FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement ("First Amendment") is effective
as of July 1, 1998 between MEMC ELECTRONIC MATERIALS, INC., a Delaware
corporation, as the Borrower, and XXXX XX, a company formed under the laws of
the Federal Republic of Germany ("Xxxx"), as the sole Lender and as Agent.
Recitals
WHEREAS, Borrower and Xxxx entered into a Credit Agreement dated as of July
10, 1995 (the "Credit Agreement") pursuant to which Xxxx agreed to extend up to
US $25,000,000 of credit to Borrower on a term basis; and
WHEREAS, Borrower and Xxxx desire to amend the Credit Agreement to extend
the final maturity date of the US $25,000,000 term credit facility to September
30, 1998 and to change the interest rate payable by Borrower to Xxxx during such
extension period.
NOW THEREFORE, in consideration of the foregoing premises and the mutual
covenants and conditions hereinafter set forth, the parties agree as follows:
1. The definition of "Final Maturity Date" set forth in Section 1.01 of the
Credit Agreement is deleted in its entirety and the following is substituted in
lieu thereof:
"Final Maturity Date" means September 30, 1998.
2. Section 2.06(a) of the Credit Agreement is deleted in its entirety and
the following is substituted in lieu thereof:
(a) Interest on the Advances. The Borrower shall pay interest on the
unpaid principal amount of the Advances, if any, from the date of the
Advances until such principal amount shall be paid in full, payable
semiannually, at an interest rate per annum equal to 7.12%; provided,
however, that as of the date occurring 45 Business Days after the
Change of Control Date, the interest rate per annum shall be the Base
Rate in effect for such Advances plus the Applicable Margin.
3. Section 5.02 of the Credit Agreement is deleted in its entirety and the
following is substituted in lieu thereof:
SECTION 5.02. Negative Covenants.
(a) Accounting Changes. On and after the Change of Control Date and so
long as any Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will not, unless the Lenders shall
otherwise consent in writing, make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as allowed by generally accepted
accounting principles.
(b) Liens, etc. On and after July 1, 1998 and so long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder,
the Borrower will not, unless the Lenders shall otherwise consent in
writing, create or suffer to exist, or permit any of its Subsidiaries
to create or suffer to exist, any lien, security interest or other
charge or encumbrance, or any other type of preferential arrangement,
upon or with respect to any of its properties, whether now owned or
hereafter acquired, or assign, or permit any of its Subsidiaries to
assign, any right to receive income, in each case to secure any Debt
of any Person, other than:
(i) purchase money liens or purchase money security interests
upon or in any property acquired or held by the Borrower or any
Subsidiary in the ordinary course of business to secure the
purchase price of such property or to secure indebtedness
incurred solely for the purpose of financing the acquisition of
such property;
(ii) liens or security interests existing on such property at the
time of its acquisition (other than any such lien or security
interest created in contemplation of such acquisition);
(iii) liens for taxes, assessments and government charges or
levies to the extent not required to be paid under Section
5.01(b) hereof:
(iv) liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's liens and other similar
liens arising in the ordinary course of business securing
obligations that are not overdue for a period of more than 30
days;
(v) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations;
(vi) easements, rights of way and other encumbrances on title to
real property that do not render title to the property encumbered
thereby unmarketable or materially adversely affect the use of
such property for its present purposes; and
(vii) liens incurred or deposits made in the ordinary course of
business to secure the performance of letters of credit, bids,
tenders, sales contracts, leases, surety, appeal and performance
bonds and other similar obligations not incurred in connection
with the borrowing of money.
4. Unless otherwise provided herein, any term in initial capital letters or
all capital letters used as a defined term but not defined in this First
Amendment shall have the meaning set forth in the Credit Agreement.
5. Except as modified herein, all terms and conditions of the Credit
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties to this First Amendment have caused it to
be executed by their duly authorized representatives effective as of the day and
year first above written. This First Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
MEMC ELECTRONIC MATERIALS, INC., as Borrower
By: /s/ Xxxxx X. Xxxxxx
_________________________________________
Title: Executive Vice President and
Chief Financial Officer
XXXX XX, as Agent
By: /s/ Xxxxxx Xxxxxxxxxxx /s/ Xxxxx Xxxxxx
__________________________________________
Title:
XXXX XX, as the sole Lender
By: /s/ Xxxxxx Xxxxxxxxxxx /s/ Xxxxx Xxxxxx
__________________________________________
Title:
