1
EXHIBIT 10-FFF(1)
FIRST AMENDMENT TO OVERNIGHT LOAN AGREEMENT
This First Amendment to Overnight Loan Agreement ("First Amendment") is
effective as of September 1, 1998 between MEMC ELECTRONIC MATERIALS, INC., a
Delaware corporation, as the Borrower (the "Borrower"), and Xxxx Corporation, a
company formed under the laws of the State of Delaware, U.S.A. ("Xxxx").
Recitals
WHEREAS, Borrower and Xxxx entered into an Overnight Loan Agreement dated
as of October 31, 1997 (the "Loan Agreement") pursuant to which Xxxx agreed to
extend up to US$10,000,000 of credit to Borrower on a day to day basis;
WHEREAS, Borrower, Xxxx and certain affiliates of Xxxx have agreed to
extend additional credit to Borrower and to restructure the existing financing
provided by Xxxx and its affiliates to Borrower, and
WHEREAS, as part of such restructuring, Borrower and Xxxx desire to change
the interest rate payable by Borrower to Xxxx and the maturity date under the
Loan Agreement.
NOW THEREFORE, in consideration of the foregoing premises and the mutual
covenants and conditions hereinafter set forth, the parties agree as follows:
1. Amendment. Sections 1 through 9 of the Loan Agreement are hereby amended
and restated in their entirety as set forth in ANNEX A attached hereto and
incorporated by reference herein.
2. Counterparts. This First Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed an original and all of which taken
together shall constitute one and the same agreement. Delivery of any executed
counterpart of a signature page to this First Amendment by telecopier shall be
effective as delivery of a manually executed counterpart of this First
Amendment.
3. Governing Law. This First Amendment shall be governed by, and construed
in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed by their duly authorized representatives effective as of the
day and year first above written.
MEMC ELECTRONIC MATERIALS, INC., as Borrower
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
XXXX CORPORATION
By: /s/ X. X. Xxxxxxxxx
---------------------------------
Name: X. X. Xxxxxxxxx
Title: President and CEO
By: /s/ Xxxx Xxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxx for Xxxxxxxx Xxxxxxxxxx
Title: Treasurer
2
Annex A
To First Amendment
1. Definitions: The following capitalized terms used herein shall have the
following meanings:
"Agreement" means this Overnight Loan Agreement.
"Applicable Spread" means a percentage per annum equal to the excess
of (a) the Bloomberg fair market sector curves (adjusted for the chosen
interest rate method) applicable two business days prior to October 1, 1998
to a B3 rated industrial borrower for the period from October 1, 1998
through October 31, 2001 over (b) the corresponding Swap Rate for such
period.
"Borrower" or "MEMC" means MEMC Electronic Materials, Inc.
"Extension Maturity Date", if any, means either (i) the first
anniversary of October 30, 1999, or (ii) if there has been an applicable
Extension Maturity Date on or prior to December 31, 2000, the first
anniversary of such prior Extension Maturity Date; provided, that in no
event shall an Extension Maturity Date be after December 31, 2001.
"Final Maturity Date" means October 30, 1999 or, if applicable, the
Extension Maturity Date.
"Xxxx" means Xxxx Corporation.
"Interest Rate" shall be the rate determined under Section 5.
"Lender" means Xxxx or any Eligible Assignee (as defined in the
Reference Agreement) to whom Xxxx (or any successor Lender) has assigned
its rights and obligations pursuant to Section 11.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Reference Agreement" means that certain Credit Agreement dated June
26, 1997 in the amount of US$50,000,000 between Borrower and Xxxx, as the
same may be amended from time to time.
"Replacement Financing Arrangement" means a financing arrangement with
any Person who is not an affiliate of the Borrower or the Lender on
substantially the terms which would apply hereunder during the period from
the then applicable Final Maturity Date to the latest possible Extension
Maturity Date, provided that the interest rate of such Replacement
Financing Arrangement shall be no higher than the Interest Rate and, if no
lesser interest rate is available, shall be the Interest Rate.
2. Principal and Value. From time to time, beginning October 31, 1997, Lender
agrees to lend to Borrower and Borrower agrees to borrow from the Lender an
amount to be designated by Borrower, not to exceed $10,000,000.00
outstanding at any one time (each such borrowing, an "Advance"). 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
Borrower by drawing funds from or depositing funds in Borrower's account at
Citibank N.A., New York, New York that will zero balance with the Xxxx'x
account at Citibank N.A., New York, New York (Account No. 4070-0001) or
such other account of the Lender as it may designate ("designated
account").
3. Term and Maturity. (a) Final Maturity Date. The principal amount of the
loan outstanding together with any interest due and outstanding shall be
paid by Borrower to the Lender on the Final Maturity Date, or at such later
date as may be mutually agreed in writing by the parties.
(b) Extension. If the then applicable Final Maturity Date is a date on
or before December 31, 2000 and the Borrower may desire that the Lender
extend the then applicable Final Maturity Date to the Extension Maturity
Date, then (a) the Borrower shall give written notice of said fact (the
"Extension Request Notice") to the Lender no later than four (4) months
before the Final Maturity Date, (b) the Borrower shall use its best efforts
to obtain and enter into on or before the date which is two months prior to
the Final Maturity Date a Replacement Financing Arrangement and (c) if the
Borrower shall not have entered into a Replacement Financing Arrangement on
or before the date which is two months prior to the Final Maturity Date,
the Borrower shall deliver to the Lender a certificate of the Borrower (the
"Extension Certificate") (x) certifying that the Borrower has not entered
into a Replacement Financing Arrangement, but the Borrower used its best
efforts to do so as required by clause (b) and setting forth such evidence
and back-up detail as necessary to demonstrate the efforts made, including
a written letter from each bank from which a Replacement Financing
Arrangement as required by clause (b) was requested, indicating that
Borrower made such a request and that the request was denied, and (y)
requesting that the Final Maturity Date be extended to the Extension
Maturity Date. For purposes of this Section, the Borrower shall be deemed
3
to have complied with the requirement to use its "best efforts" by
requesting from and, if applicable, diligently negotiating a Replacement
Financing Arrangement as required by clause (b) with each of three (3)
commercial banks that are nationally recognized in the United States and
each have total assets in excess of $20,000,000,000. Lender shall have the
right to designate, within ten (10) Business Days after receipt of an
Extension Request Notice, one of the three banks referred to in the
preceding sentence. For purposes of this Section, diligent negotiation
shall mean negotiation in good faith and without denial or unreasonable
delay of any reasonable request by any such bank for information in
connection with its consideration of providing a Replacement Financing
Arrangement to Borrower. For the avoidance of doubt, nothing herein is
intended to prevent Borrower from obtaining a Replacement Financing
Arrangement on terms equal to or better than those provided hereunder.
Following receipt of the Extension Certificate, the Lender shall have
the right (without any obligation to do so) to obtain for the Borrower a
Replacement Financing Arrangement on terms equal to or better than those
provided hereunder.
If the Borrower has (a) delivered the Extension Request Notice within
the time period specified above, (b) used its best efforts to obtain and
enter into a Replacement Financing Arrangement and delivered the Extension
Certificate within the time period specified above and (c) not unreasonably
or in bad faith refused to enter into a Replacement Financing Arrangement
(with terms equal to or better than those provided hereunder) obtained for
the Borrower by the Lender pursuant to the preceding paragraph, the Final
Maturity Date shall be extended to the Extension Maturity Date and the
interest rate shall be the Interest Rate. The Lender shall provide the
Borrower with a written notice setting forth the Interest Rate.
The Borrower shall be responsible for the payment of any customary
commitment fee and other fees in connection with obtaining a Replacement
Financing Arrangement.
For the avoidance of doubt, in no event shall an Extension Maturity
Date be requested by the Borrower after December 31, 2000 or be on a date
after December 31, 2001.
4. Rollover Dates. Any amount borrowed hereunder shall be on the basis of
daily rollover periods. Each rollover date shall be a banking day in New
York, New York ("banking day"). However, should the designated bank
designated by the Lender in Section 2 be closed on a banking day, the
Lender would not be required to loan money to Borrower nor would Borrower
have the option to repay a loan. On the initial and each respective
rollover date thereafter, Borrower shall have the option to repay the full
principal amount outstanding or any portion thereof, rollover an amount
outstanding, or borrow an additional amount provided that the total
principal amount will not exceed $10,000,000.00. Borrower will notify
Lender of repayments, draw-downs and rollovers by a telefax or memorandum
from Borrower, to Lender by 10:00 a.m. Central time on the day money is to
be borrowed, or repaid.
5. Interest Rates. Until September 30, 1998, interest shall be calculated at
the FED Funds opening rate plus .25% as quoted by VEBA Corporation and
supplied by Citibank. On and after October 1, 1998, interest shall be
calculated daily at the FED Funds opening rate plus the Applicable Spread
as quoted by VEBA Corporation and supplied by Citibank. For loans
outstanding on days other than banking days, the interest shall be
calculated at the rate applicable for the last preceding banking day. The
interest rate shall be furnished daily if there is a loan outstanding.
Interest shall accrue on all outstanding amounts and shall be calculated
based upon a 360 day year.
6. 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 Xxxx, with Citibank N.A.,
New York, New York, (Account No. 4070-0001) or to such other account of the
Lender as it may designate. Interest will be payable monthly, with payment
due the day after the Lender notifies Borrower of the amount due for the
prior month.
7. Penalty. If Borrower shall borrow, repay or rollover an amount different
than which it notifies the Lenders pursuant to paragraph 4, Borrower shall
pay to the Lender a penalty equal to the .25% of the amount of the
understatement divided by 360.
8. Covenants. So long as any Advance shall remain unpaid or Lender shall have
any Commitment hereunder, the Borrower will comply with the Affirmative
Covenants set forth in Section 5.01 (on and after the Change of Control
Date as defined in the Reference Agreement) and the Negative Covenants
(including Negative Pledge) set forth in Section 5.02 of the Reference
Agreement, all of which the Borrower, by signing this Agreement, expressly
repeats and incorporates herein.
9. Conditions Precedent to each Borrowing. The obligation of Lender to make an
Advance on the occasion of each borrowing shall be subject to the condition
precedent that no event has occurred and is continuing, or would result
from such Advance or from the application of the proceeds therefrom, that
4
constitutes a Default under the Reference Agreement.
10. Events of Default. Each of the Events of Default set forth in Section 6.01
of the Reference Agreement shall constitute an Event of Default hereunder
and the Lender shall have the rights with respect to Events of Default and
Defaults with respect to the amounts loaned hereunder that are set forth in
the Reference Agreement.
11. Assignment. Lender may assign its rights and obligations under this
Agreement in whole but not in part and otherwise in accordance with Section
8.07 of the Reference Agreement, provided that any such assignment shall be
made to a single Eligible Assignee (as defined in the Reference Agreement).
12. Commitment Fee. The Borrower agrees to pay to the Lender a commitment fee
on the unused portion of Lender's commitment from October 1, 1998 in the
case of Xxxx and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in case of each other
Lender until the Final Maturity Date at a rate per annum equal to 1/4 of
1%, payable monthly, with payment due the day after the Lender notifies
Borrower of the amount due for the prior month.
13. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
