Exhibit 17
GUARANTY dated as of December 21, 2001 (this "Agreement" or the "TPG
Guaranty") between TPG PARTNERS III, L.P., a Delaware limited partnership (the
"Guarantor"), TPG GENPAR III, L.P., a Delaware limited partnership (the "General
Partner") and CITICORP USA, INC., as Administrative Agent under the Credit
Agreement referred to below (the "Administrative Agent").
MEMC Electronic Materials, Inc., a Delaware corporation (the
"Borrower"), certain lenders party thereto and the Administrative Agent are
parties to a Revolving Credit Agreement dated as of December 21, 2001 (as from
time to time modified or amended, the "Credit Agreement") providing, subject to
the terms and conditions thereof, for the making of loans by said lenders to the
Borrower in an aggregate principal amount at any one time outstanding up to an
aggregate principal amount at any one time outstanding of $150,000,000. To
induce said lenders to enter into the Credit Agreement and to extend credit
thereunder, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor has agreed, by its
execution and delivery hereof, to guarantee the credit so extended to the
Borrower to the extent of the TPG Percentage, as hereinafter defined.
Accordingly, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are used
herein as defined therein. In addition, the following terms shall have the
following meanings when used herein:
"Change in Control" shall mean (a) TPG GENPAR III, L.P. shall cease to
be the "General Partner" (as such term is defined in the TPG Partnership
Agreement) of TPG; (b) TPG shall cease to be a Fund Guarantor; (c) GEI
Capital III, LLC shall cease to be the "General Partner" (as such term is
defined in the GEI Partnership Agreement) of GEI or GEI Side; (d) Xxxxxxx
Xxxxx & Partners L.P. shall cease to be the "Management Company" (as such
term is defined in the GEI Partnership Agreement and GEI Side Partnership
Agreement); (e) TCW/Crescent Mezzanine III, LLC or any Affiliate thereof
shall cease to be the "General Partner" (as such term is defined in the TCW
Partnership Agreement) of TCW or cease to be the "Managing Owner" (as such
term is defined in the TCW Trust Agreement) of TCW Trust; or (g)
TCW/Crescent Mezzanine Management III, LLC or an Affiliate thereof shall
cease to be the "Investment Manager" (as such term is defined in the TCW
Partnership Agreement and the TCW Trust Agreement) of TCW or TCW Trust;
provided, however, that with respect to clauses (c) and (d) above, no
"Change in Control" shall be deemed to have occurred as a result of any
transaction or series of transactions, name change or changes or corporate
reorganization of any Person provided that after such event or events, a
majority of the voting interests of the "General Partner" of GEI or GEI
Side, as the case may be, continue to be held by the "Principals" (as
defined in the GEI and GEI Side Partnership Agreements) collectively.
"Guarantor Conditions" shall mean that:
(a) The Administrative Agent (or its counsel) shall have received
from each Guaranty Party either (i) a counterpart of the Guaranty
Document to which it is party duly executed by such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of the
Guaranty Document to which it is party) that such party has signed a
counterpart of such Guaranty Document;
(b) The Administrative Agent shall have received favorable
written opinions (addressed to the Administrative Agent and the
Lenders and dated the Effective Date) of (i) Xxxxxxxx, Xxxxxx &
Finger, P.A., special Delaware counsel to the Guaranty Parties party
to the GEI Guaranty, Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel to the
Guaranty Parties party to the GEI Guaranty, and Xxxxxx Xxxxx Xxxxxxxx
& Xxxxxxx LLP, special counsel to the Guaranty Parties party to the
GEI Guaranty, (ii) O'Melveny & Xxxxx LLP, special counsel to the
Guaranty Parties party to the TCW Guaranty, and Xxxxxx Xxxxx Xxxxxxxx
& Xxxxxxx LLP, special counsel to the Guaranty Parties party to the
TCW Guaranty and (iii) Morris, Nichols, Arsht & Xxxxxxx, special
Delaware counsel to the Guaranty Parties party to the TPG Guaranty,
and Cleary, Gottlieb, Xxxxx & Xxxxxxxx, special counsel to the
Guaranty Parties party to the TPG Guaranty, in each case in form and
substance reasonable acceptable to the Administrative Agent; and
(c) The Administrative Agent shall have received such documents
and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good
standing of each Guaranty Party, the authorization of the Guaranty
Documents and any other legal matters relating to the Guaranty
Parties, the Guaranty Documents or the transactions contemplated
thereby, all in form and substance satisfactory to the Administrative
Agent and its counsel.
"Guarantor Default" shall mean any of the following events:
(a) any representation or warranty made by or on behalf of any
Guaranty Party in any Guaranty Document or any amendment or
modification thereof or waiver thereunder, or in any certificate or
other document furnished pursuant to any Guaranty Document or any
amendment or modification thereof or waiver thereunder, shall prove to
have been incorrect in any material respect when made;
(b) any Guaranty Party shall fail to observe or perform any
covenant, condition or agreement applicable to such Guaranty Party
contained in Section 4(A)(1)(a), 4(A)(5)(iii), 4(A)(7), 4(A)(8),
4(B)(1)(a), 4(B)(2), 4(B)(3), 4(B)(4), 4(B)(5), 4(B)(6) or 4(B)(7) of
the Guaranty Documents;
(c) any Guaranty Party shall fail to observe or perform any
covenant, condition or agreement applicable to such Guaranty Party
contained in any Guaranty Document (other than those specified in
clause (a) or (b) of this Section), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the
Administrative Agent to such Guaranty Party (which notice will be
given at the request of any Lender);
(d) any Guaranty Party shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and
payable after giving effect to any applicable grace period with
respect thereto;
(e) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits the holder or holders of any Material Indebtedness
or any trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity,
provided that this clause (e) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;
(f) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of any Guaranty Party or its
debts, or of a substantial part of its assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect or (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for
any Guaranty Party or for a substantial part of its assets, and, in
any such case, such proceeding or petition shall continue undismissed
for 45 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(g) any Guaranty Party shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or
other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (f)
of this Section, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for any Guaranty Party or for a substantial part of its
assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for
the purpose of effecting any of the foregoing;
(h) any Guaranty Party shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;
(i) one or more judgments for the payment of money in an
aggregate amount in excess of $5,000,000 (net of amounts covered by
insurance as to which the insurer has admitted liability in writing)
shall be rendered against any Guaranty Party and the same shall remain
undischarged for a period of 60 consecutive days during which
execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to attach or levy upon any assets
of such Guaranty Party to enforce any such judgment; or
(j) a Change in Control shall occur.
"Guaranty Document" shall mean each of this Agreement and the Other
Guaranties.
"Guaranty Party" shall mean the Guarantor, each Other Guarantor and
each "General Partner" (as defined in each Guaranty).
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, properties, financial condition, contingent
liabilities or prospects of the Guarantor, (b) the ability of the Guarantor
to perform its obligations hereunder or (c) any rights of or benefits
available to the Administrative Agent or the Lenders hereunder.
"Material Indebtedness" means Indebtedness, or obligations in respect
of one or more Hedging Agreements, of any Guaranty Party party hereto in an
aggregate principal amount exceeding $5,000,000. For purposes of
determining Material Indebtedness, the "principal amount" of the
obligations of the Guaranty Parties in respect of any Hedging Agreement at
any time shall be the maximum aggregate amount (giving effect to any
netting agreements) that the Guaranty Parties would be required to pay if
such Hedging Agreement were terminated at such time.
"MEMC Acquisition" shall mean the acquisition by the Guarantor and the
Other Guarantors of a controlling equity interest in the Borrower.
"Other Guaranties" shall mean (i) the Guaranty dated as of the date
hereof between Green Equity Investors III, L.P., Green Equity Investors
Side III, L.P. and the Administrative Agent relating to the Credit
Agreement (the "GEI Guaranty") and (ii) the Guaranty dated as of the date
hereof between TCW/Crescent Mezzanine Partners III, L.P., TCW/Crescent
Mezzanine Trust III and the Administrative Agent relating to the Credit
Agreement (the "TCW Guaranty").
"Other Guarantors" shall mean (i) Green Equity Investors III, L.P.,
(ii) Green Equity Investors Side III, L.P. , (iii) TCW/Crescent Mezzanine
Partners III, L.P. and (iv) TCW/Crescent Mezzanine Trust III.
"Other Taxes" means any and all current or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made under this Agreement or from the
execution, delivery or enforcement of, or otherwise with respect to, this
Agreement.
"Partnership Agreement" shall mean the TPG Partners III, L.P.
Agreement of Limited Partnership dated as of December 15, 1999, as amended.
"Property" shall mean, with respect to any Person, any property or
assets, or interest therein, of such Person including aggregate Unused
Capital Commitments.
"Solvent" shall mean, with respect to any Person at any time, that (a)
the fair value of the Property of such Person is greater than the total
amount of liabilities (including without limitation contingent liabilities)
of such Person, (b) the present fair saleable value of the Property of such
Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as
such debts and liabilities mature, and (d) such Person is not engaged in a
business and is not about to engage in a business for which such Person's
property would constitute an unreasonably small capital.
"Surviving Representations" shall mean each of the representations and
warranties contained in Sections 3.01(1), 3.01(2), 3.01(3), 3.01(4),
3.01(6), 3.01(8), 3.01(9), 3.01(13), 3.02(1), 3.02(2), 3.02(3), 3.02(4),
3.02(5) and 3.02(6) hereof.
"TPG Percentage" shall mean 60% as may be modified from time to time
pursuant to the terms hereof.
The terms "Bridge Financing", "Capital Commitment", "Capital Contribution",
"Commitment Period", "Defaulting Partner", "Dissolution Trigger Event",
"Investments", "Limited Partner", "Portfolio Company", "Termination Trigger
Event" and "Unused Capital Commitment" shall have the respective meanings
assigned thereto in the Partnership Agreement.
Section 2. The Guaranty.
2.01 The Guaranty.
(a) Subject to Section 2.05, the Guarantor hereby guarantees to the
Lenders and the Administrative Agent the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the TPG Percentage
of the principal of and interest on the Loans and the TPG Percentage of all
other amounts whatsoever now or hereafter payable or becoming payable to the
Lenders and the Administrative Agent by the Borrower under the Credit Agreement
(such obligations being herein collectively called the "Guaranteed
Obligations"). The Guarantor hereby further agrees that if the Borrower shall
fail to pay in full when due (whether at stated maturity, by acceleration or
otherwise) any of the Guaranteed Obligations, the Guarantor will promptly pay
the TPG Percentage of the same in full when due, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal
of any of the Guaranteed Obligations, the TPG Percentage thereof will be
promptly paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
(b) This Agreement is a continuing guaranty and is a guaranty of
payment and is not merely a guaranty of collection.
(c) The obligations of the Guarantor hereunder and of the Other
Guarantors under the Other Guaranties shall be several and not joint, and the
Guarantor's obligations hereunder shall be limited to the TPG Percentage of the
Guaranteed Obligations.
(d) In the event that there is a Guarantor Default by any Other
Guarantor (any such Guarantor, a "Defaulting Guarantor"), prior to the exercise
of any remedies under or in respect of the Other Guaranty of such Other
Guarantor by the Administrative Agent, the Guarantor shall have the right to,
within 10 Business Days of notice from the Administrative Agent of the
occurrence of such Guarantor Default, assume, on the terms and conditions
herein, the obligations of the Defaulting Guarantor under its Other Guaranty. If
the Guarantor elects to assume such obligations, the Guarantor shall promptly so
notify the Administrative Agent in writing. Such assumption shall become
effective upon the delivery by the Guarantor to the Administrative Agent of such
instruments and documents (including without limitation such legal opinions and
amendments hereto and any related documents as may reasonably be requested by
the Administrative Agent) in form and substance reasonably satisfactory to the
Administrative Agent and the Guarantor as may be required to transfer to the
Guarantor the obligations of the Defaulting Guarantor under the GEI Guaranty or
the TCW Guaranty, as applicable. Upon the effectiveness of such assumption, no
Guarantor Default shall have been deemed to have occurred. Thereafter, the Other
Guaranty (or portion thereof so assumed by the Guarantor) given by the
Defaulting Guarantor shall no longer have any force or effect with respect to
such Defaulting Guarantor and such Defaulting Guarantor shall be relieved of all
of its obligations and duties under such Other Guaranty (or portion thereof so
assumed by the Guarantor).
(e) The Guarantor may elect to assume, at any time, on the terms and
conditions herein, any part or all of the obligations of any Other Guarantor
under its Other Guaranty. If the Guarantor elects to assume such obligations,
the Guarantor shall so notify the Administrative Agent in writing. Such
assumption shall become effective upon delivery to the Administrative Agent by
such Other Guarantor and the Guarantor of such instruments and documents
(including without limitation such legal opinions and amendment hereto and any
related documents as may reasonably be requested by the Administrative Agent) in
form and substance reasonably satisfactory to the Administrative Agent and the
Guarantor as may be required to transfer to the Guarantor such part or all of
the obligations of such Other Guarantor under the GEI Guaranty or the TCW
Guaranty, as applicable. Thereafter, the Other Guaranty (or portion thereof so
assumed by the Guarantor) given by the Other Guarantor shall no longer have any
force or effect with respect to such Other Guarantor and such Other Guarantor
shall be relieved of all of its obligations and duties under such Other Guaranty
(or portion thereof so assumed by the Guarantor).
(f) Anything to the contrary in this Agreement notwithstanding, the
obligations of the Guarantor hereunder shall terminate on the date two years
after the date hereof (without prejudice to any obligations of the Guarantor
with respect to any amount claimed hereunder prior to said date).
(g) The Administrative Agent agrees that (i) if it makes any demand for
payment under this Agreement in respect of any of the Guaranteed Obligations it
will contemporaneously make demands for payment in respect thereof under the
Other Guaranties, on a pro rata basis, and (ii) the Administrative Agent will
treat the Guarantor, to the extent practicable, no less favorably than it treats
each Other Guarantor, subject however to the right of the Administrative Agent
and the Lenders to take such actions as they may reasonably determine to be
necessary from time to time to protect the rights and remedies of the
Administrative Agent and the Lenders in the good faith exercise of their
respective credit judgments.
2.02 Acknowledgments, Waivers and Consents. The Guarantor agrees that
the obligations of the Guarantor under Section 2.01 hereof shall, to the fullest
extent permitted by applicable law, be absolute, irrevocable and unconditional
under any and all circumstances. Without limiting the foregoing, the Guarantor
agrees that, subject to Section 2.01(g):
(a) The occurrence of any one or more of the following shall not affect
the enforceability or effectiveness of this Agreement in accordance with its
terms or affect, limit, reduce, discharge or terminate the liability of the
Guarantor, or the rights, remedies, powers and privileges of the Administrative
Agent or any Lender under this Agreement:
(i) any modification or amendment (including without limitation by way
of amendment, extension, renewal or waiver), or any acceleration or other
change in the time for payment or performance of the terms of all or any
part of the Guaranteed Obligations or the Credit Agreement, or any other
agreement or instrument whatsoever relating thereto, or any modification of
the Commitments;
(ii) any release, termination, waiver, abandonment, lapse or
expiration, subordination or enforcement of the liability of the Guarantor
under this Agreement or of either of the Other Guaranties or any other
guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other guarantee to all or
any part of the Guaranteed Obligations in any such manner and to such
extent as the Administrative Agent may determine;
(iv) any release of any Other Guarantor or any other Person (including
without limitation any other guarantor with respect to all or any part of
the Guaranteed Obligations) in whole or in part from any personal liability
with respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or enforcement,
upon such terms and in such manner as the Administrative Agent may
determine or as applicable law may dictate, of all or any part of the
Guaranteed Obligations or either of the Other Guaranties or any other
guarantee of all or any part of the Guaranteed Obligations;
(vi) the giving of any consent to the merger or consolidation of, the
sale of substantial assets by, or other restructuring or termination of the
corporate existence of the Borrower or any other Person;
(vii) any proceeding against the Borrower or the Guarantor or any
Other Guarantor or any other guarantor of all or any part of the Guaranteed
Obligations or any collateral provided by any other Person or the exercise
of any rights, remedies, powers and privileges of the Administrative Agent
and the Lenders under the Credit Agreement or otherwise in such order and
such manner as the Administrative Agent may determine, regardless of
whether the Administrative Agent or the Lenders shall have proceeded
against or exhausted any collateral, right, remedy, power or privilege
before proceeding to call upon or otherwise enforce this Agreement or any
Other Guaranty;
(viii) the entering into such other transactions or business dealings
with the Borrower, any subsidiary or Affiliate of the Borrower or any Other
Guarantor or any other guarantor of all or any part of the Guaranteed
Obligations as the Administrative Agent or any Lender may desire; or
(ix) all or any combination of any of the actions set forth in this
Section 2.02(a).
(b) The enforceability and effectiveness of this Agreement and the
liability of the Guarantor, and the rights, remedies, powers and privileges of
the Administrative Agent and the Lenders under this Agreement shall not be
affected, limited, reduced, discharged or terminated, and the Guarantor hereby
expressly waives to the fullest extent permitted by law any defense now or in
the future arising, by reason of:
(i) the illegality, invalidity or unenforceability of all or any
part of the Guaranteed Obligations, the Credit Agreement or any other
agreement or instrument whatsoever relating to all or any part of the
Guaranteed Obligations;
(ii) any disability or other defense with respect to all or any
part of the Guaranteed Obligations, including the effect of any
statute of limitations that may bar the enforcement of all or any part
of the Guaranteed Obligations or the obligations of any such other
guarantor;
(iii) the illegality, invalidity or unenforceability of any Other
Guaranty or any security for or other guarantee of all or any part of
the Guaranteed Obligations or the lack of perfection or continuing
perfection or failure of the priority of any Lien on any collateral
for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the liability of
the Borrower or any Other Guaranty or any other guarantor with respect
to all or any part of the Guaranteed Obligations (other than, subject
to Section 2.03 hereof, by reason of the full payment of all
Guaranteed Obligations);
(v) any failure of the Administrative Agent or any Lender to
marshal assets in favor of the Borrower or any other Person (including
any Other Guarantor or any other guarantor of all or any part of the
Guaranteed Obligations), to exhaust any collateral for all or any part
of the Guaranteed Obligations, to pursue or exhaust any right, remedy,
power or privilege it may have against the Borrower or any other
guarantor of all or any Other Guarantor or any part of the Guaranteed
Obligations or any other Person or to take any action whatsoever to
mitigate or reduce such or any other Person's liability under the
Credit Agreement, the Administrative Agent and the Lenders being under
no obligation to take any such action notwithstanding the fact that
all or any part of the Guaranteed Obligations may be due and payable
and that the Borrower may be in default of its obligations under the
Credit Agreement;
(vi) any counterclaim, set-off or other claim which the Borrower
or any Other Guarantor or any other guarantor of all or any part of
the Guaranteed Obligations has or claims with respect to all or any
part of the Guaranteed Obligations;
(vii) any failure of the Administrative Agent or any Lender or
any other Person to file or enforce a claim in any bankruptcy or other
proceeding with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization, winding-up or
adjustment of debts, or appointment of a custodian, liquidator or the
like of it, or similar proceedings commenced by or against any Person,
including any discharge of, or bar or stay against collecting, all or
any part of the Guaranteed Obligations (or any interest on all or any
part of the Guaranteed Obligations) in or as a result of any such
proceeding;
(ix) any action taken by the Administrative Agent or any Lender
that is authorized by this Section 2.02 or otherwise in this Agreement
or by any provision of the Credit Agreement or any omission to take
any such action; or
(x) to the fullest extent permitted by applicable law, any other
circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor.
(c) To the fullest extent permitted by law, the Guarantor expressly
waives, for the benefit of the Administrative Agent and the Lenders, all
set-offs and counterclaims and all diligence, presentment, demand for payment or
performance, notices of nonpayment or nonperformance, protest, notices of
protest, notices of dishonor and all other notices or demands of any kind or
nature whatsoever, and any requirement that the Administrative Agent or any
Lender exhaust any right, power or remedy or proceed against the Borrower under
the Credit Agreement or any Other Guaranty or any or other agreement or
instrument referred to herein or therein, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations, and all
notices of acceptance of this Agreement or of the existence, creation,
incurrence or assumption of new or additional Guaranteed Obligations.
(d) The Guarantor further waives, to the fullest extent permitted by
law, any right to which it may be entitled, including, without limitation:
(i) that the assets of the Borrower or any Other Guarantor first
be used, depleted and/or applied in satisfaction of the Borrower's
obligations under the Credit Agreement prior to any amounts being
claimed from or paid by the Guarantor;
(ii) to require that the Borrower be sued and all claims against
the Borrower be completed prior to an action or proceeding being
initiated against the Guarantor or any Other Guarantor; and
(iii) to have its obligations hereunder be divided among the
Guarantor and the Other Guarantors, such that the Guarantor's
obligation would be less than the full amount claimed.
2.03 Reinstatement. The obligations of the Guarantor under this Section
2 shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of the Borrower in respect of the Guaranteed Obligations
is rescinded or must otherwise be restored by any holder of any of the
Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and the Guarantor agrees that it will indemnify the
Administrative Agent and the Lenders on demand for all costs and expenses
(including, without limitation, reasonable fees and costs of counsel, but
without duplication of the obligations of the Borrower under the Credit
Agreement) incurred by them in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or the
like under any bankruptcy, insolvency or similar law.
2.04 Remedies. The Guarantor agrees that, as between the Guarantor and
the Administrative Agent and the Lenders and subject to Section 5 hereof, the
obligations of the Borrower under the Credit Agreement may be declared to be
forthwith due and payable as provided in Article VII of the Credit Agreement
(and shall be deemed to have become automatically due and payable in the
circumstances provided in said Article VII) for purposes of Section 2.01 hereof,
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Borrower.
2.05 Payments. Each payment by or on account of any obligation of the
Guarantor under this Agreement shall be made on or before the date fifteen (15)
Business Days after the date the Administrative Agent shall have demanded such
payment in writing hereunder, and all such payments shall be made in United
States dollars, without deduction, withholding, set-off or counterclaim at the
place specified in the Credit Agreement and free and clear of and without
deduction for any Indemnified Taxes or Other Taxes.
Section 3. Representations and Warranties.
3.01 Guarantor. The Guarantor represents and warrants to the
Administrative Agent and the Lenders that:
(1) Organization; Power and Authority. The Guarantor (i) is duly
organized, validly existing and in good standing as a limited partnership under
the laws of the State of Delaware, (ii) has all requisite limited partnership
power, and all material governmental licenses, authorizations, consents and
approvals, necessary to own its property and carry on its business as now being
conducted, (iii) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify could not (either
individually or in the aggregate) reasonably be expected to have a Material
Adverse Effect, and (iv) has full power, authority and legal right to make and
perform this Agreement.
(2) Due Authorization, Legality, Etc. The making and performance by the
Guarantor of this Agreement are within the purpose of the Guarantor as set forth
in Section 2.04 of the Partnership Agreement and have been duly authorized by
all necessary partnership action on the part of the Guarantor, and do not and
will not contravene (i) the Partnership Agreement, (ii) any applicable law,
decree, regulation, judgment, award, injunction or similar legal restriction, as
now in effect, or (iii) any agreement, instrument or contractual restriction
binding on the Guarantor.
(3) No Additional Authorization Required. No license, consent,
authorization or approval or other action by, or notice to or registration or
filing with, any Governmental Authority, and no other third-party consent or
approval, is necessary for the due execution, delivery and performance by the
Guarantor of this Agreement, or for the legality, validity or enforceability of
this Agreement, except such as have heretofore been given or made.
(4) Legal Effect. This Agreement has been duly executed and delivered
by the Guarantor and is the legal, valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its terms except
(i) as may be limited by bankruptcy, insolvency or other laws affecting the
enforcement of creditors' rights generally and (ii) as rights may be limited by
equitable principles of general applicability.
(5) Financial Statements; Material Adverse Effect. The Guarantor has
heretofore furnished to the Administrative Agent the following financial
statements:
(i) the audited financial statements of the Guarantor as at
December 31, 2000 for the fiscal year ending on such date; and
(ii) the unaudited financial statements of the Guarantor as at
September 30, 2001 for the fiscal quarter ending on such date.
All such financial statements fairly present the financial condition of the
Guarantor as at such dates and the results of their operations for the fiscal
year and fiscal quarter ending on such dates (subject, in the case of such
financial statements as at September 30, 2001, to normal year-end audit
adjustments), all in accordance with GAAP. Since December 31, 2000, no event or
circumstance has occurred that has had any of the effects specified in clauses
(b) or (c) of the definition of Material Adverse Effect. On the date hereof, the
Guarantor is Solvent.
(6) Ranking. The payment obligations of the Guarantor hereunder are
unconditional and unsubordinated general obligations of the Guarantor, and rank
and will at all times rank at least pari passu in priority of payment with all
other present and future unsecured unsubordinated Indebtedness of the Guarantor.
(7) No Actions or Proceedings. There are no legal or arbitral
proceedings, or proceedings by or before any Governmental Authority, now pending
or (to the knowledge of the Guarantor) threatened against the Guarantor that
(either individually or in the aggregate) (a) could reasonably be expected to
have a Material Adverse Effect or (b) purport to affect the legality, validity
or enforceability of this Agreement or any of the Loan Documents.
(8) Taxes. The Guarantor have filed all tax returns required to be
filed and paid all taxes shown to be due thereon except such as are being
contested in good faith by appropriate proceedings and for which adequate
reserves have been made in accordance with GAAP.
(9) Investment Company Act. The Guarantor is not required to register
as an "investment company" under the Investment Company Act of 1940, as amended.
(10) VCOC. As of the date hereof, the Guarantor is a "venture capital
operating company" within the meaning of ERISA.
(11) Portfolio Company. The Borrower is a Portfolio Company as defined
in the Partnership Agreement.
(12) Existing Indebtedness. The aggregate amount of all loans to the
Borrower guaranteed by the Guarantor when added to the aggregate outstanding
principal amount of any Bridge Financing by the Guarantor to the Borrower and
the aggregate amount of all permanent investments by the Guarantor in the
Borrower does not as of the date hereof exceed an amount equal to 20% of the
aggregate Capital Commitments, and the aggregate amount of all such loans
guaranteed by the Guarantor, when added to the aggregate principal amount of all
other loans as to which the Guarantor acts as guarantor or surety as of the date
hereof, does not exceed an amount equal to 15% of the aggregate Capital
Commitments.
(13) MEMC Acquisition. As of the date thereof, the MEMC Acquisition
complied with the limits set forth in Section 3.03(f) of the Partnership
Agreement.
(14) Limited Partners. Schedule 1 attached hereto sets forth a complete
list of all Limited Partners as of the date hereof. As of the date hereof, (a)
no Limited Partner is a Defaulting Partner and (b) no Limited Partner has been
excused from making Capital Contributions in respect of the Guarantor's
investments in or obligations relating to the Borrower pursuant to Section 3.05
or 5.02 of the Partnership Agreement or otherwise.
(15) Termination/Dissolution Trigger Events. No Termination Trigger
Event or Dissolution Trigger Event has occurred.
3.02 General Partner. The General Partner represents and warrants to
the Administrative Agent and the Lenders that:
(1) Organization, Power and Authority. The General Partner (a) is duly
organized, validly existing and in good standing as a limited partnership under
the laws of the State of Delaware, (b) has all requisite limited partnership
power, and all material governmental licenses, authorizations, consents and
approvals, necessary to own its property and carry on its business as now being
conducted, (c) is qualified to do business in all jurisdictions in which the
nature of the business conducted by it makes such qualification necessary and
where failure so to qualify could not (either individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect, and (d) has full
power, authority and legal right to make and perform this Agreement.
(2) Due Authorization, Legality, Etc. The making and performance by the
General Partner of this Agreement have been duly authorized by all necessary
partnership action on the part of the General Partner and do not and will not
contravene (a) the partnership agreement of the General Partner, (b) any
applicable law, decree, regulation, judgment, award, injunction or similar legal
restriction, as now in effect, or (c) any agreement, instrument or contractual
restriction binding on the General Partner.
(3) No Additional Authorization Required. No license, consent,
authorization or approval or other action by, or notice to or registration or
filing with, any Governmental Authority, and no other third-party consent or
approval, is necessary for the due execution, delivery and performance by the
General Partner of this Agreement, or for the legality, validity or
enforceability of this Agreement, except such as have heretofore been given or
made.
(4) Legal Effect. This Agreement has been duly executed and delivered
by the General Partner and is the legal, valid and binding obligation of the
General Partner, enforceable against the General Partner in accordance with its
terms except (a) as may be limited by bankruptcy, insolvency or other laws
affecting the enforcement of creditors' rights generally and (b) as rights may
be limited by equitable principles of general applicability.
(5) Right to give Capital Call Notices, Etc. The General Partner has
the right under Section 3.03 of the Partnership Agreement to give notices to the
Limited Partners requiring them to make cash contributions to the Guarantor in
order to pay the obligations of the Guarantor under this Agreement, and as of
the date hereof, the Commitment Period has not expired or been terminated.
Without limiting the foregoing, the General Partner will be entitled to make
capital calls on the Limited Partners in connection with amounts payable under
this Agreement notwithstanding the occurrence of the expiry or termination of
the Commitment Period.
(6) Investment Company Act. The General Partner is not required to
register as an "investment company" under the Investment Company Act of 1940, as
amended.
(7) Fund Representations. Each of the representations and warranties of
the Guarantor in Section 3.01 hereof is, to the best knowledge of the General
Partner, true.
Section 4. Covenants of Guarantor and General Partner.
A. Guarantor. The Guarantor covenants and agrees with the Lenders and
the Administrative Agent that, so long as any Commitment or Loan is outstanding
and until payment in full of the obligations of the Guarantor hereunder:
(1) Existence, Etc. The Guarantor will (a) preserve and maintain its
legal existence and (b) preserve and maintain all of its material rights,
privileges, licenses and franchises, except, in the case of clause (b) only, to
the extent failure to do so could not reasonably be expected to have a Material
Adverse Effect.
(2) Inspection of Property, Books and Records. The Guarantor will,
subject to reasonable confidentiality requirements, (a) maintain appropriate
books and records in which full, true and correct entries shall be made of
dealings and transactions in relation to its business and activities and (b)
permit the Administrative Agent, during normal business hours and as often as
may be desired at their own cost and expense (provided, that if a Default has
occurred and is continuing the Guarantor shall indemnify the Administrative
Agent for such costs and expenses) to examine, copy and make extracts from its
books and records, to inspect any of its property, and to discuss its business
and affairs with its officers.
(3) Compliance with Law. The Guarantor will comply in all respects with
the requirements of all applicable laws, rules, regulations and orders of
Governmental Authorities (including without limitation ERISA and Environmental
Laws) except where failure to comply could not reasonably be expected to have a
Material Adverse Effect or where the necessity of compliance therewith is being
contested in good faith by appropriate proceedings.
(4) Payment of Obligations. The Guarantor will (a) pay and discharge at
or before maturity all of its material obligations and liabilities (including,
without limitation, claims of materialmen, warehousemen and the like which if
unpaid might by law give rise to a Lien) and (b) pay and discharge all taxes,
assessments and governmental charges or levies imposed on it or on its income or
profits or on any of its property prior to the date on which penalties attach
thereto, except for any such obligations, liabilities, tax, assessment, charge
or levy the payment of which is being contested in good faith and by proper
proceedings and against which adequate reserves are being maintained in
accordance with GAAP and where the failure to pay or discharge such obligation,
liability, tax, assessment, charge or levy could not reasonably be expected to
have a Material Adverse Effect.
(5) Reporting Requirements. The Guarantor will provide to the
Administrative Agent:
(i) as soon as available and in any event within 45 days after the end
of each quarter of each fiscal year of the Guarantor, one copy for each Lender
of an unaudited balance sheet of the Guarantor as at the end of each such fiscal
quarter and the related statements of income and retained earnings of the
Guarantor for such quarter and for the portion of the fiscal year ended at the
end of such quarter;
(ii) as soon as available and in any event within 120 days after the
end of each year of the Guarantor, one copy for each Lender of an audited
balance sheet of the Guarantor as at the end of each such fiscal year and the
related statements of income and retained earnings of the Guarantor for such
fiscal year, accompanied by an unqualified opinion of independent certified
public accountants of recognized national standing acceptable to the Lenders,
which opinion shall state that the financial statements fairly present the
financial condition and results of operations for the Guarantor as at the end of
and for such fiscal year in accordance with GAAP;
(iii) promptly upon the commencement of, or any material adverse
development in, any litigation or proceeding against the Guarantor that could
reasonably be expected to have a Material Adverse Effect, notice thereof with a
description thereof in reasonable detail;
(iv) promptly after it is notified thereof, notice of any change in the
list of Limited Partners; and
(v) from time to time and, if no Guarantor Default shall have occurred
and be continuing, with reasonable prior notice given by the Administrative
Agent, such additional information regarding the financial position or business
of the Guarantor as the Administrative Agent or any Lender through the
Administrative Agent may reasonably request.
(6) Ranking. The Guarantor will promptly take all actions as may be
reasonably necessary to ensure that the payment obligations of the Guarantor
under this Agreement will at all times constitute unconditional and
unsubordinated general obligations of the Guarantor ranking at least pari passu
in priority of payment with all other present and future unsecured
unsubordinated Indebtedness of the Guarantor.
(7) Merger, Etc. The Guarantor will not enter into any transaction of
merger or consolidation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution).
(8) Compliance with the Partnership Agreement. The Guarantor shall
comply in all material respects with its obligations under the Partnership
Agreement.
B. General Partner. The General Partner covenants and agrees with the
Lenders and the Administrative Agent that, so long as any Commitment or Loan is
outstanding and until payment in full of the obligations of the Guarantor
hereunder:
(1) Existence, Etc. The General Partner will (a) preserve and maintain
its legal existence and (b) preserve and maintain all of its material rights,
privileges, licenses and franchises, except, in the case of clause (b) only, to
the extent failure to do so could not reasonably be expected to have a Material
Adverse Effect.
(2) Merger, Etc. The General Partner will not enter into any
transaction of merger or consolidation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution).
(3) Availability. The General Partner shall assure that there
shall at all times be Unused Capital Commitments in an aggregate amount
sufficient to assure that the Guarantor can perform its obligations hereunder.
(4) Notices Under the Partnership Agreement. The General Partner shall
promptly give such notices to the Limited Partners under Section 3.03 of the
Partnership Agreement, and under each other provision of the Partnership
Agreement, to the extent required to assure it is able to make capital calls on
the Limited Partners thereunder in such amounts and at such times as may be
required to enable the Guarantor timely to perform its obligations hereunder.
(5) VCOC. The General Partner will use its reasonable best efforts to
conduct the affairs of the Guarantor so that the Guarantor is at all relevant
times a "venture capital operating company" within the meaning of ERISA.
(6) Amendments to the Partnership Agreement. The General Partner will
not permit the Partnership Agreement to be amended or modified in any manner
that has or could reasonably be expected to have a material adverse effect on
the rights and remedies of the Administrative Agent or any Lender hereunder.
(7) Notice of Material Events. The General Partner will give to the
Administrative Agent prompt notice if any Limited Partner becomes a Defaulting
Partner, or is excused from making Capital Contributions with respect to this
Agreement pursuant to any provision of the Partnership Agreement, of the
occurrence of any Termination Trigger Event or Dissolution Trigger Event, and of
any event or condition that constitutes a Guarantor Default or that upon notice,
lapse or both would, unless cured or waived, become a Guarantor Default.
Section 5. Agreements by Administrative Agent. Notwithstanding anything
to the contrary in the Credit Agreement or any other Loan Document, the
Administrative Agent agrees, on behalf of itself and the Banks, with the
Guarantor and the General Partner that, until payment in full of the obligations
of the Guarantor hereunder:
(1) it will not amend any of the Loan Documents without the
prior written consent of the Guarantor;
(2) it will not accelerate the maturity of the Loans without the
prior written approval of the Guarantor, provided, that this
clause (2) shall not apply while a Guarantor Default has
occurred and is continuing;
(3) if so instructed by the Guarantor while an Event of Default
has occurred and is continuing it will accelerate the
maturity of the Loans, provided, that nothing in this clause
(3) shall require the Administrative Agent to take any
action that in good faith it considers to be contrary to the
terms of the Loan Documents or applicable law;
(4) it will not (i) institute any legal proceedings against the
Borrower or any Subsidiary Loan Party or (ii) take any
action to enforce any security interest or lien granted to
the Administrative Agent pursuant to the Loan Documents,
without, in each case, the prior written approval of the
Guarantor (and shall in any event have no obligation to
institute or prosecute any such proceedings), provided, that
this clause (4) shall not apply while a Guarantor Default
has occurred and is continuing;
(5) it will not grant a waiver of any of its or the Lenders'
rights or remedies under the Loan Documents without the
prior written approval of the Guarantor;
(6) it will promptly forward to the Guarantor a copy of each
notice, filing and other document received by it from, or
delivered by it to, the Borrower under the Loan Documents,
including without limitation each borrowing request
thereunder, and will promptly from time to time confirm to
the Guarantor, upon its request, the amounts outstanding
under the Loan Documents, and the amount paid thereon, and
such other matters relating to the Borrower's performance of
its obligations under the Loan Documents as the Guarantor
may reasonably request or as the Administrative Agent in its
sole discretion may consider appropriate to deliver to the
Guarantor;
(7) upon the instruction of the Guarantor, it will issue the
notice referred to in the introduction to Section 4.01 of
the Credit Agreement subject to the satisfaction of the
Administrative Agent with the sufficiency of the documents
furnished pursuant to Section 4.01(c) of the Credit
Agreement;
(8) if instructed by the Guarantor, it will instruct the Lenders
not to make additional Loans to the Borrower; and
(9) without limiting the foregoing, if no Guarantor Default has
occurred and is continuing and until payment in full of the
Guaranteed Obligations, it will take such reasonable actions
contemplated by the Loan Documents as the Guarantor may
reasonably request (including without limitation the
granting of waivers and the release of collateral and the
taking of remedial actions in the case of an Event of
Default);
provided that except with respect to Section 2.08(d) of the Credit Agreement,
the Administrative Agent shall have no obligation under this Section 5 to take
any action, without the written consent of the Lenders or the Required Lenders
as contemplated by the Credit Agreement, which (i) increases the Commitment of
any Lender, (ii) reduces the principal amount of any Loan or reduces the rate of
interest thereon, or reduces any fees payable under any Loan Document, (iii)
postpones the maturity of any Loan, or any date for the payment of any interest
or fees payable under any Loan Document, or reduces the amount of, waives or
excuses any such scheduled payment, or postpones the scheduled date of
expiration of any Commitment, (iv) changes or waives compliance with any of
Article II, Section 4.01(c), Section 4.02(d), clause (p) of Article VII, Article
VIII or Section 9.03 of the Credit Agreement, or (v) changes or waives any
indemnification obligations in favor of the Agents or the Lenders set forth in
any of the Loan Documents; provided further that nothing herein or in any other
Loan Document shall require the Administrative Agent to take any action that in
the reasonable opinion of the Administrative Agent would be contrary to the
terms of the Loan Documents or applicable law or subject the Administrative
Agent to personal liability; provided further that the Administrative Agent
shall in all cases be fully justified in failing or refusing to act under the
Loan Documents unless it shall receive further assurances to its reasonable
satisfaction of any applicable indemnification obligations under the Loan
Documents in respect of such action.
Section 6. Miscellaneous.
6.01 Waiver. No failure on the part of the Administrative Agent or any
Lender to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. The remedies provided
herein are cumulative and not exclusive of any remedies provided by law.
6.02 Notices. All notices, requests and other communications provided
for herein (including, without limitation, any modifications of, or waivers,
requests or consents under, this Agreement) shall be given or made in writing
delivered to the intended recipient at (i) in the case of the Administrative
Agent, as specified in Section 9.01 of the Credit Agreement and (ii) in the case
of the Guarantor and the General Partner, the "Address for Notices" specified
below its name on the signature pages hereof or, as to any party, at such other
address as shall be designated by such party in a notice to each other party.
Except as otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when personally delivered or, in the case of a
telecopy, emailed or mailed notice, upon receipt, in each case given or
addressed as aforesaid.
6.03 Expenses, Etc. The Guarantor agrees to pay or reimburse the
Administrative Agent and each of the Lenders for all of their reasonable
out-of-pocket costs and expenses (including, without limitation, the reasonable
fees and expenses of legal counsel) in connection with any enforcement or
collection proceedings resulting from the occurrence of an Event of Default.
6.04 Amendments, Etc. Except as otherwise expressly provided in this
Agreement, any provision of this Agreement may be modified or supplemented only
by an instrument in writing signed by the Guarantor, the General Partner and the
Administrative Agent. Any such amendment or waiver shall be binding upon the
Administrative Agent, the Lenders, each holder of any of the Guaranteed
Obligations, the Guarantor and the General Partner. This Agreement constitutes
the entire agreement of the parties with respect to the subject matter hereof.
Except as otherwise expressly provided herein, the Administrative Agent will not
release the Guarantor from its obligations hereunder, or limit its liability
hereunder, without the written consent of each Lender.
6.05 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and each holder of any of the
Guaranteed Obligations and their respective successors and assigns; provided
that neither the Guarantor nor the General Partner may assign any of its rights
or obligations under this Agreement without the prior written consent of the
Administrative Agent.
6.06 Captions. The captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
6.07 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
6.08 Governing Law. This Agreement shall be governed by and construed
in accordance with the law of the State of New York.
6.09 Jurisdiction, Service of Process and Venue.
(a) Each of the Guarantor and the General Partner hereby agrees that
any suit, action or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby or any judgment entered by any court in
respect thereof may be brought in the United States District Court for the
Southern District of New York or in any New York State Court sitting in the
Borough of Manhattan, New York, or, in the case of an action brought against
such party, in the courts of its own corporate domicile, and hereby irrevocably
submit to the jurisdiction of each such court for the purpose of any such suit,
action, proceeding or judgment; provided, that nothing herein shall prevent the
Administrative Agent or any Lender from enforcing any judgment obtained in any
such court by proceedings in any jurisdiction whatsoever.
(b) Each of the Guarantor and the General Partner hereby irrevocably
appoints CT Corporation System in New York, New York (the "Process Agent"), with
an office on the date hereof at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, as its agent and true and lawful attorney-in-fact in its name, place
and stead to accept on behalf of the Guarantor and the General Partner and its
property, service of copies of the summons and complaint and any other process
which may be served in any such suit, action or proceeding brought in the State
of New York, and each of the Guarantor and the General Partner agrees that the
failure of the Process Agent to give any notice of any such service of process
to the Guarantor or the General Partner shall not impair or affect the validity
of such service or, to the extent permitted by applicable law, the enforcement
of any judgment based thereon. Such appointment shall be irrevocable as long as
the Loans are outstanding, except that if for any reason the Process Agent
appointed hereby ceases to act as such, the Guarantor and the General Partner
will, by an instrument reasonably satisfactory to the Administrative Agent,
appoint another Person in the Borough of Manhattan as such Process Agent subject
to the approval of the Administrative Agent. Each of the Guarantor and the
General Partner hereby further irrevocably consents to the service of process in
any suit, action or proceeding in said courts by the mailing thereof by the
Administrative Agent or any Lender by registered or certified mail, postage
prepaid, at its address set forth beneath its signature hereto. Each of the
Guarantor and the General Partner covenants and agrees that it shall take any
and all action, including the execution and filing of any and all documents,
that may be necessary to continue the designation of a Process Agent pursuant to
this Section 6.09 in full force and effect and to cause the Process Agent to act
as such.
(c) Nothing herein shall in any way be deemed to limit the ability of
the Administrative Agent or any Lender to serve any such process or summonses in
any other manner permitted by applicable law, or to obtain jurisdiction over the
Guarantor and the General Partner in such other jurisdictions, and in such
manner, as may be permitted by applicable law.
(d) Each of the Guarantor and the General Partner hereby irrevocably
waives, to the extent permitted by applicable law, any objection that it may now
or hereafter have to the laying of the venue of any suit, action or proceeding
arising out of or relating to this Agreement brought in the United States
District Court for the Southern District of New York or any New York State Court
sitting in the Borough of Manhattan, New York and hereby further irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum and any right to which it may be
entitled on account of place of residence or domicile. A final judgment (in
respect of which time for all appeals has elapsed) in any such suit, action or
proceeding shall be conclusive and may be enforced in any court to the
jurisdiction of which the Guarantor or the General Partner is or may be subject,
by suit upon judgment.
6.10 Waiver of Jury Trial. EACH OF THE GUARANTOR, THE GENERAL PARTNER
AND THE ADMINISTRATIVE AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
6.11 Severability. In case any provision in this Agreement shall be
held to be invalid, illegal or unenforceable, such provision shall be severable
from the rest of this Agreement, and the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
6.12 Set-Off. Without limiting any of the obligations of the Guarantor
or the rights of the Administrative Agent or the Lenders hereunder, if the
Guarantor shall fail to pay when due (whether at stated maturity, by
acceleration or otherwise) any amount payable by it hereunder, each Lender is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, without prior notice to the Guarantor (which notice is
expressly waived by the Guarantor to the fullest extent permitted by applicable
law), to set off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final, in any
currency, matured or unmatured) of the Guarantor held by such Lender or any
subsidiary, affiliate, branch or agency thereof. Such Lender shall promptly
provide notice to the Guarantor of such set-off; provided, that failure by such
Lender to provide such notice to the Guarantor shall not give the Guarantor any
cause of action or right to damages or affect the validity of such set-off and
application. The rights of each Lender under this Section 6.12 are in addition
to any other rights and remedies (including, without limitation, any other
rights of set-off) that such Lender may have.
6.13 Termination. In addition to Section 2.01(f), the Guarantor may, if
no Default or Guarantor Default shall have occurred or be continuing, terminate
this Agreement (a "Guarantor Termination") at any time by providing written
notice in accordance with Section 6.02 to the Administrative Agent; provided
that such termination shall not be effective until (i) the Administrative Agent
shall have received an amount equal to the principal of, and interest on, the
Loans outstanding under the Credit Agreement, together with all other amounts
payable thereunder and under each other Loan Document, (ii) the Commitments of
the Lenders under the Credit Agreement shall have been terminated and (iii) any
and all obligations hereunder and under the Reimbursement Documentation shall
have been satisfied.
6.14 Release. The Administrative Agent agrees that it shall release the
Guarantor from its obligations hereunder, if, and for so long as, the Guarantor
has validly and effectively pledged to the Administrative Agent a blocked cash
collateral account held in New York with Citibank, N.A. in an amount, and
pursuant to documentation in form and substance, reasonably satisfactory to the
Administrative Agent (provided that no such release shall be effective until the
expiry of any applicable preference period under applicable bankruptcy law);
provided further that prior to or simultaneously with the release of the
Guarantor pursuant to this Section 6.14, the parties hereto agree to make such
reasonable amendments to the Reimbursement Documentation and other related
documents to ensure that the Guarantor has the same remedies and, in all
material respects, the same legal and contractual rights, under and with respect
to the Reimbursement Documentation and such other related documents in the event
the Administrative Agent exercises its remedies with respect to the cash
collateral account as it would in the event the Guarantor were to make a payment
pursuant to this Agreement (such amendments to be in writing and in form and
substance reasonably acceptable to the parties hereto).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
Guarantor
---------
TPG PARTNERS III, L.P.
By: TPG GENPAR III, L.P.,
its General Partner
By: TPG Advisors III, Inc.,
its General Partner
By /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Address for Notices:
c/o Texas Pacific Group
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx Xxxxx, XX 00000
Attention: Xxxxx X. X'Xxxxx
Telecopy: 000-000-0000
General Partner
---------------
TPG GENPAR III, L.P.
By: TPG Advisors III, Inc.,
its General Partner
By /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Address for Notices:
c/o Texas Pacific Group
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx Xxxxx, XX 00000
Attention: Xxxxx X. X'Xxxxx
Telecopy: 000-000-0000
Administrative Agent
--------------------
CITICORP USA, INC., as
Administrative Agent
By /s/ Xxxxxx X. Xxxx
------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
