Exhibit 24
OMNIBUS AMENDMENT AGREEMENT
Omnibus Amendment Agreement, dated January 25 2002, among the entities
set forth on the signatures pages hereof (this "Agreement").
W I T N E S S E T H T H A T:
WHEREAS, as contemplated by Section 6.05 of that certain Guaranty (the
"TCW Guaranty") dated as of December 21, 2001 among TCW/Crescent Mezzanine
Partners III, L.P. and TCW/Crescent Mezzanine Trust III (collectively, the
"Other TCW Entities") and Citicorp, USA Inc., as Administrative Agent (the
"Administrative Agent"), TCW/Crescent Mezzanine III Netherlands, L.P.
("Netherlands") may be added to the TCW Guaranty as a joint and several
"Guarantor" thereunder;
WHEREAS, Netherlands is willing to be so added to the TCW Guaranty
provided that it also becomes a party to the Reimbursement Agreement by and
among Green Equity Investors III, L.P., Green Equity Investors Side III, L.P.
(collectively "LGP"), Citicorp USA, Inc., as Collateral Agent (the "Collateral
Agent"), MEMC Electronic Materials, Inc. ("MEMC"), TPG Partners III, L.P.
("TPG") and the Other TCW Entities (the "Reimbursement Agreement"), the
Intercreditor Agreement by and among the Administrative Agent, the Collateral
Agent, TPG, the Other TCW Entities and LGP (the "Pari Passu Intercreditor
Agreement"), the Intercreditor Agreement by and among TPG, the Other TCW
Entities, TPG Wafer Management, L.L.C. and TPG Wafer Partners, L.L.C. (the
"Intercreditor Agreement") and the Termination and Funding Agreement by and
among MEMC, TPG Wafer Credit Partners LLC, T3 Partners II, L.P., T3 Parallel II,
L.P., the Other TCW Entities, LGP, the Administrative Agent and the Collateral
Agent (the "Termination Agreement"), each dated as of December 21, 2001
(collectively, the "MEMC Documents"); and
WHEREAS, the parties to the MEMC Documents wish to effect the
amendments provided in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending legally to be bound, the parties hereto hereby agree
as follows:
1. Netherlands is hereby added to the TCW Guaranty as a joint and
several "Guarantor" with the Other TCW Entities. Without limiting the
foregoing, Netherlands hereby, jointly and severally with the other TCW
Entities, 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 TCW Percentage of the Guaranteed Obligations (as defined
in Section 2.01 of the TCW Guaranty) in the same manner and to the same
extent as is provided in the TCW Guaranty. In addition, Netherlands hereby
(i) makes the representations and warranties set forth in Section 3.01 of
the TCW Guaranty with respect to itself and its obligations under this
Agreement, as if each reference in such Section to the TCW Guaranty
included reference to this Agreement and (ii) submits to the jurisdiction
of the courts, appoints and designates the Process Agent (as defined in the
TCW Guaranty) its agent for service of process, and waives jury trial, in
each case as provided in Sections 6.09 and 6.10 of the TCW Guaranty.
Netherlands hereby agrees to deliver within 10 days of the date hereof to
the Administrative Agent (i) such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of Netherlands, the authorization
of this Agreement and any other legal matters relating to Netherlands or
this Agreement or the transactions contemplated thereby, all in form and
substance reasonably satisfactory to the Administrative Agent and its
counsel, (ii) a favorable written opinion (addressed to the Administrative
Agent and the Lenders) of O'Melveny & Xxxxxx LLP special counsel to
Netherlands, and Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx, LLC, special counsel to
Netherlands, each in form and substance reasonably acceptable to the
Administrative Agent and (iii) a complete list, as of the date hereof, of
all "Limited Partners" (as such term is defined in the Agreement of Limited
Partnership dated as of December 21, 2001 between TCW/Crescent Mezzanine
III, LLC as General Partner and the Limited Partners listed on Schedule I
thereto). The Administrative Agent hereby agrees that such information
constitutes "Information" (as defined in Section 6.14 of the TCW Guaranty)
and agrees to comply with the requirements of said Section 6.14 as to such
Information.
2. The Reimbursement Agreement is hereby amended pursuant to Section
8.09 thereto to include Netherlands within the definitions of "TCW," "Fund
Guarantors" and "TCW Guarantors."
3. The Pari Passu Intercreditor Agreement is hereby amended pursuant
to Article VI thereto to include Netherlands within the definitions of
"Fund Guarantors" and "TCW Percentage" in Schedule I thereto.
4. The Intercreditor Agreement is hereby amended pursuant to Section
11 thereto to include Netherlands within the definitions of "TCW" and "TCW
Guarantor."
5. The Termination Agreement is hereby amended to include Netherlands
within the definition of "Fund Guarantor" and as one of the "Lenders"
referred to therein (except in Section 4 thereof).
6. Each of the MEMC Documents is hereby amended to include Netherlands
as a party thereto, as if Netherlands had executed and delivered such
documents on December 21, 2001.
7. The LGP Guaranty and the TPG Guaranty (as such terms are defined in
the Termination Agreement) are hereby amended pursuant to Sections 6.04
thereto to include Netherlands within the definition of "Other Guarantors."
8. For the avoidance of doubt, and by reason of Section 2 hereof, MEMC
and the Collateral Agent hereby confirm that Netherlands is included within
the terms "TCW Guarantor," "Fund Guarantors" and "Secured Parties" in the
Amended and Restated Security Agreement, dated as of December 21, 2001,
among MEMC, certain subsidiaries of MEMC and the Collateral Agent.
9. Except as specifically amended hereby, the MEMC Documents, the LGP
Guaranty, the TCW Guaranty and the TPG Guaranty shall remain in full force
and effect and nothing herein shall alter, reduce or otherwise modify the
obligations of any party under the TCW Guaranty, the LPG Guaranty, the TPG
Guaranty and the MEMC Documents.
10. 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 be effective as of December
21, 2001. Delivery of an executed signature page to this Agreement by
facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
11. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
12. 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 hereto 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on 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:
-------------------------------
Name:
Title:
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
With respect to Section 7 only:
TPG GENPAR III, L.P.
By: TPG Advisor III, Inc.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
TCW/CRESCENT MEZZANINE PARTNERS III, L.P.,
TCW/CRESCENT MEZZANINE TRUST III and
TCW/CRESCENT MEZZANINE III NETHERLANDS, L.P.
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
With respect to Section 1 only:
TCW/CRESCENT MEZZANINE III, LLC
By: TCW Asset Management Company, 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
GREEN EQUITY INVESTORS III, L.P.
By: GEI Capital III, LLC, as its General Partner
By: /s/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
Title: Manager
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
With respect to Section 7 only:
GEI CAPITAL III, LLC
By: /s/ Xxxx Xxxxxxx
----------------------------
Name: Xxxx Xxxxxxx
Title: Manager
TPG WAFER MANAGEMENT, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
TPG WAFER PARTNERS, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
TPG WAFER CREDIT PARTNERS LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
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
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
