Exhibit 15
TERMINATION AND FUNDING AGREEMENT
TERMINATION AND FUNDING AGREEMENT (this "Agreement") dated as of
December 21, 2001, by and among MEMC ELECTRONIC MATERIALS, INC. (the
"Borrower"), TPG WAFER CREDIT PARTNERS LLC, T3 PARTNERS II, L.P., T3 PARALLEL
II, L.P., TCW/CRESCENT MEZZANINE PARTNERS III, L.P ("TCW") AND TCW/CRESCENT
MEZZANINE TRUST III ("TCW Trust"), GREEN EQUITY INVESTORS III, L.P. ("GEI"),
GREEN EQUITY INVESTORS SIDE III, L.P. ("GEI Side" and collectively, the
"Lenders"), and CITICORP USA, INC.
W I T N E S S E T H T H A T:
WHEREAS, the Borrower has entered into a Revolving Credit Agreement
dated as of November 13, 2001 (as such agreement has been amended, restated,
modified or supplemented, the "Revolving Credit Agreement"), with the Lenders
and Citicorp USA, Inc., as administrative and collateral agent, pursuant to
which the Lenders agreed to provide the Borrower with a revolving credit
facility in an initial aggregate amount not to exceed U.S. $150,000,000;
WHEREAS, the Borrower will enter into a revolving credit agreement
dated as of December 21, 2001, with the lenders party thereto (the "New
Lenders") and Citicorp USA, Inc., as administrative agent (in such capacity, the
"Administrative Agent") and collateral agent (in such capacity, the "Collateral
Agent") (as such agreement may be further amended, restated, modified or
supplemented at any time and from time to time hereafter, the "New Revolving
Credit Agreement"), pursuant to which the New Lenders will provide the Borrower
with a revolving credit facility in an initial aggregate amount not to exceed
U.S. $150,000.000;
WHEREAS, TPG Partners III, L.P. ("TPG Partners III") will enter into a
guaranty (the "TPG Guaranty"), TCW and TCW Trust will enter into a guaranty (the
"TCW Guaranty") and GEI and GEI Side will enter into a guaranty (the "LGP
Guaranty" and together with the TPG Guaranty and the TCW Guaranty, the
"Guaranty"), each dated as of December 21, 2001 with the Administrative Agent to
guarantee the Borrower's obligations under the New Revolving Credit Agreement;
WHEREAS, the Borrower will enter into a Reimbursement Agreement dated
as of December 21, 2001, with TPG Partners III, TCW, TCW Trust, GEI and GEI Side
(collectively, the "Fund Guarantors") and the Collateral Agent (as such
agreement may be further amended, restated, modified or supplemented at any time
and from time to time hereafter, the "Reimbursement Agreement"), pursuant to
which the Borrower agrees to reimburse the Fund Guarantors for any and all
payments made under the Guaranty;
WHEREAS, to induce the Fund Guarantors to enter into the Guaranty, the
Borrower has agreed to secure its obligations under the Reimbursement Agreement
with the Collateral;
WHEREAS, to induce the Borrower to enter into this Agreement, the
Lenders have agreed to provide the Replacement Funding (as defined below) to the
Borrower in the event the New Revolving Credit Agreement is terminated or if
funds thereunder are unavailable to the Borrower as the result of any Guarantor
Default (as such term is defined in the Guaranty);
WHEREAS, to ensure that the Borrower's obligations under the
Reimbursement Agreement will be secured by the Collateral, the Security
Agreement, Pledge Agreement, Guarantee Agreement, the Indemnity, Subrogation and
Contribution Agreement, and other security documents and instruments executed in
connection with the Revolving Credit Agreement will be amended and restated; and
WHEREAS, the Borrower, the Lenders and Citicorp USA, Inc. desire to
terminate the Revolving Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, it is agreed as follows:
SECTION 1. Definitions. Unless the context otherwise requires, all
capitalized terms used but not defined herein shall have the meanings set forth
in the Revolving Credit Agreement.
SECTION 2. Confirmation of Termination. The Revolving Credit Agreement
is terminated upon (i) the execution and delivery of this Agreement and (ii) the
occurrence of the Effective Date (as defined in the New Revolving Credit
Agreement) under the New Revolving Credit Agreement. The parties hereby
acknowledge and confirm that, upon the occurrence of the events described in the
preceding sentence, all rights, obligations, liabilities, interests and claims
under the Revolving Credit Agreement shall be canceled, terminated, released and
extinguished, except that the following shall survive the termination of the
Revolving Credit Agreement:
(a) the Security Agreement, Pledge Agreement, Guarantee Agreement,
Indemnity, Subrogation and Contribution Agreement, and other
security documents and instruments executed in connection with
the Revolving Credit Agreement, and each such agreement amended
and restated concurrent with the execution and delivery of the
Reimbursement Agreement so as to secure the obligations of the
Borrower and certain of its Subsidiaries thereunder. For the
avoidance of doubt, the following security documents shall
survive the termination of the Revolving Credit Agreement: (i)
the Patent Security Agreement dated as of November 13, 2001 (as
amended from time to time), among the Borrower, the Subsidiary
Loan Parties and the Collateral Agent, (ii) the Trademark
Security Agreement dated as of November 13, 2001 (as amended from
time to time), among the Borrower, the Subsidiary Loan Parties
and the Collateral Agent and (iii) the Copyright Security
Agreement dated as of November 13, 2001 (as amended from time to
time), among the Borrower, the Subsidiary Loan Parties and the
Collateral Agent;
(b) the Borrower's obligations under Sections 2.12, 2.13, 2.14, 10.01
and 10.03 of the Revolving Credit Agreement; and
(c) any indemnities and other rights under any Loan Document which by
their terms shall survive the termination of the Revolving Credit
Agreement.
SECTION 3. Replacement Funding. In the event:
(i) a Guarantor (as defined in the Guaranty) instructs the New Lenders
not to make additional loans to the Borrower under the New Revolving Credit
Agreement pursuant to Section 5(8) of the Guaranty and no Default (as defined in
the New Revolving Credit Agreement) shall have occurred and be continuing at the
time of such instruction (it being understood that any such instruction that is
given during the occurrence and continuance of a Default shall be deemed
withdrawn if such Default is cured during the time periods specified or provided
for in the New Revolving Credit Agreement),
(ii) a Guarantor Termination (as defined in the Guaranty) shall have
occurred,
(iii) a Guarantor Default (as defined in the Guaranty) shall have
occurred,
(iv) a prepayment of any Borrowings (as defined in the New Revolving
Credit Agreement) or the termination of the Commitment of any Lender (as defined
in the New Revolving Credit Agreement) shall have occurred pursuant to Section
2.08(c) of the New Revolving Credit Agreement, or
(v) a failure of the condition to borrowings set forth in Section
4.02(d) of the New Revolving Credit Agreement shall have occurred,
and any of (i), (ii), (iii), (iv) or (v) above causes, directly and principally,
the termination of the New Revolving Credit Agreement or the acceleration of
amounts outstanding thereunder, each of the Lenders severally agrees to make new
revolving credit loans available to the Borrower on terms and conditions no less
favorable to the Borrower than the terms and conditions set forth in the
Revolving Credit Agreement (it being understood that if any of the occurrences
specified in clauses (i) through (v) above causes directly and principally the
Company to be in default under any Loan Document, Indenture Documentation (as
defined in the New Revolving Credit Agreement) or Reimbursement Documentation
(as defined in the New Revolving Credit Agreement) such default shall not in and
of itself relieve the Lenders from their obligation to make new revolving credit
loans available to the Borrower hereunder) as if such Revolving Credit Agreement
had not been terminated by this Agreement (the "Replacement Funding"), provided
that the aggregate amount of all outstanding loans under the New Revolving
Credit Agreement and any new loans to the Borrower under the Replacement Funding
shall not exceed $150,000,000. The foregoing commitment shall survive the
termination of the Revolving Credit Agreement and the consummation of the
transactions contemplated by the New Revolving Credit Agreement. By entering
into this Agreement, each of the Lenders and the Borrower acknowledges and
agrees that execution and delivery of this Agreement shall in no respect effect
a release of the obligations of certain Affiliates of the Lenders in connection
with funding commitments made by TPG and the Buyer (as such terms are defined in
the Purchase Agreement) to or for the benefit of the Borrower in the Purchase
Agreement (notwithstanding the provisions of Section 12.14 of the Purchase
Agreement), as manifested in part by Section 8.02(d) of the Restructuring
Agreement and the Lenders' execution and delivery of the Revolving Credit
Agreement.
SECTION 4. Offset of Fees. In connection with the termination of the
Revolving Credit Agreement, each of the Lenders and Citicorp USA, Inc.
acknowledges and agrees that any and all amounts payable by the Borrower under
the two fee letters, dated as of December 21, 2001, executed and delivered by
the Borrower and Xxxxxxx Xxxxx Xxxxxx, Inc., in connection with the New
Revolving Credit Agreement shall reduce, on a dollar for dollar basis, any and
all amounts ultimately paid or payable by the Borrower under Section 2.09(b) of
the Revolving Credit Agreement. To the extent the Borrower shall have previously
paid any or all of such amounts under the Revolving Credit Agreement, the
Lenders shall promptly refund such amounts to the Borrower.
SECTION 5. Severability. In the event any one or more of the provisions
contained in this Agreement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or impaired thereby
(it being understood that the invalidity of a particular provision in a
particular jurisdiction shall not in and of itself affect the validity of such
provision in any other jurisdiction). The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 6. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute a single contract and shall become effective as
of the date hereof. Delivery of an executed signature page to this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
SECTION 7. Rules of Interpretation; Headings. The rules of
interpretation specified in Section 1.02 of the Revolving Credit Agreement shall
be applicable to this Agreement. Section headings used herein are for
convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting
this Agreement.
SECTION 8. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Jurisdiction; Consent to Service of Process. (a) Each party
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 for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that, to the extent
permitted by applicable law, all claims in respect of any such action or
proceeding may be heard and determined in such New York State 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 the
Collateral Agent or any other Secured Party may otherwise have to bring any
action or proceeding relating to this Agreement or the other Loan Documents
against the Borrower or any of its Subsidiaries or its properties in the courts
of any jurisdiction.
(b) Each party hereby 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 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.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.01 of the Revolving
Credit Agreement. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, AS APPLICABLE,
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
10.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first written above.
MEMC ELECTRONIC MATERIALS, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President,
Chief Financial Officer
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
CITICORP USA, INC.,
as administrative and collateral agent
By: /s/ Xxxxxx X. Xxxx
----------------------------
Name: Xxxxxx X. Xxxx
Title: vice President
SIGNATURE PAGE TO THE TERMINATION AND FUNDING
AGREEMENT DATED AS OF DECEMBER 21, 2001, among
MEMC ELECTRONIC MATERIALS, INC., THE LENDERS, and
CITICORP USA, INC., as Administrative Agent and
Collateral Agent.
Name of Institution: TPG WAFER CREDIT PARTNERS LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Name of Institution: T3 PARTNERS II, L.P.
By: T3 GenPar II, L.P.
Its General Partner
By: T3 Advisors II, Inc.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Name of Institution: T3 PARALLEL II, L.P.
By: T3 GenPar II, L.P.
Its General Partner
By: T3 Advisors II, Inc.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
SIGNATURE PAGE TO THE TERMINATION AND FUNDING
AGREEMENT DATED AS OF DECEMBER 21, 2001, among
MEMC ELECTRONIC MATERIALS, INC., THE LENDERS, and
CITICORP USA, INC., as Administrative Agent and
Collateral Agent.
Name of Institutions: TCW/CRESCENT MEZZANINE PARTNERS III, L.P. AND
TCW/CRESCENT MEZZANINE TRUST III
By: TCW/Crescent Mezzanine Management III,
L.L.C., as its Investment Manager
By: TCW Asset Management Company, as its
Sub-Advisor
By: /s/ Xxxx-Xxxx Xxxxxx
----------------------------
Name: Xxxx-Xxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxx X. Xxxxxxx, Xx.
----------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Senior Vice President
SIGNATURE PAGE TO THE TERMINATION AND FUNDING
AGREEMENT DATED AS OF DECEMBER 21, 2001, among
MEMC ELECTRONIC MATERIALS, INC., THE LENDERS, and
CITICORP USA, INC., as Administrative Agent and
Collateral Agent.
Name of Institution: GREEN EQUITY INVESTORS III, L.P.
By: GEI Capital III, LLC, as its General Partner
By: /s/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
Title: Manager
Name of Institution: GREEN EQUITY INVESTORS SIDE III, L.P.
By: GEI Capital III, LLC, as its General Partner
By: /s/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
Title: Manager
ACKNOWLEDGED AND AGREED:
TPG WAFER HOLDINGS LLC,
as Buyer and TPG Representative on behalf of
TPG Partners III, L.P., T3 Partners, L.P.,
T3 Partners II, L.P., TPG Wafer Partners LLC,
MEMC Holdings Corporation, Green Equity
Investors III, L.P., Green Equity Investors
Side III, L.P., TCW/Crescent Mezzanine
Partners III, L.P. and TCW/Crescent Mezzanine
Trust III
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
