to the
effect that no Default has occurred and is continuing, then no prepayment shall
be required pursuant to this paragraph in respect of the Net Proceeds in respect
of such event until the six-month anniversary of the Effective Date.
(e) Prior to any optional or mandatory prepayment of
Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to
be prepaid and shall specify such selection in the notice of such prepayment
pursuant to paragraph (e) of this Section.
(f) The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three (3) Business Days before the date of prepayment, or (ii) in the case
of prepayment of an ABR Borrowing, not later than 3:00 p.m., New York City time,
on the Business Day prior to the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each
Borrowing or portion thereof to be prepaid and, in the case of a mandatory
prepayment, a reasonably detailed calculation of the amount of such prepayment,
provided that, if a notice of optional prepayment of any Loans is given in
connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.06, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.06. Promptly
following receipt of any such notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Borrowing shall
be in an amount that would be permitted in the case of an advance of a Borrowing
of the same Type as provided in Section 2.02, except as necessary to apply fully
the required amount of a mandatory prepayment or to prepay such Borrowing in
full. Each prepayment of a Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.10.
(g) In the event that a Guarantor Termination (as such term is
defined in the Guaranty) shall occur, the Borrower shall immediately prepay in
full all outstanding Borrowings and the Commitment of each Lender shall
automatically terminate.
SECTION 2.09. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the rate equal to 0.375% per annum on the average daily unused
amount of the Commitments of such Lender (disregarding for the purposes of such
calculation the proviso to the last sentence of the definition of "Commitment")
during the period from and including the Effective Date to but excluding the
date on which such Commitment terminates (it being understood that no commitment
fee shall be payable in respect of the portion of any Commitment funded on the
Effective Date). Accrued commitment fees shall be payable in arrears on the last
day of March, June, September and December of each year and on the dates on
which the Commitments terminate, commencing on the first such date to occur
after the Effective Date. All commitment fees shall be computed on the basis of
a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). For purposes of computing
commitment fees, a Commitment of a Lender shall be deemed to be used to the
extent of the outstanding Loans of such Lender.
(b) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent for distribution, in
the case of commitment fees, to the Lenders entitled thereto. Fees paid shall
not be refundable under any circumstances.
SECTION 2.10. Interest. (a) The Loans comprising each ABR
Borrowing shall bear interest at the Alternate Base Rate plus the Applicable
Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, to the fullest extent permitted by applicable law, at a rate per annum
equal to (i) in the case of overdue principal of any Loan, 2% per annum plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% per annum plus the
rate applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and upon termination of the
Commitments, provided that (i) interest accrued pursuant to paragraph (c) of
this Section shall be payable on demand, (ii) in the event of any repayment or
prepayment of any Loan (other than a prepayment of an ABR Loan prior to the end
of the Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any Eurodollar Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be payable
on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate or Adjusted LIBO Rate shall be determined by the
Administrative Agent in accordance with the terms of this Agreement, and such
determination shall be prima facie evidence thereof absent manifest error.
(f) Notwithstanding anything to the contrary herein, the
Borrower may elect, in each case with the consent of the Lenders to be given or
withheld in their absolute discretion, to defer the cash payment of interest on
any Loan until a date to be agreed upon by the Borrower and the Lenders. In the
event that the Borrower makes such an election and the Lenders so consent, the
rate of interest on such Loan for the period of such deferral shall be increased
by an amount to be agreed between the Borrower and the Lenders (which amount
shall in no event be less than 3%) over the rate otherwise applicable to such
Loan. The Lenders shall promptly notify the Administrative Agent of any such
consent or agreement.
SECTION 2.11. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be prima facie evidence thereof) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate for such Interest Period will not adequately
and fairly reflect the cost to such Lenders of making or maintaining their Loans
included in such Borrowing for such Interest Period;
then tAhe Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist (it being understood
that the Administrative Agent will use commercially reasonable efforts to give
such notice as soon as practicable after such circumstances no longer exist),
(i) any Interest Election Request that requests the conversion of any Borrowing
to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar Borrowing,
such Borrowing shall be made as an ABR Borrowing.
SECTION 2.12. Increased Costs. (a) If any Change in Law
(except with respect to Taxes, which shall be governed by Section 2.14) shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in
the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank
market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender; and the result of any
of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of
maintaining its obligation to make any such Loan) or to
reduce the amount of any sum received or receivable by such
Lender hereunder (whether of principal, interest or
otherwise),
then the Borrower will pay to such Lender such additional amount or amounts as
will compensate such Lender for such additional costs incurred or reduction
suffered.
(b) If any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on a Lender's capital or on
the capital of such Lender's holding company, if any, as a consequence of this
Agreement or the Loans made by such Lender to a level below that which such
Lender or such Lender's holding company could have achieved but for such Change
in Law (taking into consideration such Lender's policies and the policies of
such Lender's holding company with respect to capital adequacy), then from time
to time the Borrower will pay to such Lender such additional amount or amounts
as will compensate such Lender or such Lender's holding company for any such
reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case
may be, as specified in paragraph (a) or (b) of this Section shall be delivered
to the Borrower and shall be prima facie evidence thereof absent manifest error.
The Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation, provided that the Borrower shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 180 days prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor, and provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 180-day period referred
to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.13. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurodollar Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.08(f) and is revoked in accordance therewith) or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.16, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount reasonably determined by such Lender to be the excess, if any,
of (i) the amount of interest that would have accrued on the principal amount of
such Loan had such event not occurred, at the Adjusted LIBO Rate that would have
been applicable to such Loan, for the period from the date of such event to the
last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of interest that would
accrue on such principal amount for such period at the interest rate that such
Lender would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be prima facie evidence thereof absent manifest error.
The Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.
SECTION 2.14. Taxes. (a) Any and all payments by or on account
of any obligation of the Borrower hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes, provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Agent or Lender (as the case may be) 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 Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify each Agent and each Lender,
within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by such Agent or such Lender, as the case
may be, on or with respect to any payment by or on account of any obligation of
the Borrower hereunder or under any other Loan Document (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or the Collateral Agent, or by
the Administrative Agent on its own behalf or on behalf of a Lender, shall be
prima facie evidence thereof absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall use all reasonable efforts to
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at a
reduced rate.
(f) If an Agent or a Lender has received a refund of any Taxes
as to which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.14, which such
Agent or such Lender is able to identify as such, it shall pay such refund to
the Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section 2.14 with respect to the Taxes
giving rise to such refund), net of all reasonable out-of-pocket expenses of
such Agent or such Lender and without interest (other than any interest paid by
the relevant Governmental Authority with respect to such refund); provided,
however, that the Borrower agrees to pay, upon the request of such Agent or such
Lender, the amount paid to the Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to such Agent or such
Lender in the event such Agent or such Lender is required to repay such refund
to such Governmental Authority. Upon written request by the Borrower, a Lender
shall use reasonable efforts to contest any Taxes for which the Borrower is
required to pay additional amounts pursuant to this Section 2.14, or to obtain
refunds thereof; provided, however, that such efforts shall not require the
Lender to incur additional costs or legal or regulatory burdens that the Lender
considers in its good faith judgment to be material, and that nothing in this
Section 2.14(f) shall be construed as requiring a Lender to alter the conduct of
its business or to arrange or alter in any respect its tax or financial affairs.
Nothing contained in this Section 2.14(f) shall require the Administrative Agent
or any Lender to make available its tax returns (or any other information
relating to its Taxes that it deems confidential) to the Borrower or any other
Person.
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, or
fees, or of amounts payable under Section 2.12, 2.13 or 2.14, or otherwise)
prior to the time expressly required hereunder or under such other Loan Document
for such payment (or, if no such time is expressly required, prior to 2:00 p.m.,
New York City time), on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent at
its offices at Citicorp USA, Inc., 0 Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, XX 00000,
except that payments pursuant to Sections 2.12, 2.13, 2.14 and 9.03 shall be
made directly to the Persons entitled thereto and payments pursuant to other
Loan Documents shall be made to the Persons specified therein. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment under any Loan Document shall be due on a day
that is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first, to
fees and expenses then due to the Agents hereunder, (ii) second, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (iii) third, towards payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans, provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may (but
shall not be obligated to), in reliance upon such assumption, distribute to the
Lenders the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Effective Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.04(b), 2.15(d) or 9.03(c), then the
Administrative Agent may (but shall not be obligated to), in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy
such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.16. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.12, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.14, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the
reasonable judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.12 or 2.14, as the
case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.12, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.14,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment), provided that (i) to the extent
the assignee is not a Lender or an Affiliate or an Approved Fund of a Lender,
the Borrower shall have received the prior written consent of the Administrative
Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.12 or payments required to be made pursuant to
Section 2.14, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply. Nothing in this Section 2.16 shall be deemed to
prejudice any rights that the Borrower may have against any Lender as a result
of any default by any such Lender in its obligation to fund Loans hereunder.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower and
the Subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Loan
Transactions entered into and to be entered into by each Loan Party are within
such Loan Party's powers and have been duly authorized by all necessary action.
This Agreement has been duly executed and delivered by the Borrower and
constitutes, and each other Loan Document to which any Loan Party is to be a
party, when executed and delivered by such Loan Party, will constitute, a legal,
valid and binding obligation of the Borrower or such Loan Party (as the case may
be), enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Loan
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by or before, any Governmental Authority,
except such as have been obtained or made and are in full force and effect and
except filings necessary to perfect Liens created under the Loan Documents, (b)
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of the Borrower or any of the Subsidiaries or any
order of any Governmental Authority, (c) except as set forth on Schedule 3.03,
will not violate or result in a default under any material indenture, agreement
or other instrument binding upon the Borrower or any of the Subsidiaries or any
of their assets, or give rise to a right thereunder to require any payment to be
made by the Borrower or any of the Subsidiaries, and (d) will not result in the
creation or imposition of any Lien on any asset of the Borrower or any of the
Subsidiaries, except Liens created under the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) The Borrower's (i) audited consolidated balance sheet as of December 31,
2000, and the related consolidated statements of income and cash flow for the
fiscal year then ended, reported on by KPMG LLP, independent public accountants,
and (ii) its unaudited consolidated balance sheet as of September 30, 2001, and
the related consolidated statements of income and cash flow for the nine months
then ended present fairly, in all material respects, the consolidated financial
position and results of operations of the Borrower and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP.
(b) Except as disclosed in the financial statements referred
to in paragraph (a) above or the notes thereto, and except for the Disclosed
Matters, none of the Borrower or the Subsidiaries has, as of the Effective Date,
any material contingent liabilities, unusual long-term commitments or unrealized
losses.
(c) Since September 30, 2001, there has been no material
adverse change in the business, assets, operations, properties, financial
condition contingent liabilities or prospects of the Borrower or the Borrower
and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Except as set forth in Schedule
3.05, the Borrower and each of the Subsidiaries has good title to, or valid
leasehold interests in, all its real and personal property material to its
business (including its Mortgaged Properties), except for minor defects in title
that do not interfere with its ability to conduct its business as currently
conducted or to utilize such properties for their intended purposes and subject
to Liens permitted by Section 6.02.
(b) The Borrower and each of the Subsidiaries owns, or is
licensed to use, all trademarks, trade names, copyrights, patents and other
intellectual property material to its business, and to Borrower's knowledge
after due inquiry the use thereof by the Borrower and the Subsidiaries does not
infringe upon the rights of any other Person, except for any such infringements
that, individually or in the aggregate, would not result in a Material Adverse
Effect.
(c) Schedule 3.05 sets forth the address of each real property
that is owned or leased by the Borrower or any of the Subsidiaries as of the
Effective Date after giving effect to the Loan Transactions.
(d) As of the Effective Date, neither the Borrower or any of
the Subsidiaries has received notice of, or has knowledge of, any material
pending or contemplated condemnation proceeding affecting any Mortgaged Property
or any sale or disposition thereof in lieu of condemnation. Except as set forth
on Schedule 3.05, none of the Mortgaged Property or any interest therein is
subject to any right of first refusal, option or other contractual right to
purchase any such Mortgaged Property or interest therein.
SECTION 3.06. Litigation and Environmental Matters. (a) There
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of the Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, would, individually or in the aggregate, result in a
Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve
any of the Loan Documents or the Loan Transactions.
(b) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, would not result in
a Material Adverse Effect, neither the Borrower or any of the Subsidiaries (i)
has failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability or has received any
request for information from a Governmental Authority under any Environmental
Law, (iii) has received notice of any claim with respect to any Environmental
Liability, (iv) knows of any past or present facts or circumstances that are
reasonably likely to result in Environmental Liability, or (v) knows of
investigation or threatened investigation or judicial or administrative
proceeding with respect to any of the foregoing.
(c) Except for the Disclosed Matters, none of the property
currently owned, leased or operated by the Borrower or by its Subsidiaries is,
or as a result of the Loan Transactions would be, subject to (i) any state or
local Environmental Laws which would impose restrictions on the use of such
property or require notice, disclosure or advance approval prior to such
transactions, or (ii) any liens under any Environmental Laws.
SECTION 3.07. Compliance with Laws and Agreements. Except for
the Disclosed Matters relating to Section 3.06(b) and (c), each of the Borrower
and the Subsidiaries is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, would not result in a
Material Adverse Effect. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither
the Borrower nor any of the Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. The Borrower and each of the Subsidiaries
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) any Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so would not result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, would result in a
Material Adverse Effect. Neither the Borrower nor any ERISA Affiliate has
engaged in a transaction with respect to any employee benefit plan that would
reasonably be expected to result in any material liability to the Borrower or
any ERISA Affiliate pursuant to Section 4069 of ERISA.
Schedule 3.10(a) sets forth a complete list of the U.S.
Company Benefit Plans meeting the criteria set forth therein. The Borrower shall
provide a complete list of Foreign Company Benefit Plans meeting the criteria
set forth in Schedule 3.10(a) as soon as reasonably practicable following the
date hereof. Except as set forth in Schedule 3.10(a), there is no formal
arrangement or commitment, whether legally binding or not, to create any
additional Borrower Benefit Plan or to amend, modify or change any existing
Borrower Benefit Plan.
Except as set forth in Schedule 3.10(b) and except as would
not, individually or in the aggregate, have a Material Adverse Effect, with
respect to the Borrower Benefit Plans (i) each Borrower Benefit Plan has been
operated and administered substantially in accordance with its terms and
applicable laws including, but not limited to ERISA and the Code, (ii) each
Borrower Benefit Plan intended to be "qualified" within the meaning of Section
401(a) of the Code has received a favorable determination letter from the
Internal Revenue Service stating that it is so qualified, and, to the Borrower's
knowledge, there are no existing circumstances or any events that have occurred
that would reasonably be expected to adversely affect the qualified status of
such Borrower Benefit Plan, (iii) no liability under Title IV has been incurred
by the Borrower, its Subsidiaries or any ERISA Affiliate that has not been
satisfied in full, and no condition exists that presents a risk to the Borrower,
its Subsidiaries or any ERISA Affiliate of incurring a liability thereunder
(other than liability for benefits or premiums payable to the PBGC) arising in
the ordinary course that are not yet due), (iv) no Borrower Benefit Plan
provides benefits, including, without limitation, death or medical benefits
(whether or not insured), with respect to current or former employees or
directors of the Borrower or its Subsidiaries beyond their retirement or other
termination of service, other than (A) coverage mandated by applicable law, (B)
death benefits or retirement benefits under any "employee pension plan" (as
defined in Section 3(2) of ERISA), (C) deferred compensation benefits accrued as
liabilities on the books of the Borrower or its Subsidiaries, (D) benefits the
full cost of which are borne by the current or former employee or director (or
his or her beneficiary), (E) certain retiree medical benefit plans, (F) benefits
under certain disability plans or (G) benefits under certain life insurance
plans, each of (E), (F) and (G) designated as such on Schedule 3.10(b), (v) no
Borrower Benefit Plan is a "multiemployer pension plan" (as defined in Section
3(37) of ERISA), (vi) all contributions or other amounts payable by the Borrower
or its Subsidiaries as of the date of this Agreement with respect to each
Borrower Benefit Plan in respect of current or prior plan years have been paid
or accrued in accordance with GAAP and Section 412 of the Code, (vii) no
"prohibited transaction" within the meaning of Section 4975 of the Code or
Section 406 of ERISA has occurred with respect to which the Borrower may incur
material liability or may be otherwise materially damaged and (viii) to the
Borrower's knowledge, there are no pending, threatened or anticipated claims
(other than routine claims for benefits) by, on behalf of or against any of the
Borrower Benefit Plan or any trusts related thereto.
SECTION 3.11. Disclosure. The reports, financial statements,
certificates or other information furnished by or on behalf of any Loan Party to
the Administrative Agent or any Lender or any of their Related Parties in
connection with the negotiation of this Agreement or any other Loan Document or
delivered hereunder or thereunder (as modified or supplemented by other
information so furnished), taken as a whole, do not contain any material
misstatement of fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, provided that with respect to projected financial
information, the Borrower represent only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time. The
Administrative Agent and the Lenders acknowledge that actual results during any
period or periods covered by such projected financial information may differ
therefrom and such differences may be material.
SECTION 3.12. Subsidiaries. Schedule 3.12 sets forth the name
of, and the ownership interest of the Borrower in, each Subsidiary and
identifies each Subsidiary that is a Subsidiary Loan Party, in each case as of
the Effective Date.
SECTION 3.13. Insurance. Schedule 3.13 sets forth a
description of all insurance maintained by or on behalf of the Borrower and the
Subsidiaries as of the Effective Date. As of the Effective Date, all premiums in
respect of such insurance that are required to have been paid have been paid.
The Borrower believes that the insurance maintained by or on behalf of the
Borrower and the Subsidiaries is adequate in all material respects.
SECTION 3.14. Labor Matters. As of the Effective Date, there
are no material strikes, lockouts or slowdowns against the Borrower or any
Subsidiary pending or, to the knowledge of the Borrower, threatened. Except as
would not result in a Material Adverse Effect, (a) the hours worked by and
payments made to employees of the Borrower and the Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign law dealing with such matters and (b) the consummation
of the Loan Transactions will not give rise to any right of termination or right
of renegotiation on the part of any union under any collective bargaining
agreement to which the Borrower or any Subsidiary is bound. Except as set forth
in Schedule 3.14, (i) no current or former employee, officer, director, or
consultant of the Borrower or any of its Subsidiaries is entitled to any
benefit, payment, forgiveness of indebtedness or accelerated vesting of any
bonus, retirement, severance, change in control, job security or similar benefit
or any other enhanced benefit as a result of the Loan Transactions, whether
alone or in connection with any other event and (ii) the Borrower is not a party
to any agreement, whether written or oral, (A) that would result in any payments
that may be considered to be "parachute payments" under Section 280G of the
Code, whether or not such compensation would be deemed to be reasonable
compensation for services rendered or (B) that would require the Borrower or any
of its Subsidiaries to make any payments that would fail to be deductible under
Section 162(m) or any other provision of the Code.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans hereunder shall not become effective until the date on which the
Administrative Agent notifies the Borrower that each of the following conditions
is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or any Related Party) shall have
received from the Borrower, the Collateral Agent and each Lender either (i) a
counterpart of this Agreement signed on behalf of such party or (ii) written
evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement.
(b) The Administrative Agent (or any Related Party) shall have
received from any Fund Guarantor written evidence satisfactory to the
Administrative Agent that the Borrower has satisfied each of the conditions set
forth in Section 4.01 of the Reimbursement Agreement.
(c) Each Guarantor Condition (as defined in the Guaranty) has
been satisfied.
(d) The Administrative Agent (or any Related Party) shall have
received from each Fund Guarantor either (i) a counterpart of the Guaranty to
which it is party duly executed by such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of the Guaranty to which it is party)
that such party has signed a counterpart of such Guaranty.
(e) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of each of (i) Xxxxx Xxxx LLP, counsel for the Borrower,
substantially in the form of Exhibit B-1, and (ii) local counsel in each
jurisdiction where a Mortgaged Property is located, substantially in the form of
Exhibit B-2, and, in the case of each such opinion required by this paragraph,
covering such other matters relating to the Loan Parties, the Loan Documents or
the Loan Transactions as the Required Lenders shall reasonably request. The
Borrower hereby requests such counsel to deliver such opinions.
(f) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good standing of
each Loan Party, the authorization of the Loan Transactions and any other legal
matters relating to the Loan Parties, the Loan Documents or the Loan
Transactions, all in form and substance satisfactory to the Administrative Agent
and its counsel.
(g) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a Vice
President or a Financial Officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(h) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
(including reasonable fees, charges and disbursements of counsel) required to be
reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
(i) The Collateral and Guarantee Requirement shall have been
satisfied and the Administrative Agent shall have received a completed
Perfection Certificate dated the Effective Date and signed by an executive
officer or Financial Officer of the Borrower, together with all attachments
contemplated thereby, including the results of a search of the Uniform
Commercial Code (or equivalent) filings made with respect to the Loan Parties
(including any Subsidiary Loan Parties formed in connection with or resulting
from the Acquisition) in the jurisdictions contemplated by the Perfection
Certificate and copies of the financing statements (or similar documents)
disclosed by such search and evidence reasonably satisfactory to the
Administrative Agent that the Liens indicated by such financing statements (or
similar documents) are permitted by Section 6.02 or have been released.
(j) The Administrative Agent shall have received evidence that
the insurance required by Section 5.07 and the Security Documents is in effect.
(k) The Administrative Agent shall have been afforded the
timely opportunity to review all other documentation relating to the Loan
Transactions and the other transactions contemplated hereby and shall be
reasonably satisfied in all respects with such documentation.
(l) There shall not have occurred any material adverse change
in the business, assets, operations, properties, financial condition, contingent
liabilities or prospects of the Borrower or the Borrower and its subsidiaries,
taken as a whole, since September 30, 2001.
(m) The Administrative Agent shall have received evidence
satisfactory to it of the payment in full of the principal of and accrued
interest on the loans outstanding under the Revolving Credit Agreement dated as
of November 13, 2001 among the Borrower, the lenders party thereto and Citicorp
USA, Inc., as administrative agent and collateral agent, together with all other
amounts due and payable thereunder, and termination of the commitments of the
lenders thereunder to make additional loans.
The Administrative Agent shall notify the Borrower and the
Lenders of the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New
York City time, on or as of December 21, 2001, (and, in the event such
conditions are not so satisfied or waived, the Commitments shall terminate at
such time).
SECTION 4.02. Each Borrowing. Except as provided in Section
4.03, the obligation of each Lender to make a Loan on the occasion of any
Borrowing is subject to receipt of the request therefor in accordance herewith
and to the satisfaction of the following conditions:
(a) The representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all material respects
on and as of the date of such Borrowing, except to the extent such
representations and warranties expressly relate to an earlier date (in which
case such representations and warranties shall be true and correct in all
material respects as to such earlier date).
(b) At the time of and immediately after giving effect to such
Borrowing, (i) no Default shall have occurred and be continuing and (ii) each of
the conditions specified in Section 4.01 shall be satisfied (or waived in
accordance with Section 9.02).
(c) The Administrative Agent shall not have received any
instructions from the Fund Guarantors to instruct the Lenders not to make any
further Loans.
(d) The Surviving Representations of each Fund Guarantor set
forth in the Guaranty shall be true and correct in all material respects on and
as of the date of such Borrowing as if made on and as of such date, except to
the extent such Surviving Representations expressly relate to an earlier date
(in which case such Surviving Representations shall be true and correct in all
materials respects as to such earlier date). For the avoidance of doubt, any
Surviving Representation that refers to "the date hereof" or "as of the date
hereof" or any other similar reference shall be deemed to refer to the date of
the Guaranty.
Each Borrowing shall be deemed to constitute a representation
and warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section.
SECTION 4.03. Initial $30,000,000 of Borrowings.
Notwithstanding Section 4.01 and Section 4.02, and notwithstanding any other
provision of this Agreement (including any provision of Article VII that would
otherwise cause a termination of the Commitments), the obligation of the Lenders
to make initial Loans in an aggregate principal amount of $30,000,000 shall be
subject to no conditions whatsoever other than compliance by the Borrower with
the requirements of Sections 2.02, 2.03, 2.05, 2.07(e), 4.01(c) and 4.01(m).
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full the Borrower covenants and agrees with the Lenders that:
Section 5.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and for such
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by KPMG LLP or other independent public
accountants of recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception as to the
scope of such audit) to the effect that such consolidated financial statements
present fairly, in all material respects, the consolidated financial condition
and results of operations of the Borrower and the Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, its unaudited consolidated
balance sheet and related statements of operations, stockholders' equity and
cash flows as of the end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of the
balance sheet, as of the end of) the previous fiscal year, all certified by one
of its Financial Officers as presenting fairly in all material respects the
consolidated financial condition and results of operations of the Borrower and
the Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of
footnotes; (c) within 10 Business Days after the end of each of the first two
months of each fiscal quarter of the Borrower, its unaudited consolidated
balance sheet and related statements of operations and cash flows as of the end
of and for such month and the then elapsed portion of the fiscal year, setting
forth in each case in comparative form the figures for the corresponding period
or periods of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly, in all material respects, the consolidated financial
condition and results of operations of the Borrower and the Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements
under paragraph (a), (b) or (c) above, a certificate of a Financial Officer of
the Borrower (i) certifying, to such Financial Officer's knowledge after due
inquiry, as to whether a Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or proposed to be taken with
respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 and (iii)
stating whether any change in GAAP or in the application thereof has occurred
since the date of the Borrower's audited financial statements referred to in
Section 3.04 and, if any such change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements
under paragraph (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during the
course of their examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules or
guidelines);
(f) prior to the commencement of each fiscal year of the
Borrower, a detailed consolidated budget for such fiscal year (including a
projected consolidated balance sheet and related statements of projected
operations and cash flow as of the end of and for such fiscal year and setting
forth any material assumptions used for purposes of preparing such budget) and,
promptly when available, any significant revisions of such budget;
(g) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a
detailed report of the Consolidated Backlog for such month, measured as of the
close of business on the prior Business Day; and
(i) promptly following any request therefor, such other
information regarding the operations, business affairs and financial condition
of the Borrower or any Subsidiary, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will
furnish to the Administrative Agent and each Lender written notice of the
following promptly upon a Financial Officer of the Borrower obtaining knowledge
thereof:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority against or
affecting the Borrower or any Affiliate thereof that, if adversely determined,
could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and the Subsidiaries in an aggregate amount
exceeding $2,500,000; and
(d) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied
by a statement of a Financial Officer or other executive officer of the Borrower
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
SECTION 5.03. Information Regarding Collateral. (a) The
Borrower will furnish to the Administrative Agent prompt written notice of any
change (i) in any Loan Party's corporate name or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (ii) in the location of any Loan Party's chief executive office, its
principal place of business, any office in which it maintains books or records
relating to Collateral owned by it or any office or facility at which Collateral
owned by it is located (including the establishment of any such new office or
facility), (iii) in any Loan Party's identity, jurisdiction of organization or
corporate structure or (iv) in any Loan Party's Federal Taxpayer Identification
Number. The Borrower agrees not to effect or permit any change referred to in
the preceding sentence unless all filings have been made, or will have been made
within any statutory period, under the Uniform Commercial Code or otherwise that
are required in order for the Administrative Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral for the benefit of the Secured Parties. The Borrower also
agrees promptly to notify the Administrative Agent if any material portion of
the Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to paragraph (a)
of Section 5.01, the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer of the Borrower (i) setting forth the
information required pursuant to Section 2 of the Perfection Certificate or
confirming that there has been no change in such information since the date of
the Perfection Certificate delivered on the Effective Date or the date of the
most recent certificate delivered pursuant to this Section and (ii) certifying
that all Uniform Commercial Code financing statements (including fixture
filings, as applicable) or other appropriate filings, recordings or
registrations, including all refilings, rerecordings and reregistrations,
containing a description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction
identified pursuant to clause (i) above to the extent necessary to protect and
perfect the security interests under the Security Agreement for a period of not
less than 18 months after the date of such certificate (except as noted therein
with respect to any continuation statements to be filed within such period).
SECTION 5.04. Existence; Conduct of Business. The Borrower
will, and will cause each of the Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, contracts, licenses, permits, privileges, franchises,
patents, copyrights, trademarks and trade names material to the conduct of the
business of the Borrower and its Subsidiaries, taken as a whole, provided that
the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.03 or any sale of assets permitted under
Section 6.05; provided, further, that neither Borrower nor any of its
Subsidiaries shall be obligated to maintain any of the foregoing assets in the
event that the Board of Directors of Borrower adopts a resolution to the effect
that the maintenance of such asset is no longer necessary or desirable in the
conduct of the business of the Borrower and its Subsidiaries.
SECTION 5.05. Payment of Obligations. The Borrower will, and
will cause each of the Subsidiaries to, pay its Indebtedness and other
obligations, including Tax liabilities, before the same shall become delinquent
or in default, except where (a) the validity or amount thereof is being
contested in good faith by appropriate proceedings, (b) the Borrower or such
Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP, (c) such contest effectively suspends collection of the
contested obligation and the enforcement of any Lien securing such obligation
and (d) the failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.06. Maintenance of Properties. The Borrower will,
and will cause each of the Subsidiaries to, keep and maintain all property
material to the conduct of the business of the Borrower and the Subsidiaries,
taken as a whole, in good working order and condition, ordinary wear and tear
excepted.
SECTION 5.07. Insurance. The Borrower will, and will cause
each of the Subsidiaries to, maintain, with financially sound and reputable
insurance companies (a) insurance in such amounts (with no greater risk
retention) and against such risks as are customarily maintained by companies of
established repute engaged in the same or similar businesses operating in the
same or similar locations and (b) all insurance required to be maintained
pursuant to the Security Documents. The Borrower will furnish to the Lenders,
upon request in writing of the Administrative Agent, information in reasonable
detail as to the insurance so maintained.
SECTION 5.08. Casualty and Condemnation. The Borrower (a) will
furnish to the Administrative Agent and the Lenders prompt written notice of any
casualty or other insured damage to any material portion of any Collateral or
the commencement of any action or proceeding for the taking of any Collateral or
any part thereof or interest therein under power of eminent domain or by
condemnation or similar proceeding and (b) will cause the Net Proceeds of any
such event (whether in the form of insurance proceeds, condemnation awards or
otherwise) to be applied in accordance with the applicable provisions of the
Security Documents.
SECTION 5.09. Books and Records; Inspection and Audit Rights.
The Borrower will, and will cause each of the Subsidiaries to, keep proper books
of record and account in which full, true and correct entries are made of all
material dealings and transactions in relation to its business and activities.
The Borrower will, and will cause each of the Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and at such reasonable intervals as may be reasonably
requested.
SECTION 5.10. Compliance with Laws. The Borrower will, and
will cause each of the Subsidiaries to, comply with all laws, rules, regulations
and orders of any Governmental Authority applicable to it or its property,
except where the failure to do so, individually or in the aggregate, would not
result in a Material Adverse Effect.
SECTION 5.11. Use of Proceeds. The proceeds of the Loans will
be used only for general corporate purposes, including the payment of fees and
expenses of the Administrative Agent and the Lenders and their Affiliates in
connection with the transactions. No part of the proceeds of any Loan will be
used, whether directly or indirectly, for any purpose that entails a violation
of any of the Regulations of the Board, including Regulations T, U and X.
SECTION 5.12. Additional Subsidiaries. If any additional
Subsidiary is formed or acquired after the Effective Date, the Borrower will,
within ten (10) Business Days after such Subsidiary is formed or acquired,
notify the Administrative Agent and the Lenders thereof and cause the Collateral
and Guarantee Requirement to be satisfied with respect to such Subsidiary (if it
is a Subsidiary Loan Party) and with respect to any Equity Interest in or
Indebtedness of such Subsidiary owned by or on behalf of any Loan Party.
SECTION 5.13. Further Assurances; Transfer of Joint Venture
Stock. (a) The Borrower will, and will cause each Subsidiary Loan Party to,
execute any and all further documents, financing statements, agreements and
instruments, and take all such further actions (including the filing and
recording of financing statements, fixture filings, mortgages, deeds of trust
and other documents), that may be required under any applicable law, or which
the Administrative Agent or the Required Lenders may reasonably request, to
cause the Collateral and Guarantee Requirement to be and remain satisfied, all
at the expense of the Loan Parties. The Borrower also agrees to provide to the
Administrative Agent, from time to time upon request, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and priority of
the Liens created or intended to be created by the Security Documents.
(b) If any material assets (including any real property or
improvements thereto or any interest therein) are acquired by the Borrower or
any Subsidiary Loan Party after the Effective Date (other than assets
constituting Collateral under the Security Agreement or the Pledge Agreement
that become subject to the Lien of the Security Agreement or the Pledge
Agreement upon acquisition thereof), the Borrower will notify the Administrative
Agent and the Lenders thereof, and, if requested by the Administrative Agent or
the Required Lenders, the Borrower will cause such assets to be subjected to a
Lien securing the Revolving Credit Obligations and will take, and cause the
Subsidiary Loan Parties to take, such actions as shall be necessary or
reasonably requested by the Administrative Agent to grant and perfect such
Liens, including actions described in paragraph (a) of this Section, all at the
expense of the Loan Parties. Notwithstanding the foregoing, in no event shall
the Borrower or any Subsidiary Loan Party be required to xxxxx x xxxx on any of
the Texas Instruments Agreements (as defined in the Security Agreement).
(c) The Borrower will, and will cause each applicable
Subsidiary to, execute any and all further documents, financing statements,
agreements and instruments, and take all such further actions that may be
required under any applicable law, or which the Administrative Agent or the
Required Lenders may reasonably request, to cause the transfer of all of the
Equity Interests in MEMC Kulim Electronic Materials, Sdn. Bhd from the Borrower
to MEMC International, Inc. no later than fifteen seventy-five (75) Business
Days after the Effective Date.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, the Borrower covenants and agrees with the Lenders that:
Section 6.01. Indebtedness; Certain Equity Securities. (a) The
Borrower will not, and will not permit any Subsidiary to, create, incur, assume
or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents, the
Reimbursement Documentation and the Indenture Documentation and
any Indebtedness evidenced by the Italian Notes;
(ii) Indebtedness existing (or incurred pursuant to
contractual loan commitments existing) on the Effective Date and
set forth in Schedule 6.01 and extensions, renewals, refinancings
and replacements of any such Indebtedness that do not increase
the outstanding principal amount thereof (or commitments
therefor) or result in an earlier maturity date or decreased
weighted average life thereof;
(iii) Indebtedness of the Borrower to any Subsidiary and of
any Subsidiary to the Borrower or any other Subsidiary;
(iv) Guarantees by the Borrower and by any Subsidiary of
Indebtedness of the Borrower or any other Subsidiary, provided
that Guarantees by the Borrower or any Subsidiary Loan Party of
Indebtedness of any Subsidiary that is not a Loan Party shall be
subject to Section 6.04;
(v) Indebtedness of the Borrower or any Subsidiary incurred
to finance the acquisition, construction or improvement of any
fixed or capital assets, including Capital Lease Obligations
(provided that such Indebtedness is incurred prior to or within
180 days after such acquisition or the completion of such
construction or improvement) and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by
a Lien on any such assets prior to the acquisition thereof, and
extensions, renewals, refinancings and replacements of any such
Indebtedness that do not increase the outstanding principal
amount thereof, provided that the aggregate principal amount of
Indebtedness permitted by this clause (v) shall not
exceed $5,000,000 at any time outstanding;
(vi) Indebtedness of the Borrower or any Subsidiary in
respect of workers' compensation claims, self-insurance
obligations, performance bonds, surety, appeal or similar bonds
and completion guarantees provided by the Borrower and the
Subsidiaries in the ordinary course of their business, provided
that upon the incurrence of Indebtedness with respect to
reimbursement type obligations regarding workers' compensation
claims, such obligations are reimbursed within 30 days following
such drawing or incurrence;
(vii) in each case with the consent of the Required Lenders
to be given or withheld in their absolute discretion,
Indebtedness in respect of a Permitted Receivables Financing,
provided that the Net Proceeds resulting from the sale, transfer
or other disposition of Receivables in connection with such
Permitted Receivables Financing are applied in accordance with
Section 2.08(d);
(viii) Indebtedness of the Borrower or any Subsidiary that
was (A) Indebtedness of any other Person existing at the time
such other Person was merged with or became a Subsidiary,
including Indebtedness incurred in connection with, or in
contemplation of, such other Person's merging with or becoming a
Subsidiary, and extensions, renewals, refinancings and
replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier
maturity date or decreased weighted average life thereof,
provided that the aggregate principal amount of Indebtedness
permitted under this clause (viii) shall not exceed $5,000,000 at
any time outstanding;
(ix) non-interest bearing Indebtedness not for borrowed
money, in the nature of customer deposits; and
(x) other unsecured Indebtedness in an aggregate principal
amount not exceeding $5,000,000 at any time outstanding, provided
that the aggregate principal amount of Indebtedness of the
Subsidiaries that are not Subsidiary Loan Parties permitted by
this clause (x) shall not exceed $5,000,000 at any time
outstanding.
(b) The Borrower will not, and will not permit any Subsidiary
to, issue any preferred stock or other preferred Equity Interests, except that
(i) the Borrower may issue the Cumulative Preferred Stock; (ii) the Borrower may
issue preferred stock or other preferred Equity Interests of the Borrower that
do not require mandatory cash dividends or redemptions and do not provide for
any right on the part of the holder to require redemption, repurchase or
repayment thereof, in each case prior to the date that is 180 days after the
Maturity Date and (iii) the Borrower or any Subsidiary may issue directors'
qualifying shares or shares required by applicable law to be held by a Person
other than the Borrower or any Subsidiary.
SECTION 6.02. Liens. The Borrower will not, and will not
permit any Subsidiary to, create, incur, assume or permit to exist any Lien on
any property or asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or rights in respect of
any thereof, except:
(i) Liens created under the Loan Documents, the
Reimbursement Documentation and the Indenture Documentation or to
secure the Italian Notes;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the Borrower or
any Subsidiary existing on the Effective Date and set forth in
Schedule 6.02, provided that (i) such Lien shall not apply to any
other property or asset of the Borrower or any Subsidiary and
(ii) such Lien shall secure only those obligations that it
secures on the Effective Date and extensions, renewals and
replacements thereof that do not increase the outstanding
principal amount thereof; any Lien existing on any property or
asset prior to the acquisition thereof by the Borrower or any
Subsidiary or existing on any property or asset of any Person
that becomes a Subsidiary after the Effective Date prior to the
time such Person becomes a Subsidiary, provided that (A) such
Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the
case may be, (B) such Lien shall not apply to any other property
or assets of the Borrower or any Subsidiary and (C) such Lien
shall secure only those obligations that it secures on the date
of such acquisition or the date such Person becomes a Subsidiary,
as the case may be and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount
thereof;
(iv) Liens on fixed or capital assets acquired, constructed
or improved by the Borrower or any Subsidiary, provided that (A)
such Liens secure Indebtedness permitted by clause (v) of Section
6.01(a), (B) such security interests and the Indebtedness secured
thereby are incurred prior to or within 180 days after such
acquisition or the completion of such construction or
improvement, (C) the Indebtedness secured thereby does not exceed
100% of the cost of acquiring, constructing or improving such
fixed or capital assets and (D) such security interests shall not
apply to any other property or assets of the Borrower or any
Subsidiary;
(v) sales of Receivables and Related Property (or undivided
interests therein) permitted under Section 6.05(c) and Liens on
Receivables of a Receivables Subsidiary granted in connection
with any Permitted Receivables Financing;
(vi) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of setoff
or similar rights; and
(vii) statutory and common law Liens in favor of a landlord
under leases to which Borrower or any Subsidiary is a party.
(viii) Liens created in connection with extensions, renewals
or replacements of any Liens referred to in clauses (i) through
(vii) above, provided that the principal amount of the obligation
secured thereby is not increased and that any such extension,
renewal or replacement is limited to the property originally
encumbered thereby.
SECTION 6.03. Fundamental Changes. (a) The Borrower will not,
and will not permit any Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing (i) any
Person may merge with the Borrower in a transaction in which the surviving
entity is a Person organized or existing under the laws of the United States of
America, any State thereof or the District of Columbia and, if such surviving
entity is not the Borrower, such Person expressly assumes, in writing, all the
obligations of the Borrower, under the Loan Documents and the Reimbursement
Documentation (such writing to be in form and substance satisfactory to the
Administrative Agent and the Lenders), (ii) any Person may merge with any
Subsidiary in a transaction in which the surviving entity is a Subsidiary and,
if any party to such merger is a Subsidiary Loan Party, is a Subsidiary Loan
Party and (iii) any Subsidiary (other than a Subsidiary Loan Party) may
liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders, provided that any such merger
involving a Person that is not a wholly owned Subsidiary immediately prior to
such merger shall not be permitted unless also permitted by Sections 6.04 and
6.08.
(b) The Borrower will not, and will not permit any of the
Subsidiaries (other than a Receivables Subsidiary) to, engage to any material
extent in any business other than businesses of the type conducted by the
Borrower and the Subsidiaries on the Effective Date and businesses reasonably
related thereto.
(c) No Receivables Subsidiary will engage in any business
other than the purchase and sale or other transfer of Receivables (or
participation interests therein) in connection with any Permitted Receivables
Financing, together with activities directly related thereto.
(d) The Borrower will not permit MEMC International, Inc. to
engage in any business or activity other than (i) the ownership of all of the
outstanding shares of capital stock of MEMC Korea Company, MEMC Kulim Electronic
Materials, Sdn. Bhd. and Taisil Electronic Materials Corporation owned by MEMC
International, Inc. on or after the Effective Date (the "Joint Venture Stock")
and activities incidental thereto, and (ii) miscellaneous payroll and benefits
activities relating to certain expatriate employees and certain management
employees in foreign locations of the Borrower and its Subsidiaries. MEMC
International, Inc. will not own or acquire any assets (other than the Joint
Venture Stock) or incur any liabilities (other than liabilities under the Loan
Documents, the Reimbursement Documentation, obligations under any stock option
plans or other benefit plans for management or employees of the Borrower and its
Subsidiaries, obligations under the shareholder or joint venture agreements and
related ancillary agreements with respect to MEMC Korea Company, MEMC Kulim
Electronic Materials, Sdn. Bhd. and/or Taisil Electronic Materials Corporation,
liabilities imposed by law, including tax liabilities, and other liabilities
incidental to its existence and permitted business and activities). The Borrower
will not permit MEMC International, Inc. to sell, transfer, lease or otherwise
dispose of any or all of the Joint Venture Stock other than the pledge thereof
contemplated by the Security Documents, the Reimbursement Documentation and the
Indenture Documentation.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. The Borrower will not, and will not permit any of the Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Subsidiary prior to such merger) any Equity
Interests in or evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments and guarantees of Indebtedness of Foreign
Subsidiaries existing on the Effective Date hereof and set forth on Schedule
6.04;
(c) investments by the Borrower and the Subsidiaries that are
Loan Parties in Equity Interests in their respective Subsidiaries that are Loan
Parties and investments by Subsidiaries that are not Loan Parties in Equity
Interests in their respective Subsidiaries, provided that any such Equity
Interests held by a Loan Party shall be pledged pursuant to the Pledge Agreement
(subject to the limitations applicable to voting stock of a Foreign Subsidiary
referred to in the definition of the term "Collateral and Guarantee
Requirement");
(d) loans or advances made by the Borrower to any Subsidiary
and made by any Subsidiary to the Borrower or any other Subsidiary, provided
that any such loans and advances made by a Loan Party shall be evidenced by a
promissory note pledged pursuant to the Pledge Agreement;
(e) Guarantees constituting Indebtedness permitted by Section
6.01 of Indebtedness of the Borrower or any Subsidiary Loan Party;
(f) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(g) Permitted Acquisitions, provided that the sum of all
consideration paid or otherwise delivered in connection with Permitted
Acquisitions (including the principal amount of any Indebtedness issued as
deferred purchase price and the fair market value of any other non-cash
consideration) plus the aggregate principal amount of all Indebtedness otherwise
incurred or assumed in connection with, or resulting from, Permitted
Acquisitions (including Indebtedness of any acquired Persons outstanding at the
time of the applicable Permitted Acquisition) shall not exceed, on a cumulative
basis subsequent to the Effective Date, $5,000,000;
(h) any investments in or loans to any other Person received
as noncash consideration for sales, transfers, leases and other dispositions
permitted by Section 6.05;
(i) Guarantees by the Borrower and the Subsidiaries of leases
entered into by any Subsidiary as lessee;
(j) extensions of credit in the nature of accounts receivable
or notes receivable in the ordinary course of business;
(k) investments in payroll, travel and similar advances to
cover matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the ordinary
course of business;
(l) loans or advances to employees made in the ordinary course
of business consistent with prudent business practice and not exceeding $500,000
in the aggregate outstanding at any one time;
(m) investments in or acquisitions of stock, obligations or
securities received in settlement of debts created in the ordinary course of
business and owing to the Borrower or any Subsidiary or in satisfaction of
judgments;
(n) investments in the form of Hedging Agreements permitted
under Section 6.07;
(o) investments by the Borrower or any Subsidiary in (i) the
capital stock of a Receivables Subsidiary and (ii) other interests in a
Receivables Subsidiary, in each case to the extent determined by the Borrower in
its judgment to be reasonably necessary in connection with or required by the
terms of the Permitted Receivables Financing;
(p) investments, loans, advances, guarantees and acquisitions
resulting from a foreclosure by the Borrower or any Subsidiary with respect to
any secured investment or other transfer of title with respect to any secured
investment in default;
(q) investments, loans, advances, guarantees and acquisitions
the consideration for which consists solely of shares of common stock of the
Borrower; (r) investments in prepaid expenses, negotiable instruments held for
collection and lease, utility, workers' compensation, performance and other
similar deposits in the ordinary course of business; and
(s) other investments in an aggregate amount not to exceed
$2,500,000 at any time outstanding.
SECTION 6.05. Asset Sales. The Borrower will not, and will not
permit any of the Subsidiaries to, sell, transfer, lease or otherwise dispose of
any asset, including any Equity Interest owned by it, nor will the Borrower
permit any of the Subsidiaries to issue any additional Equity Interest in such
Subsidiary, except:
(a) sales of inventory, used or surplus equipment and
Permitted Investments in the ordinary course of business and the periodic
clearance of aged inventory;
(b) sales, transfers and dispositions to the Borrower or a
Subsidiary, provided that any such sales, transfers or dispositions involving a
Subsidiary that is not a Loan Party shall be made in compliance with Section
6.09;
(c) the Borrower and the Subsidiaries may sell, without
recourse (other than Standard Securitization Undertakings and retained
interests), Receivables to a Receivables Subsidiary, and any Receivables
Subsidiary may sell Receivables and Related Property or an undivided interest
therein to any other Person, pursuant to any Permitted Receivables Financing,
and convert or exchange Receivables and Related Property into or for notes
receivable in connection with the compromise or collection thereof; and
(d) sales, transfers and other dispositions of assets (other
than Equity Interests in a Subsidiary) that are not permitted by any other
clause of this Section, provided that the aggregate fair market value of all
assets sold, transferred or otherwise disposed of in reliance upon this clause
(d) shall not exceed $3,000,000 during any fiscal year of the Borrower; provided
that all sales, transfers, leases and other dispositions permitted hereby (other
than those permitted by clause (b) above) shall be made for fair value and for
consideration of at least 80% cash or cash equivalents.
SECTION 6.06. Sale and Leaseback Transactions. The Borrower
will not, and will not permit any of the Subsidiaries to, enter into any
arrangement, directly or indirectly, whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
that it intends to use for substantially the same purpose or purposes as the
property sold or transferred, except for any such sale of any fixed or capital
assets that is made for cash consideration in an amount not less than the cost
of such fixed or capital asset and is consummated within 180 days after the
Borrower or such Subsidiary acquires or completes the construction of such fixed
or capital asset.
SECTION 6.07. Hedging Agreements. The Borrower will not, and
will not permit any of the Subsidiaries to, enter into any Hedging Agreement,
other than Hedging Agreements entered into in the ordinary course of business to
hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities.
SECTION 6.08. Restricted Payments; Certain Payments of
Indebtedness. (a) The Borrower will not, and will not permit any Subsidiary to,
declare or make, or agree to pay or make, directly or indirectly, any Restricted
Payment, except that (i) the Borrower may declare and pay dividends with respect
to its capital stock payable solely in additional shares of its capital stock,
(ii) Subsidiaries may declare and pay dividends ratably with respect to their
capital stock and (iii) the Borrower may make Restricted Payments, not exceeding
$200,000 during any fiscal year, pursuant to and in accordance with stock option
plans or other benefit plans for directors, management or employees of the
Borrower and the Subsidiaries, including the redemption or purchase of capital
stock of the Borrower held by former directors, management or employees of the
Borrower or any Subsidiary following termination of their employment.
(b) The Borrower will not, and will not permit any Subsidiary
to, make or agree to pay or make, directly or indirectly, any payment or other
distribution (whether in cash, securities or other property) of or in respect of
principal of or interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any Indebtedness,
except:
(i) payment of Indebtedness created under the Loan Documents
or the Reimbursement Documentation;
(ii) payment of regularly scheduled interest and principal
payments as and when due in respect of any Indebtedness permitted
under the Loan Documents or the Reimbursement Documentation;
(iii) refinancings of Indebtedness to the extent such
Indebtedness is permitted by Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or
assets securing such Indebtedness; and
(v) payments in respect of any Permitted Receivables
Facility.
SECTION 6.09. Transactions with Affiliates. The Borrower will
not, and will not permit any Subsidiary to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) transactions that are at prices and on terms and
conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties, (b) transactions
between or among the Borrower and the Subsidiary Loan Parties not involving any
other Affiliate, (c) to pay management, consulting and advisory fees to TPG or
its Affiliates pursuant to any financial advisory, financing, underwriting or
placement agreement or in respect of other investment banking activities,
including in connection with acquisitions or divestitures, (d) payments of fees
and expenses to TPG and its Affiliates in connection with the Loan Transactions
and the transactions contemplated under the Purchase Agreement, (e) any issuance
of securities, or other payments, awards or grants in cash, securities or
otherwise pursuant to, or the funding of, employment arrangements, stock options
and stock ownership plans approved by the board of directors of the Borrower,
(f) the grant of stock options or similar rights to officers, employees,
consultants and directors of the Borrower pursuant to plans approved by the
board of directors of the Borrower and the payment of amounts or the issuance of
securities pursuant thereto, (g) loans or advances to employees in the ordinary
course of business consistent with prudent business practice, but in any event
not to exceed $500,000 in the aggregate outstanding at any one time, and (h) any
Restricted Payment permitted by Section 6.08.
SECTION 6.10. Restrictive Agreements. The Borrower will not,
and will not permit any Subsidiary to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon (a) the ability of the Borrower or any Subsidiary
to create, incur or permit to exist any Lien upon any of its property or assets,
or (b) the ability of any Subsidiary to pay dividends or other distributions
with respect to any shares of its capital stock or to make or repay loans or
advances to the Borrower or any other Subsidiary or to Guarantee Indebtedness of
the Borrower or any other Subsidiary, provided that (i) the foregoing shall not
apply to restrictions and conditions imposed by law or by any Loan Document, the
Reimbursement Documentation, the Italian Credit Agreement or the Indenture
Documentation, (ii) the foregoing shall not apply to restrictions and conditions
existing on the Effective Date identified on Schedule 6.10 (but shall apply to
any extension or renewal of, or any amendment or modification if it expands the
scope of, any such restriction or condition), (iii) the foregoing shall not
apply to customary restrictions and conditions contained in agreements relating
to the sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (iv) clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness, (v) clause (a)
of the foregoing shall not apply to customary provisions in leases, technology
licenses, confidentiality agreements and other contracts or agreements
restricting the assignment thereof and (vi) the foregoing shall not apply to
restrictions or conditions imposed on a Receivables Subsidiary in connection
with a Permitted Receivables Financing.
SECTION 6.11. Amendment of Material Documents. (a) The
Borrower will not, and will not permit any Subsidiary to, amend, modify or waive
any of its rights under its certificate of incorporation, by-laws or other
organizational documents or the Certificate of Designations, the Notes, the
Indenture Documentation, the Warrants or the Warrant Certificate, to the extent
that such amendment, modification or waiver would be materially adverse to the
Lenders.
(b) The Borrower will not, and will not permit any Subsidiary
to, amend, modify or waive any of its rights under any Permitted Receivables
Financing to the extent that such amendment, modification or waiver would be
adverse to the Lenders.
SECTION 6.12. Minimum Quarterly Consolidated EBITDA. The
Borrower will not permit Consolidated EBITDA for any fiscal quarter to be less
than the amount set forth opposite such fiscal quarter:
----------------------------------------------------------
QUARTER MINIMUM AMOUNT
----------------------------------------------------------
Fourth Quarter of 2001 negative $25.0 million
----------------------------------------------------------
First Quarter of 2002 negative $13.0 million
----------------------------------------------------------
Second Quarter of 2002 negative $10.0 million
----------------------------------------------------------
Third Quarter of 2002 Zero
----------------------------------------------------------
Fourth Quarter of 2002 $8.0 million
----------------------------------------------------------
First Quarter of 2003 $10.0 million
----------------------------------------------------------
Second Quarter of 2003 $16.0 million
----------------------------------------------------------
Third Quarter of 2003 $19.0 million
----------------------------------------------------------
Fourth Quarter of 2003 $25.0 million
----------------------------------------------------------
First Quarter of 2004 $27.0 million
----------------------------------------------------------
Second Quarter of 2004 $30.0 million
----------------------------------------------------------
Third Quarter of 2004 $33.0 million
----------------------------------------------------------
Fourth Quarter of 2004 $35.0 million
----------------------------------------------------------
First Quarter of 2005 $37.0 million
----------------------------------------------------------
Second Quarter of 2005 $40.0 million
----------------------------------------------------------
Third Quarter of 2005 $42.0 million
----------------------------------------------------------
Fourth Quarter of 2005 $44.0 million
----------------------------------------------------------
First Quarter of 2006 $46.0 million
----------------------------------------------------------
Second Quarter of 2006 $48.0 million
----------------------------------------------------------
Third Quarter of 2006 $50.0 million
----------------------------------------------------------
SECTION 6.13. Minimum Monthly Consolidated Backlog. The
Borrower will not permit Consolidated Backlog for any month to be less than the
amount set forth opposite such month. Consolidated Backlog for any month shall,
for the purposes of this Section 6.13, equal the arithmetic mean of the
Consolidated Backlog for such month measured as of the close of business on each
of the first five (5) Business Days in such month:
-----------------------------------------------------------
MONTH MINIMUM AMOUNT
-----------------------------------------------------------
December 2001 30.0 million square inches
-----------------------------------------------------------
January 2002 30.0 million square inches
-----------------------------------------------------------
February 2002 30.0 million square inches
-----------------------------------------------------------
March 2002 31.0 million square inches
-----------------------------------------------------------
April 2002 32.0 million square inches
-----------------------------------------------------------
May 2002 32.0 million square inches
-----------------------------------------------------------
June 2002 32.0 million square inches
-----------------------------------------------------------
July 2002 36.0 million square inches
-----------------------------------------------------------
August 2002 36.0 million square inches
-----------------------------------------------------------
September 2002 36.0 million square inches
-----------------------------------------------------------
October 2002 38.0 million square inches
-----------------------------------------------------------
November 2002 38.0 million square inches
-----------------------------------------------------------
December 2002 38.0 million square inches
-----------------------------------------------------------
January 2003 49.0 million square inches
-----------------------------------------------------------
February 2003 49.0 million square inches
-----------------------------------------------------------
March 2003 49.0 million square inches
-----------------------------------------------------------
April 2003 51.0 million square inches
-----------------------------------------------------------
May 2003 51.0 million square inches
-----------------------------------------------------------
June 2003 51.0 million square inches
-----------------------------------------------------------
July 2003 51.0 million square inches
-----------------------------------------------------------
August 2003 51.0 million square inches
-----------------------------------------------------------
September 2003 51.0 million square inches
-----------------------------------------------------------
October 2003 53.0 million square inches
-----------------------------------------------------------
November 2003 53.0 million square inches
-----------------------------------------------------------
December 2003 53.0 million square inches
-----------------------------------------------------------
January 2004 58.0 million square inches
-----------------------------------------------------------
February 2004 58.0 million square inches
-----------------------------------------------------------
March 2004 58.0 million square inches
-----------------------------------------------------------
April 2004 60.0 million square inches
-----------------------------------------------------------
May 2004 60.0 million square inches
-----------------------------------------------------------
June 2004 60.0 million square inches
-----------------------------------------------------------
July 2004 60.0 million square inches
-----------------------------------------------------------
August 2004 60.0 million square inches
-----------------------------------------------------------
September 2004 60.0 million square inches
-----------------------------------------------------------
October 2004 63.0 million square inches
-----------------------------------------------------------
November 2004 63.0 million square inches
-----------------------------------------------------------
December 2004 63.0 million square inches
-----------------------------------------------------------
January 2005 68.0 million square inches
-----------------------------------------------------------
February 2005 68.0 million square inches
-----------------------------------------------------------
March 2005 68.0 million square inches
-----------------------------------------------------------
April 2005 71.0 million square inches
-----------------------------------------------------------
May 2005 71.0 million square inches
-----------------------------------------------------------
June 2005 71.0 million square inches
-----------------------------------------------------------
July 2005 71.0 million square inches
-----------------------------------------------------------
August 2005 71.0 million square inches
-----------------------------------------------------------
September 2005 71.0 million square inches
-----------------------------------------------------------
October 2005 74.0 million square inches
-----------------------------------------------------------
November 2005 74.0 million square inches
-----------------------------------------------------------
December 2005 74.0 million square inches
-----------------------------------------------------------
January 2006 74.0 million square inches
-----------------------------------------------------------
February 2006 74.0 million square inches
-----------------------------------------------------------
March 2006 74.0 million square inches
-----------------------------------------------------------
April 2006 77.0 million square inches
-----------------------------------------------------------
May 2006 77.0 million square inches
-----------------------------------------------------------
June 2006 77.0 million square inches
-----------------------------------------------------------
July 2006 77.0 million square inches
-----------------------------------------------------------
August 2006 77.0 million square inches
-----------------------------------------------------------
September 2006 77.0 million square inches
-----------------------------------------------------------
October 2006 81.0 million square inches
-----------------------------------------------------------
SECTION 6.14. Minimum Monthly Consolidated Revenue. The
Borrower will not permit Consolidated Revenue for any month to be less than the
amount set forth opposite such month:
-----------------------------------------------------------
MONTH MINIMUM AMOUNT
-----------------------------------------------------------
January 2002 $34.0 million
-----------------------------------------------------------
February 2002 $34.0 million
-----------------------------------------------------------
March 2002 $34.0 million
-----------------------------------------------------------
April 2002 $41.5 million
-----------------------------------------------------------
May 2002 $41.5 million
-----------------------------------------------------------
June 2002 $41.5 million
-----------------------------------------------------------
July 2002 $46.0 million
-----------------------------------------------------------
August 2002 $46.0 million
-----------------------------------------------------------
September 2002 $46.0 million
-----------------------------------------------------------
October 2002 $50.0 million
-----------------------------------------------------------
November 2002 $51.0 million
-----------------------------------------------------------
December 2002 $52.0 million
-----------------------------------------------------------
January 2003 $52.0 million
-----------------------------------------------------------
February 2003 $52.0 million
-----------------------------------------------------------
March 2003 $52.0 million
-----------------------------------------------------------
April 2003 $54.0 million
-----------------------------------------------------------
May 2003 $54.0 million
-----------------------------------------------------------
June 2003 $54.0 million
-----------------------------------------------------------
July 2003 $55.0 million
-----------------------------------------------------------
August 2003 $55.0 million
-----------------------------------------------------------
September 2003 $55.0 million
-----------------------------------------------------------
October 2003 $56.0 million
-----------------------------------------------------------
November 2003 $56.0 million
-----------------------------------------------------------
December 2003 $56.0 million
-----------------------------------------------------------
January 2004 $61.0 million
-----------------------------------------------------------
February 2004 $61.0 million
-----------------------------------------------------------
March 2004 $61.0 million
-----------------------------------------------------------
April 2004 $63.0 million
-----------------------------------------------------------
May 2004 $63.0 million
-----------------------------------------------------------
June 2004 $63.0 million
-----------------------------------------------------------
July 2004 $65.0 million
-----------------------------------------------------------
August 2004 $65.0 million
-----------------------------------------------------------
September 2004 $65.0 million
-----------------------------------------------------------
October 2004 $67.0 million
-----------------------------------------------------------
November 2004 $67.0 million
-----------------------------------------------------------
December 2004 $67.0 million
-----------------------------------------------------------
January 2005 $70.0 million
-----------------------------------------------------------
February 2005 $70.0 million
-----------------------------------------------------------
March 2005 $70.0 million
-----------------------------------------------------------
April 2005 $72.0 million
-----------------------------------------------------------
May 2005 $72.0 million
-----------------------------------------------------------
June 2005 $72.0 million
-----------------------------------------------------------
July 2005 $74.0 million
-----------------------------------------------------------
August 2005 $74.0 million
-----------------------------------------------------------
September 2005 $74.0 million
-----------------------------------------------------------
October 2005 $76.0 million
-----------------------------------------------------------
November 2005 $76.0 million
-----------------------------------------------------------
December 2005 $76.0 million
-----------------------------------------------------------
January 2006 $78.0 million
-----------------------------------------------------------
February 2006 $78.0 million
-----------------------------------------------------------
March 2006 $78.0 million
-----------------------------------------------------------
April 2006 $80.0 million
-----------------------------------------------------------
May 2006 $80.0 million
-----------------------------------------------------------
June 2006 $80.0 million
-----------------------------------------------------------
July 2006 $82.0 million
-----------------------------------------------------------
August 2006 $82.0 million
-----------------------------------------------------------
September 2006 $82.0 million
-----------------------------------------------------------
October 2006 $84.0 million
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SECTION 6.15. Capital Expenditures. The Borrower and its
Subsidiaries shall not incur or make Capital Expenditures in an amount exceeding
$15,000,000 during the fourth fiscal quarter of 2001, $45,000,000 during fiscal
year 2002, $50,000,000 during fiscal year 2003, $55,000,000 during fiscal year
2004, $55,000,000 during fiscal year 2005, and $55,000,000 during fiscal year
2006.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of three days;
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any Subsidiary in or in connection with any Loan
Document or any amendment or modification thereof or waiver thereunder, or in
any certificate or other document furnished pursuant to or in connection with
any Loan Document or any amendment or modification thereof or waiver thereunder,
shall prove to have been incorrect in any material respect when made or deemed
made;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.04 (with respect
to the existence of the Borrower) or 5.11 or in Article VI;
(e) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in any Loan Document (other than
those specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the request
of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in respect
of any Material Indebtedness, when and as the same shall become due and payable
after giving effect to any applicable grace period with respect thereto;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become due,
or to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity, provided that this clause (g) shall not apply
to secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Subsidiary or for a substantial part of
its assets, and, in any such case, such proceeding or petition shall continue
undismissed for 45 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit
in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $2,500,000 (net of amounts covered by insurance as
to which the insurer has admitted liability in writing) shall be rendered
against the Borrower, any Subsidiary or any combination thereof and the same
shall remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to attach or levy upon any assets of the Borrower or any
Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) any Lien purported to be created under any Security
Document shall cease to be, or shall be asserted by any Loan Party not to be, a
valid and perfected Lien on Collateral having, in the aggregate, a value in
excess of $500,000, with the priority required by the applicable Security
Document, except (i) as a result of the sale or other disposition of the
applicable Collateral in a transaction permitted under the Loan Documents, the
Guaranty or the Reimbursement Documentation, (ii) any action taken by the
Collateral Agent to release any such Lien in compliance with the provisions of
this Agreement or any other Loan Document or (iii) as a result of the Collateral
Agent's failure to maintain possession of any stock certificates, promissory
notes or other instruments delivered to it under the Pledge Agreement;
(n) any default or other event shall have occurred under any
document governing any Permitted Receivables Financing if the effect of such
default or other event is to cause the termination of such Permitted Receivables
Financing;
(o) the Administrative Agent shall have been notified by the
Fund Guarantors that there exists an "Event of Default" (as defined in the
Reimbursement Agreement) under the Reimbursement Agreement;
(p) a Guarantor Default shall occur; or
(q) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Agents
Each of the Lenders hereby irrevocably appoints each of the
Agents as its agent and authorizes each Agent to take such actions on its behalf
and to exercise such powers as are delegated to such Agent by the terms of the
Loan Documents and the Guaranty, together with such actions and powers as are
reasonably incidental thereto.
Each bank serving as Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not an Agent, and such bank and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of banking, trust or other business with the Borrower or any Fund Guarantor
or any subsidiary or other Affiliate of either as if it were not an Agent
hereunder and may accept fees and other consideration from the Borrower or any
Fund Guarantor for services in connection with the Loan Documents or the
Guaranty or otherwise without having to account for the same to the Lenders.
Neither Agent shall have any duties or obligations except
those expressly set forth in the Loan Documents and the Guaranty. Without
limiting the generality of the foregoing, (a) neither Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) neither Agent shall have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated by the Loan Documents and the Guaranty
that such Agent is required to exercise in writing by the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (c) except as expressly set
forth in the Loan Documents and the Guaranty, neither Agent shall have any duty
to disclose, nor be liable for the failure to disclose, any information relating
to the Borrower or any Fund Guarantor or any of their subsidiaries that is
communicated to or obtained by either of the banks serving as Agent or any of
their Affiliates in any capacity. Neither Agent shall be liable for any action
taken or not taken by it with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02) or otherwise in the absence
of its own gross negligence or willful misconduct as determined in a final
judgement by a court of competent jurisdiction. Neither Agent shall be deemed to
have knowledge of any Default unless and until written notice thereof is given
to such Agent by the Borrower or a Lender, and neither Agent shall be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document or
the Guaranty, (ii) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document or the Guaranty, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or the Guaranty or any other
agreement, instrument or document, or the validity, perfection, or priority of
any Lien created by any of the Security Documents, or (v) the satisfaction of
any condition set forth in Article IV or elsewhere in any Loan Document or the
Guaranty, other than to confirm receipt of items expressly required to be
delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur
any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for the
Borrower or any Fund Guarantor), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
Each Agent may perform any of and all its duties and exercise
its rights and powers by or through any one or more sub-agents or
attorneys-in-fact appointed by such Agent. Each Agent and any such sub-agent or
attorney-in-fact may perform any and all its duties and exercise its rights and
powers through their respective Related Parties. The exculpatory provisions of
the preceding paragraphs shall apply to any such sub-agent or attorney-in-fact
and to the Related Parties of each such Agent and any such sub-agent or
attorney-in-fact, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities as an Agent.
Subject to the appointment and acceptance of a successor Agent
as provided in this paragraph, either Agent may resign at any time by notifying
the Lenders and the Borrower and either Agent may be removed at any time with or
without cause by the Required Lenders. Upon any such resignation, the Required
Lenders shall have the right, in consultation with the Borrower, to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring Agent
gives notice of its resignation, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent that shall be a bank with an office in New
York, New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Agent by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Agent shall be the
same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After an Agent's resignation, the provisions of
this Article and Section 9.03 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and attorneys-in-fact and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of
them while it was acting as Agent.
Each Lender acknowledges that it has, independently and
without reliance upon either Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon either Agent
or any other Lender and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement, any other Loan Document,
the Guaranty or related agreement or any document furnished hereunder or
thereunder.
Except for action expressly required of either of the Agents
by the Loan Documents and the Guaranty, each Agent shall in all cases be fully
justified in failing or refusing to act under the Loan Documents and the
Guaranty unless it shall receive further assurances to its satisfaction from the
Lenders of their indemnification obligations under Section 9.03(c) hereof in
respect of such action.
Without limiting the foregoing, neither of the Agents shall
have any liability or responsibility with respect to the sufficiency of the
documents furnished pursuant to Section 4.01 hereof and shall not be required
to, and shall not, take any action to enforce any of its or the Lenders' rights
under, nor waive or amend any provision of, this Agreement or any of the other
Loan Documents or any collateral, nor give any notice or make any request or
demand or filing thereunder, except in each instance as and to the extent
instructed to do so by the Required Lenders, and neither of the Agents shall
have any liability for failure to take any action in the absence of such
instructions, provided that each Agent will promptly send to the Lenders and the
other Agent a copy of each notice, request or other document delivered to such
Agent pursuant to the terms of this Agreement and other Loan Documents and will
take such actions contemplated by the Loan Documents as the Required Lenders may
reasonably instruct, except that nothing herein or in any other Loan Document
shall require any Agent to take any action that in the reasonable opinion of
such Agent would be contrary to the terms of this Agreement or applicable law or
subject such Agent to personal liability. Each Lender hereby acknowledges the
Administrative Agent's agreements in Section 5 of the Guaranty and hereby
expressly authorizes the Administrative Agent to act in accordance with each
said Section 5.
Each Lender hereby acknowledges the Administrative Agent's
agreements in the Intercreditor Agreement, Section 5 of the Guaranty, Section
6.14 of the TPG Guaranty and each Section 6.15 of the GEI Guaranty and the TCW
Guaranty, and hereby expressly authorizes the Administrative Agent to act in
accordance with the Intercreditor Agreement and each said Section of the
Guaranty.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 000 Xxxxx Xxxxx, Xx. Xxxxx'x,
Xxxxxxxx 00000, Attention of Treasurer (Telecopy No. (000) 000-0000);
(b) if to the Administrative Agent, to Citicorp USA, Inc., 0
Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, XX 00000, Attention of Xxxxx Xxxxxx (Telecopy
No. (000) 000-0000);
(c) if to the Collateral Agent, to Citicorp USA, Inc., 0 Xxxxx
Xxx, Xxxxx 000, Xxx Xxxxxx, XX 00000, Attention of Xxxxx Xxxxxx (Telecopy No.
(000) 000-0000); and
(d) if to any Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by
any Agent or any Lender in exercising any right or power hereunder or under any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Agents and the Lenders hereunder and under the other Loan
Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of any Loan Document or
consent to any departure by any Loan Party therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether any Agent or any Lender may have had notice or
knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered
into by the Administrative Agent or the Collateral Agent, as applicable, and the
Loan Party or Loan Parties that are parties thereto, in each case with the
consent of the Required Lenders, provided that no such agreement shall (i)
increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the maturity of any
Loan, or any date for the payment of any interest or fees payable hereunder, or
reduce the amount of, waive or excuse any such scheduled payment, or postpone
the scheduled date of expiration of any Commitment, without the written consent
of each Lender affected thereby, (iv) change Section 2.15(b) or (c) in a manner
that would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (v) change Section 2.10(f), without the written
consent of each Lender, (vi) change any of the provisions of this Section or the
percentage set forth in the definition of the term "Required Lenders" or any
other provision of any Loan Document specifying the number or percentage of
Lenders required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender, (vii) release any Subsidiary Loan Party from its Guarantee under
the Guarantee Agreement (except as expressly provided in the Guarantee
Agreement), or limit its liability in respect of such Guarantee, without the
written consent of each Lender, (viii) except in strict accordance with the
express provisions of the Security Documents, release all or any substantial
part of the Collateral from the Liens of the Security Documents, without the
written consent of each Lender, or (ix) change the definition of "Interest
Period" to include periods longer than six months; provided that no such
agreement shall amend, modify or otherwise affect the rights or duties of any
Agent without the prior written consent of such Agent. Notwithstanding the
foregoing but subject to the Guaranty, any provision of this Agreement may be
amended by an agreement in writing entered into by the Borrower, the Required
Lenders and the Agents if (i) by the terms of such agreement the Commitment of
each Lender not consenting to the amendment provided for therein shall terminate
upon the effectiveness of such amendment and (ii) at the time such amendment
becomes effective, each Lender not consenting thereto receives payment in full
of the principal of and interest accrued on each Loan made by it and all other
amounts owing to it or accrued for its account under this Agreement.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by each
Agent and its Affiliates, including the reasonable fees, charges and
disbursements of Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York counsel
for the Agents in connection with the syndication of the credit facilities
provided for herein, the preparation and administration of the Loan Documents or
any amendments, modifications or waivers of the provisions thereof (whether or
not the transactions contemplated hereby or thereby shall be consummated), and
(ii) all reasonable out-of-pocket expenses incurred by such Agent, or any
Lender, including the reasonable fees, charges and disbursements of any counsel
for such Agent, or any Lender, in connection with the enforcement or protection
of its rights in connection with the Loan Documents, including its rights under
this Section, or in connection with the Loans made hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
(b) The Borrower shall indemnify each Agent, each Lender, and
each Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of any Loan Document or
any other agreement or instrument contemplated hereby, the performance by the
parties to the Loan Documents of their respective obligations thereunder or the
consummation of the Loan Transactions, (ii) any Loan or the use of the proceeds
therefrom, (iii) any presence, Release or threatened Release of Hazardous
Materials on, at, under or from any Mortgaged Property or any other property
currently or formerly owned or operated by the Borrower or any of the
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of the Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto, provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses resulted from the gross negligence or willful misconduct of
such Indemnitee or any Related Person of such Indemnitee as determined in a
final judgment by a court of competent jurisdiction.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to any Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to such Agent such Lender's pro
rata share (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against such Agent in
its capacity as such. For purposes hereof, a Lender's "pro rata share" shall be
determined based upon its share of the sum of the total Exposures and unused
Commitments at the time.
(d) To the extent permitted by applicable law, the Borrower
shall not assert, and each hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Loan Transactions, any Loan or the use of the proceeds
thereof.
(e) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans at the time owing to it), provided that
(i) except in the case of an assignment to a Lender or an Affiliate or Approved
Fund of a Lender, each of the Borrower and the Administrative Agent must give
their prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) except in the case of an assignment to a Lender or
an Affiliate or Approved Fund of a Lender or an assignment of the entire
remaining amount of the assigning Lender's Commitments or Loans, the amount of
the Commitments or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$1,000,000 unless each of the Borrower and the Administrative Agent otherwise
consent, (iii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement, (iv) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, and (v) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire, and provided further that any consent of the Borrower otherwise
required under this paragraph shall not be required if an Event of Default has
occurred and is continuing. Subject to acceptance and recording thereof pursuant
to paragraph (d) of this Section, from and after the effective date specified in
each Assignment and Acceptance the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.12, 2.13, 2.14 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive, and the Borrower, the Administrative Agent, and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it), provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative 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. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce the Loan Documents and to approve any amendment,
modification or waiver of any provision of the Loan Documents, provided that
such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (f) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.15(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.12 or 2.14 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant.
A Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.14 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.14(e) as though it were a
Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest, provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and shall survive the
execution and delivery of the Loan Documents and the making of any Loans,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that any Agent or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid and so long
as the Commitments have not expired or terminated. The provisions of Sections
2.12, 2.13, 2.14 and 9.03 and Article VIII shall survive and remain in full
force and effect regardless of the consummation of the transactions contemplated
hereby, the repayment of the Loans, and the Commitments or the termination of
this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to fees
payable to the Agents constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of the other parties hereto required by paragraph (a) of Section
4.01, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, 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 obligations at
any time owing by such Lender or Affiliate to or for the credit or the account
of the Borrower against any of and all the obligations of the Borrower then
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement. The rights of
each Lender under this Section are in addition to other rights and remedies
(including any other rights of setoff) that such Lender may have.
SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE
OF PROCESS. (a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to any Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State court or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement or any other Loan Document shall affect any right
that the Administrative Agent or any Lender may otherwise have to bring any
action or proceeding relating to this Agreement or any other Loan Document
against the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Agents and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section,
to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, or to any
direct or indirect contractual counterparties in swap agreements or such
contractual counterparties' professional advisors, (g) with the consent of the
Borrower or (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
any Agent or any Lender on a nonconfidential basis from a source other than the
Borrower. For the purposes of this Section, the term "Information" means all
information received from the Borrower relating to the Borrower or its business,
other than any such information that is available to any Agent or any Lender on
a nonconfidential basis prior to disclosure by the Borrower. Any Person required
to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts that are treated as
interest on such Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") that may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
MEMC ELECTRONIC MATERIALS, INC.
By /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President,
Chief Financial Officer
By /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
CITICORP USA, INC.,
individually and as Administrative
Agent, and Collateral Agent
By /s/ Xxxxxx X. Xxxx
-----------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
Exhibit C
GUARANTEE AGREEMENT dated as of December 21, 2001, among
MEMC ELECTRONIC MATERIALS, INC., a Delaware corporation
("Borrower"), each of the subsidiaries listed on Schedule I
hereto (each such subsidiary, individually, a "Subsidiary" or a
"Guarantor" and, collectively, the "Subsidiaries" or the
"Guarantors") and CITICORP USA, INC. as collateral agent (the
"Collateral Agent") for the Secured Parties (as defined in the
Security Agreement).
Reference is made to the Revolving Credit Agreement dated as of
December 21, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Revolving Credit Agreement"), among the Borrower, the lenders from
time to time party thereto (the "Lenders") and CITICORP USA, INC., as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"). Capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in the Revolving Credit Agreement.
The Lenders have agreed to make Loans to the Borrower pursuant to, and
upon the terms and subject to the conditions specified in, the Revolving Credit
Agreement. Each of the Subsidiaries is a direct or indirect subsidiary of the
Borrower and acknowledges that it will derive substantial benefit from the
making of the Loans by the Lenders. The obligations of the Lenders to make Loans
are conditioned on, among other things, the execution and delivery by the
Guarantors of a Guarantee Agreement in the form hereof. As consideration
therefor and in order to induce the Lenders to make Loans, the Guarantors are
willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
Section 1. Guarantee. Each Guarantor unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not
merely as a surety, (a) the due and punctual payment of (i) the principal of and
premium, if any, and interest (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on the Loans,
when and as due, whether at maturity, by acceleration, upon one or more dates
set for prepayment or otherwise and (ii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
the Loan Parties to the Secured Parties under the Revolving Credit Agreement and
the other Loan Documents, (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of the Loan Parties under or pursuant to
the Revolving Credit Agreement and the other Loan Documents, (c) unless
otherwise agreed to in writing by the applicable Lender party thereto, the due
and punctual payment and performance of all obligations of the Borrower or any
other Loan Party, monetary or otherwise, under each Hedging Agreement entered
into with a counterparty that was a Lender (or an Affiliate of a Lender) at the
time such Hedging Agreement was entered into and (d) the due and punctual
payment and performance of all obligations in respect of overdrafts and related
liabilities owed to the Administrative Agent or any of its Affiliates and
arising from treasury, depositary and cash management services in connection
with any automated clearing house transfers of funds (all the monetary and other
obligations referred to in the preceding clauses (a) through (d) being
collectively called the "Revolving Credit Obligations"). Each Guarantor further
agrees that the Revolving Credit Obligations may be extended or renewed, in
whole or in part, without notice to or further assent from it, and that it will
remain bound upon its guarantee notwithstanding any extension or renewal of any
Revolving Credit Obligation. Each Guarantor agrees to pay, in addition to the
amounts stated above, any and all expenses (including reasonable counsel fees
and expenses) incurred by the Secured Parties in enforcing any rights under this
Agreement.
Section 2. Revolving Credit Obligations Not Waived. To the fullest
extent permitted by applicable law, each Guarantor waives presentment to, demand
of payment from and protest to the Borrower of any of the Revolving Credit
Obligations, and also waives notice of acceptance of its guarantee and notice of
protest for nonpayment. To the fullest extent permitted by applicable law, the
obligations of each Guarantor hereunder shall not be affected by (a) the failure
of the Collateral Agent or any other Secured Party to assert any claim or demand
or to enforce or exercise any right or remedy against the Borrower or any
Guarantor under the provisions of the Revolving Credit Agreement, any other Loan
Document or otherwise; (b) any recision, waiver (except the effect of any waiver
obtained pursuant to Section 12(b)), amendment or modification of, or any
release from any terms or provisions of any other Loan Document, any other
Guarantee or any other agreement, including with respect to any other Guarantor
under this Agreement, (c) the failure to perfect any security interest in, or
release of, any of the security held by or on behalf of the Collateral Agent or
any other Secured Party, or (d) any change in ownership of the Borrower.
Section 3. Security. Each of the Guarantors authorizes the Collateral
Agent and each of the other Secured Parties to (a) take and hold security for
the payment of this Guarantee and the Revolving Credit Obligations as set forth
in the Security Agreement, and exchange, enforce, waive and release any such
security, (b) apply such security and direct the order or manner of sale thereof
as they in their sole discretion may determine and (c) release or substitute any
one or more endorsees, other Guarantors or other obligors.
Section 4. Guarantee of Payment. Each Guarantor agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Collateral Agent or
any other Secured Party to any of the security held for payment of the Revolving
Credit Obligations or to any balance of any deposit account or credit on the
books of the Collateral Agent or any other Secured Party in favor of the
Borrower or any other Person.
Section 5. Limitation on Remedies. Notwithstanding anything to the
contrary contained in this Agreement, the Collateral Agent shall not, at the
instruction of the Administrative Agent or any Lender, commence or otherwise
take any action or proceeding to realize upon any or all of the Collateral or
exercise any other rights or enforce any other remedies available under this
Agreement, any other Loan Document, or as a matter of law unless and until (i) a
Guarantor Default has occurred and is continuing and (ii) the Administrative
Agent has exhausted all remedies available under the Guaranty.
Section 6. No Discharge or Diminishment of Guarantee. The obligations
of each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Revolving Credit Obligations), including any claim of
waiver, release, surrender, alteration or compromise of any of the Revolving
Credit Obligations, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Revolving Credit Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations of each
Guarantor hereunder shall not be discharged or impaired or otherwise affected by
the failure of the Collateral Agent or any other Secured Party to assert any
claim or demand or to enforce any remedy under the Revolving Credit Agreement,
any other Loan Document or any other agreement, by any waiver or modification of
any provision of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the Revolving Credit Obligations, or the
failure to perfect any security interest in, or the release of, any of the
security held by or on behalf of the Collateral Agent or any other Secured
Party, or by any other act or omission that may or might in any manner or to any
extent vary the risk of any Guarantor or that would otherwise operate as a
discharge of each Guarantor as a matter of law or equity (other than the
indefeasible payment in full in cash of all the Revolving Credit Obligations).
Section 7. Defenses of Borrower Waived. To the fullest extent
permitted by applicable law, each of the Guarantors waives any defense based on
or arising out of any defense of the Borrower or the unenforceability of the
Revolving Credit Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of the Borrower, other than the final
and indefeasible payment in full in cash of the Revolving Credit Obligations.
The Collateral Agent and the other Secured Parties may, at their election,
foreclose on any security held by one or more of them by one or more judicial or
nonjudicial sales, accept an assignment of any such security in lieu of
foreclosure, compromise or adjust any part of the Revolving Credit Obligations,
make any other accommodation with the Borrower or any other guarantor or
exercise any other right or remedy available to them against the Borrower or any
other guarantor, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Revolving Credit Obligations have
been fully, finally and indefeasibly paid in cash. Pursuant to applicable law,
each of the Guarantors waives any defense arising out of any such election even
though such election operates, pursuant to applicable law, to impair or to
extinguish any right of reimbursement or subrogation or other right or remedy of
such Guarantor against the Borrower or any other Guarantor or guarantor, as the
case may be, or any security.
Section 8. Agreement to Pay. In furtherance of the foregoing and not
in limitation of any other right that the Collateral Agent or any other Secured
Party has at law or in equity against any Guarantor by virtue hereof, upon the
failure of the Borrower or any other Loan Party to pay any Revolving Credit
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the Collateral Agent
or such other Secured Party as designated thereby in cash the amount of such
unpaid Revolving Credit Obligations. Upon payment by any Guarantor of any sums
to the Collateral Agent or any Secured Party as provided above, all rights of
such Guarantor against the Borrower arising as a result thereof by way of right
of subrogation, contribution, reimbursement, indemnity or otherwise shall in all
respects be subordinate and junior in right of payment to the prior indefeasible
payment in full in cash of all the Revolving Credit Obligations. If any amount
shall erroneously be paid to any Guarantor on account of such subrogation,
contribution, reimbursement, indemnity or similar right, such amount shall be
held in trust for the benefit of the Secured Parties and shall forthwith be paid
to the Collateral Agent to be credited against the payment of the Revolving
Credit Obligations, whether matured or unmatured, in accordance with the terms
of the Loan Documents.
Section 9. Information. Each of the Guarantors assumes all
responsibility for being and keeping itself informed of the Borrower's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Revolving Credit Obligations and the nature, scope and extent
of the risks that such Guarantor assumes and incurs hereunder, and agrees that
none of the Collateral Agent or the other Secured Parties will have any duty to
advise any of the Guarantors of information known to it or any of them regarding
such circumstances or risks.
Section 10. Representations and Warranties. Each of the Guarantors
represents and warrants as to itself that all representations and warranties
relating to it contained in the Revolving Credit Agreement and other Loan
Documents are true and correct in all material respects.
Section 11. Termination. The Guarantees made hereunder (a) shall
terminate when all the Revolving Credit Obligations have been indefeasibly paid
in full and the Lenders have no further commitment to lend under the Revolving
Credit Agreement, and (b) shall continue to be effective or be reinstated, as
the case may be, if at any time payment, or any part thereof, of any Revolving
Credit Obligation is rescinded or must otherwise be restored by any Secured
Party or any Guarantor upon the bankruptcy or reorganization of the Borrower,
any Guarantor or otherwise.
Section 12. Intercreditor Agreement. Notwithstanding anything to the
contrary contained in this Agreement, all rights, obligations and remedies of
the Collateral Agent set forth in this Agreement and shall be subject to the
provisions set forth in the Intercreditor Agreement.
Section 13. Binding Effect; Several Agreement; Assignments. Whenever
in this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of the Guarantors that are
contained in this Agreement shall bind and inure to the benefit of each party
hereto and their respective successors and assigns. This Agreement shall become
effective as to any Guarantor when a counterpart hereof executed on behalf of
such Guarantor shall have been delivered to the Collateral Agent, and a
counterpart hereof shall have been executed on behalf of the Collateral Agent,
and thereafter shall be binding upon such Guarantor and the Collateral Agent and
their respective successors and assigns, and shall inure to the benefit of such
Guarantor, the Collateral Agent and the other Secured Parties, and their
respective successors and assigns, except that no Guarantor shall have the right
to assign its rights or obligations hereunder or any interest herein (and any
such attempted assignment shall be void). In the event that a Guarantor ceases
to be a Subsidiary pursuant to a transaction permitted under the Loan Documents,
such Guarantor shall be released from its obligations under this Agreement
without further action. This Agreement shall be construed as a separate
agreement with respect to each Guarantor and may be amended, modified,
supplemented, waived or released with respect to any Guarantor without the
approval of any other Guarantor and without affecting the obligations of any
other Guarantor hereunder.
Section 14. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the other Secured Parties under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of this Agreement or consent to any departure by any
Guarantor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on any Guarantor in any case shall entitle such Guarantor to
any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Guarantors with respect to which such waiver, amendment or modification
relates and the Collateral Agent, subject to any consent required in accordance
with Section 9.02 of the Revolving Credit Agreement.
SECTION 15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 16. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 9.01 of the Revolving Credit
Agreement. All communications and notices hereunder to each Guarantor shall be
given to it at its address or telecopy number set forth in Schedule I, with a
copy to the Borrower.
Section 17. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by the Guarantors herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Collateral Agent and the other Secured Parties and
shall survive the making by the Lenders of the Loans regardless of any
investigation made by the Secured Parties or on their behalf, and shall continue
in full force and effect as long as the principal of or any accrued interest on
any Loan or any other fee or amount payable under this Agreement or any other
Loan Document is outstanding and unpaid and as long as the Commitments have not
been terminated.
(b) In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
Section 18. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract, and shall become effective as
provided in Section 13. Delivery of an executed signature page to this Agreement
by facsimile transmission shall be as effective as delivery of a manually
executed counterpart of this Agreement.
Section 19. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Revolving Credit Agreement shall be applicable
to this Agreement.
Section 20. Jurisdiction; Consent to Service of Process. (a) Each
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Collateral Agent or any other Secured Party may otherwise have to bring any
action or proceeding relating to this Agreement or the other Loan Documents
against any Guarantor or its properties in the courts of any jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents in any New York State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 16. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 20. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 20.
Section 21. Limitation on Guaranteed Amounts. Anything contained in
this Agreement to the contrary notwithstanding, the obligation of each Guarantor
hereunder shall be limited to a maximum aggregate amount equal to the greatest
amount that would not render such Guarantor's obligations hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11
of the United States Code or any provisions of applicable state law
(collectively, the "Fraudulent Transfer Laws"), in each case after giving effect
to all liabilities of such Guarantor, contingent or otherwise, that would be
taken into account in determining whether the incurrence of the obligation would
constitute a fraudulent conveyance under the Fraudulent Transfer Laws and after
giving effect, both in determining such Guarantor's probable debt hereunder and
in determining its assets, to the existence of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights of such Guarantor
pursuant to (a) applicable law or (b) any agreement, including the Indemnity,
Subrogation and Contribution Agreement.
Section 22. Additional Guarantors. Pursuant to Section 5.12 of the
Revolving Credit Agreement, each Subsidiary Loan Party that was not in existence
or not a Subsidiary Loan Party on the date of the Revolving Credit Agreement is
required to enter into this Agreement as a Guarantor upon becoming a Subsidiary
Loan Party. Upon execution and delivery after the date hereof by the Collateral
Agent and such a Subsidiary of an instrument in the form of Annex 1, such
Subsidiary shall become a Guarantor hereunder with the same force and effect as
if originally named as a Guarantor herein. The execution and delivery of any
instrument adding an additional Guarantor as a party to this Agreement shall not
require the consent of any other Guarantor hereunder. The rights and obligations
of each Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Guarantor as a party to this Agreement.
Section 23. Successor Guarantors. Any Person may merge with any
Guarantor in a transaction in which the surviving entity is a Subsidiary of the
Borrower; provided that if the surviving entity is not the Guarantor, the
surviving entity must be a corporation, partnership or limited liability company
organized and existing under the laws of the United States of America, any State
thereof or the District of Columbia, and such surviving entity must expressly
assume, by execution of appropriate Loan Documents (or counterparts or
supplements thereto), executed and delivered to the Collateral Agent (in form
reasonably satisfactory to the Collateral Agent, as applicable) all the
obligations of such Guarantor under this Guarantee Agreement and the other
applicable Loan Documents; and further provided that prior to the consummation
of such transaction, the Borrower must provide the Collateral Agent with an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer complies with the Loan Documents.
Section 24. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Secured Party is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other Indebtedness at any time owing by such Secured
Party to or for the credit or the account of any Guarantor against any or all
the obligations of such Guarantor then existing under this Agreement and the
other Loan Documents held by such Secured Party, irrespective of whether or not
such Secured Party shall have made any demand under this Agreement or any other
Loan Document. The rights of each Secured Party under this Section 24 are in
addition to other rights and remedies (including any other rights of setoff)
which such Secured Party may have.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
MEMC ELECTRONIC MATERIALS, INC.
By
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President,
Chief Financial Officer
By
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
EACH OF THE OTHER SUBSIDIARIES LISTED ON
SCHEDULE I HERETO,
By
------------------------------
Name: Xxxxxxx X. Xxxxx, in his capacity as
Treasurer for each of the other
Subsidiaries listed on Schedule I hereto
CITICORP USA, INC., as Administrative
Agent and Collateral Agent
By
------------------------------
Name:
Title:
Schedule I to the
Guarantee Agreement
GUARANTORS
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Annex 1 to the
Guarantee Agreement
SUPPLEMENT NO. [ ] dated as of [ ], to the Guarantee
Agreement dated as of December 21, 2001, among MEMC
ELECTRONIC MATERIALS, INC., a Delaware corporation
("Borrower"), each of the subsidiaries listed on Schedule I
thereto (each such subsidiary, individually, a "Subsidiary"
or a "Guarantor" and, collectively, the "Subsidiaries" or
"Guarantors") and CITICORP USA, INC., as collateral agent
(the "Collateral Agent") for the Secured Parties (as defined
in the Security Agreement).
A. Reference is made to the Revolving Credit Agreement dated as of
December 21, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Revolving Credit Agreement"), among the Borrower, the lenders from
time to time party thereto (the "Lenders") and CITICORP USA, INC., as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent").
B. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Guarantee Agreement and
the Revolving Credit Agreement.
C. The Guarantors have entered into the Guarantee Agreement in order
to induce the Lenders to make Loans. Pursuant to Section 5.12 of the Revolving
Credit Agreement, each Subsidiary Loan Party that was not in existence or not a
Subsidiary Loan Party on the date of the Revolving Credit Agreement is required
to enter into the Guarantee Agreement as a Guarantor upon becoming a Subsidiary
Loan Party. Section 22 of the Guarantee Agreement provides that additional
Subsidiaries may become Guarantors under the Guarantee Agreement by execution
and delivery of an instrument in the form of this Supplement. The undersigned
Subsidiary (the "New Guarantor") is executing this Supplement in accordance with
the requirements of the Revolving Credit Agreement to become a Guarantor under
the Guarantee Agreement in order to induce the Lenders to make additional Loans
and as consideration for Loans previously made.
Accordingly, the Collateral Agent and the New Guarantor agree as
follows:
Section 1. In accordance with Section 22 of the Guarantee Agreement,
the New Guarantor by its signature below becomes a Guarantor under the Guarantee
Agreement with the same force and effect as if originally named therein as a
Guarantor and the New Guarantor hereby (a) agrees to all the terms and
provisions of the Guarantee Agreement applicable to it as a Guarantor thereunder
and (b) represents and warrants that the representations and warranties made by
it as a Guarantor thereunder are true and correct on and as of the date hereof
except to the extent a representation and warranty expressly relates solely to a
specific date in which case such representation and warranty shall be true and
correct on such date. Each reference to a "Guarantor" in the Guarantee Agreement
shall be deemed to include the New Guarantor. The Guarantee Agreement is hereby
incorporated herein by reference.
Section 2. The New Guarantor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
Section 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Collateral Agent shall have received counterparts of this Supplement that, when
taken together, bear the signatures of the New Guarantor and the Collateral
Agent. Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart of this Supplement.
Section 4. Except as expressly supplemented hereby, the Guarantee
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guarantee Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
Section 7. All communications and notices hereunder shall be in
writing and given as provided in Section 16 of the Guarantee Agreement. All
communications and notices hereunder to the New Guarantor shall be given to it
at the address set forth under its signature below, with a copy to the Borrower.
Section 8. The New Guarantor agrees to reimburse the Collateral Agent
for its out-of-pocket expenses in connection with this Supplement, including the
reasonable fees, disbursements and other charges of counsel for the Collateral
Agent.
IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have
duly executed this Supplement to the Guarantee Agreement as of the day and year
first above written.
[NAME OF NEW GUARANTOR],
By
--------------------------------------
Name:
Title:
Address:
Citicorp USA, Inc., as Collateral Agent,
By
--------------------------------------
Name:
Title:
Exhibit D
INDEMNITY, SUBROGATION and CONTRIBUTION
AGREEMENT dated as of December 21, 2001,
among MEMC ELECTRONIC MATERIALS, INC., a
Delaware corporation (the "Borrower"), each
subsidiary of Borrower listed on Schedule I
hereto (each such subsidiary individually, a
"Subsidiary" and or a "Guarantor" and,
collectively, the "Guarantors") and CITICORP
USA, INC., as collateral agent (in such
capacity, the "Collateral Agent") for the
Secured Parties (as defined in the Security
Agreement).
Reference is made to the Revolving Credit Agreement dated as of
December 21, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Revolving Credit Agreement"), among the Borrower, the lenders from
time to time party thereto (the "Lenders") and Citicorp USA, Inc., as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"). Capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in the Revolving Credit Agreement.
The Lenders have agreed to make Loans to the Borrower pursuant to, and
upon the terms and subject to the conditions specified in, the Revolving Credit
Agreement. The Guarantors have guaranteed the Revolving Credit Obligations (as
defined in the Guarantee Agreement) pursuant to the Guarantee Agreement. The
Guarantors have granted Liens on and security interests in certain of their
assets to secure such guarantees pursuant to (a) the Pledge Agreement and (b)
the Security Agreement. The obligations of the Lenders to make Loans are
conditioned on, among other things, the execution and delivery by the Borrower
and the Guarantors of an agreement in the form hereof.
Accordingly, the Borrower, each Guarantor and the Collateral Agent
agree as follows:
SECTION 1. Indemnity and Subrogation. In addition to all such rights
of indemnity and subrogation as the Guarantors may have under applicable law
(but subject to Section 3), the Borrower agrees that (a) in the event a payment
shall be made by any Guarantor under the Guarantee Agreement, the Borrower shall
indemnify such Guarantor for the full amount of such payment and such Guarantor
shall be subrogated to the rights of the Person to whom such payment shall have
been made to the extent of such payment and (b) in the event any assets of any
Guarantor shall be sold pursuant to any Security Document to satisfy a claim of
any Secured Party, the Borrower shall indemnify such Guarantor in an amount
equal to the greater of the book value or the fair market value of the assets so
sold.
SECTION 2. Contribution and Subrogation. Each Guarantor (a
"Contributing Guarantor") agrees (subject to Section 3) that, in the event a
payment shall be made by any other Guarantor under the Guarantee Agreement or
assets of any other Guarantor shall be sold pursuant to any Security Document to
satisfy a claim of any Secured Party and such other Guarantor (the "Claiming
Guarantor") shall not have been fully indemnified by the Borrower as provided in
Section 1, the Contributing Guarantor shall indemnify the Claiming Guarantor in
an amount equal to the amount of such payment or the greater of the book value
or the fair market value of such assets, as the case may be, in each case
multiplied by a fraction of which the numerator shall be the net worth of the
Contributing Guarantor on the date hereof and the denominator shall be the
aggregate net worth of all the Guarantors on the date hereof (or, in the case of
any Guarantor becoming a party hereto pursuant to Section 13, the date of the
Supplement hereto executed and delivered by such Guarantor). Any Contributing
Guarantor making any payment to a Claiming Guarantor pursuant to this Section 2
shall be subrogated to the rights of such Claiming Guarantor under Section 1 to
the extent of such payment.
SECTION 3. Subordination. Notwithstanding any provision of this
Agreement to the contrary, all rights of each of the Guarantors under Sections 1
and 2 and all other rights of each of the Guarantors in respect of indemnity,
contribution or subrogation from any other Loan Party under applicable law or
otherwise shall be fully subordinated to the indefeasible payment in full in
cash of all Revolving Credit Obligations which are then due and payable whether
at maturity, by acceleration or otherwise. No failure on the part of the
Borrower or any Guarantor to make the payments required by Sections 1 and 2 (or
any other payments required under applicable law or otherwise) shall in any
respect limit the obligations and liabilities of any Guarantor with respect to
its obligations hereunder, and each Guarantor shall remain liable for the full
amount of the obligations of such Guarantor hereunder.
SECTION 4. Termination. This Agreement shall survive and be in full
force and effect so long as any Revolving Credit Obligation is outstanding and
has not been indefeasibly paid in full in cash and any of the Commitments under
the Revolving Credit Agreement have not been terminated, and shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any Revolving Credit Obligation is rescinded or must
otherwise be restored by any Secured Party or any Guarantor upon the bankruptcy
or reorganization of the Borrower, any Guarantor or otherwise.
SECTION 5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. No Waiver; Amendment. (a) No failure on the part of the
Collateral Agent or any Guarantor to exercise, and no delay in exercising, any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or remedy by the
Collateral Agent or any Guarantor preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law. None of
the Collateral Agent and the Guarantors shall be deemed to have waived any
rights hereunder unless such waiver shall be in writing and signed by such
parties.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Borrower, the Guarantors and the Collateral Agent, subject to any consent
required in accordance with Section 9.02 of the Revolving Credit Agreement.
SECTION 7. Intercreditor Agreement. Notwithstanding anything to the
contrary contained in this Security Agreement, all rights, obligations and
remedies of the Collateral Agent set forth in this Agreement and any other
Security Documents shall be subject to the provisions set forth in the
Intercreditor Agreement.
SECTION 8. Notices. All communications and notices hereunder shall be
in writing and given as provided in the Guarantee Agreement and addressed as
specified therein.
SECTION 9. Binding Agreement; Assignments. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the parties that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns. Neither the Borrower nor any Guarantor may assign or transfer any of
its rights or obligations hereunder (and any such attempted assignment or
transfer shall be void) without the consent required in accordance with Section
9.02 of the Revolving Credit Agreement. Notwithstanding the foregoing, at the
time any Guarantor is released from its obligations under the Guarantee
Agreement in accordance with such Guarantee Agreement and the Revolving Credit
Agreement, such Guarantor will cease to have any rights or obligations under
this Agreement.
SECTION 10. Survival of Agreement; Severability. (a) All covenants and
agreements made by the Borrower and each Guarantor herein and in the
certificates or other instruments prepared or delivered in connection with this
Agreement or the other Loan Documents shall be considered to have been relied
upon by the Collateral Agent, the other Secured Parties and each Guarantor and
shall survive the making by the Lenders of the Loans and shall continue in full
force and effect as long as the principal of or any accrued interest on any
Loans or any other fee or amount payable under the Revolving Credit Agreement or
this Agreement or under any of the other Loan Documents is outstanding and
unpaid and as long as the Commitments have not been terminated.
(b) In case any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, no
party hereto shall be required to comply with such provision for so long as such
provision is held to be invalid, illegal or unenforceable, but the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 11. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement shall be effective with
respect to any Guarantor when a counterpart bearing the signature of such
Guarantor shall have been delivered to the Collateral Agent. Delivery of an
executed signature page to this Agreement by facsimile transmission shall be as
effective as delivery of a manually signed counterpart of this Agreement.
SECTION 12. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 and 1.03 of the Revolving Credit Agreement shall be
applicable to this Agreement.
SECTION 13. Additional Guarantors. Pursuant to Section 5.12 of the
Revolving Credit Agreement, each Subsidiary Loan Party that was not in existence
or not a Subsidiary Loan Party on the date of the Revolving Credit Agreement is
required to enter into the Guarantee Agreement as a Guarantor upon becoming a
Subsidiary Loan Party. Upon execution and delivery, after the date hereof, by
the Collateral Agent and such a Subsidiary of an instrument in the form of Annex
1 hereto, such Subsidiary shall become a Guarantor hereunder with the same force
and effect as if originally named as a Guarantor hereunder. The execution and
delivery of any instrument adding an additional Guarantor as a party to this
Agreement shall not require the consent of any Guarantor hereunder. The rights
and obligations of each Guarantor hereunder shall remain in full force and
effect notwithstanding the addition of any new Guarantor as a party to this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first appearing above.
MEMC ELECTRONIC MATERIALS, INC.
By
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President,
Chief Financial Officer
By
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
EACH OF THE OTHER SUBSIDIARIES LISTED ON
SCHEDULE I HERETO,
--------------------------------
Name: Xxxxxxx X. Xxxxx, in his capacity as
Treasurer for each of the other
Subsidiaries listed on Schedule I
hereto
CITICORP USA, INC., as Administrative
Agent and Collateral Agent
--------------------------------
Name:
Title:
Schedule I To The
Indemnity, Subrogation And
Contribution Agreement
GUARANTOR
Name Address
Annex 1 to the
Indemnity, Subrogation and
Contribution Agreement
SUPPLEMENT NO. [ ] dated as of [ ], to the
Indemnity, Subrogation and Contribution
Agreement dated as of December 21, 2001,
among MEMC ELECTRONIC MATERIALS, INC., a
Delaware corporation (the "Borrower"), each
subsidiary of Borrower listed on Schedule I
hereto (each such subsidiary individually, a
"Subsidiary" or a "Guarantor" and,
collectively, the "Guarantors") and CITICORP
USA, INC., as collateral agent (in such
capacity, the "Collateral Agent") for the
Secured Parties (as defined in the Security
Agreement).
A. Reference is made to (a) the Revolving Credit Agreement dated as of
December 21, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Revolving Credit Agreement"), among the Borrower, the lenders from
time to time party thereto (the "Lenders") and CITICORP USA, INC., as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent") and (b) the Guarantee Agreement.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Indemnity, Subrogation and
Contribution Agreement and the Revolving Credit Agreement.
C. The Borrower and the Guarantors have entered into the Indemnity,
Subrogation and Contribution Agreement in order to induce the Lenders to make
Loans. Pursuant to Section 5.12 of the Revolving Credit Agreement, each
Subsidiary Loan Party that was not in existence or not a Subsidiary Loan Party
on the date of the Revolving Credit Agreement is required to enter into the
Indemnity, Subrogation and Contribution Agreement as a Guarantor upon becoming a
Subsidiary Loan Party. Section 13 of the Indemnity, Subrogation and Contribution
Agreement provides that additional Subsidiaries may become Guarantors under the
Indemnity, Subrogation and Contribution Agreement by execution and delivery of
an instrument in the form of this Supplement. The undersigned Subsidiary (the
"New Guarantor") is executing this Supplement in accordance with the
requirements of the Revolving Credit Agreement to become a Guarantor under the
Indemnity, Subrogation and Contribution Agreement in order to induce the Lenders
to make additional Loans and as consideration for Loans previously made.
Accordingly, the Collateral Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 13 of the Indemnity, Subrogation
and Contribution Agreement, the New Guarantor by its signature below becomes a
Guarantor under the Indemnity, Subrogation and Contribution Agreement with the
same force and effect as if originally named therein as a Guarantor and the New
Guarantor hereby agrees to all the terms and provisions of the Indemnity,
Subrogation and Contribution Agreement applicable to it as a Guarantor
thereunder. Each reference to a "Guarantor" in the Indemnity, Subrogation and
Contribution Agreement shall be deemed to include the New Guarantor. The
Indemnity, Subrogation and Contribution Agreement is hereby incorporated herein
by reference.
SECTION 2. The New Guarantor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Guarantor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Indemnity, Subrogation and Contribution Agreement shall not in
any way be affected or impaired (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
hereto shall endeavor in good-faith negotiations to replace the invalid, illegal
or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 8 of the Indemnity, Subrogation and
Contribution Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its signature
below, with a copy to the Borrower.
SECTION 8. The New Guarantor agrees to reimburse the Collateral Agent
for its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have
duly executed this Supplement to the Indemnity, Subrogation and Contribution
Agreement as of the day and year first above written.
[NAME OF NEW GUARANTOR],
By
---------------------------------
Name:
Title:
CITICORP USA, INC., as Collateral Agent
By
---------------------------------
Name:
Title:
Schedule I to Supplement No. [ ]
to the Indemnity, Subrogation and
Contribution Agreement
GUARANTOR
Name Address
Exhibit E
PLEDGE AGREEMENT dated as of December 21,
2001, among MEMC ELECTRONIC MATERIALS, INC.,
a Delaware corporation ("Borrower"), each
subsidiary of the Borrower listed on
Schedule I hereto (each such subsidiary
individually a "Subsidiary Pledgor" and
collectively, the "Subsidiary Pledgors"; the
Borrower and the Subsidiary Pledgors are
referred to herein individually as a
"Pledgor" and collectively as the
"Pledgors") and CITICORP USA, INC., as
collateral agent (in such capacity, the
"Collateral Agent") for the Secured Parties
(as defined in the Security Agreement).
Reference is made to (a) the Revolving Credit Agreement dated as of
December 21, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Revolving Credit Agreement"), among the Borrower, the lenders from
time to time party thereto (the "Lenders") and CITICORP USA, INC., as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent") and (b) the Guarantee Agreement dated as of December 21, 2001 (as
amended, supplemented or otherwise modified from time to time, the "Guarantee
Agreement") among the Subsidiary Pledgors and the Collateral Agent. Capitalized
terms used herein and not defined herein shall have meanings assigned to such
terms in the Revolving Credit Agreement.
The Lenders have agreed to make Loans to the Borrower pursuant to, and
upon the terms and subject to the conditions specified in, the Revolving Credit
Agreement. The Pledgors have agreed to guarantee, among other things, all the
obligations of the Borrower under the Revolving Credit Agreement. The
obligations of the Lenders to make Loans are conditioned upon, among other
things, the execution and delivery by the Pledgors of a Pledge Agreement in the
form hereof to secure (a) the due and punctual payment of (i) the principal of
and premium, if any, and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise and (ii) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Loan Parties to the Secured Parties under
the Revolving Credit Agreement and the other Loan Documents, (b) the due and
punctual performance of all covenants, agreements, obligations and liabilities
of the Loan Parties under or pursuant to the Revolving Credit Agreement and the
other Loan Documents, (c) unless otherwise agreed to in writing by the
applicable Lender party thereto, the due and punctual payment and performance of
all obligations of the Borrower or any other Loan Party, monetary or otherwise,
under each Hedging Agreement entered into with a counterparty that was a Lender
(or an Affiliate of a Lender) at the time such Hedging Agreement was entered
into and (d) the due and punctual payment and performance of all obligations in
respect of overdrafts and related liabilities owed to the Administrative Agent
or any of its Affiliates and arising from treasury, depositary and cash
management services in connection with any automated clearing house transfers of
funds (all the monetary and other obligations referred to in the preceding
clauses (a) through (d) being referred to collectively as the "Revolving Credit
Obligations").
Accordingly, the Pledgors and the Collateral Agent, on behalf of itself
and each Secured Party (and each of their respective successors or assigns),
hereby agree as follows:
SECTION 1. Pledge. As security for the payment and performance, as the
case may be, in full of the Revolving Credit Obligations, each Pledgor hereby
pledges and grants to the Collateral Agent, its successors and assigns, and
hereby grants to the Collateral Agent, its successors and assigns, for the
ratable benefit of the Secured Parties, a security interest in all of such
Pledgor's right, title and interest in, to and under (a) the Equity Interests
owned by it which are listed on Schedule II hereto and any Equity Interests
obtained in the future by such Pledgor and the certificates representing all
such Equity Interests (the "Pledged Interests"); provided that the Pledged
Interests shall not include (i) more than 65% of the issued and outstanding
voting stock of any Foreign Subsidiary, (ii) the outstanding voting stock of
MEMC Korea Company, MEMC Kulim Electronic Materials, Sdn. Bhd., MEMC Southwest
Inc. and Taisil Electronic Materials Corporation or (iii) to the extent that
applicable law requires that a Subsidiary of such Pledgor issue directors'
qualifying shares, such qualifying shares; (b)(i) the debt securities owned by
it which are listed opposite the name of such Pledgor on Schedule II hereto,
(ii) any debt securities in the future issued to such Pledgor and (iii) the
promissory notes and any other instruments evidencing such debt securities (the
"Pledged Debt Securities"); (c) all other property that may be delivered to and
held by the Collateral Agent pursuant to the terms hereof; (d) subject to
Section 5, all payments of principal or interest, dividends, cash, instruments
and other property from time to time received, receivable or otherwise
distributed, in respect of, in exchange for or upon the conversion of the
securities referred to in clauses (a) and (b) above; (e) subject to Section 5,
all rights and privileges of such Pledgor with respect to the securities and
other property referred to in clauses (a), (b), (c) and (d) above; and (f) all
proceeds of any of the foregoing (the items referred to in clauses (a) through
(f) above being collectively referred to as the "Collateral"). Upon delivery to
the Collateral Agent, (a) any Pledged Interests, any Pledged Debt Securities or
any stock certificates, notes or other securities now or hereafter included in
the Collateral (the "Pledged Securities") shall be accompanied by stock powers
duly executed in blank or other instruments of transfer satisfactory to the
Collateral Agent and by such other instruments and documents as the Collateral
Agent may reasonably request and (b) all other property comprising part of the
Collateral shall be accompanied by proper instruments of assignment duly
executed by the applicable Pledgor and such other instruments or documents as
the Collateral Agent may reasonably request. Each delivery of Pledged Securities
shall be accompanied by a schedule describing the securities theretofore and
then being pledged hereunder, which schedule shall be attached hereto as
Schedule II and made a part hereof. Each schedule so delivered shall supersede
any prior schedules so delivered. The pledge of the Pledged Securities is
subject to the terms and conditions of that certain Option Agreement dated
September 21, 1998, as amended on September 22, 2000, September 25, 2001, and
October 25, 2001, among Tokuyama Corporation, Marubeni Corporation, Marubeni
America Corporation, the Borrower and MEMC Pasadena.
TO HAVE AND TO HOLD the Collateral, together with all right, title,
interest, powers, privileges and preferences pertaining or incidental thereto,
unto the Collateral Agent, its successors and assigns, for the ratable benefit
of the Secured Parties, forever; subject, however, to the terms, covenants and
conditions hereinafter set forth.
SECTION 2. Delivery of the Collateral. (a) Each Pledgor agrees promptly
to deliver or cause to be delivered to the Collateral Agent any and all Pledged
Securities, and any and all certificates or other instruments or documents
representing the Collateral.
(b) Each Pledgor will cause any Indebtedness for borrowed money owed
to the Pledgor by any Person to be evidenced by a duly executed
promissory note that is pledged and delivered to the Collateral Agent
pursuant to the terms thereof.
SECTION 3. Representations, Warranties and Covenants. Each Pledgor
hereby represents, warrants and covenants, as to itself and the Collateral
pledged by it hereunder, to and with the Collateral Agent that:
(a) the Pledged Interests represent that percentage as set forth on
Schedule II of the issued and outstanding shares of each class of the
Equity Interests of the issuer with respect thereto;
(b) except for the lien and security interest granted under the
Reimbursement Documentation as security for the payment or performance, as
the case may be, in full of the Reimbursement Obligations ( the
"Reimbursement Security Interest") and the security interest granted
hereunder, such Pledgor (i) is and will at all times continue to be the
direct owner, beneficially and of record, of the Pledged Securities
indicated on Schedule II, (ii) holds the same free and clear of all Liens,
(iii) will make no assignment, pledge, hypothecation or transfer of, or
create or permit to exist any security interest in or other Lien on, the
Collateral, other than pursuant hereto, and (iv) subject to Section 5, will
cause any and all Collateral, whether for value paid by such Pledgor or
otherwise, to be forthwith deposited with the Collateral Agent and pledged
or assigned hereunder;
(c) such Pledgor (i) has the power and authority to pledge the
Collateral in the manner hereby done or contemplated and (ii) will defend
its title or interest thereto or therein against any and all Liens (other
than the Liens created by this Agreement or the Reimbursement
Documentation), however arising, of all Persons whomsoever;
(d) no consent of any other Person (including stockholders or
creditors of any Pledgor) and no consent or approval of any Governmental
Authority or any securities exchange was or is necessary to the validity of
the pledge effected hereby;
(e) by virtue of the execution and delivery by the Pledgors of this
Agreement, when the Pledged Securities, certificates or other documents
representing or evidencing the Collateral are delivered to the Collateral
Agent in accordance with this Agreement, the Collateral Agent will have a
valid and perfected lien upon and security interest in such Pledged
Securities as security for the payment and performance of the Revolving
Credit Obligations (subject only to the lien and security interest that
comprise the Reimbursement Security Interest);
(f) the pledge effected hereby is effective to vest in the Collateral
Agent, on behalf of the Secured Parties, the rights of the Collateral Agent
in the Collateral as set forth herein;
(g) all of the Pledged Interests have been duly authorized and validly
issued and are fully paid and nonassessable;
(h) all information set forth herein relating to the Pledged Interests
is accurate and complete in all material respects as of the date hereof;
and
(i) the pledge of the Pledged Interests pursuant to this Agreement
does not violate Regulation T, U or X of the Federal Reserve Board or any
successor thereto as of the date hereof.
SECTION 4. Registration in Nominee Name; Denominations. The Collateral
Agent, on behalf of the Secured Parties, shall have the right (in its sole and
absolute discretion) to hold the Pledged Securities in its own name as pledgee,
the name of its nominee (as pledgee or as sub-agent) or the name of the
Pledgors, endorsed or assigned in blank or in favor of the Collateral Agent.
Each Pledgor will promptly give to the Collateral Agent copies of any notices or
other communications received by it with respect to Pledged Securities
registered in the name of such Pledgor. The Collateral Agent shall at all times
have the right to exchange the certificates representing Pledged Securities for
certificates of smaller or larger denominations for any purpose consistent with
this Agreement.
SECTION 5. Voting Rights; Dividends and Interest, etc. (a) Unless and
until an Event of Default shall have occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any and all voting
and/or other consensual rights and powers inuring to an owner of Pledged
Securities or any part thereof for any purpose consistent with the terms of
this Agreement, the Revolving Credit Agreement and the other Loan
Documents; provided, however, that such Pledgor will not be entitled to
exercise any such right if the result thereof could materially and
adversely affect the rights inuring to a holder of the Pledged Securities
or the rights and remedies of any of the Secured Parties under this
Agreement or the Revolving Credit Agreement or any other Loan Document or
the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall execute and deliver to each Pledgor,
or cause to be executed and delivered to each Pledgor, all such proxies,
powers of attorney and other instruments as such Pledgor may reasonably
request for the purpose of enabling such Pledgor to exercise the voting
and/or consensual rights and powers it is entitled to exercise pursuant to
subparagraph (i) above and to receive the cash dividends it is entitled to
receive pursuant to subparagraph (iii) below.
(iii) Each Pledgor shall be entitled to receive and retain any and all
cash dividends, interest and principal paid on the Pledged Securities to
the extent and only to the extent that such cash dividends, interest and
principal are permitted by, and otherwise paid in accordance with, the
terms and conditions of the Revolving Credit Agreement, the other Loan
Documents and applicable laws. All noncash dividends, interest and
principal, and all dividends, interest and principal paid or payable in
cash or otherwise in connection with a partial or total liquidation or
dissolution, return of capital, capital surplus or paid-in surplus, and all
other distributions (other than distributions referred to in the preceding
sentence) made on or in respect of the Pledged Securities, whether paid or
payable in cash or otherwise, whether resulting from a subdivision,
combination or reclassification of the outstanding capital stock of the
issuer of any Pledged Securities or received in exchange for Pledged
Securities or any part thereof, or in redemption thereof, or as a result of
any merger, consolidation, acquisition or other exchange of assets to which
such issuer may be a party or otherwise, shall be and become part of the
Collateral, and, if received by any Pledgor, shall not be commingled by
such Pledgor with any of its other funds or property but shall be held
separate and apart therefrom, shall be held in trust for the benefit of the
Collateral Agent and shall be forthwith delivered to the Collateral Agent
in the same form as so received (with any necessary endorsement).
(iv) With regard to the pledge of the shares of MEMC Electronic
Materials S.p.A, the Collateral Agent shall take all reasonable actions
required by applicable mandatory provisions of Italian law in order to
enable the Pledgors to exercise all the rights to which the Pledgors are
entitled under this Section 5.
(b) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to dividends, interest or principal that such
Pledgor is authorized to receive pursuant to paragraph (a)(iii) above shall
cease, and all such rights shall thereupon become vested in the Collateral
Agent, which shall subject to the provisions of this paragraph (b) have the sole
and exclusive right and authority to receive and retain such dividends, interest
or principal. All dividends, interest or principal received by the Pledgor
contrary to the provisions of this Section 5 shall be held in trust for the
benefit of the Collateral Agent, shall be segregated from other property or
funds of such Pledgor and shall be forthwith delivered to the Collateral Agent
upon demand in the same form as so received (with any necessary endorsement).
Any and all money and other property paid over to or received by the Collateral
Agent pursuant to the provisions of this paragraph (b) shall be retained by the
Collateral Agent in an account to be established by the Collateral Agent upon
receipt of such money or other property and shall be applied in accordance with
the provisions of Section 8. After all Events of Default have been cured or
waived, the Collateral Agent shall promptly repay to each Pledgor all cash
dividends, interest or principal (without interest), that such Pledgor would
otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii)
above and which remain in such account.
(c) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to exercise the voting and consensual rights
and powers it is entitled to exercise pursuant to paragraph (a)(i) of this
Section 5, and the obligations of the Collateral Agent under paragraph (a)(ii)
of this Section 5, shall cease, and all such rights shall thereupon become
vested in the Collateral Agent, which shall have the sole and exclusive right
and authority to exercise such voting and consensual rights and powers, provided
that, unless otherwise directed by the Required Lenders, the Collateral Agent
shall have the right from time to time following and during the continuance of
an Event of Default to permit the Pledgors to exercise such rights. After all
Events of Default have been cured or waived, each Pledgor will have the right to
exercise the voting and consensual rights and powers that it would otherwise be
entitled to exercise pursuant to the terms of paragraph (a)(i) above.
SECTION 6. Limitation on Remedies. Notwithstanding anything to the
contrary contained in this Agreement, the Collateral Agent shall not, at the
instruction of the Administrative Agent or any Lender, commence or otherwise
take any action or proceeding to realize upon any or all of the Collateral or
exercise any other rights or enforce any other remedies available under this
Agreement, any other Loan Document, or as a matter of law unless and until (i) a
Guarantor Default has occurred and is continuing and (ii) the Administrative
Agent has exhausted all remedies available under the Guaranty.
SECTION 7. Remedies upon Default. Subject to Section 6, upon the
occurrence and during the continuance of an Event of Default, subject to
applicable regulatory and legal requirements, the Collateral Agent may sell the
Collateral, or any part thereof, at public or private sale or at any broker's
board or on any securities exchange, for cash, upon credit or for future
delivery as the Collateral Agent shall deem appropriate. The Collateral Agent
shall be authorized at any such sale (if it deems it advisable to do so) to
restrict the prospective bidders or purchasers to Persons who will represent and
agree that they are purchasing the Collateral for their own account for
investment and not with a view to the distribution or sale thereof, and upon
consummation of any such sale the Collateral Agent shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any such sale shall hold the property
sold absolutely free from any claim or right on the part of any Pledgor, and, to
the extent permitted by applicable law, the Pledgors hereby waive all rights of
redemption, stay, valuation and appraisal any Pledgor now has or may at any time
in the future have under any rule of law or statute now existing or hereafter
enacted.
The Collateral Agent shall give a Pledgor 10 days' prior written notice
(which each Pledgor agrees is a "reasonable authenticated notification of
disposition" within the meaning of Section 9-611 of the UCC (as defined in the
Security Agreement) of the Collateral Agent's intention to make any sale of such
Pledgor's Collateral. Such notice, in the case of a public sale, shall state the
time and place for such sale and, in the case of a sale at a broker's board or
on a securities exchange, shall state the board or exchange at which such sale
is to be made and the day on which the Collateral, or portion thereof, will
first be offered for sale at such board or exchange. Any such public sale shall
be held at such time or times within ordinary business hours and at such place
or places as the Collateral Agent may fix and state in the notice of such sale.
At any such sale, the Collateral, or portion thereof, to be sold may be sold in
one lot as an entirety or in separate parcels, as the Collateral Agent may (in
its sole and absolute discretion) determine. The Collateral Agent shall not be
obligated to make any sale of any Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of such Collateral shall have been
given. The Collateral Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the
Collateral Agent until the sale price is paid in full by the purchaser or
purchasers thereof, but the Collateral Agent shall not incur any liability in
case any such purchaser or purchasers shall fail to take up and pay for the
Collateral so sold and, in case of any such failure, such Collateral may be sold
again upon like notice. At any public (or, to the extent permitted by applicable
law, private) sale made pursuant to this Section 7, any Secured Party may bid
for or purchase, free from any right of redemption, stay or appraisal on the
part of any Pledgor (all said rights being also hereby waived and released), the
Collateral or any part thereof offered for sale and may make payment on account
thereof by using any Revolving Credit Obligation then due and payable to it from
such Pledgor as a credit against the purchase price, and it may, upon compliance
with the terms of sale, hold, retain and dispose of such property without
further accountability to such Pledgor therefor. For purposes hereof, (a) a
written agreement to purchase the Collateral or any portion thereof shall be
treated as a sale thereof, (b) the Collateral Agent shall be free to carry out
such sale pursuant to such agreement and (c) such Pledgor shall not be entitled
to the return of the Collateral or any portion thereof subject thereto,
notwithstanding the fact that after the Collateral Agent shall have entered into
such an agreement all Events of Default shall have been remedied and the
Revolving Credit Obligations paid in full. As an alternative to exercising the
power of sale herein conferred upon it, the Collateral Agent may proceed by a
suit or suits at law or in equity to foreclose upon the Collateral and to sell
the Collateral or any portion thereof pursuant to a judgment or decree of a
court or courts having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver.
SECTION 8. Application of Proceeds of Sale. Subject to Section 6, the
Collateral Agent shall apply the proceeds of any collection or sale of the
Collateral, as well as any Collateral consisting of cash, as follows:
FIRST, to the payment of all costs and reasonable expenses
incurred by the Administrative Agent or the Collateral Agent (in its
capacity as such hereunder or under any other Loan Document) in
connection with such collection or sale or otherwise in connection with
this Agreement or any of the Revolving Credit Obligations, including
all court costs and the reasonable fees and expenses of its agents and
legal counsel, the repayment of all advances made by the Collateral
Agent hereunder or under any other Loan Document on behalf of any
Grantor and any other costs or expenses incurred in connection with the
exercise of any right or remedy hereunder or under any other Loan
Document;
SECOND, to the payment in full of the Revolving Credit
Obligations and Reimbursement Obligations in accordance with Section
5.04 of the Intercreditor Agreement (the amounts so applied to be
distributed among the secured parties pro rata in accordance with the
amounts of the Revolving Credit Obligations and/or Reimbursement
Obligations owed to them on the date of any such distribution)
THIRD, to the payment in full of the Indenture Obligations
outstanding; and
FOURTH, to the Pledgors, their successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the purchase money by the Collateral Agent or of the officer
making the sale shall be a sufficient discharge to the purchaser or purchasers
of the Collateral so sold and such purchaser or purchasers shall not be
obligated to see to the application of any part of the purchase money paid over
to the Collateral Agent or such officer or be answerable in any way for the
misapplication thereof.
SECTION 9. Reimbursement of Collateral Agent. (a) Each Pledgor agrees
to pay upon demand to the Collateral Agent the amount of any and all reasonable
expenses, including the reasonable fees, other charges and disbursements of its
counsel and of any experts or agents, that the Collateral Agent may incur in
connection with (i) the administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Collateral, (iii) the exercise or enforcement of any of the rights of the
Collateral Agent hereunder or (iv) the failure by such Pledgor to perform or
observe any of the provisions hereof.
(b) Without limitation of its indemnification obligations under the
other Loan Documents, each Pledgor agrees to indemnify the Collateral Agent and
the Indemnitees (as defined in Section 9.03 of the Revolving Credit Agreement)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees,
other charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the execution
or delivery of this Agreement or any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto
of their respective obligations thereunder or the consummation of the other
transactions contemplated thereby or (ii) any claim, litigation, investigation
or proceeding relating to any of the foregoing, whether or not any Indemnitee is
a party thereto, provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee.
(c) Any amounts payable as provided hereunder shall be additional
Revolving Credit Obligations secured hereby and by the other Security Documents.
The provisions of this Section 9 shall remain operative and in full force and
effect regardless of the termination of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Revolving Credit
Obligations, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document or any investigation made by or on behalf
of the Collateral Agent or any other Secured Party. All amounts due under this
Section 9 shall be payable on written demand therefor and shall bear interest at
the rate specified in Section 2.10(c) of the Revolving Credit Agreement.
SECTION 10. Collateral Agent Appointed Attorney-in-Fact. Each Pledgor
hereby appoints the Collateral Agent the attorney-in-fact of such Pledgor for
the purpose of carrying out the provisions of this Agreement and taking any
action and executing any instrument that the Collateral Agent may deem necessary
or advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest. Without limiting the generality of the foregoing,
the Collateral Agent shall have the right, upon the occurrence and during the
continuance of an Event of Default, with full power of substitution either in
the Collateral Agent's name or in the name of such Pledgor, to ask for, demand,
xxx for, collect, receive and give acquittance for any and all moneys due or to
become due under and by virtue of any Collateral, to endorse checks, drafts,
orders and other instruments for the payment of money payable to the Pledgor
representing any interest or dividend or other distribution payable in respect
of the Collateral or any part thereof or on account thereof and to give full
discharge for the same, to settle, compromise, prosecute or defend any action,
claim or proceeding with respect thereto, and to sell, assign, endorse, pledge,
transfer and to make any agreement respecting, or otherwise deal with, the same;
provided, however, that nothing herein contained shall be construed as requiring
or obligating the Collateral Agent to make any commitment or to make any inquiry
as to the nature or sufficiency of any payment received by the Collateral Agent,
or to present or file any claim or notice, or to take any action with respect to
the Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby. The Collateral Agent and the other
Secured Parties shall be accountable only for amounts actually received as a
result of the exercise of the powers granted to them herein, and neither they
nor their officers, directors, employees or agents shall be responsible to any
Pledgor for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct.
SECTION 11. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the other Secured Parties under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provisions of this Agreement or consent to any departure by any
Pledgor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on any Pledgor in any case shall entitle such Pledgor to any
other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Collateral Agent and the Pledgor or Pledgors with respect to which such
waiver, amendment or modification is to apply, subject to any consent required
in accordance with Section 9.02 of the Revolving Credit Agreement.
SECTION 12. Securities Act, etc. In view of the position of the
Pledgors in relation to the Pledged Securities, or because of other current or
future circumstances, a question may arise under the Securities Act of 1933, as
now or hereafter in effect, or any similar statute hereafter enacted analogous
in purpose or effect (such Act and any such similar statute as from time to time
in effect being called the "Federal Securities Laws") with respect to any
disposition of the Pledged Securities permitted hereunder. Each Pledgor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Collateral Agent if the Collateral Agent were
to attempt to dispose of all or any part of the Pledged Securities, and might
also limit the extent to which or the manner in which any subsequent transferee
of any Pledged Securities could dispose of the same. Similarly, there may be
other legal restrictions or limitations affecting the Collateral Agent in any
attempt to dispose of all or part of the Pledged Securities under applicable
Blue Sky or other state securities laws or similar laws analogous in purpose or
effect. Each Pledgor recognizes that in light of such restrictions and
limitations the Collateral Agent may, with respect to any sale of the Pledged
Securities, limit the purchasers to those who will agree, among other things, to
acquire such Pledged Securities for their own account, for investment, and not
with a view to the distribution or resale thereof. Each Pledgor acknowledges and
agrees that in light of such restrictions and limitations, the Collateral Agent,
in its sole and absolute discretion, (a) may proceed to make such a sale whether
or not a registration statement for the purpose of registering such Pledged
Securities or part thereof shall have been filed under the Federal Securities
Laws and (b) may approach and negotiate with a single potential purchaser to
effect such sale, in either case in accordance with a valid exemption from
registration under the Federal Securities Laws. Each Pledgor acknowledges and
agrees that any such sale might result in prices and other terms less favorable
to the seller than if such sale were a public sale without such restrictions. In
the event of any such sale, the Collateral Agent shall incur no responsibility
or liability for selling all or any part of the Pledged Securities at a price
that the Collateral Agent, in its sole and absolute discretion, may in good
xxxxx xxxx reasonable under the circumstances, notwithstanding the possibility
that a substantially higher price might have been realized if the sale were
deferred until after registration as aforesaid or if more than a single
purchaser were approached. The provisions of this Section 12 will apply
notwithstanding the existence of a public or private market upon which the
quotations or sales prices may exceed substantially the price at which the
Collateral Agent sells.
SECTION 13. Intercreditor Agreement. Notwithstanding anything to the
contrary contained in this Agreement, all rights, obligations and remedies of
the Collateral Agent set forth in this Agreement and any other Security
Documents shall be subject to the provisions set forth in the Intercreditor
Agreement.
SECTION 14. Registration, etc. Each Pledgor agrees that, upon the
occurrence and during the continuance of an Event of Default, if for any reason
the Collateral Agent desires to sell any of the Pledged Securities at a public
sale, it will, at any time and from time to time, upon the written request of
the Collateral Agent, use its reasonable best efforts to take or to cause the
issuer of such Pledged Securities to take such action and prepare, distribute
and/or file such documents, as are required or advisable in the reasonable
opinion of counsel for the Collateral Agent to permit the public sale of such
Pledged Securities. Each Pledgor further agrees to indemnify, defend and hold
harmless the Collateral Agent, each other Secured Party, any underwriter and
their respective officers, directors, affiliates and controlling Persons from
and against all loss, liability, expenses, costs of counsel (including, without
limitation, reasonable fees and expenses to the Collateral Agent of legal
counsel), and claims (including the costs of investigation) that they may incur
insofar as such loss, liability, expense or claim arises out of or is based upon
any alleged untrue statement of a material fact contained in any prospectus (or
any amendment or supplement thereto) or in any notification or offering
circular, or arises out of or is based upon any alleged omission to state a
material fact required to be stated therein or necessary to make the statements
in any thereof not misleading, except insofar as the same may have been caused
by any untrue statement or omission based upon information furnished in writing
to such Pledgor or the issuer of such Pledged Securities by the Collateral Agent
or any other Secured Party expressly for use therein. Each Pledgor further
agrees, upon such written request referred to above, to use its reasonable best
efforts to qualify, file or register, or cause the issuer of such Pledged
Securities to qualify, file or register, any of the Pledged Securities under the
Blue Sky or other securities laws of such states as may be requested by the
Collateral Agent and keep effective, or cause to be kept effective, all such
qualifications, filings or registrations. Each Pledgor will bear all costs and
expenses of carrying out its obligations under this Section 14. Each Pledgor
acknowledges that there is no adequate remedy at law for failure by it to comply
with the provisions of this Section 14 and that such failure would not be
adequately compensable in damages, and therefore agrees that its agreements
contained in this Section 14 may be specifically enforced.
SECTION 15. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the grant of a security interest in the Collateral and all
obligations of each Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Revolving
Credit Agreement, any other Loan Document, any agreement with respect to any of
the Revolving Credit Obligations or any other agreement or instrument relating
to any of the foregoing, (b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Revolving Credit Obligations, or
any other amendment or waiver of or any consent to any departure from the
Revolving Credit Agreement, any other Loan Document or any other agreement or
instrument relating to any of the foregoing, (c) any exchange, release or
nonperfection of any other collateral, or any release or amendment or waiver of
or consent to or departure from any guaranty, for all or any of the Revolving
Credit Obligations or (d) any other circumstance that might otherwise constitute
a defense available to, or a discharge of, any Pledgor in respect of the
Revolving Credit Obligations or in respect of this Agreement (other than the
indefeasible payment in full of all the Revolving Credit Obligations).
SECTION 16. Termination or Release. (a) This Agreement and the security
interests granted hereby shall terminate when all the Revolving Credit
Obligations have been indefeasibly paid in full and the Lenders have no further
commitment to lend under the Revolving Credit Agreement.
(b) Upon any sale or other transfer by any Pledgor of any Collateral
that is permitted under the Revolving Credit Agreement to any Person that is not
a Pledgor, or, upon the effectiveness of any written consent to the release of
the security interest granted hereby in any Collateral pursuant to Section 9.02
of the Revolving Credit Agreement, the security interest in such Collateral
shall be automatically released.
(c) In connection with any termination or release pursuant to paragraph
(a) or (b) or Section 19, the Collateral Agent shall execute and deliver to any
Pledgor, at such Pledgor's expense, all documents that such Pledgor shall
reasonably request to evidence such termination or release. Any execution and
delivery of documents pursuant to this Section 16 shall be without recourse to
or warranty by the Collateral Agent.
SECTION 17. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 9.01 of the Revolving Credit
Agreement. All communications and notices hereunder to any Subsidiary Pledgor
shall be given to it at the address or telecopy number set forth on Schedule I,
with a copy to the Borrower.
SECTION 18. Further Assurances. Each Pledgor agrees to do such further
acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Collateral Agent may at any time
reasonably request in connection with the administration and enforcement of this
Agreement or with respect to the Collateral or any part thereof or in order
better to assure and confirm unto the Collateral Agent its rights and remedies
hereunder.
SECTION 19. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of any Pledgor that are contained in
this Agreement shall bind and inure to the benefit of its successors and
assigns. This Agreement shall become effective as to any Pledgor when a
counterpart hereof executed on behalf of such Pledgor shall have been delivered
to the Collateral Agent and a counterpart hereof shall have been executed on
behalf of the Collateral Agent, and thereafter shall be binding upon such
Pledgor and the Collateral Agent and their respective successors and assigns,
and shall inure to the benefit of such Pledgor, the Collateral Agent and the
other Secured Parties, and their respective successors and assigns, except that
no Pledgor shall have the right to assign its rights hereunder or any interest
herein or in the Collateral (and any such attempted assignment shall be void),
except as expressly contemplated by this Agreement or the other Loan Documents.
In the event that a Pledgor ceases to be a Subsidiary pursuant to a transaction
permitted under the Loan Documents, such Pledgor shall be released from its
obligations under this Agreement without further action. This Agreement shall be
construed as a separate agreement with respect to each Pledgor and may be
amended, modified, supplemented, waived or released with respect to any Pledgor
without the approval of any other Pledgor and without affecting the obligations
of any other Pledgor hereunder.
SECTION 20. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by each Pledgor herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Collateral Agent and the other Secured Parties and
shall survive the making of the Loans by the Lenders regardless of any
investigation made by the Secured Parties or on their behalf, and shall continue
in full force and effect as long as any Revolving Credit Obligation remains
unpaid and as long as the Commitments have not been terminated.
(b) In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 21. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 22. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute a single contract, and shall become effective
as provided in Section 19. Delivery of an executed counterpart of a signature
page to this Agreement by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 23. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Revolving Credit Agreement shall be applicable
to this Agreement. Section headings used herein are for convenience of reference
only, are not part of this Agreement and are not to affect the construction of,
or to be taken into consideration in interpreting this Agreement.
SECTION 24. Jurisdiction; Consent to Service of Process. (a) Each
Pledgor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that, to the extent permitted by applicable law, all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Collateral Agent or
any other Secured Party may otherwise have to bring any action or proceeding
relating to this Agreement or the other Loan Documents against any Pledgor or
its properties in the courts of any jurisdiction.
(a) Each Pledgor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(b) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 17. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 25. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 26. Limitation on Security Interest. Anything contained in this
Agreement to the contrary notwithstanding, the obligation hereunder secured by
each Subsidiary Pledgor shall be limited to a maximum aggregate amount equal to
the greatest amount that would not render such Subsidiary Pledgor's secured
obligations hereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of Title 11 of the United States Code or any
provisions of applicable state law (collectively, the "Fraudulent Transfer
Laws"), in each case after giving effect to all liabilities of such Subsidiary
Pledgor, contingent or otherwise, that would be taken into account in
determining whether the incurrence of the obligation would constitute a
fraudulent conveyance under the Fraudulent Transfer Laws and after giving
effect, both in determining such Subsidiary Pledgor's probable debt hereunder
and in determining its assets, to the existence of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights of such Subsidiary
Pledgor pursuant to (a) applicable law or (b) any agreement, including the
Indemnity, Subrogation and Contribution Agreement.
SECTION 27. Additional Pledgors. Pursuant to Section 5.12 of the
Revolving Credit Agreement, each Subsidiary Loan Party that was not in existence
or not a Subsidiary Loan Party on the date of the Revolving Credit Agreement is
required to enter into this Agreement as a Subsidiary Pledgor upon becoming a
Subsidiary Loan Party. Upon execution and delivery by the Collateral Agent and a
Subsidiary of an instrument in the form of Annex 1, such Subsidiary shall become
a Subsidiary Pledgor hereunder with the same force and effect as if originally
named as a Subsidiary Pledgor herein. The execution and delivery of such
instrument shall not require the consent of any Pledgor hereunder. The rights
and obligations of each Pledgor hereunder shall remain in full force and effect
notwithstanding the addition of any new Subsidiary Pledgor as a party to this
Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
MEMC ELECTRONIC MATERIALS, INC.
By
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President,
Chief Financial Officer
By
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
EACH OF THE OTHER SUBSIDIARIES LISTED ON
SCHEDULE I HERETO,
By
----------------------------------------
Name: Xxxxxxx X. Xxxxx, in his capacity as
Treasurer for each of the other
Subsidiaries listed on Schedule I
hereto
CITICORP USA, INC., as Administrative
Agent and Collateral Agent
By
---------------------------------------
Name:
Title:
Schedule I to the
Pledge Agreement
SUBSIDIARY PLEDGORS
Name Address
---- -------
1.
2.
3.
4.
5.
6.
Schedule II to the
Pledge Agreement
CAPITAL STOCK OR OTHER EQUITY INTERESTS
Number and Class of Percentage of Shares
Number of Registered or Other Equity Shares or Other Equity
Issuer Certificate Owner Interests Interests
------ ----------- ----- --------- ---------
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
------ ------ ------------ -------------
Annex 1 to the
Pledge Agreement
SUPPLEMENT NO. [ ] dated as of [ ] to the
PLEDGE AGREEMENT dated as of December 21,
2001, among MEMC ELECTRONIC MATERIALS, INC.,
a Delaware corporation "Borrower"), each
subsidiary of Borrower listed on Schedule I
thereto (each such subsidiary individually a
"Subsidiary Pledgor"and collectively, the
"Subsidiary Pledgors"; the Borrower and the
Subsidiary Pledgors are referred to herein
individually as a "Pledgor" and collectively
as the "Pledgors") and CITICORP USA, INC.,
as collateral agent (in such capacity, the
"Collateral Agent") for the Secured Parties
(as defined in the Security Agreement).
A. Reference is made to (a) the Revolving Credit Agreement dated as of
December 21, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Revolving Credit Agreement"), among the Borrower, the lenders from
time to time party thereto (the "Lenders") and CITICORP USA, INC., as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent") and (b) the Guarantee Agreement dated as of December 21, 2001 (as
amended, supplemented or otherwise modified from time to time, the "Guarantee
Agreement") among the Subsidiary Pledgors and the Collateral Agent.
B. Capitalized terms used herein and not defined herein shall have
meanings assigned to such terms in the Revolving Credit Agreement.
C. The Pledgors have entered into the Pledge Agreement in order to
induce the Lenders to make Loans. Pursuant to Section 5.12 of the Revolving
Credit Agreement, each Subsidiary Loan Party that was not in existence or not a
Subsidiary Loan Party on the date of the Revolving Credit Agreement is required
to enter into the Pledge Agreement as a Subsidiary Pledgor upon becoming a
Subsidiary Loan Party. Section 27 of the Pledge Agreement provides that such
Subsidiaries may become Subsidiary Pledgors under the Pledge Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary (the "New Pledgor") is executing this Supplement in
accordance with the requirements of the Revolving Credit Agreement to become a
Subsidiary Pledgor under the Pledge Agreement in order to induce the Lenders to
make additional Loans and as consideration for Loans previously made.
Accordingly, the Collateral Agent and the New Pledgor agree as follows:
SECTION 1. In accordance with Section 27 of the Pledge Agreement, the
New Pledgor by its signature below becomes a Pledgor under the Pledge Agreement
with the same force and effect as if originally named therein as a Pledgor and
the New Pledgor hereby agrees (a) to all the terms and provisions of the Pledge
Agreement applicable to it as a Pledgor thereunder and (b) represents and
warrants that the representations and warranties made by it as a Pledgor
thereunder are true and correct on and as of the date hereof except to the
extent a representation and warranty expressly relates solely to a specific date
in which case such representation and warranty shall be true and correct on such
date. In furtherance of the foregoing, the New Pledgor, as security for the
payment and performance in full of the Revolving Credit Obligations (as defined
in the Pledge Agreement), does hereby create and grant to the Collateral Agent,
its successors and assigns, for the benefit of the Secured Parties, their
successors and assigns, a security interest in and lien on all of the New
Pledgor's right, title and interest in and to the Collateral (as defined in the
Pledge Agreement) of the New Pledgor. Each reference to a "Subsidiary Pledgor"
or a "Pledgor" in the Pledge Agreement shall be deemed to include the New
Pledgor. The Pledge Agreement is hereby incorporated herein by reference.
SECTION 2. The New Pledgor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Collateral Agent shall have received counterparts of this Supplement that, when
taken together, bear the signatures of the New Pledgor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. The New Pledgor hereby represents and warrants that set
forth on Schedule I attached hereto is a true and correct schedule of all its
Pledged Securities.
SECTION 5. Except as expressly supplemented hereby, the Pledge
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Pledge Agreement shall not in any way be affected or impaired
(it being understood that the invalidity of a particular provision in a
particular jurisdiction shall not in and of itself affect the validity of such
provision in any other jurisdiction). The parties hereto shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 17 of the Pledge Agreement. All communications
and notices hereunder to the New Pledgor shall be given to it at the address set
forth under its signature hereto, below, with a copy to the Borrower.
SECTION 9. The New Pledgor agrees to reimburse the Collateral Agent for
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
IN WITNESS WHEREOF, the New Pledgor and the Collateral Agent have duly
executed this Supplement to the Pledge Agreement as of the day and year first
above written.
[NAME OF NEW PLEDGOR],
By
----------------------------
Name:
Title:
Address:
CITICORP USA, INC., as Collateral Agent,
By
----------------------------
Name:
Title:
Schedule I to
Supplement No. [ ]
to the Pledge Agreement
Pledged Securities of the New Pledgor
CAPITAL STOCK OR OTHER EQUITY INTERESTS
Number and Class of Percentage of Shares
Number of Registered Shares or Other or Other Equity
Issuer Certificate Owner Equity Interests Interests
------ ----------- ----- --------- ---------
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
------ ------ ------------ -------------
Exhibit F
SECURITY AGREEMENT dated as of
December 21, 2001, among MEMC ELECTRONIC
MATERIALS, INC., a Delaware corporation (the
"Borrower"), each subsidiary of Borrower
listed on Schedule I hereto (each such
subsidiary individually a "Subsidiary" or a
"Guarantor" and, collectively, the
"Subsidiaries" or "Guarantors"; and the
Guarantors and Borrower are referred to
collectively herein as the "Grantors") and
CITICORP USA, INC. as collateral agent (in
such capacity, the "Collateral Agent") for
the Secured Parties (as defined herein).
Reference is made to (a) the Revolving Credit Agreement dated as of
December 21, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Revolving Credit Agreement") among the Borrower, the lenders from
time to time party thereto (the "Lenders") and Citicorp USA, Inc., as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent") and (b) the Guarantee Agreement dated as of December 21, 2001 (as
amended, supplemented or otherwise modified from time to time, the "Guarantee
Agreement"), among the Guarantors and the Collateral Agent. Unless the context
otherwise requires, all capitalized terms used but not defined herein shall have
the meanings set forth in the Revolving Credit Agreement.
The Lenders have agreed to make Loans to the Borrower upon the terms
and subject to the conditions specified in the Revolving Credit Agreement. Each
of the Guarantors has agreed to guarantee, among other things, all the
obligations of the Borrower under the Revolving Credit Agreement. The
obligations of the Lenders to make Loans are conditioned upon, among other
things, the execution and delivery by the Grantors of an agreement in the form
hereof to secure (a) the due and punctual payment of (i) the principal of and
premium, if any, and interest (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on the Loans,
when and as due, whether at maturity, by acceleration, upon one or more dates
set for prepayment or otherwise and (ii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
the Loan Parties to the Secured Parties under the Revolving Credit Agreement and
the other Loan Documents, (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of the Loan Parties under or pursuant to
the Revolving Credit Agreement and the other Loan Documents, (c) unless
otherwise agreed to in writing by the applicable Lender party thereto, the due
and punctual payment and performance of all obligations of the Borrower or any
other Loan Party, monetary or otherwise, under each Hedging Agreement entered
into with a counterparty that was a Lender (or an Affiliate of a Lender) at the
time such Hedging Agreement was entered into and (d) the due and punctual
payment and performance of all obligations in respect of overdrafts and related
liabilities owed to the Administrative Agent or any of its Affiliates and
arising from treasury, depositary and cash management services in connection
with any automated clearing house transfers of funds (all the monetary and other
obligations described in the preceding clauses (a) through (d) being
collectively called the "Revolving Credit Obligations").
Accordingly, the Grantors and the Collateral Agent, on behalf of itself
and each Secured Party (and each of their respective successors or assigns),
hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definition of Certain Terms Used Herein. As used herein,
the following terms shall have the
following meanings:
"Account Debtor" means any Person who is or who may become obligated to
any Grantor under, with respect to or on account of an Account.
"Accounts" means all "accounts" (as defined in UCC) of any Grantor and
shall include any and all right, title and interest of any Grantor to payment
for goods and services sold or leased, including any such right evidenced by
Chattel Paper, whether due or to become due, whether or not it has been earned
by performance, and whether now or hereafter acquired or arising in the future,
including accounts receivable from Affiliates of the Grantors.
"Accounts Receivable" means all Accounts and all right, title and
interest in any returned goods, together with all rights, titles, securities and
guarantees with respect thereto, including any rights to stoppage in transit,
replevin, reclamation and resales, and all related security interests, liens and
pledges, whether voluntary or involuntary, in each case whether now existing or
owned or hereafter arising or acquired.
"Chattel Paper" has the meaning assigned to such term in the UCC.
"Collateral" means all (a) Accounts Receivable, (b) Documents, (c)
Equipment, (d) General Intangibles, (e) Inventory, (f) cash and cash accounts,
(g) Investment Property (h) Chattel Paper, (i) Instruments, (j) Deposit Accounts
and (k) Proceeds.
"Commodity Account" means an account maintained by a Commodity
Intermediary in which a Commodity Contract is carried out for a Commodity
Customer.
"Commodity Contract" means a commodity futures contract, an option on a
commodity futures contract, a commodity option or any other contract that, in
each case, is (a) traded on or subject to the rules of a board of trade that has
been designated as a contract market for such a contract pursuant to the federal
commodities laws or (b) traded on a foreign commodity board of trade, exchange
or market, and is carried on the books of a Commodity Intermediary for a
Commodity Customer.
"Commodity Customer" means a Person for whom a Commodity Intermediary
carries a Commodity Contract on its books.
"Commodity Intermediary" means (a) a Person who is registered as a
futures commission merchant under the federal commodities laws or (b) a Person
who in the ordinary course of its business provides clearance or settlement
services for a board of trade that has been designated as a contract market
pursuant to federal commodities laws.
"Copyright License" means any written agreement, now or hereafter in
effect, granting any right to any third party under any Copyright now or
hereafter owned by any Grantor or which such Grantor otherwise has the right to
license, or granting any right to such Grantor under any Copyright now or
hereafter owned by any third party, and all rights of such Grantor under any
such agreement.
"Copyrights" means all of the following: (a) all copyright rights in
any work subject to the copyright laws of the United States or any other
country, whether as author, assignee, transferee or otherwise, and (b) all
registrations and applications for registration of any such copyright in the
United States or any other country, including registrations, recordings,
supplemental registrations and pending applications for registration in the
United States Copyright Office, including those listed on Schedule II.
"Deposit Accounts" has the meaning assigned to such term in the UCC.
"Documents" means all instruments, promissory notes, files, records,
ledger sheets and documents covering or relating to any of the Collateral.
"Entitlement Holder" means a Person identified in the records of a
Securities Intermediary as the Person having a Security Entitlement against the
Securities Intermediary. If a Person acquires a Security Entitlement by virtue
of Section 8-501(b)(2) or (3) of the UCC, such Person is the Entitlement Holder.
"Equipment" means "equipment" (as defined in the UCC) of any Grantor
and shall include all equipment, furniture and furnishings, and all tangible
personal property similar to any of the foregoing, including tools, parts and
supplies of every kind and description, and all improvements, accessions or
appurtenances thereto, that are now or hereafter owned by any Grantor. The term
Equipment shall include Fixtures.
"Financial Asset" means (a) a Security, (b) an obligation of a Person
or a share, participation or other interest in a Person or in property or an
enterprise of a Person, which is, or is of a type, dealt with in or traded on
financial markets, or which is recognized in any area in which it is issued or
dealt in as a medium for investment or (c) any property that is held by a
Securities Intermediary for another Person in a Securities Account if the
Securities Intermediary has expressly agreed with the other Person that the
property is to be treated as a Financial Asset under Article 8 of the UCC. As
the context requires, the term Financial Asset means either the interest itself
or the means by which a Person's claim to it is evidenced, including a
certificated or uncertificated Security, a certificate representing a Security
or a Security Entitlement.
"Fixtures" means all items of Equipment, whether now owned or hereafter
acquired, of any Grantor that become so related to particular real estate that
an interest in them arises under any real estate law applicable thereto.
"General Intangibles" means all "general intangibles" (as defined in
the UCC) of any Grantor and shall include choses in action and causes of action
and all other intangible personal property of any Grantor of every kind and
nature (other than Accounts Receivable) now owned or hereafter acquired by any
Grantor, including corporate or other business records, indemnification claims,
contract rights (including rights under leases, whether entered into as lessor
or lessee, Hedging Agreements and other agreements), Intellectual Property,
goodwill, registrations, franchises, tax refund claims and any letter of credit,
guarantee, claim, security interest or other security held by or granted to any
Grantor to secure payment by an Account Debtor of any of the Accounts
Receivable.
"Instrument" has the meaning assigned to such term in the UCC.
"Intellectual Property" means all intellectual and similar property of
any Grantor of every kind and nature now owned or hereafter acquired by any
Grantor, including inventions, designs, Patents, Copyrights, Licenses,
Trademarks, trade secrets, confidential or proprietary technical and business
information, know-how, show-how or other data or information, software and
databases and all embodiments or fixations thereof and related documentation,
registrations and franchises, and all additions, improvements and accessions to,
and books and records describing or used in connection with, any of the
foregoing.
"Inventory" means "inventory" (as defined in the UCC) of any Grantor
and shall include all goods of any Grantor, whether now owned or hereafter
acquired, held for sale or lease, or furnished or to be furnished by any Grantor
under contracts of service, or consumed in any Grantor's business, including raw
materials, intermediates, work in process, packaging materials, finished goods,
semi-finished inventory, scrap inventory, manufacturing supplies and spare
parts, and all such goods that have been returned to or repossessed by or on
behalf of any Grantor.
"Investment Property" means all Securities (whether certificated or
uncertificated), Security Entitlements, Securities Accounts, Commodity Contracts
and Commodity Accounts of any Grantor, whether now owned or hereafter acquired
by any Grantor.
"License" means any Patent License, Trademark License, Copyright
License or other license or sublicense to which any Grantor is a party,
including those listed on Schedule III (other than those license agreements in
existence on the date hereof and listed on Schedule III and those license
agreements entered into after the date hereof, which by their terms prohibit
assignment or a grant of a security interest by such Grantor as licensee
thereunder).
"Patent License" means any written agreement, now or hereafter in
effect, granting to any third party any right to make, use or sell any invention
on which a Patent, now or hereafter owned by any Grantor or which any Grantor
otherwise has the right to license, is in existence, or granting to any Grantor
any right to make, use or sell any invention on which a Patent, now or hereafter
owned by any third party, is in existence, and all rights of any Grantor under
any such agreement.
"Patents" means all of the following now owned or hereafter acquired by
any Grantor: (a) all letters patent of the United States or any other country,
all registrations and recordings thereof, and all applications for letters
patent of the United States or any other country, including registrations,
recordings and pending applications in the United States Patent and Trademark
Office or any similar offices in any other country, including those listed on
Schedule IV, and (b) all reissues, continuations, divisions,
continuations-in-part, renewals or extensions thereof, and the inventions
disclosed or claimed therein, including the right to make, use and/or sell the
inventions disclosed or claimed therein.
"Perfection Certificate" means a certificate substantially in the form
of Annex 2 hereto, completed and supplemented with the schedules and attachments
contemplated thereby, and duly executed by an executive officer or Financial
Officer of the Borrower.
"Proceeds" means "proceeds" (as defined in the UCC) of any Grantor and
shall include any consideration received from the sale, exchange, license, lease
or other disposition of any asset or property that constitutes Collateral, any
value received as a consequence of the possession of any Collateral and any
payment received from any insurer or other Person or entity as a result of the
destruction, loss, theft, damage or other involuntary conversion of whatever
nature of any asset or property which constitutes Collateral, any property
collected on or distributed on account of the Collateral, any rights arising out
of the Collateral, and shall include , (a) any claim of any Grantor against any
third party for (and the right to xxx and recover for and the rights to damages
or profits due or accrued arising out of or in connection with) (i) past,
present or future infringement of any Patent now or hereafter owned by any
Grantor, or licensed under a Patent License, (ii) past, present or future
infringement or dilution of any Trademark now or hereafter owned by any Grantor
or licensed under a Trademark License or injury to the goodwill associated with
or symbolized by any Trademark now or hereafter owned by any Grantor, (iii)
past, present or future breach of any License and (iv) past, present or future
infringement of any Copyright now or hereafter owned by any Grantor or licensed
under a Copyright License and (b) any and all other amounts from time to time
paid or payable under or in connection with any of the Collateral.
"Revolving Credit Agreement" has the meaning assigned to such term in
the preliminary statement of this Agreement.
"Revolving Credit Obligations" has the meaning assigned to such term in
the preliminary statement of this Agreement.
"Secured Parties" means (a) the Lenders, (b) the Administrative Agent,
(c) the Collateral Agent, (d) each counterparty to a Hedging Agreement entered
into with the Borrower or any Loan Party if such counterparty was a Lender (or
an Affiliate of a Lender) at the time the Hedging Agreement was entered into,
(e) the beneficiaries of each indemnification obligation undertaken by any
Grantor under any Loan Document and (f) the successors and assigns of each of
the foregoing.
"Securities" means any obligations of an issuer or any shares,
participations or other interests in an issuer or in property or an enterprise
of an issuer which (a) are represented by a certificate representing a security
in bearer or registered form, or the transfer of which may be registered upon
books maintained for that purpose by or on behalf of the issuer, (b) are one of
a class or series or by its terms is divisible into a class or series of shares,
participations, interests or obligations and (c)(i) are, or are of a type, dealt
with or traded on securities exchanges or securities markets or (ii) are a
medium for investment and by their terms expressly provide that they are a
security governed by Article 8 of the UCC.
"Securities Account" means an account to which a Financial Asset is or
may be credited in accordance with an agreement under which the Person
maintaining the account undertakes to treat the Person for whom the account is
maintained as entitled to exercise rights that comprise the Financial Asset.
"Security Entitlements" means the rights and property interests of an
Entitlement Holder with respect to a Financial Asset.
"Security Interest" has the meaning assigned to such term in Section
2.01.
"Security Intermediary" means (a) a clearing corporation or (b) a
Person, including a bank or broker, that in the ordinary course of its business
maintains securities accounts for others and is acting in that capacity.
"Texas Instruments Agreements" means the Shareholders' Agreement dated
as of May 16, 1995, by and between Texas Instruments Incorporated and the
Borrower, as amended; Technology Transfer Agreement dated as of June 30, 1995,
by and between Texas Instruments Incorporated, the Borrower and MEMC Southwest
Inc.; Texas Instruments Incorporated Purchase Agreement dated as of June 30,
1995, by and between Texas Instruments Incorporated, MEMC Southwest Inc. and the
Borrower, as amended; Master Services Agreement dated as of June 30, 1995, by
and between Texas Instruments Incorporated and MEMC Southwest Inc.; Chemical
Services Agreement dated as of June 30, 1995, by and between Texas Instruments
Incorporated and MEMC Southwest Inc.; Information Systems and Services Agreement
dated as of June 30, 1995, by and between Texas Instruments Incorporated and
MEMC Southwest Inc.; Telephone Services Agreement dated as of June 30, 1995, by
and between Texas Instruments Incorporated and MEMC Southwest Inc.; Medical
Services Agreement dated as of June 30, 1995, by and between Texas Instruments
Incorporated and MEMC Southwest Inc.; Purchasing and Inventory Services
Agreement dated as of June 30, 1995, by and between Texas Instruments
Incorporated and MEMC Southwest Inc.; Environmental, Health and Safety Services
Agreement dated as of June 30, 1995, by and between Texas Instruments
Incorporated and the Borrower; Agreement Regarding Health & Dental
Administrative Expenses dated as of June 30, 1995, by and between Texas
Instruments Incorporated and the Borrower.
"Trademark License" means any written agreement, now or hereafter in
effect, granting to any third party any right to use any Trademark now or
hereafter owned by any Grantor or which any Grantor otherwise has the right to
license, or granting to any Grantor any right to use any Trademark now or
hereafter owned by any third party, and all rights of any Grantor under any such
agreement.
"Trademarks" means all of the following: (a) all trademarks, service
marks, trade names, corporate names, company names, business names, fictitious
business names, trade styles, trade dress, logos, other source or business
identifiers, designs and general intangibles of like nature, now existing or
hereafter adopted or acquired, all registrations and recordings thereof, and all
registration and recording applications filed in connection therewith, including
registrations and registration applications in the United States Patent and
Trademark Office, any State of the United States or any similar offices in any
other country or any political subdivision thereof, and all extensions or
renewals thereof, including those listed on Schedule V, (b) all goodwill
associated therewith or symbolized thereby and (c) all other assets, rights and
interests that uniquely reflect or embody such goodwill.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the state of New York.
SECTION 1.02. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Revolving Credit Agreement shall be applicable
to this Agreement.
ARTICLE II
Security Interest
SECTION 2.01. Security Interest. As security for the payment or
performance, as the case may be, in full of the Revolving Credit Obligations,
each Grantor hereby bargains, sells, conveys, assigns, sets over, mortgages,
pledges, hypothecates and transfers to the Collateral Agent, its successors and
assigns, for the ratable benefit of the Secured Parties, and hereby grants to
the Collateral Agent, its successors and assigns, for the ratable benefit of the
Secured Parties, a security interest in, all of such Grantor's right, title and
interest in, to and under the Collateral (the "Security Interest"), provided
that the Security Interest shall not include (i) more than 65% of the issued and
outstanding voting stock of any Foreign Subsidiary, (ii) the outstanding voting
stock of MEMC Korea Company, MEMC Kulim Electronic Materials, Sdn. Bhd., MEMC
Southwest Inc. and Taisil Electronic Materials Corporation, (iii) the Texas
Instruments Agreements, or (iv) any General Intangible that is, by its terms,
not assignable, so long as the failure of the Grantors to maintain such General
Intangible would not result in a Material Adverse Effect. Without limiting the
foregoing, the Collateral Agent is hereby authorized to file one or more
financing statements (including fixture filings), continuation statements,
filings with the United States Patent and Trademark Office or United States
Copyright Office (or any successor office or any similar office in any other
country) or other documents for the purpose of perfecting, confirming,
continuing, enforcing or protecting the Security Interest granted by each
Grantor, without the signature of any Grantors, and naming any Grantor or the
Grantors as debtors and the Collateral Agent as secured party.
SECTION 2.02. No Assumption of Liability. The Security Interest is
granted as security only and shall not subject the Collateral Agent or any other
Secured Party to, or in any way alter or modify, any obligation or liability of
any Grantor with respect to or arising out of the Collateral.
ARTICLE III
Representations and Warranties
The Grantors jointly and severally represent and warrant to the
Collateral Agent and the Secured Parties that:
SECTION 3.01. Title and Authority. Each Grantor has good and valid
rights in and title to the Collateral with respect to which it has purported to
grant a Security Interest hereunder and has full power and authority to grant to
the Collateral Agent the Security Interest in such Collateral pursuant hereto
and to execute, deliver and perform its obligations in accordance with the terms
of this Agreement, without the consent or approval of any other Person other
than any consent or approval which has been obtained. The Security Interest
granted hereby is subject to the terms and conditions of that certain Option
Agreement dated September 21, 1998, as amended on September 22, 2000, September
25, 2001, and October 25, 2001, among Tokuyama Corporation, Marubeni
Corporation, Marubeni America Corporation, the Borrower and MEMC Pasadena.
SECTION 3.02. Filings. (a) The Perfection Certificate has been duly
prepared, completed and executed and the information set forth therein is
correct and complete in all material respects. Appropriately completed UCC
financing statements (including fixture filings, as applicable) or other
appropriate filings, recordings or registrations containing a description of the
Collateral have been delivered to the Collateral Agent for filing in each
governmental, municipal or other office specified in Schedule 5 to the
Perfection Certificate, which are all the filings, recordings and registrations
(other than filings required to be made in the United States Patent and
Trademark Office and the United States Copyright Office in order to perfect the
Security Interest in Collateral consisting of United States Patents, Trademarks
and Copyrights) that are necessary to publish notice of and protect the validity
of and to establish a legal, valid and perfected security interest in favor of
the Collateral Agent (for the ratable benefit of the Secured Parties) in respect
of all Collateral in which the Security Interest may be perfected by filing,
recording or registration in the United States (or any political subdivision
thereof) and its territories and possessions, and no further or subsequent
filing, refiling, recording, rerecording, registration or reregistration is
necessary in any such jurisdiction, except as provided under applicable law with
respect to the filing of continuation statements.
(b) Each Grantor shall ensure that fully executed security agreements
in the form hereof (or short-form supplements to this Agreement in form and
substance satisfactory to the Collateral Agent) and containing a description of
all Collateral consisting of Intellectual Property shall have been received and
recorded within three months after the execution of this Agreement with respect
to United States Patents and United States registered Trademarks (and Trademarks
for which United States registration applications are pending) and within one
month after the execution of this Agreement with respect to United States
registered Copyrights have been delivered to the Collateral Agent for recording
by the United States Patent and Trademark Office and the United States Copyright
Office pursuant to 35 U.S.C. ss. 261, 15 U.S.C. ss. 1060 or 17 U.S.C. ss. 205
and the regulations thereunder, as applicable, and otherwise as may be required
pursuant to the laws of any other necessary jurisdiction in the United States
(or any political subdivision thereof) and its territories and possessions, to
protect the validity of and to establish a legal, valid and perfected security
interest in favor of the Collateral Agent (for the ratable benefit of the
Secured Parties) in respect of all Collateral consisting of Patents, Trademarks
and Copyrights in which a security interest may be perfected by filing,
recording or registration in the United States (or any political subdivision
thereof) and its territories and possessions, or in any other necessary
jurisdiction, and no further or subsequent filing, refiling, recording,
rerecording, registration or reregistration is necessary in any such
jurisdiction (other than such actions as are necessary to perfect the Security
Interest with respect to any Collateral consisting of Patents, Trademarks and
Copyrights (or registration or application for registration thereof) acquired or
developed after the date hereof).
SECTION 3.03. Validity of Security Interest. The Security Interest
constitutes (a) a legal and valid security interest in all the Collateral
securing the payment and performance of the Revolving Credit Obligations, (b)
subject to the filings described in Section 3.02 above, a perfected security
interest in all Collateral in which a security interest may be perfected by
filing, recording or registering a financing statement or analogous document in
the United States (or any political subdivision thereof) and its territories and
possessions pursuant to the UCC or other analogous applicable law in such
jurisdictions and (c) a security interest that shall be perfected in all
Collateral in which a security interest may be perfected upon the receipt and
recording of this Agreement with the United States Patent and Trademark Office
and the United States Copyright Office, as applicable, within the three month
period (commencing as of the date hereof) pursuant to 35 U.S.C. ss.261 or 15
U.S.C. ss.1060 or the one month period (commencing as of the date hereof)
pursuant to 17 U.S.C. ss.205 and otherwise as may be required to pursuant to the
laws of any other necessary jurisdiction in the United States (or any political
subdivision thereof) and its territories and possessions. The Security Interest
is and shall be prior to any other Lien on any of the Collateral, other than
Liens expressly permitted pursuant to Section 6.02 of the Revolving Credit
Agreement.
SECTION 3.04. Absence of Other Liens. The Collateral is owned by the
Grantors free and clear of any Lien, except for Liens expressly permitted
pursuant to Section 6.02 of the Revolving Credit Agreement. The Grantor has not
filed or consented to the filing of (a) any financing statement or analogous
document under the UCC or any other applicable laws covering any Collateral, (b)
any assignment in which any Grantor assigns any Collateral or any security
agreement or similar instrument covering any Collateral with the United States
Patent and Trademark Office or the United States Copyright Office or (c) any
assignment in which any Grantor assigns any Collateral or any security agreement
or similar instrument covering any Collateral with any foreign governmental,
municipal or other office, which financing statement or analogous document,
assignment, security agreement or similar instrument is still in effect, except,
in each case, for Liens expressly permitted pursuant to Section 6.02 of the
Revolving Credit Agreement.
ARTICLE IV
Covenants
SECTION 4.01. Changes with respect to Collateral. Each of the Grantors
shall promptly notify the Collateral Agent in writing of any change (i) in its
legal name, (ii) in its jurisdiction of organization or formation, (iii) in the
location of its chief executive office or principal place of business, (iv) in
its identity or legal or organizational structure or (v) in its organization
identification number or its Federal Taxpayer Identification Number. None of the
Grantors shall effect or permit any change referred to in the preceding sentence
unless all filings have been made under the UCC or otherwise that are required
in order for the Collateral Agent to continue at all times following such change
to have a valid, legal and perfected first priority security interest in all the
Collateral (subject only to Liens expressly permitted pursuant to Section 6.02
of the Revolving Credit Agreement). Each Grantor shall promptly notify the
Collateral Agent if any material portion of the Collateral owned or held by or
on behalf of such Grantor is damaged or destroyed.
SECTION 4.02. Records. Each Grantor agrees to maintain, at its own cost
and expense, such complete and accurate records with respect to the Collateral
owned by it as is consistent with its current practices, but in any event to
include complete accounting records indicating all payments and proceeds
received with respect to any part of the Collateral, and, at such time or times
as the Collateral Agent may reasonably request, promptly to prepare and deliver
to the Collateral Agent an updated Perfection Certificate, noting all material
changes, if any, since the date of the most recent Perfection Certificate.
SECTION 4.03. Protection of Security. Each Grantor shall, at its own
cost and expense, take any and all actions reasonably necessary to defend title
to the Collateral against all Persons and to defend the Security Interest of the
Collateral Agent for the ratable benefit of the Secured Parties in the
Collateral and the priority thereof against any Lien not expressly permitted
pursuant to Section 6.02 of the Revolving Credit Agreement.
SECTION 4.04. Further Assurances. Each Grantor agrees, at its own
expense, to execute, acknowledge, deliver and cause to be duly filed all such
further instruments and documents and take all such actions as are necessary or
as the Collateral Agent may from time to time request to better assure,
preserve, protect and perfect the Security Interest and the rights and remedies
created hereby, including the payment of any fees and taxes required in
connection with the execution and delivery of this Agreement, the granting of
the Security Interest and the filing of any financing statements (including
fixture filings) or other documents in connection herewith or therewith. If any
amount payable under or in connection with any of the Collateral shall be or
become evidenced by any promissory note or other instrument, such note or
instrument shall be promptly pledged and delivered to the Collateral Agent, duly
endorsed in a manner satisfactory to the Collateral Agent.
SECTION 4.05. Inspection and Verification. The Collateral Agent and
such Persons as the Collateral Agent may reasonably designate shall have the
right to inspect the Collateral, all records related thereto (and to make
extracts and copies from such records) and the premises upon which any of the
Collateral is located, at reasonable times and intervals during normal business
hours upon reasonable advance notice to the respective Grantor and to verify
under reasonable procedures the validity, amount, quality, quantity, value,
condition and status of the Collateral. The Collateral Agent shall have the
absolute right to share any information it gains from such inspection or
verification with any Secured Party in accordance with and subject to the
provisions set forth in Section 9.12 of the Revolving Credit Agreement.
SECTION 4.06. Taxes; Encumbrances. At its option, the Collateral Agent
may discharge past due taxes, assessments, charges, fees, Liens, security
interests or other encumbrances at any time levied or placed on the Collateral
and not permitted pursuant to Section 6.02 of the Revolving Credit Agreement,
and may pay for the maintenance and preservation of the Collateral, in each case
to the extent any Grantor fails to do so as required by the Revolving Credit
Agreement or this Agreement and such failure shall continue beyond any
applicable notice and cure period, and each Grantor jointly and severally agrees
to reimburse the Collateral Agent on demand for any payment made or any expense
incurred by the Collateral Agent pursuant to the foregoing authorization;
provided, however, that nothing in this Section 4.06 shall be interpreted as
excusing any Grantor from the performance of, or imposing any obligation on the
Collateral Agent or any Secured Party to cure or perform, any covenants or other
promises of any Grantor with respect to taxes, assessments, charges, fees,
liens, security interests or other encumbrances and maintenance as set forth
herein or in the other Loan Documents.
SECTION 4.07. Assignment of Security Interest. If at any time any
Grantor shall take a security interest in any property of an Account Debtor or
any other Person to secure payment and performance of an Account, such Grantor
shall promptly assign such security interest to the Collateral Agent to the
extent permitted by any contracts or arrangements to which such property is
subject. Such assignment need not be filed of public record unless necessary to
continue the perfected status of the security interest against creditors of and
transferees from the Account Debtor or other Person granting the security
interest.
SECTION 4.08. Continuing Obligations of the Grantors. Each Grantor
shall remain liable to observe and perform all the conditions and obligations to
be observed and performed by it under each contract, agreement or instrument
relating to the Collateral, all in accordance with the terms and conditions
thereof, and each Grantor jointly and severally agrees to indemnify and hold
harmless the Collateral Agent and the Secured Parties from and against any and
all liability for such performance, provided that such indemnity shall not be
available, as to the Collateral Agent and the Secured Parties, to the extent
that such liability resulted from the gross negligence or willful misconduct of
the Collateral Agent or a Secured Party.
SECTION 4.09. Use and Disposition of Collateral. None of the Grantors
shall make or permit to be made an assignment, pledge or hypothecation of the
Collateral or shall grant any other Lien in respect of the Collateral, except as
expressly permitted by Section 6.02 of the Revolving Credit Agreement. None of
the Grantors shall make or permit to be made any transfer of the Collateral and
each Grantor shall remain at all times in possession of the Collateral owned by
it, except that (a) Inventory may be sold or consigned in the ordinary course of
business and (b) unless and until the Collateral Agent shall notify the Grantors
that an Event of Default shall have occurred and be continuing and that during
the continuance thereof the Grantors shall not sell, convey, lease, assign,
transfer or otherwise dispose of any Collateral (which notice may be given by
telephone if promptly confirmed in writing), the Grantors may use and dispose of
the Collateral in any lawful manner not inconsistent with the provisions of this
Agreement, the Revolving Credit Agreement, any other Loan Document or the
Reimbursement Documentation. Without limiting the generality of the foregoing,
each Grantor agrees that it shall not permit any material Inventory to be in the
possession or control of any warehouseman, bailee, agent or processor at any
time unless such warehouseman, bailee, agent or processor shall have been
notified of the Security Interest and shall have agreed in writing to hold the
Inventory subject to the Security Interest and the instructions of the
Collateral Agent and to waive and release any Lien held by it with respect to
such Inventory, whether arising by operation of law or otherwise.
SECTION 4.10. Limitation on Modification of Accounts. None of the
Grantors will, without the Collateral Agent's prior written consent, which
consent shall not be unreasonably withheld, grant any extension of the time of
payment of any of the Accounts Receivable, compromise, compound or settle the
same for less than the full amount thereof, release, wholly or partly, any
Person liable for the payment thereof or allow any credit or discount whatsoever
thereon, other than extensions, credits, discounts, compromises or settlements
granted or made in the ordinary course of business and consistent with its
current practices.
SECTION 4.11. Insurance. The Grantors, at their own expense, shall
maintain or cause to be maintained insurance covering physical loss or damage to
the Inventory and Equipment in accordance with Section 5.07 of the Revolving
Credit Agreement. Each Grantor irrevocably makes, constitutes and appoints the
Collateral Agent (and all officers, employees or agents designated by the
Collateral Agent) as such Grantor's true and lawful agent (and attorney-in-fact)
for the purpose, during the continuance of an Event of Default, of making,
settling and adjusting claims in respect of Collateral under policies of
insurance, endorsing the name of such Grantor on any check, draft, instrument or
other item of payment for the proceeds of such policies of insurance and for
making all determinations and decisions with respect thereto. In the event that
any Grantor at any time or times shall fail to obtain or maintain any of the
policies of insurance required hereby or to pay any premium in whole or part
relating thereto, the Collateral Agent may, but is under no obligation to,
without waiving or releasing any obligation or liability of the Grantors
hereunder or any Event of Default, in its reasonable discretion, obtain and
maintain such policies of insurance and pay such premium and take any other
actions with respect thereto as the Collateral Agent deems advisable. All sums
disbursed by the Collateral Agent in connection with this Section 4.11,
including reasonable attorneys' fees, court costs, expenses and other charges
relating thereto, shall be payable, upon demand, by the Grantors to the
Collateral Agent and shall be additional Revolving Credit Obligations secured
hereby.
SECTION 4.12. Legend. If any Accounts Receivable of any Grantor are
evidenced by Chattel Paper, such Grantor shall legend, in form and manner
reasonably satisfactory to the Collateral Agent, such Accounts Receivable and
its books, records and documents evidencing or pertaining thereto with an
appropriate reference to the fact that such Accounts Receivable have been
assigned to the Collateral Agent for the benefit of the Secured Parties and that
the Collateral Agent has a security interest therein.
SECTION 4.13. Covenants Regarding Patent, Trademark and Copyright
Collateral. (a) Each Grantor agrees that it will not, and will not permit any of
its licensees to, do any act, or omit to do any act, whereby any Patent which is
material to the conduct of such Grantor's business may become invalidated or
dedicated to the public, and agrees that it shall continue to xxxx, to the
extent permitted by existing technology, any products covered by a Patent with
the relevant patent number as necessary and sufficient to establish and preserve
its maximum rights under applicable patent laws pursuant to which each such
Patent is issued.
(b) Each Grantor (either itself or through its licensees or its
sublicensees) will, for each Trademark material to the conduct of such Grantor's
business, (i) maintain such Trademark in full force free from any claim of
abandonment or invalidity for non-use, (ii) maintain the quality of products and
services offered under such Trademark sufficient to preclude any findings of
abandonment, (iii) display such Trademark with notice of Federal or foreign
registration to the extent necessary and sufficient to establish and preserve
its maximum rights under applicable law pursuant to which each such Trademark is
issued and (iv) not knowingly use or knowingly permit the use of such Trademark
in violation of any third party rights.
(c) Each Grantor (either itself or through licensees) will, for each
work covered by a material Copyright, continue to publish, reproduce, display,
adopt and distribute the work with appropriate copyright notice as necessary and
sufficient to establish and preserve its maximum rights under applicable
copyright laws pursuant to which each such Copyright is issued.
(d) Each Grantor shall notify the Collateral Agent immediately if it
knows or has reason to know that any such Patent, Trademark or Copyright
material to the conduct of its business may become abandoned, lost or dedicated
to the public, or of any adverse determination or development (including the
institution of, or any such determination or development in, any proceeding in
the United States Patent and Trademark Office, United States Copyright Office or
any court or similar office of any country) regarding such Grantor's ownership
of any such Patent, Trademark or Copyright, its right to register the same, or
to keep and maintain the same.
(e) In no event shall any Grantor, either itself or through any agent,
employee, licensee or designee, file an application for any Patent, Trademark or
Copyright (or for the registration of any Trademark or Copyright) with the
United States Patent and Trademark Office, United States Copyright Office or any
office or agency in any political subdivision of the United States or in any
other country or any political subdivision thereof, unless it promptly
thereafter informs the Collateral Agent, and, upon request of the Collateral
Agent, executes and delivers any and all agreements, instruments, documents and
papers as are necessary or as the Collateral Agent may request to evidence and
perfect the Collateral Agent's security interest in such Patent, Trademark or
Copyright, and each Grantor hereby appoints the Collateral Agent as its
attorney-in-fact to execute and file such writings for the foregoing purposes,
all acts of such attorney being hereby ratified and confirmed; such power, being
coupled with an interest, is irrevocable.
(f) Each Grantor will take all necessary steps that are consistent with
the practice in any proceeding before the United States Patent and Trademark
Office, United States Copyright Office or any office or agency in any political
subdivision of the United States or in any other country or any political
subdivision thereof, to maintain and pursue each material application relating
to the Patents, Trademarks and/or Copyrights (and to obtain the relevant grant
or registration) and to maintain each issued Patent and each registration of the
Trademarks and Copyrights that is material to the conduct of any Grantor's
business, including timely filings of applications for renewal, affidavits of
use, affidavits of incontestability and payment of maintenance fees, and, if
consistent with good business judgment, to initiate opposition, interference and
cancellation proceedings against third parties.
(g) In the event that any Grantor has reason to believe that any
Collateral consisting of a Patent, Trademark or Copyright material to the
conduct of any Grantor's business has been or is about to be infringed,
misappropriated or diluted by a third party, such Grantor promptly shall notify
the Collateral Agent and shall, if consistent with good business judgment,
promptly xxx for infringement, misappropriation or dilution and to recover any
and all damages for such infringement, misappropriation or dilution, and take
such other actions as are appropriate under the circumstances to protect such
Collateral.
(h) Upon and during the continuance of an Event of Default, each
Grantor shall use its best efforts to obtain all requisite consents or approvals
from the licensor of each Copyright License, Patent License or Trademark License
to effect the assignment of all of such Grantor's right, title and interest
thereunder to the Collateral Agent or its designee.
ARTICLE V
Power of Attorney
Each Grantor irrevocably makes, constitutes and appoints the Collateral
Agent (and all officers, employees or agents designated by the Collateral Agent)
as such Grantor's true and lawful agent and attorney-in-fact, and in such
capacity the Collateral Agent shall have the right, with power of substitution
for each Grantor and in each Grantor's name or otherwise, for the use and
benefit of the Collateral Agent and the Secured Parties, upon the occurrence and
during the continuance of an Event of Default (a) to receive, endorse, assign
and/or deliver any and all notes, acceptances, checks, drafts, money orders or
other evidences of payment relating to the Collateral or any part thereof; (b)
to demand, collect, receive payment of, give receipt for and give discharges and
releases of all or any of the Collateral; (c) to sign the name of any Grantor on
any invoice or xxxx of lading relating to any of the Collateral; (d) to send
verifications of Accounts Receivable to any Account Debtor; (e) to commence and
prosecute any and all suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect or otherwise realize on all or any of
the Collateral or to enforce any rights in respect of any Collateral; (f) to
settle, compromise, compound, adjust or defend any actions, suits or proceedings
relating to all or any of the Collateral; (g) to notify, or to require any
Grantor to notify, Account Debtors to make payment directly to the Collateral
Agent; and (h) to use, sell, assign, transfer, pledge, make any agreement with
respect to or otherwise deal with all or any of the Collateral, and to do all
other acts and things necessary to carry out the purposes of this Agreement, as
fully and completely as though the Collateral Agent were the absolute owner of
the Collateral for all purposes; provided, however, that nothing herein
contained shall be construed as requiring or obligating the Collateral Agent or
any Secured Party to make any commitment or to make any inquiry as to the nature
or sufficiency of any payment received by the Collateral Agent or any Secured
Party, or to present or file any claim or notice, or to take any action with
respect to the Collateral or any part thereof or the moneys due or to become due
in respect thereof or any property covered thereby, and no action taken or
omitted to be taken by the Collateral Agent or any Secured Party with respect to
the Collateral or any part thereof shall give rise to any defense, counterclaim
or offset in favor of any Grantor or to any claim or action against the
Collateral Agent or any Secured Party. It is understood and agreed that the
appointment of the Collateral Agent as the agent and attorney-in-fact of the
Grantors for the purposes set forth above is coupled with an interest and is
irrevocable. The provisions of this Section shall in no event relieve any
Grantor of any of its obligations hereunder or under any other Loan Document
with respect to the Collateral or any part thereof or impose any obligation on
the Collateral Agent or any Secured Party to proceed in any particular manner
with respect to the Collateral or any part thereof, or in any way limit the
exercise by the Collateral Agent or any Secured Party of any other or further
right which it may have on the date of this Agreement or hereafter, whether
hereunder, under any other Loan Document, by law or otherwise.
ARTICLE VI
Remedies
SECTION 6.01. Limitation on Remedies. Notwithstanding anything to the
contrary contained in this Agreement, the Collateral Agent shall not, at the
instruction of the Administrative Agent or any Lender, commence or otherwise
take any action or proceeding to realize upon any or all of the Collateral or
exercise any other rights or enforce any other remedies available under this
Agreement, any other Loan Document, or as a matter of law unless and until (i) a
Guarantor Default has occurred and is continuing and (ii) the Administrative
Agent has exhausted all remedies available under the Guaranty.
SECTION 6.02. Remedies upon Default. Subject to Section 6.01, upon the
occurrence and during the continuance of an Event of Default, each Grantor
agrees to deliver each item of Collateral to the Collateral Agent on demand, and
it is agreed that the Collateral Agent shall have the right to take any of or
all the following actions at the same or different times: (a) with respect to
any Collateral consisting of Intellectual Property, on demand, to cause the
Security Interest to become an assignment, transfer and conveyance of any of or
all such Collateral by the applicable Grantors to the Collateral Agent (except
to the extent assignment, transfer or conveyance thereof would result in a loss
of said Intellectual Property), or to license or sublicense, whether general,
special or otherwise, and whether on an exclusive or non-exclusive basis, any
such Collateral throughout the world on such terms and conditions and in such
manner as the Collateral Agent shall determine (other than in violation of any
then-existing licensing arrangements to the extent that waivers cannot be
obtained), and (b) with or without legal process and with or without prior
notice or demand for performance, to take possession of the Collateral and
without liability for trespass to enter any premises where the Collateral may be
located for the purpose of taking possession of or removing the Collateral and,
generally, to exercise any and all rights afforded to a secured party under the
UCC or other applicable law. Without limiting the generality of the foregoing,
each Grantor agrees that the Collateral Agent shall have the right, subject to
the mandatory requirements of applicable law, to sell or otherwise dispose of
all or any part of the Collateral, at public or private sale or at any broker's
board or on any securities exchange, for cash, upon credit or for future
delivery as the Collateral Agent shall deem appropriate. The Collateral Agent
shall be authorized at any such sale (if it deems it advisable to do so) to
restrict the prospective bidders or purchasers to Persons who will represent and
agree that they are purchasing the Collateral for their own account for
investment and not with a view to the distribution or sale thereof, and upon
consummation of any such sale the Collateral Agent shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any such sale shall hold the property
sold absolutely, free from any claim or right on the part of any Grantor, and
each Grantor hereby waives (to the extent permitted by law) all rights of
redemption, stay and appraisal which such Grantor now has or may at any time in
the future have under any rule of law or statute now existing or hereafter
enacted.
The Collateral Agent shall give the Grantors 10 days' written notice
(which each Grantor agrees is a "reasonable authenticated notification of
disposition" within the meaning of Section 9-611 of the UCC or its equivalent in
other jurisdictions) of the Collateral Agent's intention to make any sale of
Collateral. Such notice, in the case of a public sale, shall state the time and
place for such sale and, in the case of a sale at a broker's board or on a
securities exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Collateral, or portion thereof, will first be
offered for sale at such board or exchange. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or places
as the Collateral Agent may fix and state in the notice (if any) of such sale.
At any such sale, the Collateral, or portion thereof, to be sold may be sold in
one lot as an entirety or in separate parcels, as the Collateral Agent may (in
its sole and absolute discretion) determine. The Collateral Agent shall not be
obligated to make any sale of any Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of such Collateral shall have been
given. The Collateral Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the
Collateral Agent until the sale price is paid by the purchaser or purchasers
thereof, but the Collateral Agent shall not incur any liability in case any such
purchaser or purchasers shall fail to take up and pay for the Collateral so sold
and, in case of any such failure, such Collateral may be sold again upon like
notice. At any public (or, to the extent permitted by law, private) sale made
pursuant to this Section, any Secured Party may bid for or purchase, free (to
the extent permitted by law) from any right of redemption, stay, valuation or
appraisal on the part of any Grantor (all said rights being also hereby waived
and released to the extent permitted by law), the Collateral or any part thereof
offered for sale and may make payment on account thereof by using any Revolving
Credit Obligation then due and payable to such Secured Party from any Grantor as
a credit against the purchase price, and such Secured Party may, upon compliance
with the terms of sale, hold, retain and dispose of such property without
further accountability to any Grantor therefor. For purposes hereof a written
agreement to purchase the Collateral or any portion thereof shall be treated as
a sale thereof; the Collateral Agent shall be free to carry out such sale
pursuant to such agreement and no Grantor shall be entitled to the return of the
Collateral or any portion thereof subject thereto, notwithstanding the fact that
after the Collateral Agent shall have entered into such an agreement all Events
of Default shall have been remedied and the Revolving Credit Obligations paid in
full. As an alternative to exercising the power of sale herein conferred upon
it, the Collateral Agent may proceed by a suit or suits at law or in equity to
foreclose this Agreement and to sell the Collateral or any portion thereof
pursuant to a judgment or decree of a court or courts having competent
jurisdiction or pursuant to a proceeding by a court-appointed receiver.
SECTION 6.03. Application of Proceeds. Subject to Section 6.01, the
Collateral Agent shall apply the proceeds of any collection or sale of the
Collateral, as well as any Collateral consisting of cash, as follows:
FIRST, to the payment of all costs and reasonable expenses
incurred by the Administrative Agent or the Collateral Agent (in its
capacity as such hereunder or under any other Loan Document) in
connection with such collection or sale or otherwise in connection with
this Agreement or any of the Revolving Credit Obligations, including
all court costs and the reasonable fees and expenses of its agents and
legal counsel, the repayment of all advances made by the Collateral
Agent hereunder or under any other Loan Document on behalf of any
Grantor and any other costs or expenses incurred in connection with the
exercise of any right or remedy hereunder or under any other Loan
Document;
SECOND, to the payment in full of the Revolving Credit
Obligations and the Reimbursement Obligations in accordance with
Section 5.04 of the Intercreditor Agreement (the amounts so applied to
be distributed among the secured parties pro rata in accordance with
the amounts of the Revolving Credit Obligations and/or Reimbursement
Obligations owed to them on the date of any such distribution)
THIRD, to the payment in full of the Indenture
Obligations outstanding; and
FOURTH, to the Grantors, their successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the Collateral Agent or of the officer making the sale shall be a
sufficient discharge to the purchaser or purchasers of the Collateral so sold
and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Collateral Agent
or such officer or be answerable in any way for the misapplication thereof.
SECTION 6.04. Grant of License to Use Intellectual Property. Subject to
Section 6.01, for the purpose of enabling the Collateral Agent to exercise
rights and remedies under this Article at such time as the Collateral Agent
shall be lawfully entitled to exercise such rights and remedies, each Grantor
hereby grants to the Collateral Agent an irrevocable, non-exclusive license
(exercisable without payment of royalty or other compensation to the Grantors)
to use, license or sub-license any of the Collateral consisting of Intellectual
Property now owned or hereafter acquired by such Grantor, and wherever the same
may be located, and including in such license reasonable access to all media in
which any of the licensed items may be recorded or stored and to all computer
software and programs used for the compilation or printout thereof. The use of
such license by the Collateral Agent shall be exercised, at the option of the
Collateral Agent, upon the occurrence and during the continuation of an Event of
Default; provided that any license, sub-license or other transaction entered
into by the Collateral Agent in accordance herewith shall be binding upon the
Grantors notwithstanding any subsequent cure of an Event of Default.
ARTICLE VII
Miscellaneous
SECTION 7.01. Notices. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in Section 9.01 of the Revolving Credit Agreement. All communications
and notices hereunder to any Guarantor shall be given to it at its address or
telecopy number set forth on Schedule I, with a copy to the Borrower.
SECTION 7.02. Intercreditor Agreement. Notwithstanding anything to the
contrary contained in this Security Agreement, all rights, obligations and
remedies of the Collateral Agent set forth in this Agreement and any other
Security Documents shall be subject to the provisions set forth in the
Intercreditor Agreement.
SECTION 7.03. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the Security Interest and all obligations of the Grantors
hereunder shall be absolute and unconditional irrespective of (a) any lack of
validity or enforceability of the Revolving Credit Agreement, any other Loan
Document, any agreement with respect to any of the Revolving Credit Obligations
or any other agreement or instrument relating to any of the foregoing, (b) any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Revolving Credit Obligations, or any other amendment or waiver of
or any consent to any departure from the Revolving Credit Agreement, any other
Loan Document or any other agreement or instrument, (c) any exchange, release or
non-perfection of any Lien on other collateral, or any release or amendment or
waiver of or consent under or departure from any guarantee, securing or
guaranteeing all or any of the Revolving Credit Obligations, or (d) any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, any Grantor in respect of the Revolving Credit Obligations or this
Agreement.
SECTION 7.04. Survival of Agreement. All covenants, agreements,
representations and warranties made by any Grantor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Secured Parties and shall survive the making by the Lenders of the Loans, and
the execution and delivery to the Lenders of any notes evidencing such Loans,
regardless of any investigation made by the Lenders or on their behalf, and
shall continue in full force and effect until this Agreement shall terminate.
SECTION 7.05. Binding Effect; Several Agreement. This Agreement shall
become effective as to any Grantor when a counterpart hereof executed on behalf
of such Grantor shall have been delivered to the Collateral Agent and a
counterpart hereof shall have been executed on behalf of the Collateral Agent,
and thereafter shall be binding upon such Grantor and the Collateral Agent and
their respective successors and assigns, and shall inure to the benefit of such
Grantor, the Collateral Agent and the other Secured Parties and their respective
successors and assigns, except that no Grantor shall have the right to assign or
transfer its rights or obligations hereunder or any interest herein or in the
Collateral (and any such assignment or transfer shall be void) except as
expressly contemplated by this Agreement or the other Loan Documents. This
Agreement shall be construed as a separate agreement with respect to each
Grantor and may be amended, modified, supplemented, waived or released with
respect to any Grantor without the approval of any other Grantor and without
affecting the obligations of any other Grantor hereunder.
SECTION 7.06. Successors and Assigns. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of any Grantor or the Collateral Agent that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
SECTION 7.07. Collateral Agent's Fees and Expenses; Indemnification.
(a) Each Grantor jointly and severally agrees to pay upon demand to the
Collateral Agent the amount of any and all reasonable expenses, including the
reasonable fees, disbursements and other charges of its counsel and of any
experts or agents, which the Collateral Agent may incur in connection with (i)
the administration of this Agreement, (ii) the custody or preservation of, or
the sale of, collection from or other realization upon any of the Collateral,
(iii) the exercise, enforcement or protection of any of the rights of the
Collateral Agent hereunder or (iv) the failure of any Grantor to perform or
observe any of the provisions hereof applicable to it.
(b) Without limitation of its indemnification obligations under the
other Loan Documents, each Grantor jointly and severally agrees to indemnify the
Collateral Agent and the other Indemnitees against, and hold each of them
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including reasonable fees, disbursements and other charges of counsel,
incurred by or asserted against any of them arising out of, in any way connected
with, or as a result of, the execution, delivery or performance of this
Agreement or any claim, litigation, investigation or proceeding relating hereto
or to the Collateral, whether or not any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses have resulted
from the gross negligence or willful misconduct of such Indemnitee as determined
in a final judgment by a court of competent jurisdiction.
(c) Any such amounts payable as provided hereunder shall be additional
Revolving Credit Obligations secured hereby and by the other Security Documents.
The provisions of this Section 7.07 shall remain operative and in full force and
effect regardless of the termination of this Agreement or any other Loan
Document, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Collateral Agent or any Lender. All amounts due
under this Section 7.07 shall be payable on written demand therefor.
SECTION 7.08. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.09. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the Collateral Agent, the Administrative Agent and the Lenders under the
other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provisions of this
Agreement or any other Loan Document or consent to any departure by any Grantor
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice to or
demand on any Grantor in any case shall entitle such Grantor or any other
Grantor to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Collateral Agent and the Grantor or Grantors with respect to
which such waiver, amendment or modification is to apply, subject to any consent
required in accordance with Section 9.02 of the Revolving Credit Agreement.
SECTION 7.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.10.
SECTION 7.11. Limitation on Security Interest. Anything contained in
this Agreement to the contrary notwithstanding, the obligation hereunder secured
by each Guarantor shall be limited to a maximum aggregate amount equal to the
greatest amount that would not render such Guarantor's secured obligations
hereunder subject to avoidance as a fraudulent transfer or conveyance under
Section 548 of Title 11 of the United States Code or any provisions of
applicable state law (collectively, the "Fraudulent Transfer Laws"), in each
case after giving effect to all liabilities of such Guarantor, contingent or
otherwise, that would be taken into account in determining whether the
incurrence of the obligation would constitute a fraudulent conveyance under the
Fraudulent Transfer Laws and after giving effect, both in determining such
Guarantor's probable debt hereunder and in determining its assets, to the
existence of any rights to subrogation, contribution, reimbursement, indemnity
or similar rights of such Guarantor pursuant to (a) applicable law or (b) any
agreement, including the Indemnity, Subrogation and Contribution Agreement.
SECTION 7.12. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7.13. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract (subject to Section 7.05),
and shall become effective as provided in Section 7.05. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof.
SECTION 7.14. Headings. Article and Section headings used herein are
for the purpose of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
SECTION 7.15. Jurisdiction; Consent to Service of Process. (a) Each
Grantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each Grantor agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Collateral Agent, the Administrative Agent or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or the other Loan
Documents against any Grantor or its properties in the courts of any
jurisdiction.
(b) Each Grantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
New York State or Federal court. Each Grantor hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 7.01. Nothing in this
Agreement will affected the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 7.16. Termination. This Agreement and the Security Interest
shall terminate when all the Revolving Credit Obligations have been indefeasibly
paid in full and the Lenders have no further commitment to lend under the
Revolving Credit Agreement, at which time the Collateral Agent shall execute and
deliver to the Grantors, at the Grantors' expense, all UCC termination
statements and similar documents which the Grantors shall reasonably request to
evidence such termination. Any execution and delivery of termination statements
or documents pursuant to this Section 7.16 shall be without recourse to or
warranty by the Collateral Agent. A Grantor shall automatically be released from
its obligations hereunder and the Security Interest in the Collateral of such
Grantor shall be automatically released in the event that such Grantor ceases to
be a Subsidiary pursuant to a transaction permitted under the Loan Documents, at
which time the Collateral Agent shall execute and deliver to any Grantor, at
such Grantor's expense, all documents that such Grantor shall reasonably request
to evidence such release.
SECTION 7.17. Additional Grantors. Pursuant to Section 5.12 of the
Revolving Credit Agreement, each Subsidiary Loan Party that was not in existence
or not a Subsidiary Loan Party on the date of the Revolving Credit Agreement is
required to enter in to this Agreement as a Grantor upon becoming a Subsidiary
Loan Party. Upon execution and delivery by the Collateral Agent and a Subsidiary
of an instrument in the form of Annex 3 hereto, such Subsidiary shall become a
Grantor hereunder with the same force and effect as if originally named as a
Grantor herein. The execution and delivery of any such instrument shall not
require the consent of any Grantor hereunder. The rights and obligations of each
Grantor hereunder shall remain in full force and effect notwithstanding the
addition of any new Grantor as a party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
MEMC ELECTRONIC MATERIALS, INC.
By
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President,
Chief Financial Officer
By
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
EACH OF THE OTHER GUARANTORS LISTED ON
SCHEDULE I HERETO,
By
-----------------------------
Name: Xxxxxxx X. Xxxxx, in his capacity as
Treasurer for each of the other
Guarantors listed on Schedule I hereto
CITICORP USA, INC., as Administrative
Agent and Collateral Agent
By
-----------------------------
Name:
Title:
Schedule I to the
Security Agreement
GUARANTORS
Schedule II to the
Security Agreement
COPYRIGHTS
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DOCKET DESCRIPTION MW#
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Schedule III to the
Security Agreement
LICENSES
TITLE OF AGREEMENT OR ITEM EFFECTIVE DATE
Schedule IV to the
Security Agreement
PATENTS
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DOCKET # TITLE FIRST INVENTOR
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Schedule V to the
Security Agreement
TRADEMARKS
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TRADEMARK COUNTRIES STATUS
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Annex 1 to the
Security Agreement
[Form of]
PERFECTION CERTIFICATE
Reference is made to (a) the Revolving Credit Agreement, dated as of
December 21, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Revolving Credit Agreement"), among MEMC ELECTRONIC MATERIALS, INC.
(the "Borrower"), the lenders from time to time party thereto (the "Lenders")
and CITICORP USA, INC., as administrative agent (in such capacity, the
"Administrative Agent") and as collateral agent (in such capacity, the
"Collateral Agent"), and (b) the Security Agreement, dated as of December 21,
2001 (as amended, supplemented or otherwise modified from time to time, the
"Security Agreement") among the Grantors and the Collateral Agent. Capitalized
terms used herein but not defined herein having the respective meanings set
forth in the Revolving Credit Agreement and the Security Agreement.
The undersigned, a Financial Officer of Borrower, hereby certify to the
Collateral Agent and each other Secured Party as follows:
1. Names. (a) The exact corporate name and jurisdiction of organization
of each Grantor, as such name appears in its respective certificate of
incorporation, is as follows:
(b) Set forth below is each other corporate name each Grantor has had
in the past five years, together with the date of the relevant change:
(c) Except as set forth in Schedule 1 hereto, no Grantor has changed
its identity or corporate structure in any way within the past five years.
Changes in identity or corporate structure would include mergers, consolidations
and acquisitions, as well as any change in the form, nature or jurisdiction of
corporate organization. If any such change has occurred, include in Schedule 1
the information required by Sections 1 and 2 of this certificate as to each
acquiree or constituent party to a merger or consolidation.
(d) The following is a list of all other names (including trade names
or similar appellations) used by each Grantor or any of its divisions or other
business units in connection with the conduct of its business or the ownership
of its properties at any time during the past five years:
(e) Set forth below is the Federal Taxpayer Identification Number of
each Grantor:
2. Current Locations. (a) The chief executive office of each Grantor is
located at the address set forth opposite its name below:
Grantor Mailing Address County State
------- --------------- ------ -----
(b) Set forth below opposite the name of each Grantor are all locations
where such Grantor maintains any books or records relating to any Accounts
Receivable, Instruments and Documents (with each location at which Chattel
Paper, if any, is kept being indicated by an "*"):
Grantor Mailing Address County State
------- --------------- ------ -----
(c) Set forth below opposite the name of each Grantor are all the
places of business of such Grantor not identified in paragraph (a) or (b) above:
Grantor Mailing Address County State
------- --------------- ------ -----
(d) Set forth below opposite the name of each Grantor are all the
locations where such Grantor maintains any Collateral not identified above:
Grantor Mailing Address County State
------- --------------- ------ -----
(e) Set forth below opposite the name of each Grantor are the names and
addresses of all Persons other than such Grantor that have possession of any of
the Collateral of such Grantor:
Grantor Mailing Address County State
------- --------------- ------ -----
3. Unusual Transactions. All Accounts Receivable have been originated
by the Grantors and all Inventory has been acquired by the Grantors in the
ordinary course of business.
4. UCC Filings. Financing statements in substantially the form of
Schedule 4 hereto have been prepared for filing in the UCC filing office in each
jurisdiction where a Grantor is organized as identified in Section 1 hereof and
where any Collateral constituting fixtures is located as identified in Section 2
hereof.
5. Schedule of Filings. Attached hereto as Schedule 5 is a schedule
setting forth, with respect to the filings described in Section 4 above, each
filing and the filing office in which such filing is to be made.
6. Filing Fees. All filing fees and taxes payable in connection with
the filings described in Section 4 above have been paid or provided for.
7. Stock Ownership. Attached hereto as Schedule 7 is a true and correct
list of all the duly authorized, issued and outstanding Equity Interests of each
Subsidiary (including the Borrower) and the record and beneficial owners of such
Equity Interests. Also set forth on Schedule 7 is each Equity Interest of the
Borrower and each Subsidiary that represents 50% or less of the equity of the
entity in which such investment was made.
8. Notes. Attached hereto as Schedule 8 is a true and correct list of
all notes held by the Borrower and each Subsidiary and all intercompany notes
between the Borrower and each Subsidiary and between each Subsidiary and each
other such Subsidiary.
9. Advances. Attached hereto as Schedule 9 is (a) a true and correct
list of all advances made by the Borrower to any Subsidiary or made by any
Subsidiary to the Borrower or to any other Subsidiary, which advances will be on
and after the date hereof evidenced by one or more intercompany notes pledged to
the Collateral Agent under the Pledge Agreement and (b) a true and correct list
of all unpaid intercompany transfers of goods sold and delivered by or to the
Borrower or any Subsidiary.
10. Mortgage Filings. Attached hereto as Schedule 10 is a schedule
setting forth, with respect to each Mortgaged Property, (i) the exact corporate
name of the entity that owns such property as such name appears in its
certificate of formation, (ii) if different from the name identified pursuant to
clause (i), the exact name of the current record owner of such property
reflected in the records of the filing office for such property identified
pursuant to the following clause and (iii) the filing office in which a Mortgage
with respect to such property must be filed or recorded in order for the
Collateral Agent to obtain a perfected security interest therein.
IN WITNESS WHEREOF, the undersigned have duly executed this certificate
on this [ ]th day of December, 2001.
MEMC ELECTRONIC MATERIALS, INC.
By
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President,
Chief Financial Officer
Annex 3 to the
Security Agreement
SUPPLEMENT NO. [ ] dated as of [ ], to the Security
Agreement dated as of December 21, 2001, among MEMC ELECTRONIC
MATERIALS, INC., a Delaware corporation (the "Borrower"), each
subsidiary of Borrower listed on Schedule I thereto (each such
subsidiary individually a "Subsidiary" or a "Guarantor" and,
collectively, the "Subsidiaries" or "Guarantors"; the
Guarantors and the Borrower are referred to collectively
herein as the "Grantors") and CITICORP USA, INC. as collateral
agent (in such capacity, the "Collateral Agent") for the
Secured Parties (as defined herein).
A. Reference is made to (a) the Revolving Credit Agreement dated as of
December 21, 2001 (as amended, supplemented or otherwise modified from time to
time) among the Borrower, the lenders from time to time party thereto (the
"Lenders") and CITICORP USA, INC., as administrative agent (in such capacity,
the "Administrative Agent") and collateral agent (in such capacity, the
"Collateral Agent") and (b) the Guarantee Agreement dated as of December 21,
2001 (as amended, supplemented or otherwise modified from time to time, the
"Guarantee Agreement"), among the Guarantors and the Collateral Agent.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Security Agreement and the
Revolving Credit Agreement.
C. The Grantors have entered into the Security Agreement in order to
induce the Lenders to make Loans. Pursuant to Section 5.12 of the Revolving
Credit Agreement, each Subsidiary Loan Party that was not in existence or not a
Subsidiary Loan Party on the date of the Revolving Credit Agreement is required
to enter in to this Agreement as a Grantor upon becoming a Subsidiary Loan
Party. Section 7.16 of the Security Agreement provides that such Subsidiaries
may become Grantors under the Security Agreement by execution and delivery of an
instrument in the form of this Supplement. The undersigned Subsidiary (the "New
Grantor") is executing this Supplement in accordance with the requirements of
the Revolving Credit Agreement to become a Grantor under the Security Agreement
in order to induce the Lenders to make additional Loans and as consideration for
Loans previously made.
Accordingly, the Collateral Agent and the New Grantor agree as follows:
SECTION 1. In accordance with Section 7.17 of the Security Agreement,
the New Grantor by its signature below becomes a Grantor under the Security
Agreement with the same force and effect as if originally named therein as a
Grantor and the New Grantor hereby (a) agrees to all the terms and provisions of
the Security Agreement applicable to it as a Grantor thereunder and (b)
represents and warrants that the representations and warranties made by it as a
Grantor thereunder are true and correct on and as of the date hereof except to
the extent a representation and warranty expressly relates solely to a specific
date in which case such representation and warranty shall be true and correct on
such date. In furtherance of the foregoing, the New Grantor, as security for the
payment and performance in full of the Revolving Credit Obligations (as defined
in the Security Agreement), does hereby create and grant to the Collateral
Agent, its successors and assigns, for the benefit of the Secured Parties, their
successors and assigns, a security interest in and lien on all of the New
Grantor's right, title and interest in and to the Collateral of the New Grantor.
Each reference to a "Grantor" in the Security Agreement shall be deemed to
include the New Grantor. The Security Agreement is hereby incorporated herein by
reference.
SECTION 2. The New Grantor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Grantor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. The New Grantor hereby represents and warrants that (a) set
forth on Schedule I attached hereto is a true and correct statement of the exact
corporate name and jurisdiction of organization of the New Grantor and a true
and correct schedule of the location of any and all Collateral of the New
Grantor and (b) set forth under its signature hereto, is the true and correct
location of the chief executive office of the New Grantor.
SECTION 5. Except as expressly supplemented hereby, the Security
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Security Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 7.01 of the Security Agreement. All
communications and notices hereunder to the New Grantor shall be given to it at
the address set forth under its signature below, with a copy to the Borrower.
SECTION 9. The New Grantor agrees to reimburse the Collateral Agent for
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
IN WITNESS WHEREOF, the New Grantor and the Collateral Agent have duly
executed this Supplement to the Security Agreement as of the day and year first
above written.
[NAME OF NEW GUARANTOR],
By
-------------------------
Name:
Title:
CITICORP USA, INC., as
Collateral Agent
By
-------------------------
Name:
Title:
Schedule I
to Supplement No. [ ]
to the Security Agreement
LOCATION OF COLLATERAL
Description Location
----------- --------
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definition of Certain Terms Used Herein.................2
Section 1.02. Rules of Interpretation.................................6
ARTICLE II
SECURITY INTEREST
Section 2.01. Security Interest............................................6
Section 2.02. No Assumption of Liability...................................7
Section 2.03. Limitation on Grant of Security Interest.....................7
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Title and Authority..........................................7
Section 3.02. Filings......................................................7
Section 3.03. Validity of Security Interest................................8
Section 3.04. Absence of Other Liens.......................................8
ARTICLE IV
COVENANTS
Section 4.01. Changes with respect to Collateral...........................9
Section 4.02. Records......................................................9
Section 4.03. Protection of Security.......................................9
Section 4.04. Further Assurances...........................................9
Section 4.05. Inspection and Verification.................................10
Section 4.06. Taxes; Encumbrances.........................................10
Section 4.07. Assignment of Security Interest.............................10
Section 4.08. Continuing Obligations of the Grantors......................10
Section 4.09. Use and Disposition of Collateral...........................11
Section 4.10. Limitation on Modification of Accounts......................11
Section 4.11. Insurance...................................................11
Section 4.12. Legend......................................................12
Section 4.13. Covenants Regarding Patent, Trademark and
Copyright Collateral........................................12
ARTICLE V
POWER OF ATTORNEY
ARTICLE VI
REMEDIES
Section 6.01. Limitation on Remedies......................................14
Section 6.02. Remedies upon Default.......................................14
Section 6.03. Application of Proceeds.....................................16
Section 6.04. Grant of License to Use Intellectual Property...............16
ARTICLE VII
MISCELLANEOUS
Section 7.01. Notices.....................................................17
Section 7.02. Security Interest Absolute..................................17
Section 7.03. Survival of Agreement.......................................17
Section 7.04. Binding Effect; Several Agreement...........................17
Section 7.05. Successors and Assigns......................................18
Section 7.06. Collateral Agent's Fees and Expenses; Indemnification.......18
Section 7.07. GOVERNING LAW...............................................18
Section 7.08. Waivers; Amendment..........................................19
Section 7.09. WAIVER OF JURY TRIAL........................................19
Section 7.10. Limitation on Security Interest.............................19
Section 7.11. Severability................................................20
Section 7.12. Counterparts................................................20
Section 7.13. Headings....................................................20
Section 7.14. Jurisdiction; Consent to Service of Process.................20
Section 7.15. Termination.................................................20
Section 7.16. Additional Grantors.........................................21
