AMENDED AND RESTATED OVERNIGHT LOAN AGREEMENT
Dated as of December 31, 2000
MEMC ELECTRONIC MATERIALS, INC., a Delaware corporation, as the borrower
(the "Borrower"), and E.ON NORTH AMERICA, INC., a Delaware corporation, formerly
called Veba Corporation ("E.ON N.A."), as the initial lender (the "Lender") for
the Lenders (as hereinafter defined), hereby agree as follows:
Preliminary Statement
WHEREAS, Borrower and E.ON N.A. are parties to an Overnight Loan Agreement
dated as of October 31, 1997 (as amended by the First Amendment to Overnight
Loan Agreement dated as of September 1, 1998, the "Overnight Loan Agreement")
pursuant to which E.ON N.A. agreed to extend up to US$10,000,000 of credit to
Borrower on a day to day basis;
WHEREAS, Borrower and E.ON N.A. wish to restructure the existing financing
provided by E.ON N.A. and its Affiliates to Borrower by extending the maturity
dates of certain of such loans until their respective anniversaries in 2002,
providing for 12-month adjustable interest rates commencing in 2001 for such
loans and otherwise amending the loan agreements relating to all of the loans;
and
WHEREAS, as part of such restructuring, Borrower and E.ON N.A. desire to
amend the Overnight Loan Agreement under the circumstances and as herein set
forth (this "Agreement").
NOW THEREFORE, in consideration of the foregoing premises and the mutual
covenants and conditions hereinafter set forth, the parties agree as follows:
1. Definitions: All capitalized terms not defined herein shall have the
meanings set forth in the Reference Agreement. The following capitalized terms
used herein shall have the following meanings:
"Agreement" means this Overnight Loan Agreement.
"Applicable Spread" means:
(a) for any extension period commencing before or on December 31,
2000, a percentage per annum equal to the excess of (i) the Bloomberg
fair market sector curves (adjusted for the chosen interest rate
method) applicable two business days prior to October 30, 1999 to a B3
rated industrial borrower for the period from October 30, 1999 through
the latest possible Termination Date in 2001 (taking into account, if
applicable, the latest Extension Termination Date in 2001) over (ii)
the corresponding Swap Rate for such period, and
(b) for any extension period commencing on or after January 1,
2001, a percentage per annum equal to the excess of (i) the Bloomberg
fair market sector curves (adjusted for the chosen interest rate
method) applicable two business days prior to the then applicable
Extension Termination Date to a B3 rated industrial borrower for the
period from the then applicable Extension Termination Date through the
latest possible Termination Date in 2002 (taking into account, if
applicable, the latest Extension Termination Date in 2002) over (ii)
the corresponding Swap Rate for such period.
"E.ON" means E.ON AG, a German stock corporation and the direct and/or
indirect owner of all of the issued and outstanding shares of E.ON N.A. and
Xxxxxxx.
"E.ON Loans" means any and all existing and future Debt of Borrower to
Page 1
E.ON and its Affiliates, including without limitation the term loans and
revolving loans outstanding between Borrower and E.ON and its Affiliates on
the date hereof.
"Extension Termination Date" means the earlier of (a) either (i) the
first anniversary of the earlier of (A) October 30, 1999 or (B) the 45th
Business Day following the Change of Control Date, or (ii) if there has
been an earlier applicable Extension Termination Date on or prior to
December 31, 2000, the first anniversary of such prior Extension
Termination Date, or (iii) if there has been an earlier applicable
Extension Termination Date after December 31, 2000 and on or before
December 31, 2001, the first anniversary of such prior Extension
Termination Date, and (b) the termination in whole of the Commitments
pursuant to Section 2.04 or Section 6.01; provided, that in no event shall
an Extension Termination Date be after December 31, 2002.
"Xxxxxxx" means Xxxxxxx Corporation, a Delaware corporation and the
wholly-owned Subsidiary of E.ON N.A.
"Interest Rate" shall be the rate determined under Section 5.
"Lender" means E.ON N.A. or any Eligible Assignee (as defined in the
Reference Agreement) to whom E.ON N.A. (or any successor Lender) has
assigned its rights and obligations pursuant to Section 12.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Reference Agreement" means that certain Credit Agreement dated June
26, 1997 in the amount of US$50,000,000 between Borrower and Xxxxxxx, as
amended and restated on December 31, 2000, and as the same may be amended
from time to time.
"Replacement Financing Arrangement" means a financing arrangement with
any Person who is not an Affiliate of the Borrower or the Lender on
substantially the terms which would apply hereunder during the period from
the then applicable Termination Date to the latest possible Extension
Termination Date, provided that the interest rate of such Replacement
Financing Arrangement shall be no higher than the Interest Rate and, if no
lesser interest rate is available, shall be the Interest Rate.
"Termination Date" means either October 30, 1999 or, if applicable,
the Extension Termination Date.
2. Principal and Value. From time to time, beginning October 31, 1997,
Lender agrees to lend to Borrower and Borrower agrees to borrow from the Lender
an amount to be designated by Borrower, not to exceed $10,000,000.00 outstanding
at any one time (each such borrowing, an "Advance"). The loan shall be evidenced
by a promissory note in substantially the form of Exhibit "A" attached hereto.
Each loan shall be made on notice to the Lender, not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the date of the proposed
borrowing (a "Borrowing Notice") 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 and the amount of
such borrowing. All loans and repayments shall be made by Borrower by drawing
funds from or depositing funds in Borrower's account at Citibank N.A., New York,
New York that will zero balance with the E.ON North America, Inc.'s account at
Citibank N.A., New York, New York (Account No. 00000000) or such other account
of the Lender as it may designate ("designated account").
3. Term and Termination. (a) Termination Date. The principal amount of the
Page 2
loan outstanding together with any interest due and outstanding shall be paid by
Borrower to the Lender on the Termination Date, or at such later date as may be
mutually agreed in writing by the parties.
(b) Extension. If the then applicable Termination Date is a date on or
before December 31, 2001 and the Borrower may desire that the Lender extend
the then applicable Termination Date to the Extension Termination Date,
then (a) the Borrower shall give written notice of said fact (the
"Extension Request Notice") to the Lender no later than four (4) months
before the Termination Date, (b) the Borrower shall use its best efforts to
obtain and enter into on or before the date which is two months prior to
the Termination Date a Replacement Financing Arrangement and (c) if the
Borrower shall not have entered into a Replacement Financing Arrangement on
or before the date which is two months prior to the Termination Date, the
Borrower shall deliver to the Lender a certificate of the Borrower (the
"Extension Certificate") (x) certifying that the Borrower has not entered
into a Replacement Financing Arrangement, but the Borrower used its best
efforts to do so as required by clause (b) and setting forth such evidence
and back-up detail as necessary to demonstrate the efforts made, including
a written letter from each bank from which a Replacement Financing
Arrangement as required by clause (b) was requested, indicating that
Borrower made such a request and that the request was denied, and (y)
requesting that the Termination Date be extended to the Extension
Termination Date. For purposes of this Section, the Borrower shall be
deemed to have complied with the requirement to use its "best efforts" by
requesting from and, if applicable, diligently negotiating a Replacement
Financing Arrangement as required by clause (b) with each of three (3)
commercial banks that are nationally recognized in the United States and
each have total assets in excess of $20,000,000,000. Lender shall have the
right to designate, within ten (10) Business Days after receipt of an
Extension Request Notice, one of the three banks referred to in the
preceding sentence. For purposes of this Section, diligent negotiation
shall mean negotiation in good faith and without denial or unreasonable
delay of any reasonable request by any such bank for information in
connection with its consideration of providing a Replacement Financing
Arrangement to Borrower. For the avoidance of doubt, nothing herein is
intended to prevent Borrower from obtaining a Replacement Financing
Arrangement on terms equal to or better than those provided hereunder.
Following receipt of the Extension Certificate, the Lender shall have the
right (without any obligation to do so) to obtain for the Borrower a Replacement
Financing Arrangement on terms equal to or better than those provided hereunder.
If the Borrower has (a) delivered the Extension Request Notice within the
time period specified above, (b) used its best efforts to obtain and enter into
a Replacement Financing Arrangement and delivered the Extension Certificate
within the time period specified above and (c) not unreasonably or in bad faith
refused to enter into a Replacement Financing Arrangement (with terms equal to
or better than those provided hereunder) obtained for the Borrower by the Lender
pursuant to the preceding paragraph, the Termination Date shall be extended to
the Extension Termination Date and the interest rate shall be the Interest Rate.
The Lender shall provide the Borrower with a written notice setting forth the
Interest Rate.
The Borrower shall be responsible for the payment of any customary
commitment fee and other fees in connection with obtaining a Replacement
Financing Arrangement.
For the avoidance of doubt, in no event shall an Extension Termination Date
be requested by the Borrower after December 31, 2001 or be on a date after
December 31, 2002.
4. Rollover Dates. Any amount borrowed hereunder shall be on the basis of
Page 3
daily rollover periods. Each rollover date shall be a banking day in New York,
New York ("banking day"). However, should the designated bank designated by the
Lender in Section 2 be closed on a banking day, the Lender would not be required
to loan money to Borrower nor would Borrower have the option to repay a loan. On
the initial and each respective rollover date thereafter, Borrower shall have
the option to repay the full principal amount outstanding or any portion
thereof, rollover an amount outstanding, or borrow an additional amount provided
that the total principal amount will not exceed $10,000,000.00. Borrower will
notify Lender of repayments, draw-downs and rollovers by a telefax or memorandum
from Borrower, to Lender by 10:00 a.m. Central time on the day money is to be
borrowed, or repaid.
5. Interest Rates. Interest shall be calculated daily at the FED Funds
opening rate plus the Applicable Spread as quoted by E.ON N.A. For loans
outstanding on days other than banking days, the interest shall be calculated at
the rate applicable for the last preceding banking day. The interest rate shall
be furnished daily if there is a loan outstanding. Interest shall accrue on all
outstanding amounts and shall be calculated based upon a 360-day year.
6. Payment of Interest. Payments of interest shall be made by wire
transfer, or other method of same day settlement, only on banking days, not
later than 10:00 a.m. Central time, to the account of E.ON North America, Inc.,
with Citibank N.A., New York, New York, (Account No. 00000000) or to such other
account of the Lender as it may designate. Interest will be payable monthly,
with payment due the day after the Lender notifies Borrower of the amount due
for the prior month.
7. Penalty. If Borrower shall borrow, repay or rollover an amount different
than which it notifies the Lenders pursuant to Section 4, Borrower shall pay to
the Lender a penalty equal to the .25% of the amount of the understatement
divided by 360.
8. Covenants. So long as any Advance shall remain unpaid or Lender shall
have any Commitment hereunder, the Borrower will comply with the Affirmative
Covenants set forth in Section 5.01 (on and after the Change of Control Date as
defined in the Reference Agreement) and the Negative Covenants (including
Negative Pledge) set forth in Section 5.02 of the Reference Agreement, all of
which the Borrower, by signing this Agreement, expressly repeats and
incorporates herein.
9. Mandatory Repayment of E.ON Loans. Pursuant to Section 5.03 of the
Reference Agreement, the Borrower shall pay E.ON as a mandatory repayment of
principal of outstanding E.ON Loans (i) an amount equal to 50% of the
Consolidated Net Free Cash Flow (as defined in the Reference Agreement) each
year, and (ii) an amount equal to 75% of the Net Proceeds (as defined in the
Reference Agreement), at such times and under such conditions as set forth in
Section 5.03 of the Reference Agreement. Section 5.03 of the Reference Agreement
is hereby incorporated by reference in its entirety herein.
10. Conditions Precedent to each Borrowing. The obligation of Lender to
make an Advance on the occasion of each borrowing shall be subject to the
condition precedent that no event has occurred and is continuing, or would
result from such Advance or from the application of the proceeds therefrom, that
constitutes a Default under the Reference Agreement.
11. Events of Default. Each of the Events of Default set forth in Section
6.01 of the Reference Agreement shall constitute an Event of Default hereunder
and the Lender shall have the rights with respect to Events of Default and
Defaults with respect to the amounts loaned hereunder that are set forth in the
Reference Agreement.
12. Assignment. Lender may assign its rights and obligations under this
Agreement in whole but not in part and otherwise in accordance with Section 8.07
Page 4
of the Reference Agreement, provided that any such assignment shall be made to a
single Eligible Assignee (as defined in the Reference Agreement).
13. Commitment Fee. The Borrower agrees to pay to the Lender a commitment
fee on the unused portion of Lender's commitment from October 1, 1998 in the
case of E.ON N.A. and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in case of each other Lender
until the Termination Date at a rate per annum equal to 1/4 of 1%, payable
monthly, with payment due the day after the Lender notifies Borrower of the
amount due for the prior month.
14. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this 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
____________________________________
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
E.ON NORTH AMERICA, INC., as Agent
By /s/ Xxxxxx X. Xxxxx, Xx.
____________________________________
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President Finance
By /s/ Xxxxx Xxxxxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxxxxx
Title: President and Chief Executive Officer
E.ON NORTH AMERICA, INC., as Initial Lender
By /s/ Xxxxxx X. Xxxxx, Xx.
____________________________________
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President Finance
By /s/ Xxxxx Xxxxxxxxxxx
____________________________________
Name: Xxxxx Xxxxxxxxxxx
Title: President and Chief Executive Officer
Page 5
