LOAN AGREEMENT
LOAN AGREEMENT, dated as of June 30, 1998 between Xxxx Corporation located at
00000 Xxxxxxxxx Xxxxx, Xxxxxxxx Heights, Missouri/USA, ("HC") and MEMC
Electronic Materials, Inc., located at 000 Xxxxx Xxxxx, X'Xxxxxx, Xxxxxxxx/XXX,
("MEMC").
MEMC desires to borrow until September 30, 1998 an original principal amount not
to exceed $50,000,000.00 and HC is willing, subject to and upon the terms and
conditions herein set forth, to make such a loan to MEMC.
NOW THEREFORE IT IS AGREED:
1. Principal and Value: From time to time, beginning July 1, 1998, HC shall
lend to MEMC and MEMC shall borrow from HC an amount to be designated by
MEMC, not to exceed $50,000,000.00 outstanding at any one time. The loan
shall be evidenced by a promissory note in substantially the form of
Exhibit "A" attached hereto. All loans and repayments shall be made by MEMC
by drawing funds in multiples of $5,000,000 from an MEMC account at
Citibank N.A., New York, New York that will zero balance with the HC
account at Citibank N.A., New York , New York (Account No.
4070-0001)("designated account"). MEMC shall notify HC of borrowing[s] by
10 am Central time on the third business day prior to the day the money is
to be borrowed.
2. Term and Maturity: The principal amount of the loan outstanding together
with any interest due and outstanding shall be paid by MEMC to HC on
September 30, 1998, or at such later date as may be mutually agreed in
writing by the parties. MEMC shall not be entitled to repay the loan[s]
before maturity without the prior written consent of HC.
3. Interest Rates: Interest shall be calculated daily at 7.22%, beginning with
the date of borrowing and shall be calculated based upon a 365/360 day
year.
4. Payment of Interest: Payments of interest shall be made by wire transfer,
or other method of same day settlement, only on banking days, not later
than 10:00 a.m. Central time, to the account of HC, with Citibank N.A., New
York, New York, (Account No. 4070-0001) or to such other account of HC as
it may designate. Interest will be payable monthly, on the last banking day
of each month.
5. PENALTIES: If MEMC shall borrow an amount different than which it notifies
HC pursuant to paragraph 1, MEMC shall pay to HC a penalty equal to the .5%
of the amount of the understatement divided by 360. If MEMC shall draw an
amount in excess of $50,000,000, MEMC shall pay HC a penalty equal to 3.0%
of the excess amount multiplied by the number of days outstanding divided
by 360. All penalties shall be in addition to interest computed in
accordance with other provisions of this agreement.
6. Liens, etc. On and after the date of this Loan Agreement until September
30, 1998 or such later date as any loan hereunder shall remain unpaid, MEMC
will not, unless HC shall otherwise consent in writing, create or suffer to
exist, any lien, security interest or other charge or encumbrance, or any
other type of preferential arrangement, upon or with respect to any of its
properties, whether now owned or hereafter acquired, or assign any right to
receive income, in each case to secure any debt owed to any person or
entity, other than:
(a) purchase money liens or purchase money security interests upon or
in any property acquired or held by MEMC in the ordinary course of
business to secure the purchase price of such property or to secure
indebtedness incurred solely for the purpose of financing the
acquisition of such property;
(b) liens or security interests existing on such property at the time
of its acquisition (other than any such lien or security interest
created in contemplation of such acquisition);
(c) liens for taxes, assessments and government charges or levies to
the extent not yet due or to the extent such taxes, assessments or
government charges or levies are being contested in good faith and by
proper proceedings and as to which appropriate reserves are being
maintained, unless and until any lien resulting therefrom attaches to
MEMC's property and becomes enforceable against its other creditors;
(d) liens imposed by law, such as materialmen's, mechanics',
carriers', workmens' and repairmen's liens and other similar liens
arising in the ordinary course of business securing obligations that
are not overdue for a period of more than 30 days;
(e) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations;
(f) easements, rights of way and other encumbrances on title to real
property that do not render title to the property encumbered thereby
unmarketable or materially adversely affect the use of such property
for its present purposes; and
(g) liens incurred or deposits made in the ordinary course of business
to secure the performance of letters of credit, bids, tenders, sales
contracts, leases, surety, appeal and performance bonds and other
similar obligations not incurred in connection with the borrowing of
money.
7. Copies: This agreement is made up of two (2) identical copies, of which one
copy is for HC and the other for MEMC.
8. Applicable Law: This agreement shall be governed by the laws of
Missouri/U.S.A.
9. Notice: All notices to HC shall be sent by telefax to:
Xxxxxxxx Xxxxxxxxxx
Telefax: (000)-000-0000
with a copy to Xxxx Xxxxxxxxx @ (314) 298 - 4185
The original should be sent to Xxxxxxxx Xxxxxxxxxx
All notices to MEMC shall be sent by telefax;
Xxxxxxx Xxxxx
Telefax: (314) 279 - 5158
10. Assignment/Subrogation:
MEMC shall not transfer or assign any or all of its rights and obligations
hereunder without the prior written consent of HC. HC may at any time upon
at least three days' prior written notice to MEMC assign its rights and
obligations hereunder, in full or in part, in which case the assignee shall
be subrogated to the rights of HC to the extent of such assignment
Agreed upon as of this 30th day of June, 1998.
Maryland Heights, Missouri O'Fallon, Missouri
Xxxx Corporation MEMC Electronic Materials, Inc.
By: /s/ X. X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
_______________________ _______________________
Name: X. X. Xxxxxxxxx Xxxxxxx X. Xxxxx
Title: President & CEO Treasurer
By: /s/ Xxxxxxxx Xxxxxxxxxx
_______________________
Xxxxxxxx Xxxxxxxxxx
Treasurer
EXHIBIT "A"
PROMISSORY NOTE
U.S. $50,000,000.00 O'Fallon, Missouri,
June 30, 1998
MEMC Electronic Materials, Inc. ("MEMC"), for value received, hereby promises to
pay to the order of XXXX Corporation ("HC") in lawful money of the United States
of America (in freely transferable U.S. dollars and in same day funds), in
accordance with the method of payment specified in that certain Loan Agreement
dated as of June 30, 1998, between HC and MEMC ("the Agreement"), the full
principal amount outstanding (as specified in paragraph 1 of the Agreement), not
to exceed $50,000,000.00, which amount shall be payable at such times as
provided in the Agreement.
MEMC promises also to pay interest on the unpaid principal amount hereof in like
money and in like manner at the rates which shall be determined in accordance
with the provisions of the Agreement, said interest to be payable at the times
provided for in the Agreement. This Note is referred to in the Agreement and is
entitled to the benefits thereof and the security contemplated thereby. This
Note evidences a loan made by HC, during such time as such loan is being
maintained. This Note is subject to prepayment as specified in the Agreement. In
case MEMC defaults on the loan, the principal and accrued interest on this Note
may be declared to be due and payable in the manner and with the effect provided
in the Agreement. It is contemplated that by reason of payment hereon there may
be times when no indebtedness is owing hereunder; but notwithstanding such
occurrences, this Note shall remain valid and shall be in full force and effect
as to amounts borrowed under the Agreement subsequent to each such occurrence.
MEMC hereby waives presentment, demand, protest or notice of any kind in
connection with this Note.
This Note shall be governed and construed and interpreted in accordance with the
laws of the State of Missouri.
MEMC Electronic Materials, Inc.
By: /s/ Xxxxxxx X. Xxxxx
_____________________________
Xxxxxxx X. Xxxxx
Treasurer
