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EXHIBIT 10 - jjj
CREDIT AGREEMENT
Dated as of December 1, 1996
MEMC ELECTRONIC MATERIALS, INC., a Delaware corporation, as the
borrower (the "Borrower"), and XXXX XX, a company formed under the laws of the
Federal Republic of Germany ("Xxxx"), as the initial lender (the "Initial
Lnder") and as agent (together with any successor appointed pursuant to Article
VII, the "Agent") for the Lenders (as hereinafter defined), hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" has the meaning specified in Section 2.01.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling", "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 5% or more of the voting stock of such Person or
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting stock, by contract or otherwise.
"Agent" has the meaning specified in the recital of parties to this
Agreement.
"Agent's Account" means the Dollar account of the Agent maintained with
such bank as the Agent shall specify in writing to the Borrower and the Lenders
from time to time.
"Applicable Margin" means, as of the date occurring 45 Business Days after
the Change of Control Date,
(a) a percentage per annum equal to the average (rounded upward to the
nearest wholemultiple of 1/16 of 1 % per annum, if such average is not such a
multiple) of the ratesper annum in excess of the Base Rate at which each
Reference Bank would offer the Borrower the Advances outstanding or to be
outstanding for the Designated Maturity; or
(b) a percentage per annum equal to the average (rounded upward to the
nearest whole multiple of 1/16 of 1 % per annum, if such average is not such a
multiple) of the rates per annum in excess of the Base Rate at which each
Reference Bank, based on the Senior Debt Rating of the Borrower as of the Change
of Control Date, would offer the Borrower the Advances outstanding or to be
outstanding for the Designated Maturity; or
(c) a percentage per annum equal to the applicable percentage set forth
below for the Performance Level set forth below:
PERFORMANCE APPLICABLE
LEVEL MARGIN
==================================== ====================================
I 0.450%
II 0.500%
III 0.625%
IV 1.000%
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In each case the Applicable Margin for the Advances shall be determined
by the Agent 40 Business Days after the Change of Control Date in
accordance with the provisions of Section 2.06.
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an Eligible Assignee and accepted by the Agent, in substantially
the form of Exhibit C hereto.
"Bank" means any Lender other than the Initial Lender or any Affiliate of
the Initial Lender.
"Base Rate" means, with respect to the Advances comprising a Borrowing for
the Designated Maturity, the interbank rate for Dollars for the period most
nearly comparable to the Designated Maturity that appears on the Dow Xxxxx
Telerate Screen as of 11:00 A.M. (London time) two Business Days before the date
of such Borrowing.
"Borrower" has the meaning specified in the recital of parties to this
Agreement.
"Borrowing" means the borrowing consisting of the Advances made by the
Lenders.
"Borrowing Notice" has the meaning specified in Section 2.02(a).
"Business Day" means a day of the year on which banks are not required or
authorized by law to close in New York City.
"Change of Control" means the Initial Lender or any Affiliate of the
Initial Lender, through any transaction or series of transactions or otherwise,
no longer has beneficial ownership, directly or indirectly, of more than 50% of
the shares of common stock of the Borrower.
"Change of Control Date" means the date of occurrence of a Change of
Control.
"Commitment" has the meaning specified in Section 2.01.
"Confidential Information" means information that the Borrower furnishes to
the Agent or any Lender in a writing designated as confidential, but does not
include any such information that is or becomes generally available to the
public or that is or becomes available to the Agent or such Lender from a source
other than the Borrower, an Affiliate of the Borrower or an Affiliate of the
Initial Lender.
"Consolidated" refers to the consolidation of accounts in accordance with
GAAP.
"Debt" means (a) indebtedness for borrowed money, (b) obligations evidenced
by bonds, debentures, notes or other similar instruments, (c) obligations to pay
the deferred purchase price of property or services, (d) obligations as lessee
under leases which shall have been or should be, in accordance with generally
accepted accounting principles, recorded as capital leases, and (e) obligations
under direct or indirect guaranties in respect of, and obligations (contingent
or otherwise) to purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, indebtedness or obligations of others of
the kinds referred to in clause (a) through (d) of this definition; provided,
however, that, solely for purposes of calculating the Leverage Ratio at any
time, Debt shall not include obligations of the Borrower under direct or
indirect guaranties of indebtedness or obligations of any Subsidiary of the
Borrower, to the extent the inclusion of any such obligation results in
double-counting thereof.
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"Default" means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or
both.
"Designated Maturity" means, with respect to the Advances comprising a
Borrowing, the period from the date of such Borrowing until the Repayment Date
for such Advances.
"Dollars" and the sign "$" each means lawful money of the United States of
America.
"Domestic Lending Office" means, with respect to any Bank, the office of
such Bank specified as its "Domestic Lending Office" in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office of such
Bank as such Bank may from time to time specify to the Borrower and the Agent.
"EBIT" means, with respect to the Borrower and its Subsidiaries for any
period, the sum of (a) net income (or net loss), (b) interest expense and (c)
income tax expense, in each case determined in accordance with GAAP for such
period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (a) an Affiliate of the Initial Lender approved
by the Borrower, such approval not to be unreasonably withheld; (b) a commercial
bank organized under the laws of the United States, or any state thereof, and
having a long-term senior unsecured debt rating by S&P of "A" or better and
total assets in excess of $20,000,000,000; (c) a commercial bank organized under
the laws of any other country that is a member of the Organization for Economic
Cooperation and Development or has concluded special lending arrangements with
the International Monetary Fund associated with its "General Arrangements to
Borrow" and having a long-term senior unsecured debt rating by S&P of "A" or
better and total assets in excess of $20,000,000,000, so long as such bank is
acting through a branch or agency located in the United States; and (d) any
other Person approved by all of the Lenders and the Borrower; provided, however,
that neither the Borrower nor any Subsidiary of the Borrower shall qualify as an
Eligible Assignee; provided, further, however, that, solely with respect to
assignments of the Advance owing to the Initial Lender, an Affiliate of the
Initial Lender shall qualify as an Eligible Assignee without the approval of the
Borrower.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Events of Default" has the meaning specified in Section 6.01.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding 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 of the quotations for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
"GAAP" has the meaning specified in Section 1.03.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, and any federal, state, local or foreign court or
governmental, executive, legislative, judicial, administrative or regulatory
agency, department, authority, instrumentality, commission, board or similar
body.
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"Indemnified Party" has the meaning specified in Section 8.04(b).
"Initial Lender" has the meaning specified in the recital of parties to
this Agreement.
"Interest Coverage Ratio" means, with respect to the Borrower and its
Subsidiaries on a Consolidated basis for any period, a ratio of (a) Consolidated
EBIT of the Borrower and its Subsidiaries for such period to (b) interest
payable on all Debt during such period.
"Lender" means the Initial Lender and each Person that shall become a party
hereto pursuant to Section 8.07.
"Leverage Ratio" means, with respect to the Borrower and its Subsidiaries
at any date of determination, the ratio of (a) Consolidated Debt of the Borrower
and its Subsidiaries at such date to (b) Consolidated net worth of the Borrower
and its Subsidiaries at such date.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Note" means a promissory note of the Borrower payable to the order of any
Lender, substantially in the form of Exhibit A hereto, evidencing the Debt of
the Borrower to such Lender resulting from the Advance made by such Lender.
"Other Taxes" has the meaning specified in Section 2.12(b).
"Performance Level" means Performance Xxxxx 0, Xxxxxxxxxxx Xxxxx 00,
Xxxxxxxxxxx Xxxxx XXX or Performance Level IV, as appropriate. For purposes of
determining the Performance Level as at the Change of Control Date, if the
Interest Coverage Ratio and the Leverage Ratio shall fall within different
Performance Levels at such date, the Performance Level shall be deemed to be the
lower of the two Performance Levels (i.e., Performance Level 11 being lower than
Performance Xxxxx 0, Xxxxxxxxxxx Xxxxx XXX being lower than Performance Xxxxx 00
and Performance Level IV being lower than Performance Level 111) in effect at
such date.
"Performance Level I" means, at the date of determination, that the
Borrower and its Subsidiaries shall have maintained for the most recently
completed four consecutive fiscal quarters of the Borrower and its Subsidiaries
prior to such date (a) an Interest Coverage Ratio of greater than or equal to
7.0 to 1 and (b) a Leverage Ratio of less than or equal to 1.0 to 1.
"Performance Level II" means, at the date of determination, that (a) the
Performance Level does not meet the requirements of Performance Level I and (b)
the Borrower and its Subsidiaries shall have maintained for the most recently
completed four consecutive fiscal quarters of the Borrower and its Subsidiaries
prior to such date (i) an Interest Coverage Ratio of greater than or equal to
5.0 to 1 and (ii) a Leverage Ratio of less than or equal to 2.0 to 1.
"Performance Level III" means, at any date of determination, that (a) the
Performance Level does not meet the requirements of Performance Level I or
Performance Level II and (b) the Borrower and its Subsidiaries shall have
maintained for the most recently completed four consecutive fiscal quarters of
the Borrower and its Subsidiaries prior to such date (i) an Interest Coverage
Ratio of greater than or equal to 3.0 to 1 and (ii) a Leverage Ratio of less
than or equal to 3.0 to 1.
"Performance Level IV" means, at any date of determination, that the
Performance Level does not meet the requirements of Performance Level I,
Performance Level II or Performance Level III.
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"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 Banks" means, collectively, no more than two banks designated by
the Agent and no more than two banks designated by the Borrower for the purpose
of determining the Applicable Margin.
"Register" has the meaning specified in Section 8.07(c).
"Repayment Date" means, with respect to the Advances comprising a
Borrowing, the date specified by the Borrower in the Borrowing Notice for such
Borrowing on which the Borrower agrees to repay the aggregate principal amount
of the Advances comprising such Borrowing; provided that such date shall not be
later than the Termination Date.
"Senior Debt Rating" means, as of the date of determination, the rating
assigned in writing by either S&P or Moody's, at the request of the Initial
Lender for the long-term senior unsecured debt of the Borrower.
"S&P" means Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx,
Inc.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such limited
liability company, partnership or joint venture or (c) the beneficial interest
in such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries; provided,
however, that the term "Subsidiary" shall not include any joint venture of the
Borrower with respect to any action or decision of the board of directors of
such joint venture if, by written agreement, such action or decision requires a
vote in excess of the number of members of such board of directors elected or
controlled by the Borrower.
"Taxes" has the meaning specified in Section 2.12(a).
"Termination Date" means the earlier of (a) December 1, 2002 and (b) the
termination in whole of the Commitments pursuant to Section 2.04 or Section
6.01.
"United States" and "U.S." each means the United States of America.
The words " include, " " includes " and " including " shall be deemed to be
followed by the phrase "without limitation."
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means " from and including " and the words " to " and "until "
each means " to but excluding. "
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e) ("GAAP").
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make advances (each, an "Advance") to the
Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an amount not to exceed the amount
set forth opposite such Lender's name on the signature pages hereof or, if such
Lender has entered into any Assignment and Acceptance, set forth for such Lender
in the Register maintained by the Agent pursuant to Section 8.07(c), as such
amount may be reduced pursuant to Section 2.04 (such Lender's "Commitment").
Each Borrowing shall be in an aggregate amount of $10,000,000 or an integral
multiple of $5,000,000 in excess thereof and shall be made simultaneously by the
Lenders ratably according to their respective Commitments. The Borrower is not
entitled to reborrow any repaid or prepaid portion of any Advance.
SECTION 2.02. Making the Advances. (a) Each Borrowing shall be made on
notice, given not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Borrowing by the Borrower to the
Agent, which shall give to each Lender prompt notice thereof by telecopier or
telex. Each notice of a Borrowing (a "Borrowing Notice") shall be by telephone,
confirmed immediately in writing, or telecopier or telex, in substantially the
form of Exhibit B hereto, specifying therein, among other things, the requested
date of such Borrowing, the amount of such Borrowing and the Repayment Date of
the Advances comprising such Borrowing. Each Lender shall, before 11: 00 A.M.
(New York City time) on the date of such Borrowing, make available for the
account of its Domestic Lending Office to the Agent at the Agent's Account, in
same day funds, such Lender's ratable portion of such Borrowing. After the
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Agent will make such funds available to the
Borrower by depositing the proceeds of the Advances in such Dollar account of
the Borrower (or of such Person as the Borrower shall specify to the Lender in
the Borrowing Notice or by other written notice to the Lender given
simultaneously with or prior to such Borrowing Notice) maintained with such bank
as the Borrower shall specify to the Agent in such Borrowing Notice.
The parties hereto understand and agree that the Initial Lender may, in its
sole discretion (but shall have no obligation to), designate a financial
institution or another Person to perform the Initial Lender's obligations
hereunder in accordance with the terms hereof. The Borrower agrees that
performance of any such obligation by any such designee of the Initial Lender
shall be deemed to constitute performance by the Initial Lender for all purposes
of this Agreement and the Note and shall discharge the Initial Lender from such
obligation to the extent of such performance.
(b) Any Borrowing Notice delivered by the Borrower to the Agent shall be
irrevocable and binding on the Borrower. The Borrower shall indemnify each
Lender against any loss, cost or expense incurred by such Lender as a result of
any failure to fulfill on or before the date specified in such Borrowing Notice
for such Borrowing the applicable conditions set forth in Article 111,
including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Advance to be made
by such Lender as part of such Borrowing when such Advance, as a result of such
failure, is not made on such date.
(c) The Agent shall only make available to the Borrower on the date of any
Borrowing the ratable portion of such Borrowing of each Lender that such Lender
has made available to the Agent on or prior to the date of such Borrowing.
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(d) The failure of any Lender to make the Advance to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
SECTION 2.03. Commitment Fee. The Borrower agrees to pay to the Agent for
the account of each Lender a commitment fee on the unused portion of such
Lender's Commitment from the Effective Date in the case of the Initial Lender
and from the effective date specified in the Assignment and Acceptance pursuant
to which it became a Lender in the case of each other Lender until the
Termination Date at a rate per annum equal to 1/8 of 1%, payable in arrears
quarterly on the last day of each March, June, September and December,
commencing March 31, 1997, and on the Termination Date.
SECTION 2.04. Optional Termination or Reduction of the Commitments. The
Borrower shall have the right, upon at least three Business Days' notice to the
Agent, to terminate in whole or reduce in part the unused Commitments of the
Lenders, provided that each partial reduction shall be in the amount of
$1,000,000 or an integral multiple of $1,000,000 in excess thereof.
SECTION 2.05. Repayment. The Borrower shall repay to the Agent for the
ratable account of the Lenders the aggregate principal amount of the Advances
then outstanding comprising each Borrowing on the Repayment Date for such
Borrowing.
SECTION 2.06. Interest. (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 the Base Rate plus 0.50%;
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.
(b) Interest on Overdue Amounts. In the event that any principal amount of
any Advance or any interest, fees, costs, expenses or other amounts payable
hereunder are not paid when due, the Borrower shall pay interest on such unpaid
amount from the date such amount is due until the date such amount is paid in
full, payable on demand, at an interest rate per annum equal to the interest
rate referred to in subsection (a) of this Section 2.06 then in effect plus 2%.
SECTION 2.07. Interest Rate Determination Upon Change of Control. (a) Upon
the occurrence of a Change of Control, the Lenders and the Borrower shall agree
to determine the Applicable Margin in accordance with subsection (a), (b) or (c)
of the definition of "Applicable Margin".
(i) If the Lenders and the Borrower agree to determined-nine the
Applicable Margin in accordance with subsection (a) of such definition, the
Agent shall request timely information from each Reference Bank for purposes of
determining such Applicable Margin. If the Borrower and the Lenders agree to
determine the Applicable Margin in accordance with subsection (b) of such
definition, the Agent shall promptly engage either S&P or Moody's to provide a
Senior Debt Rating of the Borrower as of the Change of Control Date. The Agent
shall provide each Reference Bank with such Senior Debt Rating and request
timely information from each Reference Bank for the purpose of determining such
Applicable Margin.
(ii) The Initial Lender and the Borrower agree to equally share the
expense of engaging S&P or Moody's to provide a Senior Debt Rating of the
Borrower; provided, however, that if either the Initial Lender or the Borrower
shall be the sole party to decline to determine the Applicable Margin in
accordance with subsection (a) of the definition of "Applicable Margin", then
such declining party shall pay the entire expense of any such engagement.
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(iii) If any one or more of the Reference Banks shall not furnish such
timely information to the Agent for the purpose of determining any such
Applicable Margin in accordance with subsection (b)(i) of this Section 2.07, the
Agent shall determine such Applicable Margin on the basis of timely information
furnished by the remaining Reference Banks.
(iv) The Agent shall give prompt notice, and in any event no later than
40 Business Days after the Change of Control Date, to the Borrower and the
Lenders of the Applicable Margin determined by the Agent for purposes of Section
2.06(a) together with (A) the Senior Debt Rating, if any, established by S&P or
Moody's, as the case may be, and (B) the rate, if any, furnished by each
Reference Bank for the purpose of determining such Applicable Margin in
accordance with the provisions of this Agreement.
(c) If the Lenders and the Borrower shall not agree to determine the
Applicable Margin in accordance with any of subsections (a) and (b) of the
definition of "Applicable Margin", then the Applicable Margin as of the date
occurring 45 Business Days after the Change of Control Date shall be the
percentage per annum determined in accordance with subsection (c) of such
definition.
(d) For all purposes hereof, the Agent shall determine the Applicable
Margin as of 40 Business Days after the Change of Control Date and such
Applicable Margin shall be effective from the date occurring 45 Business Days
after the Change of Control Date until the unpaid principal amount of the
Advances shall have been paid in full.
SECTION 2.08. Optional Prepayments and Reductions of Commitment. (a) The
Borrower may, upon at least three Business Days' notice to the Agent stating the
proposed date and the aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the outstanding principal amount of
the Advances in whole or ratably in part, together with (i) accrued interest to
the date of such prepayment on the principal amount prepaid and (ii) any amount
payable pursuant to Section 8.04(c); provided, however, that each such partial
prepayment shall be in an aggregate principal amount of not less than $1,000,000
or an integral multiple of $1,000,000 in excess thereof.
(b) Upon the prepayment in whole or in part of the Advances in accordance
with subsection (a) of this Section 2.08, the Commitments of the Lenders shall
be automatically reduced ratably by the amount of such prepayment.
SECTION 2.09. Increased Costs, Etc. If due to either (a) the introduction
of or any change (including, without limitation, any change by way of imposition
or increase of reserve requirements) in or in the interpretation of any law or
regulation or (b) the compliance with any guideline or request from any central
bank or other Governmental Authority (whether or not having the force of law),
there shall be any increase in the cost to any Bank of agreeing to make or
making, funding or maintaining an Advance, then the Borrower shall from time to
time, upon demand by such Bank (with a copy of such demand to the Agent), pay to
the Agent for the account of such Bank additional amounts sufficient (as
applicable) to compensate such Bank for such increased cost. A certificate as to
the amount of such increased cost, submitted to the Borrower by such Bank, shall
be conclusive and binding for all purposes, absent manifest error.
SECTION 2.10. Illegality. Notwithstanding any other provision of this
Agreement, if any Bank shall notify the Borrower that any law or regulation, or
the introduction of or any change in or in the interpretation of any law or
regulation, makes it unlawful, or any central bank or other Governmental
Authority asserts that it is unlawful, for such Bank to perform its obligations
hereunder to make an Advance or to fund or maintain an Advance hereunder, (a)
the obligation of such Bank to make, fund and maintain any Advance shall be
suspended until such Bank shall notify the Borrower that the circumstances
causing such suspension no longer exist, (b) such Bank shall promptly notify the
Borrower of such circumstances and such suspension, and (c) unless the Borrower
and such Bank shall have otherwise agreed within ten Business Days of such
notice, the Borrower shall forthwith on such tenth Business Day prepay in full
the Advances then outstanding together with interest accrued thereon.
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SECTION 2.11. Payments and Computations. (a) The Borrower shall make each
payment hereunder and under the Notes not later than 1:00 P.M. (New York City
time) on the day when due in Dollars to the Agent at the Agent's Account, in
each case in immediately available funds. The Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest or fees ratably (other than amounts payable pursuant to Section 2.09,
2.12 or 8.04(c)) to the Lenders for the account of their respective Domestic
Lending Offices, and like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its Domestic Lending
Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 8.07(d),
from and after the effective date specified in such Assignment and Acceptance,
the Agent shall make all payments hereunder and under the Notes in respect of
the interest assigned thereby to the Lender assignee thereunder, and the parties
to such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) All computations of interest and of fees shall be made in good faith by
the Agent on the basis of a year of 360 days for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or fees are payable.
(c) Whenever any payment hereunder or under the Notes shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fee, as the case may be.
(d) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Lenders hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower hereunder or
under the Notes shall be made, in accordance with Section 2. 1 1, free and clear
of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Agent, net income taxes
that are imposed by the United States and net income taxes (or franchise taxes
imposed in lieu thereof) that are imposed on such Lender or the Agent by the
state or foreign jurisdiction under the laws of which such Lender or the Agent
(as the case may be) is organized or any political subdivision thereof and, in
the case of each Lender, net income taxes (or franchise taxes imposed in lieu
thereof) that are imposed on such Lender by the state or foreign jurisdiction of
such Lender's Domestic Lending Office or any political subdivision thereof (all
such nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note, (i) the sum payable shall be increased as may be necessary so that, after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.12), such Lender or the Agent 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 taxation authority or other authority
in accordance with applicable law.
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(b) In addition, the Borrower shall pay any present or future stamp,
documentary, excise, property or other taxes, charges or levies that arise from
any payment made hereunder or under the Notes or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or the Notes
(hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender and the Agent for the full
amount of Taxes or Other Taxes and for the full amount of Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 2.12 imposed
on or paid by such Lender or the Agent (as the case may be) or any liability
(including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted. This indemnification shall be made within 30 days from the
date such Lender or the Agent makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
shall furnish to the Agent, at its address referred to in Section 8.02, the
original receipt of payment or a certified copy of such receipt. If no Taxes are
payable in respect of any payment hereunder or under the Notes, the Borrower
shall furnish to the Agent, at such address, a certificate from each appropriate
taxing authority, or an opinion of counsel acceptable to the Lenders, in either
case stating that such payment is exempt from or not subject to Taxes.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States shall, on the Effective Date in the case of the Initial Lender and
on the date of the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender, and from time to time thereafter if
requested in writing by the Borrower or the Agent (but only so long as such
Lender remains lawfully able to do so), provide each of the Borrower and the
Agent with Internal Revenue Service form 1001 or 4224, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments of interest pursuant to this Agreement or the Notes.
If the form provided by such Lender at the time such Lender becomes a party to
this Agreement indicates a United States interest withholding tax rate in excess
of zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender provides the appropriate form certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to which
a Lender becomes a party to this Agreement, the Lender assignor was entitled to
payments under Section 2.12(a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender assignee on such date. If any
form or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001 or
4224, that the Lender reasonably considers to be confidential, the Lender shall
give notice thereof to the Borrower and shall not be obligated to include in
such form or document such confidential information.
(f) For any period with respect to which a Lender has failed to provide the
Borrower with the appropriate form described in Section 2.12(e) (other than if
such failure is due to a change in law occurring subsequent to the date on which
a form originally was required to be provided, or if such form otherwise is not
required under the first sentence of Section 2.12(e) above), such Lender shall
not be entitled to indemnification under Section 2.12(a) with respect to Taxes
imposed by the United States; provided, however, that should such Lender become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
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SECTION 2.13. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
setoff, or otherwise) on account of the Advance owing to it (other than pursuant
to Section 2.09, 2.12 or 8.04(c)) in excess of its ratable share of payments on
account of the Advances obtained by all the Lenders, such Lender shall forthwith
purchase from the other Lenders such participations in the Advances owing to
them as shall be necessary to cause such purchasing Lender to share the excess
payment ratably with each of them; provided, however, that if all or any portion
of such excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (a) the amount of such Lender's required repayment to (b) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.13 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of setoff) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.14. Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) solely for
general corporate purposes of the Borrower and its Subsidiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied:
(a) There shall have occurred no Material Adverse Change since December 31,
1995.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Borrower or any of its Subsidiaries pending or
threatened in writing before any court, governmental agency or arbitrator that
(i) may materially adversely affect the financial condition or operations of the
Borrower or any of its subsidiaries or (ii) purports to affect the legality,
validity or enforceability of this Agreement or any Note or the consummation of
the transactions contemplated hereby.
(c) On the Effective Date, the following statements shall be true and the
Agent shall have received a certificate signed by a duly authorized officer of
the Borrower, dated the Effective Date, stating that:
(i) the representations and warranties contained in Section 4.01 are
correct on and as of the Effective Date, and
(ii) no event has occurred and is continuing that constitutes a
Default.
(d) The Agent shall have received on or before the Effective Date the
following, each dated such date, in form and substance satisfactory to the
Antlers (except for the Notes):
(i) executed counterparts of this Agreement duly executed and
delivered by the Borrower;
(ii) the Notes to the order of the Lenders;
(iii)certified copies of the resolutions of the board of directors of
the Borrower approving this Agreement and the Notes, and of all
documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement
and the Notes; and
(iv) a certificate of the Secretary or an Assistant Secretary of the
Borrower certifying the names and true signatures of the officers
of the Borrower authorized to sign this Agreement and the Notes
and the other documents to be delivered hereunder.
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SECTION 3.02. Conditions Precedent to each Borrowing. The obligation of
each Lender to make an Advance on the occasion of each Borrowing shall be
subject to the conditions precedent that the Effective Date shall have occurred
and on the date of such Borrowing the following statements shall be true (and
each of the giving of the applicable Borrowing Notice and the acceptance by the
Borrower of the proceeds of such Borrowing shall constitute a representation and
warranty by the Borrower that on the date of such Borrowing such statements are
true):
(a) the representations and warranties contained in Section 4.01 (other
than the last sentence of subsection (e) thereof) are correct on and as of the
date of such Borrowing, before and after giving effect to such Borrowing and to
the application of the proceeds therefrom, as though made on and as of such
date, and
(b) no event has occurred and is continuing, or would result from such
Borrowing or from the application of the proceeds therefrom, that constitutes a
Default.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, and do not contravene (i) the
Borrower's charter or by-laws or (ii) any law or any contractual restriction
binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no notice to or
filing with, any Governmental Authority is required for the due execution,
delivery and performance by the Borrower of this Agreement and the Notes.
(d) This Agreement has been, and the Notes when delivered hereunder will
have been, duly executed and delivered by the Borrower. This Agreement is, and
each of the Notes when delivered hereunder will be, legal, valid and binding
obligations of the Borrower enforceable against the Borrower in accordance with
their respective terms.
(e) The Consolidated balance sheet of the Borrower and its Subsidiaries as
at December 31, 1995, and the related Consolidated statements of income and cash
flows of the Borrower and its Subsidiaries for the fiscal year then ended,
copies of which have been furnished to the Lenders, fairly present the financial
condition of the Borrower and its Subsidiaries as at such date and the results
of the operations of the Borrower and its Subsidiaries for the period ended on
such date, all in accordance with GAAP. Since December 31, 1995, there has been
no Material Adverse Change.
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(f) There is no pending or threatened action or proceeding affecting the
Borrower or any of its Subsidiaries before any court, governmental agency or
arbitrator, that (i) may materially adversely affect the financial condition or
operations of the Borrower or any of its Subsidiaries or (ii) purports to affect
the legality, validity or enforceability of this Agreement or the Notes or the
consummation of the transactions contemplated hereby.
(g) The Borrower is not engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of Regulation
U issued by the Board of Governors of the Federal Reserve System), and no
proceeds of any Advance will be used to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying any margin
stock.
(h) The Advances and all related obligations of the Borrower under this
Agreement and the Notes rank pari passu with all other unsecured obligations of
the Borrower that are not, by their terms, expressly subordinate to such other
obligations of the Borrower.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. 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, unless the Lenders shall otherwise
consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries
to comply, in all material respects, with all applicable laws, rules,
regulations and orders, such compliance to include, without limitation,
compliance with ERISA and environmental laws.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges or levies imposed upon it or
upon its property and (ii) all lawful claims that, if unpaid, might by law
become a lien upon its property; provided, however, that neither the Borrower
nor any of its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is 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 its property and becomes
enforceable against its other creditors.
(c) Preservation of Corporate Existence, Etc. Preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that neither the Borrower nor any of its Subsidiaries shall be required to
preserve any right or franchise if the board of directors of the Borrower or
such Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower or such Subsidiary, as
the case may be, and that the loss thereof is not disadvantageous in any
material respect to the Borrower, such Subsidiary or the Lenders.
(d) Keeping of Books. Keep, and cause each of its Subsidiaries to keep,
proper books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of the Borrower
and each such Subsidiary in accordance with GAAP or, in the case of any
Subsidiary organized under the laws of a jurisdiction other than the United
States or any state thereof, the equivalent of GAAP applicable in such
jurisdiction.
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(e) Maintenance of Properties, Etc. Maintain and preserve, and cause each
of its Subsidiaries to maintain and preserve, all of its properties that are
used or useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
(f) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45 days after the
end of each of the first three quarters of each fiscal year of
the Borrower, Consolidated balance sheets of the Borrower and its
Subsidiaries as of the end of such quarter and Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, duly
certified (subject to year-end audit adjustments) by the chief
financial officer of the Borrower as having been prepared in
accordance with GAAP and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with subsections
(g), (h) and (i) of this Section 4.01;
(ii) as soon as available and in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the annual
report for such year for the Borrower and its Subsidiaries,
containing Consolidated balance sheets of the Borrower and its
Subsidiaries as of the end of such fiscal year and Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for such fiscal year, in each case accompanied by an
opinion acceptable to the Lenders by KPMG Peat Marwick or other
independent public accountants reasonably acceptable to the
Lenders and setting forth in reasonable detail the calculations
necessary to demonstrate compliance with subsections (g), (h) and
(i) of this Section 4.01;
(iii)as soon as possible and in any event within ten days after the
occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer of the
Borrower setting forth details of such Default and the action
that the Borrower has taken and proposes to take with respect
thereto;
(iv) promptly after the sending or filing thereof, copies of all
reports which the Borrower sends to any of its securityholders,
and copies of all reports and registration statements which the
Borrower or any of its Subsidiaries files with the Securities and
Exchange Commission or any national securities exchange;
(v) promptly after the filing or receiving thereof, copies of all
reports and notices which the Borrower or any Subsidiary files
under ERISA with the Internal Revenue Service or the Pension
Benefit Guaranty Corporation or the U.S. Department of Labor or
which the Borrower or any Subsidiary receives from the Pension
Benefit Guaranty Corporation;
(vi) promptly after the commencement thereof, notice of all actions
and proceedings before any court, governmental agency or
arbitrator affecting the Borrower or any of its Subsidiaries of
the type described in Section 4.01(f); and
(vii)such other information respecting the Borrower or any of its
Subsidiaries as any Lender through the Agent may from time to
time reasonably request.
15
(g) Working Capital. Maintain an excess of Consolidated current assets over
Consolidated current liabilities of the Borrower and its Subsidiaries of not
less than $50,000,000 and a ratio of Consolidated current assets to Consolidated
current liabilities of the Borrower and its Subsidiaries of not less than 1.25
to 1. Consolidated current liabilities shall include the current portion of the
Debt resulting from the Notes.
(h) Net Worth. Maintain an excess of Consolidated total assets over
Consolidated total liabilities of the Borrower and its Subsidiaries of not less
than $400,000,000.
(i) Interest Coverage Ratio. Maintain an Interest Coverage Ratio of not
less than 4.0 to 1.
SECTION 5.02. Negative Covenants. 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:
(a) Liens, Etc. 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 governmental 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; and
(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;
provided that the aggregate principal amount of the Debt, other indebtedness,
taxes, assessments, governmental charges or levies and other obligations secured
by the liens or security interests referred to in clauses (i) through (vi) of
this Section 5.02(a) shall not exceed $45,000,000 in the aggregate at any time
outstanding.
(b) Accounting Changes. 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.
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) the Borrower shall fail to pay (i) any principal of any Advance when
the same becomes due and payable or (ii) any interest on any Advance or any
other amount payable under this Agreement or any Note within ten days from the
date the same becomes due and payable; or
(b) any representation or warranty made by the Borrower herein or by the
Borrower (or any of its officers) in connection with this Agreement shall prove
to have been incorrect in any material respect when made; or
(c) (i) the Borrower shall fail to perform or observe any term, covenant or
agreement contained in subsection (c), (g), (h) or (i) of Section 5.01 or in
Section 5.02 or (ii) the Borrower shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement or any Note on its part
to be performed or observed if such failure shall remain unremedied for 30 days
after written notice thereof shall have been given to the Borrower by the Agent
or any Lender; or
(d) the Borrower or any of its Subsidiaries shall fail to pay any principal
of or premium or interest on any Debt that is outstanding in a principal amount
of at least $5,000,000 in the aggregate (but excluding Debt outstanding
hereunder) of the Borrower or such Subsidiary (as the case may be), when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Debt and
shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt; or any
such Debt shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment), redeemed, purchased
or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall
be required to be made, in each case prior to the stated maturity thereof; or
(e) the Borrower or any of its Subsidiaries shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Borrower or
any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or unstayed
for a period of 60 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it
or for any substantial part of its property) shall occur; or the Borrower or any
of its Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this Section 6.01(e); or
(f) any judgment or order for the payment of money in excess of $5,000,000
shall be rendered against the Borrower or any of its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect;
17
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Lenders, by notice to the Borrower, declare the obligation of
each Lender to make Advances to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with the consent, of
the Lenders, by notice to the Borrower, declare the Notes, all interest thereon
and all other amounts payable under this Agreement to be forthwith due and
payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an actual or deemed entry of
an order for relief with respect to the Borrower under the Federal Bankruptcy
Code, (A) the obligation of each Lender to make Advances shall automatically be
terminated and (B) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Lenders, and such instructions shall be binding upon all Lenders and all
holders of Notes; provided, however, that the Agent shall not be required to
take any action that exposes the Agent to personal liability or that is contrary
to this Agreement or applicable law. The Agent agrees to give to each Lender
prompt notice of each notice given to it by the Borrower pursuant to the terms
of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (a) may treat the
payee of any Note as the holder thereof until the Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, as provided in Section
8.07; (b) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (d) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement on the part of the Borrower or
to inspect the property (including the books and records) of the Borrower; (e)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (t) shall incur
no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
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SECTION 7.03. Xxxx. With respect to its Commitment, the Advance made by it
and the Note issued to it, Xxxx shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it were not
the Agent; and the term "Lender" or "Lenders" shall, unless otherwise expressly
indicated, include Xxxx in its individual capacity.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements referred to in Section 4.01 and such other 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 the Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the Agent (to
the extent not reimbursed by the Borrower), ratably according to the respective
principal amounts of the Notes then held by each of them (or if no Notes are at
the time outstanding or if any Notes are held by Persons that are not Lenders,
ratably according to the respective amounts of their Commitments), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against the
Agent in any way relating to or arising out of this Agreement or any action
taken or omitted by the Agent under this Agreement, provided that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent promptly
upon demand for its ratable share of any out-of-pocket expenses (including
counsel fees) incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, to the
extent that the Agent is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be removed at any
time with or without cause by the all of the Lenders. Upon any such resignation
or removal, the Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Lenders, and shall have
accepted such appointment, within 30 days after the retiring Agent's giving of
notice of resignation or the Lenders' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which
shall be a commercial bank organized under the laws of the United States or of
any state thereof and having a long-term senior unsecured debt rating by S&P of
"A" or better. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article VII shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders, do any of the following: (a) waive any of
the conditions specified in Section 3.01, (b) increase the Commitments of the
Lenders or subject the Lenders to any additional obligations, (c) reduce the
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, (d) postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, (e)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Notes, or the number of Lenders, that shall be required for the
Lenders or any of them to take any action hereunder or (f) amend this Section
8.01; and provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Lenders required above to
take such action, affect the rights or duties of the Agent under this Agreement
or any Note.
SECTION 8.02. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telecopier, telegraphic or telex
communication) and mailed, telecopied, telegraphed, telexed or delivered, if to
the Borrower, at its address at 000 Xxxxx Xxxxx, Xx. Xxxxxx, Xxxxxxxx 00000,
Attention: Treasurer (telecopier number (000) 000-0000); if to the Initial
Lender or the Agent, at 00000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx,
Xxxxxxxx 00000, Attention: President (telecopier number (000) 000-0000); if to
any other Lender or any Bank, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender; or, as to any
party, at such other address as shall be designated by such party in a written
notice to the other parties. All such notices and communications shall, when
mailed, telecopied, telegraphed or telexed, be effective when received by the
party to whom such notice is addressed, except that notices and communications
pursuant to Section 2.06 shall not be effective until confirmed in writing by
the party to whom such notice is addressed. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender or
the Agent to exercise, and no delay in exercising, any right hereunder or under
any Note shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on demand
all reasonable costs and expenses of the Agent in connection with the
preparation, execution, delivery, modification and amendment of this Agreement,
the Notes and the other documents to be delivered hereunder, including, without
limitation, the reasonable fees and expenses of counsel for the Agent with
respect thereto and with respect to advising the Agent as to its rights and
responsibilities under this Agreement. The Borrower further agrees to pay on
demand all costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable counsel fees and expenses), in connection with
the enforcement (whether through negotiations, legal proceedings or otherwise)
of this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Agent and each Lender in connection with the enforcement of rights under this
Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Agent and each
Lender and each of their Affiliates and their officers, directors, employees,
agents and advisors (each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of, or in connection with the preparation for
a defense of, any investigation, litigation or proceeding arising out of,
related to or in connection with the Notes, this Agreement, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Advances, whether or not such investigation, litigation or proceeding is
brought by the Borrower, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated, except to the extent such claim, damage, loss, liability or expense
is found in a final, nonappealable judgment by a court of competent jurisdiction
to have resulted from such Indemnified Party's gross negligence or willful
misconduct. The Borrower also agrees not to assert any claim against the Agent,
any Lender, any of their Affiliates, or any of their respective directors,
officers, employees, attorneys and agents, on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or otherwise
relating to the Notes, this Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Advances.
20
(c) If any prepayment is made by the Borrower pursuant to Section 2.08, the
Borrower shall, upon demand by the Initial Lender, pay to the Initial Lender the
amount required to compensate the Initial Lender for any loss of anticipated
profit, if any, incurred by reason of such prepayment equal to the difference
(but not less than $O) between (i) the present value of the aggregate amount of
interest payments that would have become due on the principal amount prepaid had
such amount not been prepaid and (ii) the present value of the rate of return
anticipated in respect of the reemployment or investment of the proceeds of such
principal amount prepaid for the period of equal to the period from the date of
such prepayment to the Repayment Date. The Initial Lender shall use good faith
in the reemployment or investment of the proceeds of such prepayment and the
determination of any amount payable by the Borrower under this Section 8.04(c).
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.09, 2.12 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Setoff. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
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 indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement and the Note held by such Lender, whether or not such Lender shall
have made any demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Borrower
after any such setoff and application, provided that the failure to give such
notice shall not affect the validity of such setoff and application. The rights
of each Lender and its Affiliates under this Section 8.05 are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) that such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective (other
than Section 2.01, which shall only become effective upon satisfaction of the
conditions precedent set forth in Section 3.01) when it shall have been executed
by the Borrower, the Agent and the Initial Lender and thereafter shall be
binding upon and inure to the benefit of the Borrower, the Agent and the Initial
Lender and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may assign to
one or more Persons all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Advance owing to it and the Note or Notes held by it); provided, however,
that (i) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement, (ii) except in
the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, (iii) each such assignment shall be to an Eligible Assignee, and (iv)
the parties to each such assignment shall execute and deliver to the Agent, for
its acceptance and recording in the Register, an Assignment and Acceptance,
together with any Note subject to such assignment. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (A) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (B) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
21
(b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in Section 8.02 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Advances owing to, each Lender from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the Agent
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the Agent
in exchange for the surrendered Note a new Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, a new Note to the order of the assigning Lender in an amount equal to
the Commitment retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of Exhibit A
hereto.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and the
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the 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 and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of this Agreement or any Note, or any consent to any
departure by the Borrower therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, in each case to the extent subject
to such participation, or postpone any date fixed for any payment of principal
of, or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
22
(f) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 8.07, disclose to
the assignee or participant or proposed assignee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information relating to the Borrower
received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and the Note held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
(h) In connection with the initial assignment or proposed initial
assignment by the Initial Lender pursuant to this Section 8.07, the Borrower
shall, upon the request of the Initial Lender, furnish to the Initial Lender a
favorable opinion of counsel for the Borrower acceptable to the Initial Lender,
in form and substance reasonably satisfactory to the Initial Lender.
SECTION 8.08. Confidentiality. Neither the Agent nor any Lender shall
disclose any Confidential Information to any Person without the consent of the
Borrower, other than (a) to the Agent's or such Lender's Affiliates and their
officers, directors, employees, agents and advisors and to actual or prospective
assignees and participants, and then, in each case, only on a confidential and
need-to-know basis, (b) as required by any law, rule or regulation or judicial
process and (c) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 8.10. Execution in Counterparts. This Agreement 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 to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto 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 Notes, 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 any 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 shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Agreement or
the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto 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 Notes 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
MEMC ELECTRONIC MATERIALS, INC., as Borrower
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx
Title: Treasurer
XXXX XX, as Agent
By: /s/ Heinz Willing
----------------------------
Heinz Willing
Title:
INITIAL LENDER
COMMITMENT
$75,000,000 XXXX XX
By: /s/ Heinz Willing
-----------------------------
Heinz Willing
Title:
