EXHIBIT 14
EXECUTION VERSION
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT, dated as of November 13, 2001, (this
"Agreement"), by and among TPG Wafer Credit Partners, LLC, a Delaware limited
liability company (together with its affiliates, successors and permitted
assigns but excluding each of TPG WP (as defined herein) and T3 Partners II (as
defined herein), "TPG WCP"), T3 Partners II, L.P., a Delaware limited
partnership ("T3 Partners II"), T3 Parallel II, L.P., a Delaware limited
partnership ("T3 Parallel II", and, together with TPG WCP and T3 Partners II,
"TPG"), TCW/Crescent Mezzanine Partners III, L.P. and TCW/Crescent Mezzanine
Trust III (together with their affiliates, successors and permitted assigns,
"TCW"), Green Equity Investors III, L.P., a Delaware limited partnership
(together with its affiliates, successors and permitted assigns, "GEI"), Green
Equity Investors Side III, L.P., a Delaware limited partnership (together with
its affiliates, successors, permitted assigns and GEI, "LGP") and TPG Wafer
Management, L.L.C., a Delaware limited liability company ("TPG Wafer
Management") (collectively, the "Lenders") and TPG Wafer Partners, LLC, a
Delaware limited liability company ("TPG WP").
Except as otherwise defined, capitalized terms used herein
have the meaning specified in the Revolving Credit Agreement, dated as of
November 13, 2001 (as amended from time to time, the "Revolving Credit
Agreement"), by and among MEMC Electronic Materials, Inc. (the "Borrower" or
"MEMC"), the Lenders and Citicorp USA, Inc. as Administrative Agent (the
"Administrative Agent"); provided, however, that no amendment of a defined term
in the Revolving Credit Agreement shall affect the meaning of such terms in this
Agreement if all Lenders have not consented in writing to such amendment.
RECITALS
WHEREAS, the Lenders have contributed to a revolving credit
facility (the "Revolving Credit Facility") to be used by the Borrower pursuant
to the Revolving Credit Agreement, TPG WP has acquired certain rights under the
Italian Credit Agreement (as defined herein) and TPG WP, TPG Wafer Management,
TCW and LGP have acquired certain Participation Interests, Senior Notes and
Warrants (each as defined herein);
WHEREAS, the parties hereto desire to enter into an agreement
regarding certain matters described herein, including the division of certain
fees, the imposition of certain restrictions on the transferability of their
rights and obligations under the Revolving Credit Agreement and with respect to
the Italian Credit Agreement, the Participation Interests, the Senior Notes, the
Warrants and certain other matters;
NOW, THEREFORE, in consideration of the foregoing recitals,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Lenders hereby agree and covenant as follows:
1. Lender Funding Commitments and Certain Other Matters Under
the Revolving Credit Agreement. (a) Subject to the provisions of this Agreement,
each of the Lenders hereby agrees to comply with the terms of the Revolving
Credit Agreement, including the obligations thereunder to make Loans to the
Borrower from time to time during the Availability Period in an aggregate
principal amount that will not result in such Lender's Exposure exceeding such
Lender's Commitment.
(b) Notwithstanding the provisions of Section 10.02(b) of the
Revolving Credit Agreement, in the event that (i) the aggregate Exposures of all
Lenders under the Revolving Credit Facility is (or would, in the event of
additional advances under the Revolving Credit Facility as described in the
Borrowing Request in clause (iii) below, be) greater than $110,000,000; (ii) the
Consolidated EBITDA of MEMC is less than the amounts set forth in Schedule A
hereto for the periods and at the times specified in Schedule A, and (iii) MEMC
makes a Borrowing Request pursuant to Section 2.03 of the Revolving Credit
Agreement (or the equivalent provision of any separate credit agreement referred
to in paragraph 1(d) hereof), in each case, each of TCW and LGP (and their
Permitted Transferees, if any) may, by written notice to TPG within one Business
Day of the receipt of a copy of such Borrowing Request (the "Commitment
Notice"), declare that it shall no longer be obligated to make additional loans
under the Revolving Credit Agreement or under any separate credit agreement
referred to in paragraph 1(d) hereof; provided that, notwithstanding the
foregoing, each of TCW and LGP agrees to notify TPG (in advance of the receipt
of any Borrowing Request described in clause (iii) above) if TCW or LGP, as the
case may be, determines that there is a substantial possibility that it would
deliver a Commitment Notice in the event of any such Borrowing Request. Upon
delivery of any such Commitment Notice by either or both of TCW and LGP (each
such non-committing Lender, a "Non-Committing Lender", and any committing
Lender, a "Committing Lender"), TPG may, individually or together with any
Committing Lender, elect to assume on a pro rata basis the obligations of any
Non-Committing Lender to make additional Loans to the Borrower in accordance
with the provisions of the Revolving Credit Agreement (any such election, a
"Non-Pro Rata Election"); provided that in the event that (x) TPG has, without
the consent of TCW and LGP, consented to any amendment of the provisions of
Section 6.12 of the Revolving Credit Agreement or has agreed to waive compliance
with such provisions; and (y) the Consolidated EBITDA of MEMC is less than the
amounts set forth in Schedule A hereto for the periods and at the times
specified in Schedule A but greater than any corresponding amount set forth in
Section 6.12 of the Revolving Credit Agreement as a result of such amendment (or
TPG has waived compliance with Section 6.12), TPG shall, individually or
together with any Committing Lender, assume on a pro rata basis the obligations
of any Non-Committing Lender to make additional Loans to the Borrower in
accordance with the provisions of the Revolving Credit Agreement. In the event
of any Non-Pro Rata Election, each Non-Committing Lender shall execute such
agreements and related documents and take such other actions as are reasonably
determined by such Non-Committing Lender in pursuance of the assumption of such
obligations by TPG and any Committing Lender.
(c) In the event of any Non-Pro Rata Election and any actual
additional funding of the Borrower by TPG under the Revolving Credit Facility,
the Pro Rata Percentage (as defined below) of each Non-Committing Lender's (i)
participation interests and any other rights in the loans outstanding and loans
to be made in the future, if any, under the Amended and Restated Credit
Agreement (the "Italian Credit Agreement") dated as of September 22, 2001 among
MEMC Electronic Materials S.p.A. as Borrower and the other parties thereto (or,
if such interests have been exchanged for other securities, such Non-Committing
Lender's interests in such other securities) (such interests, the "Participation
Interests"), (ii) Senior Subordinated Secured Notes issued by the Borrower under
Restructuring Agreement (the "Restructuring Agreement") dated as of November 13,
2001 between TPG Wafer Holdings, LLC and MEMC (the "Senior Notes", and (iii)
warrants issued by the Borrower under Restructuring Agreement dated as of
November 13, 2001 between TPG Wafer Holdings, LLC and MEMC (together with the
Warrant Shares (as defined in the Restructuring Agreement), the "Warrants"),
shall immediately be assigned at no cost to TPG WP and any Committing Lender on
a pro rata basis, in which event such Non-Committing Lender shall execute such
agreements and related documents and take such other actions as are reasonably
determined by TPG WP in pursuance of such assignment; provided that if any such
assignment is prevented by any provision of any other agreement or law, each
Non-Committing Lender shall take any other steps that are reasonably requested
by TPG WP and any Committing Lender to ensure that TPG WP and such Committing
Lenders enjoy the same economic benefits as TPG WP and such Committing Lenders
would enjoy from such an assignment . As used herein, the "Pro Rata Percentage"
shall mean, with respect to any Non-Committing Lender, the percentage obtained
by multiplying (A) one hundred percent (100%), by (B) a fraction, the numerator
of which shall be the aggregate amount of such Non-Committing Lender's unfunded
Commitment then outstanding (including the additional commitment of such
Non-Committing Lender described in paragraph 1(d) below), and the denominator of
which shall be the aggregate amount of such Non-Committing Lender's initial
Commitment (including the additional commitment of such Non-Committing Lender
described in paragraph 1(d) below).
(d) In addition, at the election of TPG, TPG, TCW and LGP
hereby agree to increase their Commitments under the Revolving Credit Agreement
(or make additional capital commitments to MEMC pursuant to a separate credit
agreement with terms substantially similar to those of the Revolving Credit
Agreement) pro rata in accordance with their initial capital commitments under
the Revolving Credit Agreement; provided that TCW shall not be obligated to
extend loans to MEMC pursuant to the Revolving Credit Agreement and any separate
credit agreement in an aggregate amount exceeding $37 million and LGP shall not
be obligated to extend loans to MEMC pursuant to the Revolving Credit Agreement
and any separate credit agreement in an aggregate amount exceeding $37 million;
and provided, further, that neither TCW nor LGP shall be obligated to increase
their Commitments (or make any additional capital commitments pursuant to any
separate credit agreement) unless MEMC is in compliance with the Consolidated
EBITDA test described in Schedule A. No Lender shall consent to any amendment to
or waiver or other action under or in connection with the Revolving Credit
Agreement or any separate credit agreement between the Lenders and MEMC which
would result in or permit the aggregate amount of all commitments under any
credit agreement referred to in this paragraph 1(d) to exceed $185 million.
(e) Notwithstanding the provisions of Section 10.02(b) of the
Revolving Credit Agreement, TPG hereby agrees not to consent to the release of
any part of the Collateral from the Liens of the Security Documents or the
placing of additional Liens on any part of the Collateral without the written
consent of each of TCW and LGP if such release of Collateral or placing of
additional Liens is proposed in connection with additional loans to be made by
TPG or any Affiliate of TPG.
(f) TPG and TPG WP hereby further agree not to consent to the
release of any part of the Italian Collateral (as defined below) from the liens
of the Italian Credit Agreement or related agreements in respect of such
collateral or the placing of additional liens on any part of the Italian
Collateral without the written consent of each of TCW and LGP, if such release
of the Italian Collateral or placing of additional liens is proposed in
connection with additional loans to be made by TPG or any affiliate of TPG. As
used herein, the "Italian Collateral" shall mean the "Collateral" as such term
is defined in the Italian Credit Agreement.
2. Lender Default. Notwithstanding any other provision of the
Revolving Credit Agreement, in the event that any Lender breaches any of its
obligations to provide funding under the Revolving Credit Agreement and such
failure is not cured within five (5) days after receipt by such Lender of a
written notice thereof from TPG, one hundred percent (100%) of its Participation
Interests, Senior Notes and Warrants held by such defaulting Lender shall
immediately be assigned at no cost to the non-defaulting Lenders (or, in the
case of TPG, to TPG WP) on a pro rata basis, in which event such Non-Committing
Lender shall execute such agreements and related documents and take such other
actions as reasonably determined by TPG in pursuance of such assignment.
3. Interest Payments. (a) Notwithstanding the provisions of
Section 2.10(f) of the Revolving Credit Agreement, until the date that is the
third anniversary of the Effective Date, TPG may consent to any proposal of the
Borrower not to pay the interest on any Loan in cash unless, on the last day of
the immediately preceding calendar month, the Consolidated EBITDA of MEMC for
the trailing twelve (12) month period is greater than $100,000,000 (in which
case, the relevant interest payment and all subsequent interest payments shall
be paid in cash). Following the third anniversary of the Effective Date, TPG
shall not, without the consent of each of LGP and TCW, consent to any proposal
of the Borrower not to pay the interest on any Loan in cash.
4. Transfer Restriction Period. Notwithstanding anything to
the contrary herein, during the period from the Effective Date until the date
that is the first anniversary of the Effective Date (the "Transfer Restriction
Period"), neither LGP nor TCW may (directly or indirectly) transfer by way of
sale, exchange, assignment, pledge, gift or other disposition (all of which acts
shall be deemed included in the term "transfer" as used in this Agreement) all
or any fraction of its rights or obligations (including all or a portion of its
Commitment and the Loans at the time owing to it) under the Revolving Credit
Facility (a "Revolver Interest") or any of the Participation Interests, Senior
Notes or Warrants held by it to any other Person (other than a Permitted
Transferee (as defined below)) unless TPG or TPG WP consents to such transfer.
5. Rights of First Offer. (a) In the event that any Lender or
TPG WP (hereinafter, the "Transferor") desires to transfer any of its Revolver
Interests, Participation Interests, Senior Notes or Warrants (an "Offered
Interest") to a third party, other than pursuant to paragraph 6, 7 or 8 of this
Agreement, the Transferor shall give prompt written notice (an "Offer Notice")
of its desire to sell the Offered Interest to TPG WP or, in the case of a
transfer of Revolver Interests, TPG, which notice shall identify (i) the amount
of the Offered Interest and (ii) the purchase price (which shall be in cash) and
any other material items and conditions of the proposed transfer. The date on
which such Transferor's Notice is actually received by TPG or TPG WP, as the
case may be, is referred to hereinafter as the "Notice Date."
(b) TPG or TPG WP, as the case may be, shall have thirty (30)
days following the Notice Date to notify the Transferor in writing of an offer
to purchase in cash (the "Offer to Purchase") all (but not less than all) of the
Offered Interest at the purchase price and upon the other terms and conditions
specified in the Offer Notice. If the Transferor does not receive a written
notice from TPG or TPG WP, as the case may be, containing the Offer to Purchase
within the thirty (30) day period, TPG or TPG WP, as the case may be, shall be
deemed to have declined to purchase the Offered Interest and the Transferor may,
subject to compliance with the provisions of paragraph 5 (d), thereafter
transfer to a purchaser at any time within ninety (90) days following the Notice
Date all (but not less than all) of the Offered Interest at a price which is not
less than the purchase price specified in the Offer Notice and upon
substantially the same terms and conditions set forth in the Offer Notice;
provided that if TPG or TPG WP, as the case may be, notifies the Transferor in
writing, within thirty (30) days following receipt of a notice from the
Transferor of the name of a possible purchaser, of an objection to the possible
purchaser because TPG or TPG WP, as the case may be, in its reasonable
discretion, determines that the purchaser or one or more of its affiliates is
engaged in a business that competes with MEMC or any of its subsidiaries, the
Transferor shall not have the right to transfer any of the Offered Interest to
such possible purchaser; and provided further that if the Offered Interest is
not transferred to a purchaser for any reason within ninety (90) days following
the Notice Date, then such Offered Interest may be transferred only by again
complying with all of the terms and procedures set forth in this paragraph 5.
(c) In the event that pursuant to the Offer to Purchase TPG or
TPG WP, as the case may be, agrees to purchase all (but not less than all) of
the Offered Interest on the terms and subject to the conditions set forth in the
Offer Notice, the closing for such transaction shall take place at a time and
place reasonably acceptable to the Transferor and TPG or TPG WP, as the case may
be; provided that such closing shall not occur more than thirty (30) days after
the date on which the Transferor receives the Offer to Purchase. At such
closing, TPG or TPG WP, as the case may be, shall deliver to the Transferor the
consideration to be exchanged for such Offered Interest, in immediately
available funds, and the Transferor shall deliver to TPG or TPG WP, as the case
may be, all documents required to effect the sale of such Offered Interest, duly
endorsed and free of any liens, including appropriate documentation providing
indemnities to TPG to TPG WP, as the case may be, regarding its title to such
Offered Interest.
(d) As soon as practicable, but in any event no less than
thirty (30) days prior to the consummation of a proposed sale of Offered
Interest to a purchaser pursuant to paragraph 5(b), the Transferor shall give
written notice to the Lenders and TPG, which notice shall specify with respect
to each such proposed sale the name or names of one or more possible purchasers,
provided that in no event shall such notice specify more than five possible
purchasers. The Transferor shall not sell the Offered Interest to a purchaser
unless the Transferor has given a notice pursuant to the preceding sentence that
such purchaser is a possible purchaser. As soon as practicable, but in any event
no less than ten (10) days prior to the consummation of a sale of Offered
Interest to a purchaser pursuant to paragraph 5(b), the Transferor shall give
written notice to TPG, which notice shall specify with respect to each such
proposed sale: (i) the identity of the purchaser, (ii) the cash purchase price
to be paid by such purchaser for the Offered Interest, (iii) the date of the
proposed transfer and (iv) any other material items and conditions of the
proposed sale.
6. Tag-Along Rights. (a) If TPG or TPG WP or any of their
affiliates proposes to transfer any Revolver Interests, Participation Interests,
interests or rights under or in connection with the Italian Credit Agreement or
related agreements in respect of collateral ("Italian Credit Agreement Rights"),
Senior Notes, or Warrants to a purchaser other than a Permitted Transferee of
TPG or TPG WP, TPG or TPG WP or any of their affiliates (hereinafter referred to
as the "Selling TPG Party") shall give written notice (a "Transfer Notice") of
such proposed transfer to the Lenders other than the Selling TPG Party (the
"Other Lenders") at least thirty (30) days prior to the consummation of such
proposed transfer, setting forth (i) the identity of the purchaser, (ii) the
consideration to be received by the Other Lenders, (iii) the date of the
proposed transfer, (iv) the amount of the Revolver Interests, Participation
Interests, Senior Notes or Warrants offered, as the case may be, and, if
applicable, the portion of the indebtedness under the Italian Credit Agreement
proposed to be transferred, (v) any other material items and conditions of the
proposed sale and (vi) that each such Other Lenders shall have the right to
elect to sell up to the Pro Rata Portion (as defined below) of its Revolver
Interests, Participation Interests, Senior Notes, or Warrants, as the case may
be.
(b) Upon delivery of a Transfer Notice, each Other Lender may
elect to sell up to the Pro Rata Portion of its Revolver Interests,
Participation Interests, Senior Notes, or Warrants as the case may be, pursuant
to the same terms and conditions with respect to payment for the interest as
agreed to by the Selling TPG Party, by sending written notice to the Selling TPG
Party within thirty (30) days after receipt of the Transfer Notice, indicating
its election to sell up to the Pro Rata Portion of its Revolver Interests,
Participation Interests, Senior Notes, or Warrants, as the case may be, in the
same transaction, in which case the portion of Revolver Interests, Participation
Interests, Senior Notes, or Warrants, as the case may be, to be sold by the
Selling TPG Party shall be reduced by such amount (with the result that each
Selling TPG Party and each such electing Other Lender shall sell to the
purchaser the same percentage of their respective Revolver Interests,
Participation Interests, Senior Notes, or Warrants, as the case may be).
Following such thirty (30) day period, each Other Lender, concurrently with the
Selling TPG Party, shall be permitted to sell to the purchaser, at any time up
to ninety (90) days after the delivery of the Transfer Notice, on terms set
forth in the Transfer Notice the Pro Rata Portion of its Revolver Interests,
Participation Interests, Senior Notes, or Warrants, as the case may be;
provided, however, that no Selling TPG Party shall be permitted to sell to the
purchaser unless, simultaneously with the consummation of such sale, the sale by
the Other Lenders who have elected to sell pursuant to this paragraph (ii) of
the Pro Rata Portion of their Revolver Interests, Participation Interests,
Senior Notes, or Warrants is also consummated.
(c) For purposes of this Agreement, "Pro Rata Portion" shall
mean, with respect to Revolver Interests, Participation Interests, Senior Notes,
or Warrants, the portion attained by multiplying (A) the aggregate interests
then held by such Lender in such Revolver Interests, Participation Interests,
Senior Notes or Warrants, as the case may be, by (B) a fraction, the numerator
of which shall be the aggregate amount of the Revolver Interests, Participation
Interests, Senior Notes, or Warrants proposed to be sold by the Selling TPG
Party to the purchaser as set forth in the Transfer Notice, as the case may be,
and the denominator of which shall be the aggregate amount of the Revolver
Interests, Participation Interests, Senior Notes, or Warrants, as the case may
be, then outstanding (including such Revolver Interests, Participation
Interests, Senior Notes, or Warrants proposed to be sold by the Selling TPG
Party, if any).
(d) For the purposes of this paragraph 6 and paragraph 7, the
term "Participation Interests" shall include the interests of TPG, TPG WP or any
of their affiliates with respect to the Italian Credit Agreement which are held
directly by such person or entity, rather than being subject to the
participation interests of other entities.
7. Drag-Along Rights. In the event that TPG or TPG WP wishes
to sell all or substantially all of (i) its Revolver Interests, (ii) its
Participation Interests, (iii) the Senior Notes held by TPG WP, or (iv) the
Warrants held by TPG WP, in each case by merger, stock sale, asset sale or
otherwise (other than pursuant to paragraph 8 of this Agreement) to a purchaser
that is not an affiliate of TPG or TPG WP or any of their affiliates and said
purchaser desires to acquire all or substantially all of the outstanding
Revolver Interests, Participation Interests, Italian Credit Agreement Rights,
Senior Notes or Warrants, as the case may be, upon such terms and conditions as
agreed to with TPG or TPG WP, each other Lender agrees to sell all of its
Revolver Interests, Participation Interests, Senior Notes, or Warrants as the
case may be, to said purchaser and to waive its appraisal or dissenters' rights
with respect to such transaction, at a price that reflects the Pro Rata Portion
of its Revolver Interests, Participation Interests, Senior Notes, or Warrants,
as the case may be, and on the same terms and conditions as TPG or TPG WP have
agreed to with such purchaser; provided, however, that no Lender required to
sell pursuant to this paragraph 7 shall be required to make any representation,
covenant or warranty in connection with such sale, other than as to its
ownership and authority to sell, free of liens, claims or encumbrances, the
Revolver Interests, Participation Interests, Senior Notes, or Warrants to be
sold by such Lender. In such case, TPG or TPG WP, as the case may be, shall give
written notice of such sale to the other Lenders at least thirty (30) days prior
to the consummation of such sale, setting forth (i) the consideration to be
received by such Lenders, (ii) the identity of the purchaser, (iii) the date of
the proposed transfer and (iv) any other material items and conditions of the
proposed transfer.
8. Permitted Transfers. Notwithstanding anything to the
contrary herein, transfers to any Permitted Transferee of a lender shall not be
subject to paragraph 5, 6 or 7. For purposes of this Agreement, a "Permitted
Transferee" means (a) in the case of any transferor that is not a corporation or
individual, any present or former general or limited partner, member, managing
director, officer, employee or affiliate (as defined in Rule 12b-2 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of such
transferor, (b) in the case of any transferor that is a corporation, any other
entity that owns, directly or indirectly, at least 51% of the equity securities
of such transferor ("majority ownership") or that is under common majority
ownership with such transferor, (c) in the case of any transferor that is an
individual, any successor by death or divorce, (d) in the case of any transferor
that is a trust whose sole beneficiaries are individuals, such individuals or
their spouses or lineal descendants or (e) in the case of TPG or TPG WP, any
officers or directors of MEMC or other persons providing consulting or other
services to MEMC (excluding in each case any TPG deal professionals or any TPG
affiliate (as defined in Rule 12b-2 under the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), so long as such Revolver Interests,
Participation Interests, Senior Notes, or Warrants, as the case may be,
constitute less than 10% of the aggregate Revolver Interests, Participation
Interests, Senior Notes, or Warrants, as the case may be, on the date hereof.
9. Transferee's Rights and Obligations. Any party that
acquires any Revolver Interests, Participation Interests, Senior Notes, or
Warrants shall assume the obligations and, unless otherwise agreed by the
transferee, acquire the rights of the transferor with respect to such Revolver
Interests, Participation Interests, Senior Notes, or Warrants that it acquires;
provided that, unless a majority in Interest of the other parties to this
Agreement have approved of the transferee in writing, the transferor shall
remain liable for all of its obligations under the Revolving Credit Agreement
and under this Agreement. In connection with such assumption, the transferee
will notify the parties hereto of its address for the purpose of providing
notices hereunder.
10. Amendments. Any amendment of this Agreement or any waiver
of any provision hereof to be effective shall be in writing and signed by all of
the parties hereto. Any failure by any party at any time to enforce any of the
provisions of this Agreement shall not be construed a waiver of such provision
or any other provisions hereof.
11. Governing Law. The validity, construction and performance
of this Agreement shall be governed by the laws of the State of New York without
giving effect to principles of conflicts of laws except Section 5-1401 of the
General Obligations Law of the State of New York.
12. Arbitration. Any disputes arising from this Agreement
shall be resolved by exclusive and final arbitration to be carried out in
accordance with the procedures described in Section 11.10 of the Amended and
Restated Operating Agreement of TPG Wafer Holdings LLC ("Wafer Holdings"), dated
as of November 13, 2001.
13. Counterparts. This Agreement may be signed by each party
hereto upon a separate copy of this Agreement in which event all of said copies
shall constitute a single counterpart of this Agreement. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
and it shall not be necessary in making proof of this Agreement to produce or
account for more than one such counterpart.
14. Notices. Unless otherwise specified herein, any and all
notices, offers, acceptances and other communications (collectively, "Notices")
authorized or required to be given pursuant to this Agreement shall be given in
writing, by registered or certified mail, which shall be addressed to the Member
at the following addresses (or at such other address for a Member as shall be
specified by like notice):
if to TPG, TPG WP or TPG Wafer Management, to:
c/o Texas Pacific Group
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telephone: 000.000.0000
Fax: 000.000.0000
with a copy (which shall not constitute notice) to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxxx, Esq.
Telephone: 000.000.0000
Fax: 000.000.0000
if to TCW, to:
x/x XXX/Xxxxxxxx Xxxxxxxxx Partners III, L.P.
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx-Xxxx Xxxxxx
Telephone: 000.000.0000
Fax: 000.000.0000
with a copy (which shall not constitute notice) to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone: 000.000.0000
Fax: 000.000.0000
if to LGP, to:
c/o Xxxxxxx Xxxxx & Partners, L.P.
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: 000.000.0000
Fax: 000.000.0000
with a copy (which shall not constitute notice) to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone: 000.000.0000
Fax: 000.000.0000
All notices, other communications or documents shall be deemed
to have been duly given five (5) business days after having been deposited in
the mail, postage prepaid, if mailed by first class mail; provided, however,
that notices of a change of address shall be effective only upon receipt.
15. Entire Agreement. This Agreement supersedes all prior
agreements with respect to the subject matter hereof. This instrument, together
with the Revolving Credit Agreement, the Restructuring Agreement, the Italian
Credit Agreement and all related agreements contains the entire agreement with
respect to such subject matter. This instrument may not be amended, supplemented
or discharged, and no provision hereof may be modified or waived, except
expressly by an instrument in writing signed by the parties hereto. No waiver of
any provision hereof shall be deemed a waiver of any other provision nor shall
any such waiver by any party be deemed a continuing waiver of any matter. No
amendment, modification, supplement, discharge, or waiver hereof or hereunder
shall require the consent of any person not a party to this Agreement.
16. Severability. If any portion of this Agreement shall be
declared void or unenforceable by any court or administrative body of competent
jurisdiction, such portion shall be deemed severable from the remainder of this
Agreement, which shall continue in all respects valid and enforceable.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the date first above written.
TPG WAFER CREDIT PARTNERS,
L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
T3 PARTNERS II, L.P.
By: T3 GenPar II, L.P.
Its General Partner
By: T3 Advisors II, Inc.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
T3 PARALLEL II, L.P.
By: T3 GenPar II, L.P.
Its General Partner
By: T3 Advisors II, Inc.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
TCW/CRESCENT MEZZANINE
PARTNERS III, L.P. and
TCW/CRESCENT MEZZANINE TRUST III
By: TCW/Crescent Mezzanine
Management III, L.L.C.
its Investment Manager.
By: TCW Asset Management
Company, its Sub-Advisor
By: /s/ Xxxx-Xxxx Xxxxxx
----------------------------
Name: Xxxx-Xxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxx X. Xxxxxxx, Xx.
----------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Senior Vice President
GREEN EQUITY INVESTORS III, L.P.
By: GEI Capital III, LLC,
its General Partner
By: /s/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
Title: Manager
GREEN EQUITY INVESTORS SIDE III, L.P.
By: GEI Capital III, LLC,
its General Partner
By: /s/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
Title: Manager
TPG WAFER MANAGEMENT, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
TPG WAFER PARTNERS, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
