EXHIBIT 10.1(a)
CONFORMED COPY
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CREDIT AGREEMENT
Dated as of November 10, 1998
Among
UCAR INTERNATIONAL INC.,
UCAR GLOBAL ENTERPRISES INC.,
UCAR S.A.,
THE LENDERS PARTY HERETO,
THE CHASE MANHATTAN BANK,
as Administrative Agent
and Collateral Agent,
CREDIT SUISSE FIRST BOSTON,
as Syndication Agent,
and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Syndication Agent
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CHASE SECURITIES INC.,
as Lead Arranger
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms................................................. 2
SECTION 1.02. Terms Generally............................................... 32
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments................................................... 33
SECTION 2.02. Loans......................................................... 33
SECTION 2.03. Borrowing Procedure........................................... 35
SECTION 2.04. Evidence of Debt; Repayment of Loans.......................... 35
SECTION 2.05. Fees.......................................................... 36
SECTION 2.06. Interest on Loans............................................. 36
SECTION 2.07. Default Interest.............................................. 37
SECTION 2.08. Alternate Rate of Interest.................................... 37
SECTION 2.09. Termination and Reduction of Commitments...................... 37
SECTION 2.10. Conversion and Continuation of Borrowings..................... 38
SECTION 2.11. Repayment of Borrowings....................................... 39
SECTION 2.12. Prepayment.................................................... 40
SECTION 2.13. Reserve Requirements; Change in Circumstances................. 42
SECTION 2.14. Change in Legality............................................ 44
SECTION 2.15. Indemnity..................................................... 45
SECTION 2.16. Pro Rata Treatment............................................ 45
SECTION 2.17. Sharing of Setoffs............................................ 46
SECTION 2.18. Payments...................................................... 46
SECTION 2.19. Taxes......................................................... 46
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers.......................................... 50
SECTION 3.02. Authorization................................................. 50
SECTION 3.03. Enforceability................................................ 51
SECTION 3.04. Governmental Approvals........................................ 51
SECTION 3.05. Financial Statements.......................................... 51
SECTION 3.06. No Material Adverse Change.................................... 52
SECTION 3.07. Title to Properties; Possession Under Leases.................. 52
SECTION 3.08. Subsidiaries.................................................. 52
SECTION 3.09. Litigation; Compliance with Laws.............................. 53
SECTION 3.10. Agreements.................................................... 53
SECTION 3.11. Federal Reserve Regulations................................... 53
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act.... 54
SECTION 3.13. Use of Proceeds............................................... 54
SECTION 3.14. Tax Returns................................................... 54
SECTION 3.15. No Material Misstatements..................................... 54
SECTION 3.16. Employee Benefit Plans........................................ 55
SECTION 3.17. Environmental Matters......................................... 56
SECTION 3.18. Capitalization of UCAR and the Borrower....................... 57
SECTION 3.19. Security Documents............................................ 57
SECTION 3.20. Labor Matters................................................. 58
SECTION 3.21. No Foreign Assets Control Regulation Violation................ 59
SECTION 3.22. Insurance..................................................... 59
SECTION 3.23. Location of Real Property and Leased Premises................. 59
SECTION 3.24. Litigation Liabilities........................................ 59
SECTION 3.25. Year 2000..................................................... 60
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date................................................ 60
SECTION 4.02. Each Borrowing................................................ 63
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Existence; Businesses and Properties.......................... 63
SECTION 5.02. Insurance..................................................... 64
SECTION 5.03. Taxes......................................................... 66
SECTION 5.04. Financial Statements, Reports, etc............................ 66
SECTION 5.05. Litigation and Other Notices.................................. 68
SECTION 5.06. Employee Benefits............................................. 68
SECTION 5.07. Maintaining Records; Access to Properties and Inspections..... 69
SECTION 5.08. Use of Proceeds............................................... 69
SECTION 5.09. Compliance with Environmental Laws............................ 70
SECTION 5.10. Preparation of Environmental Reports.......................... 70
SECTION 5.11. Further Assurances............................................ 70
SECTION 5.12. Significant Subsidiaries...................................... 70
SECTION 5.13. Fiscal Year................................................... 71
SECTION 5.14. Dividends..................................................... 71
SECTION 5.15. Interest/Exchange Rate Protection Agreements.................. 71
SECTION 5.16. Corporate Separateness........................................ 71
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Indebtedness.................................................. 71
SECTION 6.02. Liens......................................................... 75
SECTION 6.03. Sale and Lease-Back Transactions.............................. 78
SECTION 6.04. Investments, Loans and Advances............................... 78
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions..... 80
SECTION 6.06. Dividends and Distributions................................... 83
SECTION 6.07. Transactions with Affiliates.................................. 84
SECTION 6.08. Business of UCAR, the Borrower and the Subsidiaries........... 85
SECTION 6.09. Indebtedness and Other Material Agreements.................... 85
SECTION 6.10. Capital Expenditures.......................................... 86
SECTION 6.11. Interest Coverage Ratio....................................... 87
SECTION 6.12. Leverage Ratio................................................ 87
SECTION 6.13. Capital Stock of the Subsidiaries............................. 87
ARTICLE VII
EVENTS OF DEFAULT............................................. 88
ARTICLE VIII
THE ADMINISTRATIVE AGENT AND
THE COLLATERAL AGENT....................................... 91
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices...................................................... 94
SECTION 9.02. Survival of Agreement........................................ 95
SECTION 9.03. Binding Effect............................................... 95
SECTION 9.04. Successors and Assigns....................................... 95
SECTION 9.05. Expenses; Indemnity.......................................... 99
SECTION 9.06. Right of Setoff..............................................101
SECTION 9.07. Applicable Law...............................................101
SECTION 9.08. Waivers; Amendment...........................................101
SECTION 9.09. Interest Rate Limitation.....................................103
SECTION 9.10. Entire Agreement.............................................103
SECTION 9.11. Waiver of Jury Trial.........................................103
SECTION 9.12. Severability.................................................103
SECTION 9.13. Counterparts.................................................104
SECTION 9.14. Headings.....................................................104
SECTION 9.15. Jurisdiction; Consent to Service of Process..................104
SECTION 9.16. Conversion of Currencies.....................................105
SECTION 9.17. Confidentiality .............................................105
SECTION 9.18. Release of Liens and Guarantees..............................105
EXHIBITS AND SCHEDULES
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D Form of Indemnity, Subrogation and
Contribution Agreement
Exhibit E Form of Parent Guarantee Agreement
Exhibit F Form of Domestic Pledge Agreement
Exhibit G Form of Subsidiary Guarantee Agreement
Exhibit H Form of Domestic Security Agreement
Exhibit I Form of Intellectual Property Security
Agreement
Exhibit J-1 Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP
Exhibit J-2 Form of Opinion of General Counsel
Exhibit J-3 Forms of Opinion of Local Counsel
Schedule A Adjustments
Schedule 2.01 Lenders and Commitments
Schedule 3.08 Subsidiaries and outstanding subscriptions,
options, warrants, etc.
Schedule 3.09 Litigation
Schedule 3.14 Taxes
Schedule 3.17 Environmental Matters
Schedule 3.18 Capitalization
Schedule 3.20 Labor Matters
Schedule 3.23(a) Location of Real Property and Mortgages
Schedule 3.23(b) Location of Leased Premises
Schedule 4.01 Local Jurisdictions Where Opinion Required
Schedule 6.01 Indebtedness
Schedule 6.02 Liens
Schedule 6.04 Investments
Schedule 6.07 Transactions with Affiliates
Schedule 6.09 Restrictive Agreements
CREDIT AGREEMENT (this "AGREEMENT") dated as of November
10, 1998, among UCAR INTERNATIONAL INC., a Delaware
corporation ("UCAR"), UCAR GLOBAL ENTERPRISES INC., a Delaware
corporation (the "BORROWER"), UCAR S.A., a Swiss corporation
(the "SWISS BORROWER"), the LENDERS party hereto, THE CHASE
MANHATTAN BANK, as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT") and as collateral agent (in such
capacity, the "COLLATERAL AGENT"), CREDIT SUISSE FIRST BOSTON,
as syndication agent, and ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK, as syndication agent.
Effective on the Effective Date (such term, and each other capitalized term
used and not otherwise defined herein, having the meaning assigned to it in
Article I), the Existing Credit Agreement will be amended in the form of and
replaced with two credit agreements, consisting of (a) the Existing Credit
Agreement, as amended and restated, and (b) this Agreement, under which the
Lenders or the lenders under the Existing Credit Agreement, as applicable, will
maintain existing credit and extend new credit to the Borrower and certain
Subsidiaries in an aggregate original principal amount as of the Effective Date
of $819,400,000. From and after the Effective Date, (a) this Agreement will
govern the Tranche C Term Loans and (b) the Existing Credit Agreement will
govern the commitments, loans and letters of credit referred to therein.
The Credit Parties have requested the Lenders to extend credit hereunder in
the form of (a) U.S. Term Loans to the Borrower on the Effective Date, in an
aggregate principal amount of $125,000,000, and (b) Swiss Term Loans to the
Swiss Borrower on the Effective Date, in an aggregate principal amount of
$85,000,000. The proceeds of the Loans will be used for general corporate
purposes of the Borrower and the Subsidiaries, including (a) the repayment on
the Effective Date of $88,600,000 of outstanding revolving loans under the
Existing Credit Agreement, (b) the prefunding and payment on the Effective Date
of $20,400,000 of fourth quarter 1998 amortization payments to become due under
the Existing Credit Agreement, (c) the financing of Litigation Payments and (d)
the payment of transaction fees and expenses.
The Lenders are willing to extend such credit to the Credit Parties on the
terms and subject to the conditions set forth herein. Accordingly, the parties
hereto agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR LOAN" shall mean any Loan bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of
Article II.
"ADJUSTED LIBO RATE" shall mean, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate in
effect for such Interest Period and (b) Statutory Reserves.
"ADMINISTRATIVE AGENT FEES" shall have the meaning given such term in
Section 2.05(b).
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative Questionnaire
in the form of Exhibit A.
"AFFILIATE" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"AGENT LETTER" shall mean the letter agreement dated October 9, 1998,
between the Borrower and The Chase Manhattan Bank.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate,
including the failure of the Federal Reserve Bank of New York to publish rates
or the inability of the Administrative Agent to obtain quotations in accordance
with the terms thereof, the Alternate Base Rate shall be determined without
regard to clause (b) of the preceding sentence until the circumstances giving
rise to such inability no longer exist. Any change in the Alternate Base Rate
due to a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
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"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative Agent and
the Borrower, in the form of Exhibit B or such other form as shall be approved
by the Administrative Agent.
"BOARD" shall mean the Board of Governors of the Federal Reserve System of
the United States.
"BORROWING" shall mean a group of Loans of a single Class and Type made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect.
"BORROWING REQUEST" shall mean a request by a Credit Party in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit C.
"BRAZIL" shall mean UCAR Carbon S.A., a Brazilian corporation and the
direct or indirect owner of virtually all of the business of the Borrower and
the Subsidiaries in Brazil.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or day on
which banks in New York City are authorized or required by law to close;
PROVIDED, HOWEVER, that when used in connection with a Eurodollar Loan, the term
"BUSINESS DAY" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"CAPITAL EXPENDITURES" shall mean, for any person in respect of any period,
the sum of (a) the aggregate of all expenditures by such person during such
period that, in accordance with GAAP, are or should be included in "additions to
property, plant or equipment" or similar items reflected in the statement of
cash flows of such person and (b) to the extent not covered by clause (a) above,
the aggregate of all expenditures by such person to acquire by purchase or
otherwise the business or fixed assets of, or stock or other evidence of
beneficial ownership of, any other person (other than the Borrower or any person
that is a Wholly Owned Subsidiary prior to such acquisition); PROVIDED, HOWEVER,
that Capital Expenditures for the Borrower and the Subsidiaries shall not
include (i) expenditures made to make any acquisition constituting a Specified
Permitted Transaction or Permitted Other Acquisition, (ii) expenditures to the
extent they are made (A) with the proceeds of the issuance of Capital Stock of
UCAR after the Original Closing Date (to the extent not previously used to
prepay Indebtedness (other than revolving loans and swingline loans under the
Existing Credit Agreement), make any investment or capital expenditure or
otherwise for any purpose resulting in a deduction to Excess Cash Flow in any
fiscal year) or (B) with funds that if not so spent would constitute Net
Proceeds under clause (a) of the definition of "NET PROCEEDS" (subject to the
limitation set forth in the second proviso to such clause (a)),
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(iii) expenditures of proceeds of insurance settlements, condemnation awards and
other settlements in respect of lost, destroyed, damaged or condemned assets,
equipment or other property to the extent such expenditures are made to replace
or repair such lost, destroyed, damaged or condemned assets, equipment or other
property or otherwise to acquire assets or properties useful in the business of
the Borrower and the Subsidiaries within 12 months of receipt of such proceeds,
(iv) expenditures that are accounted for as capital expenditures of such person
and that actually are paid for by a third party (excluding UCAR or any
subsidiary thereof) and for which neither UCAR nor any subsidiary thereof has
provided or is required to provide or incur, directly or indirectly, any
consideration or obligation to such third party or any other person (whether
before, during or after such period), (v) the book value of any asset owned by
such person prior to or during such period to the extent that such book value is
included as a capital expenditure during such period as a result of such person
reusing or beginning to reuse such asset during such period without a
corresponding expenditure actually having been made in such period; PROVIDED
that any expenditure necessary in order to permit such asset to be reused shall
be included as a Capital Expenditure during the period that such expenditure
actually is made and such book value shall have been included in Capital
Expenditures when such asset was originally acquired or (vi) expenditures made
in respect of closures of the Welland, Canada and Berlin, Germany facilities in
an aggregate amount not in excess of $11,000,000 (as evidenced by a certificate
of the Borrower signed by a Responsible Officer of the Borrower).
"CAPITAL LEASE OBLIGATIONS" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
and, for purposes hereof, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance with GAAP.
"CAPITAL STOCK" of any person shall mean any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such person, including any preferred
stock, any limited or general partnership interest and any limited liability
company membership interest, but excluding any debt securities convertible into
such equity.
"CASH INTEREST EXPENSE" shall mean, with respect to UCAR, the Borrower and
the Subsidiaries on a consolidated basis for any period, Interest Expense for
such period less the sum of (a) pay-in-kind Interest Expense, (b) to the extent
included in Interest Expense, the amortization of fees paid by UCAR, the
Borrower or any Subsidiary on or prior to the Original Closing Date in
connection with the transactions consummated on such
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date, on or prior to the Second Closing Date in connection with the transactions
consummated on such date or on or prior to the Effective Date in connection with
the Transactions and (c) the amortization of debt discounts, if any, or fees in
respect of Interest/Exchange Rate Protection Agreements.
"CERCLA" shall have the meaning given such term in the definition of
"ENVIRONMENTAL LAW".
A "CHANGE IN CONTROL" shall be deemed to have occurred if (a) UCAR should
fail to own directly, beneficially and of record, free and clear of any and all
Liens (other than Liens in favor of the Collateral Agent pursuant to the
Domestic Pledge Agreement), 100% of the issued and outstanding capital stock of
the Borrower; (b) any person or group (within the meaning of Rule 13d-5 of the
Securities Exchange Act of 1934 as in effect on the Effective Date), other than
members of management of UCAR or the Borrower holding voting stock of UCAR or
options to acquire such stock on the Effective Date (collectively, the
"DESIGNATED PERSONS"), shall own beneficially, directly or indirectly, shares
representing more than 25% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of UCAR at a time when Designated
Persons fail to own beneficially, directly or indirectly, shares representing at
least a majority of the aggregate ordinary voting power represented by the
issued and outstanding capital stock of UCAR; (c) a majority of the seats
(excluding vacant seats) on the board of directors of UCAR shall at any time
after the Effective Date be occupied by persons who were neither (i) nominated
by any one or more Designated Persons or by a majority of the board of directors
of UCAR, nor (ii) appointed by directors so nominated; or (d) a change in
control with respect to UCAR or the Borrower (or similar event, however
denominated) shall occur under and as defined in the Senior Subordinated
Indenture or the Refinancing Note Indenture (in each case so long as any
Indebtedness for borrowed money is outstanding thereunder) or in any other
indenture or agreement in respect of Indebtedness in an aggregate outstanding
principal amount in excess of $7,500,000 to which UCAR, the Borrower or any
Subsidiary is party. For purposes of clause (b) of this definition, the term
"DESIGNATED PERSON" shall be deemed to include any other holder or holders of
shares of UCAR having ordinary voting power if UCAR shall have the power to vote
(or cause to be voted at its discretion), pursuant to contract, irrevocable
proxy or otherwise, the shares held by such holder.
"CLASS", when used in reference to any Borrowing, refers to whether the
Loans comprising such Borrowing are U.S. Term Loans or Swiss Term Loans and,
when used in reference to any Commitment, refers to whether such Commitment is a
U.S. Term Loan Commitment or a Swiss Term Loan Commitment.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
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"COLLATERAL" shall mean all the "Collateral" as defined in any Security
Document.
"COLLATERAL REQUIREMENT" shall mean, at any time, that:
(a)(i) the Domestic Pledge Agreement (or a supplement thereto)
shall have been duly executed and delivered by UCAR, the Borrower and each
domestic Subsidiary existing at such time and directly owning any outstanding
Capital Stock or Indebtedness of any other Subsidiary, and there shall have been
duly and validly pledged to the Collateral Agent thereunder, for the ratable
benefit of the Secured Parties, as security for all the Obligations, (A) all the
outstanding Capital Stock of or other equity interests in each domestic
Subsidiary owned directly by UCAR, the Borrower or any domestic Subsidiary and
(B) 65% of the outstanding Capital Stock of or other equity interests in (or, in
each case, such lesser percentages as shall be owned by UCAR, the Borrower and
the domestic Subsidiaries) each foreign Subsidiary owned in whole or in part
directly by UCAR, the Borrower or any domestic Subsidiary and (C) all
Indebtedness in excess of $10,000,000 of UCAR, the Borrower or any Subsidiary
owed to UCAR, the Borrower or any domestic Subsidiary; (ii) one or more other
Pledge Agreements shall have been duly executed and delivered by the Swiss
Borrower, and by each foreign Subsidiary that is required pursuant to the terms
hereof to Guarantee the Obligations of the Swiss Borrower in respect of the
Swiss Term Loans, and there shall have been duly and validly pledged thereunder,
for the ratable benefit of the Secured Parties holding Obligations of the Swiss
Borrower or such foreign Guarantor in respect of such Swiss Term Loans or
Guarantees, as security for all such Obligations of the Swiss Borrower or such
foreign Guarantor (but not as security for the Obligations of the Borrower or
any other Subsidiary) (A) all the outstanding Capital Stock of or other equity
interests in any Subsidiary that is at such time directly owned by the Swiss
Borrower or such foreign Guarantor, (B) all the outstanding Capital Stock of or
other equity interests in the Swiss Borrower or such foreign Guarantor, and of
any Subsidiary directly or indirectly owning any outstanding Capital Stock of or
other equity interests in the Swiss Borrower or such foreign Guarantor that
shall not have been pledged pursuant to the Domestic Pledge Agreement and (C)
all Indebtedness in excess of $10,000,000 of UCAR, the Borrower or any
Subsidiary owed to the Swiss Borrower or such foreign Guarantor; (iii) one or
more other Pledge Agreements shall have been duly executed and delivered by each
domestic Guarantor directly owning any Capital Stock of the Swiss Borrower or a
foreign Guarantor referred to in clause (ii) above, and there shall have been
duly and validly pledged thereunder, for the ratable benefit of the Secured
Parties holding Obligations of the Swiss Borrower or such foreign Guarantor in
respect of such Swiss Term Loans or Guarantees, as security for all such
Obligations of the Swiss Borrower or such foreign Guarantor (but not as security
for the Obligations of the Borrower or any other Subsidiary) all the outstanding
Capital Stock of or other equity interests in the
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Swiss Borrower or such foreign Guarantor that shall not have been pledged
pursuant to the Domestic Pledge Agreement; and (iv) certificates or other
instruments representing the shares or Indebtedness pledged under the Pledge
Agreements, accompanied by stock powers or other instruments of transfer
endorsed in blank, shall be in the actual possession of the Collateral Agent and
all other steps required under applicable law or requested by the Collateral
Agent to ensure that the Pledge Agreements create valid, first priority,
perfected Liens on all the Collateral subject thereto shall have been taken;
(b)(i) the Domestic Security Agreement (or a supplement thereto)
shall have been duly executed and delivered by UCAR, the Borrower and each
domestic Subsidiary existing at such time, and the Domestic Security Agreement
shall create in favor of the Collateral Agent, for the ratable benefit of the
Secured Parties, as security for all the Obligations, perfected security
interests in (subject only to the Liens permitted by Section 6.02 and by the
Existing Credit Agreement) all the Collateral (as such term is defined in the
Domestic Security Agreement) owned by UCAR, the Borrower and each domestic
Subsidiary; (ii) one or more other Security Agreements shall have been duly
executed and delivered by the Swiss Borrower, and by each foreign Subsidiary
that is required pursuant to the terms hereof to Guarantee the Obligations of
the Swiss Borrower in respect of the Swiss Term Loans, and such Security
Agreements shall create in favor of the Collateral Agent, for the ratable
benefit of the Secured Parties holding Obligations of the Swiss Borrower or such
foreign Guarantor in respect of such Swiss Term Loans or Guarantees, as security
for all such Obligations of the Swiss Borrower or such foreign Guarantor (but
not as security for the Obligations of the Borrower or any other Subsidiary),
perfected security interests in (subject only to Liens permitted by Section 6.02
and by the Existing Credit Agreement) all the Collateral (as such term is
defined in such Security Agreements) owned by the Swiss Borrower or such foreign
Guarantor; and (iii) all steps required under applicable law or requested by the
Collateral Agent to ensure that the Security Agreements create valid, first
priority, perfected Liens (subject only to the Liens permitted by Section 6.02
and by the Existing Credit Agreement) on all the Collateral subject thereto
shall have been taken;
(c)(i) all real properties owned or leased directly by UCAR, the
Borrower or any domestic Subsidiary are Mortgaged Properties, and all steps
required under applicable law or requested by the Collateral Agent to ensure
that the Mortgages on such Mortgaged Properties create in favor of the
Collateral Agent for the benefit of the Secured Parties, as security for all the
Obligations, perfected Liens on and security interests in (subject only to the
Liens permitted by Section 6.02 and by the Existing Credit Agreement) (A) such
Mortgaged Properties and (B) all proceeds thereof shall have been taken; and
(ii) all real properties owned or leased directly by the Swiss Borrower, and by
each foreign Subsidiary that is required to Guarantee the Obligations of the
Swiss Borrower in respect of Swiss Term Loans,
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are Mortgaged Properties, and all steps required under applicable law or
requested by the Collateral Agent to ensure that the Mortgages on such Mortgaged
Properties create in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties holding Obligations of the Swiss Borrower or such foreign
Guarantor in respect of such Swiss Term Loans or Guarantees, as security for all
such Obligations of the Swiss Borrower or such foreign Guarantor (but not as
security for the Obligations of the Borrower or any other Subsidiary), perfected
Liens on and security interests in (subject only to the Liens permitted by
Section 6.02 and by the Existing Credit Agreement) (A) such Mortgaged Properties
and (B) all proceeds thereof shall have been taken; PROVIDED that,
notwithstanding the foregoing, it is understood that leasehold mortgages will
not be obtained in respect of any real property leased by a Loan Party unless
the Collateral Agent, in its discretion, shall request that a leased property
become a Mortgaged Property (in which case any such Mortgage shall be subject to
such limitations as may be contained in the lease relating to such real
property); and
(d) the Intellectual Property Security Agreement (or a supplement
thereto) shall have been duly executed and delivered by UCAR, the Borrower and
each domestic Subsidiary existing at such time, and that all steps required
under applicable law or requested by the Collateral Agent to ensure that the
Intellectual Property Security Agreement creates in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, as security for all the
Obligations, perfected security interests in (subject only to the Liens
permitted by Section 6.02 and by the Existing Credit Agreement) all the
Collateral (as such term is defined in the Intellectual Property Security
Agreement) owned by UCAR, the Borrower and each domestic Subsidiary shall have
been taken;
PROVIDED that a Collateral Requirement with respect to the Swiss Borrower or a
foreign Subsidiary shall not be required to be satisfied hereunder to the extent
that (i) satisfaction of such Collateral Requirement is not permitted under
applicable law or (ii) the Administrative Agent determines that the expense, tax
consequences or difficulty of satisfying such Collateral Requirement does not
justify satisfying such Collateral Requirement.
"COMMITMENTS" shall mean, with respect to any Lender, such Lender's U.S.
Term Loan Commitment and Swiss Term Loan Commitment.
"COMMITMENT FEE" shall have the meaning given such term in Section 2.05(a).
"CONTROL" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or otherwise,
and "CONTROLLING" and "CONTROLLED" shall have meanings correlative thereto.
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"CREDIT PARTIES" shall mean the Borrower and the Swiss Borrower.
"CURRENT ASSETS" shall mean, with respect to UCAR, the Borrower and the
Subsidiaries on a consolidated basis at any date of determination, all assets
(other than cash and Permitted Investments or other cash equivalents) which
would, in accordance with GAAP, be classified on a consolidated balance sheet of
UCAR, the Borrower and the Subsidiaries as current assets at such date of
determination.
"CURRENT LIABILITIES" shall mean, with respect to UCAR, the Borrower and
the Subsidiaries on a consolidated basis at any date of determination, all
liabilities which would, in accordance with GAAP, be classified on a
consolidated balance sheet of UCAR, the Borrower and the Subsidiaries as current
liabilities at such date of determination, other than (a) the current portion of
long term debt, (b) accruals of Interest Expense (excluding Interest Expense
which is due and unpaid), (c) revolving loans or swingline loans under the
Existing Credit Agreement classified as current and (d) accruals prior to the
Effective Date of any costs or expenses related to severance or termination of
employees.
"DEBT SERVICE" shall mean, with respect to UCAR, the Borrower and the
Subsidiaries on a consolidated basis for any period, Interest Expense for such
period PLUS scheduled principal amortization of Total Debt for such period
(whether or not such payments are made).
"DEFAULT" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"DESIGNATED LENDERS" shall mean, at any time, Lenders having Loans and
unused Commitments representing at least 66-2/3% of the sum of all Loans
outstanding and unused Commitments at such time.
"DOLLARS" or "$" shall mean lawful money of the United States of America.
"DOMESTIC PLEDGE AGREEMENT" shall mean the Pledge Agreement dated as of
October 19, 1995, as amended and restated as of November 10, 1998, substantially
in the form of Exhibit F, among UCAR, the Borrower, certain domestic
Subsidiaries and the Collateral Agent for the benefit of the Secured Parties.
"DOMESTIC SECURITY AGREEMENT" shall mean the Security Agreement dated as of
April 22, 1998, as amended and restated as of November 10, 1998, substantially
in the form of Exhibit H, among UCAR, the Borrower and the domestic Subsidiaries
and the Collateral Agent for the benefit of the Secured Parties.
10
"EBITDA" shall mean, with respect to UCAR, the Borrower and the
Subsidiaries on a consolidated basis for any period, the consolidated net income
of UCAR, the Borrower and the Subsidiaries for such period PLUS, to the extent
deducted in computing such consolidated net income, without duplication, the sum
of (a)(i) income tax expense and (ii) withholding tax expense incurred in
connection with cross border transactions involving non-domestic subsidiaries,
(b) interest expense, (c) depreciation and amortization expense, (d) any special
charges (including, without limitation, any non-cash fees or expenses incurred
in connection with the Recapitalization, the redemption of subordinated notes in
September 1995, the refinancing effected on October 19, 1995, the refinancing
effected on March 19, 1997 or the Transactions) and any extraordinary or
non-recurring losses, (e) other noncash items reducing consolidated net income
and (f) noncash exchange, translation or performance losses relating to any
foreign currency hedging transactions or currency fluctuations, MINUS, to the
extent added in computing such consolidated net income, without duplication, (i)
interest income, (ii) extraordinary or non-recurring gains, (iii) other noncash
items increasing consolidated net income and (iv) noncash exchange, translation
or performance gains relating to any foreign currency hedging transactions or
currency fluctuations.
"EFFECTIVE DATE" shall mean the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.08).
"ENVIRONMENT" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"ENVIRONMENTAL CLAIM" shall mean any written accusation, allegation, notice
of violation, claim, demand, order, directive, cost recovery action or other
cause of action by, or on behalf of, any Governmental Authority or any person
for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon: (a) the threat, the
existence, or the continuation of the existence of a Release (including sudden
or non-sudden, accidental or non-accidental Releases); (b) exposure to any
Hazardous Material; (c) the presence, use, handling, transportation, storage,
treatment or disposal of any Hazardous Material; or (d) the violation or alleged
violation of any Environmental Law or Environmental Permit.
"ENVIRONMENTAL LAW" shall mean any and all applicable present and future
treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any
11
Governmental Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the treatment, storage, disposal, Release or
threatened Release of any Hazardous Material or to human health or safety,
including the Hazardous Materials Transportation Act, 49 U.S.C. ▇▇.▇▇. 1801 ET
SEQ., the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986,
42 U.S.C. ▇▇.▇▇. 9601 ET SEQ. ("CERCLA"), the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976 and the Hazardous
and Solid Waste Amendments of 1984, 42 U.S.C. ▇▇.▇▇. 6901, ET SEQ., the Federal
Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33
U.S.C. ▇▇.▇▇. 1251 ET SEQ., the Clean Air ACt of 1970, as amended 42 U.S.C.
▇▇.▇▇. 7401 ET SEQ., the Toxic Substances Control Act of 1976, 15 U.S.C. ▇▇.▇▇.
2601 ET SEQ., thE Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. ▇▇.▇▇. 11001 ET SEQ., the National Environmental Policy Act of 1975, 42
U.S.C. ▇▇.▇▇. 4321 ET SEQ., the Safe Drinking Water Act of 1974, as amended, 42
U.S.C. ▇▇.▇▇. 300(f) ET SEQ., and any similar or implementing state or foreign
law, and all amendments or regulations promulgated thereunder.
"ENVIRONMENTAL PERMIT" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414 of the Code.
"EURODOLLAR BORROWING" shall mean a Borrowing comprised of Eurodollar
Loans.
"EURODOLLAR LOAN" shall mean any Loan bearing interest at a rate determined
by reference to the Adjusted LIBO Rate in accordance with the provisions of
Article II.
"EUROPEAN HOLDING COMPANY STRATEGY" shall have the meaning given such term
in Section 6.04(m).
"EVENT OF DEFAULT" shall have the meaning given such term in Article VII.
"EXCESS CASH FLOW" shall mean, with respect to UCAR, the Borrower and the
Subsidiaries on a consolidated basis for any fiscal year, EBITDA of UCAR, the
Borrower and the Subsidiaries on a consolidated basis for such fiscal year,
MINUS, without duplication, (a) Debt Service for such fiscal year, (b) permitted
Capital Expenditures by the Borrower and the Subsidiaries on a consolidated
basis during such fiscal year which are paid in
12
cash, (c) taxes paid in cash by UCAR, the Borrower and the Subsidiaries on a
consolidated basis during such fiscal year, including income tax expense and
withholding tax expense incurred in connection with cross border transactions
involving non-domestic Subsidiaries, (d) an amount equal to any increase in
Working Capital of UCAR, the Borrower and the Subsidiaries for such fiscal year,
(e) Permitted Other Acquisitions and acquisitions constituting Specified Foreign
Transactions during such fiscal year to the extent paid in cash, (f) cash
expenditures made in respect of Interest/Exchange Rate Protection Agreements
during such fiscal year, to the extent not reflected in the computation of
EBITDA or Interest Expense, (g) permitted dividends or repurchase of its Capital
Stock paid in cash by UCAR or the Borrower during such fiscal year and permitted
dividends paid by any Subsidiary to any person other than the Borrower or any of
its other Subsidiaries during such fiscal year, in each case in accordance with
Section 6.06, (h) amounts paid in cash during such fiscal year on account of
items that were accounted for as noncash reductions of consolidated net income
of UCAR, the Borrower and the Subsidiaries in the current or a prior period, (i)
special charges or any extraordinary or non-recurring loss paid in cash during
such fiscal year, (j) to the extent not deducted in the computation of Net
Proceeds in respect of any asset disposition or condemnation giving rise
thereto, mandatory prepayments of Indebtedness (other than Indebtedness created
hereunder or under any other Loan Document), (k) cash Restricted Debt Payments
made pursuant to the first proviso contained in Section 6.09(b)(i) and (l) to
the extent included in determining EBITDA, all items which did not result from a
cash payment to UCAR, the Borrower and the Subsidiaries on a consolidated basis
during such fiscal year PLUS, without duplication, (i) an amount equal to any
decrease in Working Capital for such fiscal year, (ii) all proceeds received
during such fiscal year of Capital Lease Obligations, purchase money
Indebtedness, Sale and Lease- Back Transactions pursuant to Section 6.03(a) and
any other Indebtedness to the extent used to finance any Permitted Other
Acquisition, acquisition constituting a Specified Permitted Transaction or
Capital Expenditure (other than Indebtedness under this Agreement or the
Existing Credit Agreement to the extent there is no corresponding deduction to
Excess Cash Flow above in respect of the use of such Indebtedness) and all
proceeds received during such fiscal year of Sale and Lease-Back Transactions
pursuant to Section 6.03(b), (iii) all amounts referred to in (b) and (e) above
to the extent funded with the proceeds of the issuance of Capital Stock of UCAR
after the Original Closing Date (to the extent not previously used to prepay
Indebtedness (other than revolving loans or swingline loans under the Existing
Credit Agreement), make any investment or capital expenditure or otherwise for
any purpose resulting in a deduction to Excess Cash Flow in any fiscal year) or
any amount that would have constituted Net Proceeds under clause (a) of the
definition of "NET PROCEEDS" if not so spent, in each case to the extent there
is a corresponding deduction to Excess Cash Flow above, (iv) cash payments
received in respect of Interest/Exchange Rate Protection Agreements during such
fiscal
13
year to the extent not (A) included in the computation of EBITDA or (B) reducing
Interest Expense, (v) any extraordinary or non-recurring gain realized in cash
during such fiscal year (except to the extent such gain is subject to Section
2.12(d) of this Agreement or the Existing Credit Agreement), (vi) to the extent
deducted in the computation of EBITDA, interest income and (vii) to the extent
subtracted in determining EBITDA, all items which did not result from a cash
payment by UCAR, the Borrower and the Subsidiaries on a consolidated basis
during such fiscal year.
"EXISTING CREDIT AGREEMENT" shall mean the Credit Agreement dated as of
October 19, 1995, as amended and restated as of March 19, 1997 and November 10,
1998, among UCAR, the Borrower, the subsidiary borrowers party thereto, the
lenders party thereto, the fronting banks party thereto and The Chase Manhattan
Bank, as administrative agent and collateral agent.
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"FEES" shall mean the Commitment Fees and the Administrative Agent Fees.
"FINANCIAL OFFICER" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer, Assistant Treasurer or
Controller of such corporation.
"GAAP" shall mean generally accepted accounting principles in effect from
time to time in the United States applied on a consistent basis or, when
reference is made to another jurisdiction, generally accepted accounting
principles in effect from time to time in such jurisdiction applied on a
consistent basis.
"GOVERNMENTAL AUTHORITY" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body or,
in the case of references to "Governmental Authority" in Article II and Section
9.17, the National Association of Insurance Commissioners.
"GUARANTEE" of or by any person shall mean (a) any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "PRIMARY OBLIGOR") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness
14
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay or
otherwise) or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Indebtedness, (ii) to purchase or lease
property, securities or services for the purpose of assuring the owner of such
Indebtedness of the payment of such Indebtedness, (iii) to maintain working
capital, equity capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or (iv) entered into for the purpose of assuring in any other
manner the holders of such Indebtedness of the payment thereof or to protect
such holders against loss in respect thereof (in whole or in part), or (b) any
Lien on any assets of such person securing any Indebtedness of any other person,
whether or not such Indebtedness is assumed by such person; PROVIDED, HOWEVER,
that the term "GUARANTEE" shall not include endorsements for collection or
deposit, in either case in the ordinary course of business, or customary and
reasonable indemnity obligations in effect on the Effective Date or entered into
in connection with any acquisition or disposition of assets permitted under this
Agreement.
"GUARANTEE AGREEMENTS" shall mean (a) the Parent Guarantee Agreement, (b)
the Subsidiary Guarantee Agreement and (c) any other guarantee agreements or
similar agreements with respect to the Obligations in form and substance
reasonably satisfactory to the Collateral Agent.
"GUARANTEE REQUIREMENT" shall mean, at any time, that (a) the Parent
Guarantee Agreement shall have been duly executed by UCAR and the Borrower,
shall have been delivered to the Collateral Agent and shall be in full force and
effect; (b) the Subsidiary Guarantee Agreement (or a supplement thereto) shall
have been duly executed by each domestic Subsidiary existing at such time, shall
have been delivered to the Collateral Agent and shall be in full force and
effect; (c) in respect of the Swiss Term Loans made to the Swiss Borrower, a
Guarantee Agreement shall have been duly executed (i) by each foreign Subsidiary
existing at such time that is a direct or indirect parent of the Swiss Borrower
and (ii) by each other foreign Subsidiary, shall have been delivered to the
Collateral Agent and shall be in full force and effect; and (d) the Indemnity,
Subrogation and Contribution Agreement (or a supplement thereto) shall have been
executed by UCAR, the Borrower and each Subsidiary party to the Subsidiary
Guarantee Agreement or the Domestic Pledge Agreement, shall have been delivered
to the Collateral Agent and shall be in full force and effect; PROVIDED that a
Guarantee Requirement with respect to the Swiss Borrower or a foreign Subsidiary
shall not be required to be satisfied hereunder to the extent that (i)
satisfaction of such Guarantee Requirement is not permitted under applicable law
or (ii) the Administrative Agent determines that the expense, tax consequences
or difficulty of satisfying such Guarantee Requirement does not justify
satisfying such Guarantee Requirement.
15
"GUARANTORS" shall mean UCAR, the Borrower and the Subsidiary Guarantors.
"HAZARDOUS MATERIAL" shall mean any material meeting the definition of a
"hazardous substance" in CERCLA 42 U.S.C. ss.9601(14) and all explosive or
radioactive substances or wastes, toxic substances or wastes, pollutants, solid,
liquid or gaseous wastes, including petroleum, petroleum distillates or
fractions or residues, asbestos or asbestos containing materials,
polychlorinated biphenyls ("PCBS") or materials or equipment containing PCBs in
excess of 50 ppm, radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any Environmental Law,
or that reasonably could form the basis of an Environmental Claim.
"INDEBTEDNESS" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid (other than trade payables
incurred in the ordinary course of business), (d) all obligations of such person
under conditional sale or other title retention agreements relating to property
or assets purchased by such person, (e) all obligations of such person issued or
assumed as the deferred purchase price of property or services (other than
current trade liabilities incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such person, whether or not the obligations
secured thereby have been assumed, (g) all Guarantees by such person of
Indebtedness of others, (h) all Capital Lease Obligations of such person, (i)
all payments that such person would have to make in the event of an early
termination, on the date Indebtedness of such person is being determined, in
respect of outstanding interest rate protection agreements, foreign currency
exchange agreements or other interest or exchange rate hedging arrangements and
(j) all obligations of such person as an account party in respect of letters of
credit and bankers' acceptances. The Indebtedness of any person shall include
the Indebtedness of any partnership in which such person is a general partner,
other than to the extent that the instrument or agreement evidencing such
Indebtedness expressly limits the liability of such person in respect thereof;
PROVIDED that, if the sole asset of such person is its general partnership
interest in such partnership, the amount of such Indebtedness shall be deemed
equal to the value of such general partnership interest and the amount of any
Indebtedness in respect of any Guarantee of such partnership Indebtedness shall
be limited to the same extent as such Guarantee may be limited.
"INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT" shall mean the
Indemnity, Subrogation and Contribution Agreement dated as of October 15, 1995,
as amended and restated as of
16
November 10, 1998, substantially in the form of Exhibit D, among UCAR, the
Borrower, the Subsidiary Guarantors and the Collateral Agent.
"INFORMATION MEMORANDUM" shall have the meaning given such term in Section
3.15.
"INSTALLMENT DATE" shall have the meaning given such term in Section
2.11(a).
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" shall mean the Intellectual
Property Security Agreement dated as of April 22, 1998, as amended and restated
as of November 10, 1998, substantially in the form of Exhibit I, among UCAR, the
Borrower, the domestic Subsidiaries and the Collateral Agent for the benefit of
the Secured Parties.
"INTEREST COVERAGE RATIO" shall have the meaning given such term in Section
6.11.
"INTEREST EXPENSE" shall mean, with respect to UCAR, the Borrower and the
Subsidiaries on a consolidated basis for any period, the sum of (a) gross
interest expense of UCAR, the Borrower and the Subsidiaries for such period on a
consolidated basis, including (i) the amortization of debt discounts, (ii) the
amortization of all fees (including fees with respect to interest rate
protection agreements) payable in connection with the incurrence of Indebtedness
to the extent included in interest expense and (iii) the portion of any payments
or accruals with respect to Capital Lease Obligations allocable to interest
expense and (b) capitalized interest of UCAR, the Borrower and the Subsidiaries
on a consolidated basis. For purposes of the foregoing, gross interest expense
shall be determined after giving effect to any net payments made or received by
the Borrower and the Subsidiaries with respect to interest rate protection
agreements.
"INTEREST PAYMENT DATE" shall mean, (a) with respect to any Eurodollar
Loan, the last day of the Interest Period applicable to the Borrowing of which
such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest
Period of more than three months' duration, each day that would have been an
Interest Payment Date had successive Interest Periods of three months' duration
been applicable to such Borrowing, and, in addition, the date of any refinancing
or conversion of such Borrowing with or to a Borrowing of a different Type and
(b) with respect to any ABR Loan, the last day of each calendar quarter.
"INTEREST PERIOD" shall mean as to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing or on the last day of the immediately
preceding Interest Period applicable to such Borrowing, as the case may be, and
ending on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6
months thereafter, as the applicable Credit Party
17
may elect, and the date any Eurodollar Borrowing is converted to an ABR
Borrowing in accordance with Section 2.10 or repaid or prepaid in accordance
with Section 2.11 or 2.12; PROVIDED, HOWEVER, that if any Interest Period would
end on a day other than a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day. Interest shall accrue from and including
the first day of an Interest Period to but excluding the last day of such
Interest Period.
"INTEREST/EXCHANGE RATE PROTECTION AGREEMENT" shall mean any interest rate
or currency hedging agreement or arrangement approved by the Administrative
Agent (such approval not to be unreasonably withheld) entered into by the
Borrower or a Subsidiary and designed to protect against fluctuations in
interest rates or currency exchange rates.
"LENDERS" shall mean the persons listed on Schedule 2.01 and any other
person that shall have become a Lender hereunder pursuant to an Assignment and
Acceptance, other than any person that ceases to be a Lender hereunder pursuant
to an Assignment and Acceptance.
"LEVERAGE RATIO" shall have the meaning given such term in Section 6.12.
"LIBO RATE" shall mean, with respect to any Eurodollar Borrowing for any
Interest Period, the rate (rounded upwards, if necessary, to the next 1/16 of
1%) at which dollar deposits approximately equal in principal amount to the
Administrative Agent's portion of such Eurodollar Borrowing and for a maturity
comparable to such Interest Period are offered to the principal London office of
the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIEN" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or similar right of a
third party with respect to such securities.
"LITIGATION LIABILITIES" shall mean liabilities and expenses of UCAR, the
Borrower and the Subsidiaries associated with (a) antitrust investigations and
related lawsuits, settlements and claims of the type described in UCAR's Annual
Report on Form 10-K for the year ended December 31, 1997, and UCAR's Quarterly
Reports on Form 10-Q for the quarters ended March 31, 1998 and June 30, 1998
(together, the "SEC REPORTS"), (b) shareholder derivative lawsuits and claims of
the type
18
described in the SEC Reports and (c) securities lawsuits and claims of the type
described in the SEC Reports and any investigations that may arise relating to
the subject matter of such securities lawsuits and claims.
"LITIGATION PAYMENTS" shall mean payments, credits, discounts, transfers of
assets and any other transfers of value made in respect of Litigation
Liabilities which are or would be applied against the Reserves in accordance
with GAAP.
"LOAN DOCUMENTS" shall mean this Agreement, the Existing Credit Agreement,
the Notes, if any, the notes, if any, issued under the Existing Credit
Agreement, the Guarantee Agreements, the Security Documents, the Indemnity,
Subrogation and Contribution Agreement, the Local Facility Loan Documents and
the letters of credit issued under the Existing Credit Agreement.
"LOAN PARTIES" shall mean the Borrower, the Swiss Borrower, the Guarantors
and the Pledgors.
"LOANS" shall mean the U.S. Term Loans and the Swiss Term Loans.
"LOCAL FACILITY" shall mean each loan facility permitting borrowings by a
credit party under the Existing Credit Agreement located outside the United
States (a) which are made pursuant to a Local Facility Credit Agreement and
supported by a Tranche A Letter of Credit or (b) which are supported by the
Guarantee of any Guarantor or a pledge of or a security interest in any
Collateral or in any assets of such credit party and the existence and terms of
which (including the existence and terms of any such Guarantee, pledge or
security interest) have been submitted for approval to the administrative agent
under the Existing Credit Agreement by the Borrower and approved in writing by
the administrative agent under the Existing Credit Agreement.
"LOCAL FACILITY CREDIT AGREEMENT" shall mean each credit agreement between
a foreign credit party under the Existing Credit Agreement and one or more
lenders in substantially the form of Exhibit E to the Existing Credit Agreement,
with such changes therefrom as shall in the reasonable judgment of the
administrative agent under the Existing Credit Agreement be necessary or
advisable under applicable law.
"LOCAL FACILITY LENDERS" shall mean each lender under a Local Facility.
"LOCAL FACILITY LOAN DOCUMENTS" shall mean each agreement or instrument
evidencing or securing any obligation of a borrower under, guarantor of, or
grantor of collateral to secure, any Local Facility that does not also evidence,
guarantee or secure any other Obligation.
"MARGIN STOCK" shall have the meaning given such term in Regulation U.
19
"MATERIAL ADVERSE EFFECT" shall mean (a) a materially adverse effect on the
assets, business, properties, financial condition or results of operations of
UCAR, the Borrower and the Subsidiaries, taken as a whole, (b) a material
impairment of the ability of UCAR, the Borrower or any Subsidiary to perform any
of its material obligations under any Loan Document (other than the Local
Facility Loan Documents) to which it is or will be a party or (c) an impairment
of the validity or enforceability of, or a material impairment of the material
rights, remedies or benefits available to the Lenders, the Administrative Agent
or the Collateral Agent under any Loan Document (other than Local Facility Loan
Documents).
"MATURITY DATE" shall mean December 31, 2003.
"MOODY'S" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"MORTGAGE" shall mean a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property or interest therein to secure all or a portion of the
Obligations. Each Mortgage shall be reasonably satisfactory in form and
substance to the Collateral Agent.
"MORTGAGED PROPERTIES" shall mean, initially, each parcel of real property
and improvements thereto owned by a Loan Party and identified on Schedule
3.23(a), and shall include each other parcel of real property and improvements
thereto with respect to which a Mortgage is granted pursuant to Section 5.11.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate (other than one
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code
Section 414) is making or accruing an obligation to make contributions, or has
within any of the preceding five plan years made or accrued an obligation to
make contributions.
"NET PROCEEDS" shall mean (a) 100% of the cash proceeds actually received
by UCAR, the Borrower or any Subsidiary (including any cash payments received by
way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise and including
casualty insurance settlements and condemnation awards, but only as and when
received), net of (i) attorneys' fees, accountants' fees, investment banking
fees, survey costs, title insurance premiums, and related search and recording
charges, transfer taxes, deed or mortgage recording taxes, required debt
payments (other than pursuant hereto or pursuant to the Existing Credit
Agreement), other customary expenses and brokerage, consultant and other
customary fees actually incurred in connection therewith and (ii) taxes paid or
payable as a result thereof (including withholding taxes incurred in connection
with cross-border transactions, if applicable, and including taxes estimated by
the Borrower to be payable as a result thereof or as a result of such
20
transactions), from any loss, damage, destruction or condemnation of, or any
sale, transfer or other disposition (including any sale and leaseback of assets
and any lease of real property) to any person of any asset or assets of UCAR,
the Borrower or any Subsidiary (other than those pursuant to Sections 6.03,
6.05(a), 6.05(b), 6.05(e), 6.05(f)and 6.05(h) or any other financing subject to
clause (ii) of the definition of "EXCESS CASH FLOW"); PROVIDED HOWEVER that if
the Borrower shall deliver a certificate of the Borrower signed by a Responsible
Officer of the Borrower to the Administrative Agent promptly following receipt
of any such proceeds setting forth the Borrower's intention to use any portion
of such proceeds to purchase assets useful in the business of the Borrower and
the Subsidiaries (including by way of a purchase of Capital Stock of any person
holding such assets) within 12 months of such receipt, such portion of such
proceeds shall not constitute Net Proceeds except to the extent not so used
within such 12-month period; PROVIDED that the aggregate amount of net proceeds
that may be excluded from Net Proceeds pursuant to the immediately preceding
proviso shall not exceed 25% of the book value of Total Assets set forth in
UCAR's and its subsidiaries' June 30, 1998 quarterly consolidated financial
statements (which book value equals $1,273,000,000); and PROVIDED FURTHER that
(x) no proceeds realized in a single transaction or series of related
transactions shall constitute Net Proceeds unless such proceeds shall exceed
$75,000 and (y) no such proceeds shall constitute Net Proceeds in any fiscal
year until the aggregate amount of all such proceeds in such fiscal year shall
exceed $1,000,000 or the aggregate of all such proceeds received after the
Effective Date shall exceed $3,000,000, (b) 100% of the cash proceeds from the
incurrence, issuance or sale by UCAR, the Borrower or any Subsidiary of any
Indebtedness (other than Indebtedness permitted pursuant to Section 6.01), net
of all taxes (including withholding taxes incurred in connection with
cross-border transactions, if applicable, and including taxes estimated by the
Borrower to be payable as a result thereof or as a result of such transactions)
and fees (including investment banking fees), commissions, costs and other
expenses incurred in connection with such incurrence, issuance or sale and (c)
50% of the cash proceeds from the issuance or the sale by UCAR of any equity
security of UCAR (other than sales of Capital Stock of UCAR to directors,
officers or employees of UCAR, the Borrower or any Subsidiary in connection with
permitted employee compensation and incentive arrangements), net of all taxes
and fees (including investment banking fees), commissions, costs and other
expenses incurred in connection with such issuance or sale. For purposes of
calculating "NET PROCEEDS", fees, commissions and other costs and expenses
payable to UCAR or the Borrower or any Affiliate of either of them shall be
disregarded.
"NOTES" shall mean any promissory note of a Credit Party issued pursuant to
this Agreement.
"OBLIGATIONS" shall mean (a) the unpaid principal of and premium, if any,
and interest (including interest accruing at the then applicable rate provided
in this Agreement after the maturity of the Loans and interest accruing at the
then applicable rate
21
provided in this Agreement after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding, relating
to any Credit Party whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) on the Loans, when and as due, whether
at maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (b) the unpaid principal of and premium, if any, and interest
(including interest accruing at the then applicable rate provided in the
Existing Credit Agreement after the maturity of the loans thereunder and
interest accruing at the applicable rate provided in the Existing Credit
Agreement after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to any borrower
thereunder whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) on the loans under the Existing Credit Agreement,
when and as due, whether at maturity, by acceleration, upon one or more dates
set for prepayment or otherwise, (c) each payment required to be made by any
credit party under the Existing Credit Agreement, when and as due, including
payments in respect of reimbursements of L/C disbursements, interest thereon and
obligations to provide cash collateral, (d) each payment required to be made by
any Credit Party under this Agreement, when and as due, and (e) all other
obligations and liabilities of every nature of the Credit Parties and the credit
parties under the Existing Credit Agreement from time to time owed to the
Secured Parties or any of them, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred
(including monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), which may arise under, out of, or in
connection with, this Agreement, the Existing Credit Agreement, any Guarantee
Agreement, any Security Document or any other Loan Document and any obligation
of the Borrower to a Lender or a lender under the Existing Credit Agreement
under an Interest/Exchange Rate Protection Agreement or under any other document
made, delivered or given in connection with any of the foregoing, in each case
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including all fees and disbursements
of counsel to the Collateral Agent or to the Secured Parties that are required
to be paid by UCAR, a Credit Party or a credit party under the Existing Credit
Agreement pursuant to the terms of this Agreement, the Existing Credit
Agreement, any Guarantee Agreement, any Security Document, any other Loan
Document or any Interest/Exchange Rate Protection Agreement with a Lender or a
lender under the Existing Credit Agreement).
"ORIGINAL CLOSING DATE" shall mean October 19, 1995.
"PARENT GUARANTEE AGREEMENT" shall mean the Parent Guarantee Agreement
dated as of October 19, 1995, as amended and restated as of November 10, 1998,
substantially in the form of Exhibit E, made by UCAR and the Borrower in favor
of the Collateral Agent for the benefit of the Secured Parties.
22
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"PERMITTED BUSINESS ACQUISITION" shall mean any acquisition of all or
substantially all the assets of, or shares or other equity interests in, a
person or division or line of business of a person (or any subsequent investment
made in a previously acquired Permitted Business Acquisition) and any investment
in Brazil if immediately after giving effect thereto: (a) no Default or Event of
Default shall have occurred and be continuing or would result therefrom, (b) all
transactions related thereto shall be consummated in accordance with applicable
laws, (c) at least 90% of the outstanding Capital Stock of any acquired or newly
formed corporation, partnership, association or other business entity are owned
directly by the Borrower or a domestic Wholly Owned Subsidiary (unless there is
a material tax or legal or other economic disadvantage in not having a foreign
Subsidiary hold such Capital Stock, in which case such Capital Stock may be held
directly by a foreign Subsidiary) and all actions required to be taken, if any,
with respect to such acquired or newly formed Subsidiary under Section 5.11
shall have been taken, (d) UCAR shall be in compliance, on a PRO FORMA basis
after giving effect to such acquisition or formation, with the covenants
contained in Sections 6.11 and 6.12 recomputed as at the last day of the most
recently ended fiscal quarter of UCAR as if such acquisition had occurred on the
first day of each relevant period for testing such compliance, and the Borrower
shall have delivered to the Administrative Agent a certificate of the Borrower
signed by a Responsible Officer of the Borrower to such effect, together with
all relevant financial information for such subsidiary or assets, (e) the Total
Revolving Credit Commitment shall exceed the Aggregate Revolving Credit Exposure
by at least $75,000,000 following such acquisition and payment of all related
costs and expenses, (f) the Borrower shall have delivered to the Administrative
Agent a certificate of the Borrower signed by a Responsible Officer of the
Borrower representing that in the Borrower's good faith judgment, based on such
analysis as it shall deem appropriate, it will have liquidity it deems adequate
following such acquisition or formation, and (g) any acquired or newly formed
subsidiary shall not be liable for any Indebtedness (except for Indebtedness
permitted by Section 6.01).
"PERMITTED FOREIGN TRANSFER" shall mean (a) any Specified Permitted
Transaction or (b) the transfer by means of Indebtedness, investment or
otherwise (PROVIDED that each transfer of cash (other than a transfer pursuant
to clause (iii) below) shall be made by means of intercompany Indebtedness
(which shall be pledged to the extent required under the Pledge Agreements if no
material tax disadvantage shall result therefrom) unless there is a material tax
or other economic or legal disadvantage in structuring the transfer as
Indebtedness instead of as an equity investment) from the Borrower or any
Subsidiary to any foreign Subsidiary at least 90% of the outstanding Capital
Stock of which is owned by the Borrower or a Wholly Owned Subsidiary of (i)
inventory and equipment in the ordinary course of business consistent with past
23
practice; (ii) cash to fund (A) working capital needs and capital expenditures,
in each case in accordance with the strategic plan described in the Information
Memorandum or in the ordinary course of business consistent with past practice,
and (B) debt service on Indebtedness permitted under this Agreement paid in the
ordinary course of business, and, in the case of any transaction under clause
(A) or clause (B), solely to the extent internally generated funds of the
applicable transferee are insufficient for such purposes and the Borrower shall
have delivered to the Administrative Agent a certificate of the Borrower signed
by a Responsible Officer of the Borrower to such effect; and (iii) any cash
borrowed in one jurisdiction and transferred to another to repay Indebtedness
under any Local Facility or the Existing Credit Agreement as a direct
consequence of any reallocation made pursuant to Section 2.11(b) of the Existing
Credit Agreement.
"PERMITTED INVESTMENTS" shall mean: (a) direct obligations of the United
States of America or any agency thereof or obligations guaranteed by the United
States of America or any agency thereof; (b) time deposit accounts, certificates
of deposit and money market deposits maturing within 180 days of the date of
acquisition thereof issued by a bank or trust company which is organized under
the laws of the United States of America, any state thereof or any foreign
country recognized by the United States of America having capital, surplus and
undivided profits aggregating in excess of $250,000,000 (or the foreign currency
equivalent thereof) and whose long-term debt, or whose parent holding company's
long-term debt, is rated A at the time of deposit (or such similar equivalent
rating or higher by at least one nationally recognized statistical rating
organization (as defined in Rule 436 under the Securities Act of 1933, as
amended)); (c) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (a) above entered into
with a bank meeting the qualifications described in clause (b) above; (d)
commercial paper, maturing not more than 180 days after the date of acquisition,
issued by a corporation (other than an Affiliate of the Borrower) organized and
in existence under the laws of the United States of America or any foreign
country recognized by the United States of America with a rating at the time as
of which any investment therein is made of P-1 (or higher) according to Moody's,
or A-1 (or higher) according to S&P; (e) securities with maturities of six
months or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least A by S&P
or A2 by Moody's; (f) in the case of any Subsidiary organized in a jurisdiction
outside the United States: (i) direct obligations of the sovereign nation (or
any agency thereof) in which such Subsidiary is organized and is conducting
business or in obligations fully and unconditionally guaranteed by such
sovereign nation (or any agency thereof); PROVIDED that such obligations have a
rating of at least A by S&P or A2 by Moody's (or the equivalent thereof from
comparable foreign rating agencies), (ii) investments of the type and maturity
described in clauses (a) through (e) above of foreign obligors, which
investments or obligors (or the parents
24
of such obligors) have ratings described in such clauses or equivalent ratings
from comparable foreign rating agencies or (iii) investments of the type and
maturity described in clauses (a) through (e) above of foreign obligors (or the
parents of such obligors), which investments or obligors (or the parents of such
obligors) are not rated as provided in such clauses or in clause (ii) above but
which are, in the reasonable judgment of the Borrower, comparable in investment
quality to such investments and obligors (or the parents of such obligors);
PROVIDED that the aggregate face amount outstanding at any time of such
investments of all foreign Subsidiaries made pursuant to clause (iii) does not
exceed $50,000,000; (g) mutual funds whose investment guidelines restrict such
funds' investments to those satisfying the provisions of clauses (a) through (e)
above; and (h) time deposit accounts, certificates of deposit and money market
deposits in an aggregate face amount not in excess of 1/2 of 1% of Total Assets
as of the end of the Borrower's most recently completed fiscal year.
"PERMITTED OTHER ACQUISITIONS" shall mean acquisitions of any assets of, or
any shares or other equity interests in, a person or division or line of
business of any person if immediately after giving effect thereto: (a) no
Default or Event of Default shall have occurred and be continuing, (b) all
transactions related thereto shall be consummated in accordance with applicable
laws, (c) the Borrower shall on or prior to the making of such acquisition have
delivered to the Administrative Agent a certificate of the Borrower signed by a
Responsible Officer of the Borrower designating such acquisition as a Permitted
Other Acquisition for purposes of this Agreement, (d) either (i) the acquisition
shall constitute a Permitted Business Acquisition, (ii) the acquired asset shall
constitute or be held in an Unrestricted Subsidiary or (iii) solely if at the
time of acquisition thereof the Borrower shall not be entitled to make any
additional Capital Expenditure pursuant to Section 6.11, the acquisition shall
be of real property, improvements thereto or equipment; PROVIDED that if such
acquisition shall be an acquisition of the type described in clause (ii) or
(iii) above, (A) UCAR shall be in compliance, on a PRO FORMA basis after giving
effect to such acquisition, with the covenants contained in Sections 6.11 and
6.12 recomputed as of the last day of the most recently ended fiscal quarter of
UCAR as if such acquisition had occurred on the first day of each relevant
period for testing such compliance, and the Borrower shall have delivered to the
Administrative Agent a certificate of the Borrower signed by a Responsible
Officer of the Borrower to such effect, together with all relevant information
for such acquisition, (B) the Total Revolving Credit Commitment shall exceed the
Aggregate Revolving Credit Exposure by at least $75,000,000 following the
acquisition and the payment of all related costs and expenses, and (C) the
Borrower shall have delivered a certificate of the Borrower signed by a
Responsible Officer of the Borrower representing that in the Borrower's good
faith judgment, based on such analysis as it shall deem adequate, it will have
liquidity it deems adequate following the acquisition.
25
"PERSON" shall mean any natural person, corporation, limited liability
company, business trust, joint venture, association, company, partnership or
government, or any agency or political subdivision thereof.
"PLAN" shall mean any employee pension benefit plan, as defined in Section
3(2) of ERISA (other than a Multiemployer Plan), subject to the provisions of
Title IV of ERISA or Section 412 of the Code and in respect of which the
Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"PLEDGE AGREEMENTS" shall mean (a) the Domestic Pledge Agreement and (b)
any other pledge agreements or similar agreements securing the Obligations or a
Guarantee thereof in form and substance reasonably satisfactory to the
Collateral Agent.
"PLEDGORS" shall mean UCAR, the Borrower and each Subsidiary that becomes
party to a Pledge Agreement, a Security Agreement, the Intellectual Property
Security Agreement or a Mortgage.
"PRIME RATE" shall mean the rate of interest per annum publicly announced
from time to time by the Administrative Agent as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced as being effective.
"RECAPITALIZATION" shall mean the recapitalization of UCAR on January 26,
1995, and the related transactions, as defined in the Credit Agreement of UCAR
and the Borrower dated as of January 26, 1995.
"REFINANCING NOTE INDENTURE" shall mean one or more indentures pursuant to
which the Refinancing Notes are issued.
"REFINANCING NOTES" shall mean one or more series of subordinated
debentures or notes issued by the Borrower, the net proceeds of which are used
by the Borrower to redeem or repurchase Senior Subordinated Notes.
"REGISTER" shall have the meaning given such term in Section 9.04(d).
"REGULATION D" shall mean Regulation D of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"REGULATION U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
26
"REGULATION X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"RELATED BUSINESS" shall mean any business or business activity conducted
by UCAR or its subsidiaries on the date hereof and any business or business
activities incidental or related thereto or incidental or related to the
procurement, manufacture or sale of products or services manufactured or
provided by UCAR or any of its subsidiaries on the date hereof.
"RELATED FUND" shall mean, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is advised
or managed by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"RELEASE" shall have the meaning given such term in CERCLA, 42 U.S.C.
ss.9601(22).
"REMEDIAL ACTION" shall mean (a) "remedial action" as such term is defined
in CERCLA, 42 U.S.C. ss. 9601(24), and (b) all other actions, including studies
and investigations, required by any Governmental Authority or voluntarily
undertaken to: (i) clean up, remove, treat, ▇▇▇▇▇ or in any other way respond to
any Hazardous Material in the environment; or (ii) prevent the Release or threat
of Release, or minimize the further Release, of any Hazardous Material.
"REPORTABLE EVENT" shall mean any reportable event as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than a Plan maintained by an ERISA Affiliate that is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Code Section 414).
"REQUIRED LENDERS" shall mean, at any time, Lenders having Loans and unused
Commitments representing at least 51% of the sum of all Loans outstanding and
unused Commitments at such time.
"REQUIRED SECURED PARTIES" shall mean, at any time, (a) the Required
Lenders under this Agreement (unless all Commitments under this Agreement shall
have expired or been terminated and the principal of and interest on each Loan,
all Fees and other amounts payable hereunder shall have been paid in full and
(b) the "Required Lenders" under the Existing Credit Agreement (unless all
commitments under the Existing Credit Agreement shall have expired or been
terminated and the principal of and interest on each loan, all fees and other
amounts payable under the Existing Credit Agreement shall have been paid in full
and all letters of credit issued hereunder shall have been cancelled or expired
and all amounts drawn thereunder shall have been reimbursed in full).
"RESERVES" shall mean, with respect to UCAR, the Borrower and its
subsidiaries on a consolidated basis at any date
27
of determination, all reserves in respect of Litigation Liabilities which are or
would be disclosed on a consolidated balance sheet of UCAR, the Borrower and its
subsidiaries prepared in accordance with GAAP at such date of determination.
"RESPONSIBLE OFFICER" of any corporation shall mean any executive officer
or Financial Officer of such corporation and any other officer or similar
official thereof responsible for the administration of the obligations of such
corporation in respect of this Agreement.
"RESTRICTED DEBT PAYMENTS" shall have the meaning given such term in
Section 6.09(b)(i).
"RESTRICTED EQUITY PAYMENTS" shall have the meaning given such term in
Section 6.06.
"RESTRICTED JUNIOR PAYMENT AMOUNT" shall mean, with respect to any fiscal
year, an amount equal to (a) $15,000,000 for the 1999 fiscal year and (b)
$20,000,000 for each fiscal year thereafter.
"RESTRICTED JUNIOR PAYMENTS" shall mean the collective reference to
Restricted Equity Payments made pursuant to Section 6.06(c) and Restricted Debt
Payments made pursuant to the first proviso contained in Section 6.09(b)(i). The
amount of Restricted Equity Payments made pursuant to Section 6.06(c) shall be
determined without double counting in the case of Restricted Equity Payments
made to UCAR, the Borrower or any Subsidiary to the extent used by such person
to make a Restricted Equity Payment.
"REVOLVING L/C EXPOSURE" shall mean the Revolving L/C Exposure under the
Existing Credit Agreement.
"S&P" shall mean Standard & Poor's Ratings Group.
"SALE AND LEASE-BACK TRANSACTION" shall have the meaning given such term in
Section 6.03.
"SEC REPORTS" shall have the meaning given such term in the definition of
"Litigation Liabilities".
"SECOND CLOSING DATE" shall mean March 19, 1997.
"SECURED PARTIES" shall mean the Lenders, the lenders under the Existing
Credit Agreement, the lenders under the Local Facility Credit Agreements, the
fronting banks under the Existing Credit Agreement, the Administrative Agent,
the administrative agent under the Existing Credit Agreement, the administrative
agent under the Local Facility Credit Agreements and the Collateral Agent.
"SECURITY AGREEMENTS" shall mean (a) the Domestic Security Agreement and
(b) any other security agreements or similar
28
agreements securing the Obligations or a Guarantee thereof in form and substance
reasonably satisfactory to the Collateral Agent.
"SECURITY DOCUMENTS" shall mean the Security Agreements, the Intellectual
Property Security Agreement, the Pledge Agreements, the Mortgages and each of
the agreements and other instruments and documents executed and delivered
pursuant thereto or pursuant to Section 5.11.
"SENIOR SUBORDINATED GUARANTEE" shall mean the senior subordinated
Guarantee by UCAR in effect on the Original Closing Date, and any subsequent
senior subordinated Guarantee by UCAR on terms no less favorable to the Lenders,
of the Indebtedness of the Borrower under the Senior Subordinated Notes or the
Refinancing Notes.
"SENIOR SUBORDINATED INDENTURE" shall mean the indenture pursuant to which
the Senior Subordinated Notes were issued, dated as of January 15, 1995, among
the Borrower, UCAR, as guarantor, and United States Trust Company of New York,
as Trustee, as amended from time to time in accordance with Section 6.09.
"SENIOR SUBORDINATED NOTES" shall mean up to $200,000,000 aggregate
principal amount of Senior Subordinated Notes of the Borrower issued pursuant to
the Senior Subordinated Indenture.
"SIGNIFICANT SUBSIDIARY" shall mean the Borrower, any other Credit Party
and any other subsidiary of UCAR that at the date of any determination (a)
accounts for 2.5% or more of the consolidated assets of UCAR, (b) has accounted
for 2.5% or more of EBITDA for each of the two consecutive periods of four
fiscal quarters immediately preceding the date of determination or (c) has been
designated by the Borrower in writing to the Administrative Agent as a
Significant Subsidiary and such designation has not subsequently been withdrawn.
"SPECIFIED PERMITTED TRANSACTION" shall mean, if immediately after giving
effect thereto, no Default or Event of Default shall have occurred and be
continuing or would result therefrom: (a) any acquisition of Capital Stock of a
person that (i) does not constitute a Permitted Business Acquisition solely
because after giving effect thereto less than 90% of the outstanding Capital
Stock of such person is owned as required under clause (b) of the definition of
"Permitted Business Acquisition" but (ii) after giving effect to which at least
70% of the outstanding Capital Stock of such person is owned directly by the
Borrower or a domestic Wholly Owned Subsidiary (unless there is a material tax
or legal or other economic disadvantage in not having a foreign Subsidiary hold
such Capital Stock, in which case such Capital Stock may be held directly by a
foreign Subsidiary), (b) any acquisition of Capital Stock of a person that (i)
does not constitute a Permitted Business Acquisition solely because after giving
effect thereto less than 90% of the outstanding Capital Stock of such person is
owned as required under clause (b) of the
29
definition of "Permitted Business Acquisition" but (ii) after giving effect to
which at least 50% of the outstanding Capital Stock of such person is owned
directly by the Borrower or a domestic Wholly Owned Subsidiary (unless there is
a material tax or legal or other economic disadvantage in not having a foreign
Subsidiary hold such Capital Stock, in which case such Capital Stock may be held
directly by a foreign Subsidiary); PROVIDED that the aggregate amount of
consideration (whether cash or property, valued at the time each such investment
is made) for acquisitions made in reliance on this clause (b) shall not exceed
$125,000,000, (c) any acquisition (or redemption or repurchase) of additional
Capital Stock of UCAR Elektroden GmbH, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, UCAR Grafit OAO or any
other Subsidiary acquired in a Specified Permitted Transaction by the Borrower
or any Subsidiary, unless such transaction shall constitute a Permitted Business
Acquisition, and (d) any advance, loan or capital contribution by the Borrower
or any Subsidiary to UCAR Elektroden GmbH, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, UCAR Grafit OAO or
any other Subsidiary acquired in a Specified Permitted Transaction at any time
prior to such person becoming a Wholly Owned Subsidiary (other than a Permitted
Foreign Transfer of the type described in clause (b) of the definition thereof);
PROVIDED that after giving effect to any transaction described in clause (a),
(b),(c) or (d) above, (i) UCAR shall be in compliance, on a PRO FORMA BASIS
after giving effect to such transaction, with the covenants contained in
Sections 6.11 and 6.12 recomputed as of the last day of the most recently ended
fiscal quarter of UCAR as if such acquisition had occurred on the first day of
each relevant period for testing such compliance, and the Borrower shall have
delivered to the Administrative Agent a certificate of the Borrower signed by a
Responsible Officer of the Borrower to such effect, together with all relevant
financial information for such transaction, (ii) the Total Revolving Credit
Commitment shall exceed the Aggregate Revolving Credit Exposure by $75,000,000
following such transaction and payment of all related costs and expenses and
(iii) the Borrower shall have delivered to the Administrative Agent a
certificate of the Borrower signed by a Responsible Officer of the Borrower
representing that in the Borrower's good faith judgment, it will have liquidity
it deems adequate following such transaction. For purposes of determining
compliance with Section 6.04(k), the aggregate outstanding amount of Specified
Permitted Transactions at any time shall mean the sum at such time of (i) the
aggregate outstanding principal amount of advances and loans made under clause
(d) of the immediately preceding sentence and (ii) the aggregate amount (net of
return of capital of (but not return on) any such investment) of capital
contributions made under clause (d) of the immediately preceding sentence and
consideration paid in respect of acquisitions (or redemptions or repurchases) of
Capital Stock made under clause (a), (b) or (c) of the immediately preceding
sentence; PROVIDED that the aggregate amount of Specified Permitted Transactions
in respect of any person (A) made under clause (a), (b) and (c) shall be deemed
to be zero after any acquisition in respect of such person that constitutes a
Permitted Business Acquisition (it being understood that the aggregate amount of
all prior such transactions in respect of such person shall thereafter be
treated as Permitted Other
30
Acquisitions for purposes of Section 6.04(k)) and (B) made under clause (d)
shall be zero at any time that such person is a Wholly Owned Subsidiary.
"STATUTORY RESERVES" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority, domestic or foreign,
to which the Administrative Agent is subject with respect to Eurocurrency
Liabilities (as defined in Regulation D of the Board) or other categories of
liabilities or deposits by reference to which the LIBO Rate is determined. Such
reserve percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities and to
be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets which may be available from time to time to any
Lender under such Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"SUBSIDIARY" shall mean, with respect to any person (herein referred to as
the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, directly or indirectly, owned, controlled or held, or (b) which
is, at the time any determination is made, otherwise Controlled, by the parent
or one or more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent.
"SUBSIDIARY" shall mean each subsidiary of the Borrower.
"SUBSIDIARY GUARANTEE AGREEMENT" shall mean the Subsidiary Guarantee
Agreement date as of October 15, 1995, as amended and restated as of November
10, 1998, substantially in the form of Exhibit G, made by the domestic
Subsidiary Guarantors in favor of the Collateral Agent for the benefit of the
Secured Parties.
"SUBSIDIARY GUARANTOR" shall mean any Subsidiary that is a party to a
Guarantee Agreement.
"SWISS TERM LOAN" shall mean a Loan made pursuant to clause (b) of Section
2.01 .
"SWISS TERM LOAN COMMITMENT" shall mean, with respect to each Lender, the
commitment of such Lender to make a Swiss Term Loan hereunder on the Effective
Date, expressed as an amount representing the maximum principal amount of the
Swiss Term Loan to be made by such Lender hereunder, as such commitment may be
(a)
31
reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's Swiss Term Loan Commitment is
set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Lender shall have assumed its Swiss Term Loan Commitment, as
applicable. The initial aggregate amount of the Lenders' Swiss Term Loan
Commitments is $85,000,000.
"TAX SHARING AGREEMENT" means (a) that certain agreement dated January 26,
1995, between the Borrower and UCAR, and (b) any other tax allocation agreement
by the Borrower or any of its Subsidiaries and the Borrower or UCAR with respect
to consolidated or combined tax returns including the Borrower or any of its
Subsidiaries but only to the extent that amounts payable from time to time by
the Borrower or any such Subsidiary under any such agreement do not exceed the
corresponding tax payments that the Borrower or such Subsidiary would have been
required to make to any relevant taxing authority had the Borrower or such
Subsidiary not joined in such consolidated or combined return, but instead had
filed returns including only the Borrower or its Subsidiaries (PROVIDED that any
such agreement may provide that, if the Borrower or any such Subsidiary ceases
to be a member of the affiliated group of corporations of which UCAR is the
common parent for purposes of filing a consolidated federal income tax return
(such cessation, a "DECONSOLIDATION EVENT"), then the Borrower or such
Subsidiary will indemnify UCAR with respect to any Federal, state or local
income, franchise or other tax liability (including any related interest,
additions or penalties) imposed on UCAR as the result of an audit or other
adjustment with respect to any period prior to such Deconsolidation Event that
is attributable to the Borrower, such Subsidiary or any predecessor business
thereof (computed as if the Borrower, such Subsidiary or such predecessor
business, as the case may be, were a stand-alone entity that filed separate tax
returns as an independent corporation), but only to the extent that any such tax
liability exceeds any liability for taxes recorded on the books of the Borrower
or such Subsidiary with respect to any such period).
"TOTAL ASSETS" shall mean, with respect to UCAR, the Borrower and the
Subsidiaries on a consolidated basis at any date of determination, all assets
which would, in accordance with GAAP, be classified on a consolidated balance
sheet of UCAR, the Borrower and the Subsidiaries as assets at such date of
determination.
"TOTAL DEBT" shall mean, with respect to UCAR, the Borrower and the
Subsidiaries on a consolidated basis at any time, all Capital Lease Obligations,
Indebtedness for borrowed money and Indebtedness in respect of the deferred
purchase price of property or services of UCAR, the Borrower and the
Subsidiaries at such time.
"TRANCHE A EXPOSURE" shall mean the Tranche A Exposure under the Existing
Credit Agreement.
32
"TRANCHE A LETTER OF CREDIT" shall mean a Tranche A Letter of Credit issued
under the Existing Credit Agreement.
"TRANCHE A REIMBURSEMENT LOANS" shall mean the Tranche A Reimbursement
Loans made under the Existing Credit Agreement.
"TRANCHE C TERM LOANS" shall mean the U.S. Term Loans and the Swiss Term
Loans.
"TRANSACTIONS" shall have the meaning given such term in Section 3.02.
"TYPE", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, the term "RATE" shall include the
Adjusted LIBO Rate and the Alternate Base Rate.
"UNRESTRICTED SUBSIDIARY" shall mean (a) any subsidiary of UCAR (other than
the Borrower) or any other direct or indirect investment by UCAR or any such
subsidiary in the Capital Stock of any other person (other than the Borrower) so
long as (i) none of the Capital Stock or other ownership interests of such
subsidiary or other person is owned by the Borrower or any of the Subsidiaries,
(ii) UCAR shall have notified the Administrative Agent of its acquisition or
creation of such subsidiary or such other investment and its ownership interest
therein concurrently with such acquisition, creation or investment and the
intended purposes of such subsidiary or investment, (iii) any such subsidiary
(unless it is a foreign subsidiary) shall have entered into the Tax Sharing
Agreement existing at the time of such acquisition or creation (or another tax
sharing agreement containing terms which, in the reasonable judgment of the
Administrative Agent, are customary in similar circumstances to provide an
appropriate allocation of tax liabilities and benefits), (iv) except in the case
of UCAR as permitted in the proviso below, none of UCAR, the Borrower and the
Subsidiaries shall have any contingent liability in respect of such subsidiary
or investment and (v) any such subsidiary or investment shall be capitalized
solely from the following sources: (A) any investment by any person other than
UCAR, the Borrower and the Subsidiaries; (B) Indebtedness issued by such
subsidiary or any of its subsidiaries that is nonrecourse to UCAR, the Borrower
and the Subsidiaries (except in the case of UCAR as otherwise permitted by the
proviso below), or proceeds thereof; (C) Capital Stock of such subsidiary or any
other Unrestricted Subsidiary, or proceeds thereof; (D) proceeds of Capital
Stock of UCAR issued by UCAR after the Original Closing Date remaining after
making the prepayment of Obligations required under Section 2.12(d) (to the
extent not previously used to prepay Indebtedness (other than revolving loans or
swingline loans under the Existing Credit Agreement), make any investment or
capital expenditure or otherwise for any purpose resulting in a deduction to
Excess Cash Flow in any fiscal year); and (E) investments permitted to be made
in Unrestricted Subsidiaries pursuant to Section 6.04; PROVIDED that UCAR may
incur
33
a contingent liability or Indebtedness in a specified and limited amount in
respect of such a subsidiary or investment if it would at the time of such
incurrence be permitted to make an additional investment in such subsidiary or
investment in the amount of such incurrence and the amount so incurred shall
thereafter constitute an investment in such subsidiary or investment in such
amount for purposes of calculating compliance with Section 6.04; and (b) any
subsidiary of an Unrestricted Subsidiary.
"U.S. TERM LOAN" shall mean a Loan made pursuant to clause (a) of Section
2.01.
"U.S. TERM LOAN COMMITMENT" shall mean, with respect to each Lender, the
commitment of such Lender to make a U.S. Term Loan hereunder on the Effective
Date, expressed as an amount representing the maximum principal amount of the
U.S. Term Loan to be made by such Lender hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.09 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's U.S. Term Loan
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its U.S. Term Loan Commitment,
as applicable. The initial aggregate amount of the Lenders' U.S. Term Loan
Commitments is $125,000,000.
"WHOLLY OWNED SUBSIDIARY" means a Subsidiary of the Borrower, (a) at least
99% of the Capital Stock of which (other than directors' qualifying shares) is
owned by the Borrower or another Wholly Owned Subsidiary or (b) solely in the
case of any Subsidiary included in Brazil or UCAR Grafit OAO, at least 97% of
the Capital Stock of which (other than directors' qualifying shares) is owned by
the Borrower or another Wholly Owned Subsidiary.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
"WORKING CAPITAL" shall mean, with respect to UCAR, the Borrower and the
Subsidiaries on a consolidated basis at any date of determination, Current
Assets at such date of determination MINUS Current Liabilities at such date of
determination.
SECTION 1.02. TERMS GENERALLY. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. Except as otherwise expressly
provided herein,
34
(a) any reference in this Agreement to any Loan Document shall mean such
document as amended, restated, supplemented or otherwise modified from time to
time and (b) all terms of an accounting or financial nature shall be construed
in accordance with GAAP, as in effect from time to time; PROVIDED, HOWEVER, that
for purposes of determining compliance with the covenants contained in Section
2.12(e) and Article VI all accounting terms herein shall be interpreted and all
accounting determinations hereunder (in each case, unless otherwise provided for
or defined herein) shall be made in accordance with GAAP as in effect on the
Effective Date and applied on a basis consistent with the application used in
the financial statements referred to in Section 3.05; and PROVIDED FURTHER that
if the Borrower notifies the Administrative Agent that the Borrower wishes to
amend any covenant in Section 2.12(e) or Article VI or any related definition to
eliminate the effect of any change in GAAP occurring after the date of this
Agreement on the operation of such covenant (or if the Administrative Agent
notifies the Borrower that the Required Lenders wish to amend Section 2.12(e) or
Article VI or any related definition for such purpose), then (i) the Borrower
and the Administrative Agent shall negotiate in good faith to agree upon an
appropriate amendment to such covenant and (ii) the Borrower's compliance with
such covenant shall be determined on the basis of GAAP in effect immediately
before the relevant change in GAAP became effective until such covenant is
amended in a manner satisfactory to the Borrower and the Required Lenders. For
the purposes of determining compliance under Sections 6.01, 6.02, 6.04, 6.05 and
6.10 with respect to any amount in a currency other than Dollars, such amount
shall be deemed to equal the Dollar equivalent thereof at the time such amount
was incurred or expended, as the case may be (except that, where measurement of
a financial statement amount is contemplated, such determination shall be based
upon currency translation rules according to GAAP).
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions and relying
upon the representations and warranties of UCAR and the Borrower set forth
herein, each Lender agrees, severally and not jointly (a) to make a U.S.
dollar-denominated U.S. Term Loan to the Borrower on the Effective Date, in a
principal amount not exceeding its U.S. Term Loan Commitment and (b) to make a
U.S. dollar-denominated Swiss Term Loan to the Swiss Borrower on the Effective
Date, in a principal amount not exceeding its Swiss Term Loan Commitment.
Amounts paid or prepaid in respect of the Loans may not be reborrowed.
SECTION 2.02. LOANS. (a) Each Loan shall be made as part of a Borrowing
consisting of Loans of the same Class and Type made by the Lenders ratably in
accordance with their Commitments of the applicable Class; PROVIDED, HOWEVER,
that the failure of any Lender to make any Loan shall not relieve any other
Lender of its
35
obligation to lend hereunder (it being understood, however, that no Lender shall
be responsible for the failure of any other Lender to make any Loan required to
be made by such other Lender).
(b) Subject to Sections 2.08 and 2.14, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the applicable Credit Party may
request pursuant to Section 2.03. Each Lender may at its option make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; PROVIDED that any exercise of such option shall not
affect the obligation of the applicable Credit Party to repay such Loan in
accordance with the terms of this Agreement and such Lender shall not be
entitled to any amounts payable under Section 2.13 or Section 2.19 in respect of
increased costs arising as a result of such exercise (and that would not have
arisen but for such exercise). At the commencement of each Interest Period for
any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is
an integral multiple of $1,000,000 and not less than $5,000,000. Borrowings of
more than one Type may be outstanding at the same time; PROVIDED, HOWEVER, that
the Credit Parties shall not be entitled to request any Borrowing which, if
made, would result in more than twenty Eurodollar Borrowings outstanding
hereunder at any time. For purposes of the foregoing, Borrowings having
different Interest Periods, regardless of whether they commence on the same
date, shall be considered separate Borrowings.
(c) Subject to Section 2.10, each Lender shall make each Loan to be made by
it hereunder on the proposed date thereof by wire transfer to such account as
the Administrative Agent may designate in federal funds not later than 11:00
a.m., New York City time, and the Administrative Agent shall by 12:00 (noon),
New York City time, credit the amounts so received to an account designated by
the applicable Credit Party in the applicable Borrowing Request; PROVIDED,
HOWEVER, that if a Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, the Administrative Agent
shall return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and may, in reliance upon such assumption,
make available to the applicable Credit Party on such date a corresponding
amount. If the Administrative Agent shall have so made funds available then, to
the extent that such Lender shall not have made such portion available to the
Administrative Agent, such Lender and the applicable Credit Party severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the applicable Credit Party until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
applicable Credit Party, the interest rate
36
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Lender, a rate determined by the Administrative Agent to represent
its cost of overnight or short-term funds (which determination shall be
conclusive absent manifest error). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such Borrowing for purposes of this Agreement.
SECTION 2.03. BORROWING PROCEDURE. In order to request a Borrowing, a
Credit Party shall hand deliver or telecopy to the Administrative Agent a duly
completed Borrowing Request substantially in the form of Exhibit C (a) in the
case of a Eurodollar Borrowing, not later than 12:00 (noon), New York City time,
three Business Days before a proposed Borrowing and (b) in the case of an ABR
Borrowing, not later than 12:00 (noon), New York City time, one Business Day
before a proposed Borrowing. Each Borrowing Request shall be irrevocable, shall
be signed by or on behalf of the applicable Credit Party and shall specify the
following information: (i) the name of the applicable Credit Party; (ii) whether
the Borrowing then being requested is to be a U.S. Term Borrowing or a Swiss
Term Borrowing, and whether such Borrowing is to be a Eurodollar Borrowing or an
ABR Borrowing; (iii) the date of such Borrowing (which shall be a Business Day),
(iv) the number and location of the account to which funds are to be disbursed
(which account shall be maintained in the United States of America); (v) the
amount of such Borrowing; and (vi) if such Borrowing is to be a Eurodollar
Borrowing, the Interest Period with respect thereto; PROVIDED, HOWEVER, that,
notwithstanding any contrary specification in any Borrowing Request, each
requested Borrowing shall comply with the requirements set forth in Section
2.02. If no election as to the Type of Borrowing is specified in any such
notice, then the requested Borrowing shall be an ABR Borrowing. If no Interest
Period with respect to any Eurodollar Borrowing is specified in any such notice,
then the applicable Credit Party shall be deemed to have selected an Interest
Period of one month's duration. The Administrative Agent shall promptly (and in
any event on the same day that the Administrative Agent receives such notice, if
received by 1:00 p.m., New York City time, on such day) advise the Lenders of
any notice given pursuant to this Section 2.03 and of each Lender's portion of
the requested Borrowing.
SECTION 2.04. EVIDENCE OF DEBT; REPAYMENT OF LOANS. The outstanding
principal balance of each Loan shall be payable as provided in Section 2.11.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness to such Lender resulting from
each Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time under
this Agreement.
37
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from any Credit Party to
each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder from any Credit Party and each Lender's share
thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
and (c) of this Section 2.04 shall be prima facie evidence of the existence and
amounts of the obligations therein recorded; PROVIDED, HOWEVER, that the failure
of any Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of any Credit Party to
repay the Loans in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the event any
Lender shall request and receive a Note as provided in Section 9.04(h) or
otherwise the interests represented by that Note shall at all times (including
after any assignment of all or part of such interests pursuant to Section 9.04)
be represented by one or more Notes payable to the payee named therein or its
registered assigns.
SECTION 2.05. FEES. (a) The Borrower agrees to pay to each Lender, through
the Administrative Agent, on the last day of March, June, September and December
in each year, and on the date on which the Commitments of all the Lenders shall
be terminated as provided herein, a commitment fee (a "COMMITMENT FEE") on the
average daily unused amount of the Commitments of such Lender during the
preceding quarter (or other period commencing with the date of this Agreement or
ending with the date on which the last of the Commitments of such Lender shall
be terminated) at the rate of 0.50% per annum. All Commitment Fees shall be
computed on the basis of the actual number of days elapsed in a year of 365 or
366 days, as applicable. The Commitment Fee due to each Lender shall commence to
accrue on the date of this Agreement and shall cease to accrue on the date on
which the last of the Commitments of such Lender shall be terminated as provided
herein.
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the fees set forth in the Agent Letter at the times specified therein
(the "ADMINISTRATIVE AGENT FEES").
(c) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.06. INTEREST ON LOANS. (a) Subject to the provisions of Section
2.07, the Loans comprising each ABR Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 365 or 366 days,
as the case may be,
38
when determined by reference to the Prime Rate and over a year of 360 days at
all other times) at a rate per annum equal to the Alternate Base Rate PLUS,
2.25%.
(b) Subject to the provisions of Section 2.07, the Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing PLUS,
3.25%.
(c) Interest on each Loan shall be payable on the Interest Payment Dates
applicable to such Loan except as otherwise provided in this Agreement. The
applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest Period or
day within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error. The Administrative Agent shall give the Borrower prompt notice of each
such determination.
SECTION 2.07. DEFAULT INTEREST. If any Credit Party shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, such Credit Party shall on demand
from time to time pay interest, to the extent permitted by law, on such
defaulted amount for the period beginning on the date of such default up to (but
not including) the date of actual payment (after as well as before judgment) at
a rate per annum (computed on the basis of the actual number of days elapsed
over a year of 360 days) equal to (a) in the case of (i) overdue Loans, overdue
interest thereon, overdue Commitment Fees or other overdue amounts owing in
respect of Loans (or the related Commitments), the rate that would otherwise be
applicable to ABR Loans pursuant to Section 2.06 PLUS 2% or (b) in the case of
any other overdue amount, the Alternate Base Rate PLUS 2%.
SECTION 2.08. ALTERNATE RATE OF INTEREST. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that dollar deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to any Lender of making or maintaining
its Eurodollar Loan during such Interest Period, or that reasonable means do not
exist for ascertaining the Adjusted LIBO Rate, the Administrative Agent shall,
as soon as practicable thereafter, give written or telecopy notice of such
determination to the Borrower and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a Eurodollar Borrowing pursuant to
Section 2.03 or 2.10 shall be deemed to be a request for an
39
ABR Borrowing. Each determination by the Administrative Agent hereunder shall be
conclusive absent manifest error.
SECTION 2.09. TERMINATION AND REDUCTION OF COMMITMENTS. (a) Unless
previously terminated, the Commitments shall terminate at 5:00 p.m., New York
City time, on the Effective Date.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Commitments of any Class; PROVIDED, HOWEVER, that (i) each partial reduction
of any Commitments shall be in an integral multiple of $1,000,000 and in a
minimum principal amount of $5,000,000 (or, if less, the remaining amount of the
Commitments of the applicable Class).
(c) Each reduction in a Class of Commitments hereunder shall be made
ratably among the Lenders in accordance with their respective Commitments for
such Class. The Borrower shall pay to the Administrative Agent for the account
of the Lenders, on the date of each termination or reduction, the Commitment
Fees on the amount of the Commitments so terminated or reduced accrued to but
excluding the date of such termination or reduction.
SECTION 2.10. CONVERSION AND CONTINUATION OF BORROWINGS. A Credit Party
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 12:00 (noon), New York City time, one
Business Day prior to conversion, to convert any Eurodollar Borrowing into an
ABR Borrowing, (b) not later than 10:00 a.m., New York City time, three Business
Days prior to conversion or continuation, to convert any ABR Borrowing into a
Eurodollar Borrowing or to continue any Eurodollar Borrowing as a Eurodollar
Borrowing for an additional Interest Period, and (c) not later than 10:00 a.m.,
New York City time, three Business Days prior to conversion, to convert the
Interest Period with respect to any Eurodollar Borrowing to another permissible
Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro rata among the
relevant Lenders in accordance with the respective principal amounts of the
Loans comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting Borrowing
shall satisfy the limitations specified in Section 2.02(b) regarding the
principal amount and maximum number of Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender by recording
for the account of such Lender the new Loan of such Lender resulting from
such conversion and reducing the Loan, (or portion thereof) of such Lender
being converted by an equivalent principal amount; accrued interest on a
Loan (or
40
portion thereof) being converted shall be paid by the applicable Credit
Party at the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than the
end of the Interest Period applicable thereto, the applicable Credit Party
shall pay, upon demand, any amounts due to the Lenders pursuant to Section
2.15;
(v) any portion of a Borrowing maturing or required to be repaid in
less than one month may not be converted into or continued as a Eurodollar
Borrowing;
(vi) any portion of a Eurodollar Borrowing which Borrowing cannot be
converted into or continued as a Eurodollar Borrowing by reason of the
immediately preceding clause shall be automatically converted at the end of
the Interest Period in effect for such Borrowing into an ABR Borrowing; and
(vii) no Interest Period may be selected for any Eurodollar Borrowing
that would end later than an Installment Date occurring on or after the
first day of such Interest Period if, after giving effect to such
selection, the aggregate outstanding amount of (A) the Eurodollar
Borrowings made pursuant to the same Commitments with Interest Periods
ending on or prior to such Installment Date and (B) the ABR Borrowings made
pursuant to the same Commitments would not be at least equal to the
principal amount of Borrowings made pursuant to the same Commitments to be
paid on such Installment Date.
Each notice pursuant to this Section 2.10 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the Borrowing
that the applicable Credit Party requests be converted or continued, (ii)
whether such Borrowing is to be converted to or continued as a Eurodollar
Borrowing or an ABR Borrowing, (iii) if such notice requests a conversion, the
date of such conversion (which shall be a Business Day) and (iv) if such
Borrowing is to be converted to or continued as a Eurodollar Borrowing, the
Interest Period with respect thereto. If no Interest Period is specified in any
such notice with respect to any conversion to or continuation as a Eurodollar
Borrowing, the applicable Credit Party shall be deemed to have selected an
Interest Period of one month's duration. The Administrative Agent shall advise
the other Lenders of any notice given pursuant to this Section 2.10 and of each
Lender's portion of any converted or continued Borrowing. If the applicable
Credit Party shall not have given notice in accordance with this Section 2.10 to
continue any Borrowing into a subsequent Interest Period (and shall not
otherwise have given notice in accordance with this Section 2.10 to convert such
Borrowing), such Borrowing shall, at the end of the Interest Period applicable
thereto (unless repaid pursuant to the terms hereof), automatically be continued
or converted into an ABR Borrowing.
41
SECTION 2.11. REPAYMENT OF BORROWINGS. (a) The Borrowings shall be payable
as to principal in the aggregate annual amounts set forth below in consecutive
quarterly installments on each March 31, June 30, September 30 and December 31
(each an "INSTALLMENT DATE"), commencing March 31, 1999, with 40% of each annual
amount being paid or reduced on each June 30 and each December 31 and 10% of
each annual amount being paid or reduced on each March 31 and September 30:
INSTALLMENT DATE AMOUNT
December 31, 1999 1,000,000
December 31, 2000 1,000,000
December 31, 2001 1,000,000
December 31, 2002 1,000,000
December 31, 2003 206,000,000
(b) Each prepayment of principal of the Borrowings pursuant to Section 2.12
shall be applied to (i) the U.S. Term Borrowings and (ii) the Swiss Term
Borrowings ratably in accordance with the respective outstanding amounts thereof
and shall reduce scheduled payments and reductions required under paragraph (a)
above after the date of such prepayment or reduction in the scheduled order of
maturity. Amounts to be repaid under this Section 2.11 on each Installment Date
shall be allocated to the U.S. Term Borrowings and the Swiss Term Borrowings
ratably in accordance with the respective outstanding amounts thereof. To the
extent not previously paid or reduced, all Borrowings shall be due and payable
on the Maturity Date. Each payment of Borrowings pursuant to this Section 2.11
shall be accompanied by accrued interest on the principal amount paid to but
excluding the date of payment.
SECTION 2.12. PREPAYMENT. (a) The Borrower shall have the right at any time
and from time to time to prepay any Borrowing, in whole or in part, upon at
least three Business Days' prior written or telecopy notice (or telephone notice
promptly confirmed by written or telecopy notice) to the Administrative Agent
before 11:00 a.m., New York City time; PROVIDED, HOWEVER, that (i) each partial
prepayment or reduction shall be in an amount which is an integral multiple of
$1,000,000 and not less than $5,000,000 (or, if less, the aggregate outstanding
amount under the applicable Class of Loans), (ii) each prepayment of Borrowings
shall be applied as set forth in paragraph (b) of Section 2.11 and (iii) if the
Borrower shall prepay any Borrowing hereunder prior to January 1, 2000, it shall
pay to the Administrative Agent, for the account of the Lenders, a premium equal
to 1% of the amount so prepaid.
(b) [INTENTIONALLY LEFT BLANK]
(c) [INTENTIONALLY LEFT BLANK]
42
(d) The Borrower shall apply all Net Proceeds (minus an amount equal to the
lesser of (i) the amount of such Net Proceeds applied to prepay loans and reduce
exposure under the Existing Credit Agreement and (ii) the amount of such Net
Proceeds multiplied by a fraction the numerator of which is the aggregate
principal and stated amount of outstanding term loans (excluding Tranche A
Reimbursement Loans) and Tranche A Exposure under the Existing Credit Agreement
and the denominator of which is the aggregate principal and stated amount of (A)
outstanding term loans (excluding Tranche A Reimbursement Loans) and Tranche A
Exposure under the Existing Credit Agreement and (B) outstanding Loans, promptly
upon receipt thereof by UCAR, the Borrower or any Subsidiary, to prepay
Borrowings.
(e) Not later than 90 days after the end of each fiscal year of the
Borrower, commencing with the fiscal year ending December 31, 1998, the Borrower
shall calculate Excess Cash Flow for such fiscal year and shall apply (i) the
applicable percentage (determined as set forth in Schedule A) of such Excess
Cash Flow (the "EXCESS CASH FLOW PREPAYMENT AMOUNT") less (ii) (A) any voluntary
prepayments of Loans during the period beginning on April 1 of such fiscal year
and ending on March 31 of the immediately succeeding fiscal year (if such
difference is positive) and (B) an amount equal to the lesser of (i) the amount
of such Excess Cash Flow Prepayment Amount applied to prepay loans and reduce
exposure under the Existing Credit Agreement and (ii) such Excess Cash Flow
Prepayment Amount multiplied by a fraction the numerator of which is the
aggregate principal and stated amount of outstanding term loans (excluding
Tranche A Reimbursement Loans) and Tranche A Exposure under the Existing Credit
Agreement and the denominator of which is the aggregate principal and stated
amount of (x) outstanding term loans (excluding Tranche A Reimbursement Loans)
and Tranche A Exposure under the Existing Credit Agreement and (y) outstanding
Loans to prepay Borrowings. Not later than the date on which the Borrower is
required to deliver financial statements with respect to the end of each fiscal
year under Section 5.04(a), the Borrower will deliver to the Administrative
Agent a certificate of the Borrower signed by a Financial Officer of the
Borrower setting forth the amount, if any, of Excess Cash Flow for such fiscal
year and the calculation thereof in reasonable detail.
(f) At the time of any prepayment of the term loans or reduction of Tranche
A Exposure pursuant to Section 2.12 of the Existing Credit Agreement, the
Borrower shall prepay the Loans in an aggregate amount bearing the same
proportion to the aggregate amount of Loans hereunder as the amount of term
loans prepaid and/or Tranche A Exposure reduced pursuant to Section 2.12 of the
Existing Credit Agreement bears to the aggregate amount of term loans (excluding
Tranche A Reimbursement Loans) and Tranche A Exposure under the Existing Credit
Agreement.
(g) Each notice of prepayment pursuant to this Section 2.12 shall specify
the prepayment date and the principal amount of each Borrowing (or portion
thereof) to be prepaid, shall be irrevocable and shall commit the applicable
Credit Party to
43
prepay such Borrowing and to reduce the Tranche A Exposure by the amount stated
therein on the date stated therein. All prepayments and reductions under this
Section 2.12 shall be subject to Section 2.12(a)(iii) and Section 2.15 but
otherwise shall be made without premium or penalty. All prepayments under this
Section 2.12 shall be accompanied by accrued interest on the principal amount
being prepaid to but excluding the date of payment.
(h) In the event the amount of any prepayment required to be made above
shall exceed the aggregate principal amount of ABR Loans of the applicable Class
outstanding and required to be prepaid (the amount of any such excess being
called the "EXCESS AMOUNT"), the Borrower shall have the right, in lieu of
making such prepayment in full, to prepay all the outstanding applicable ABR
Loans and to deposit an amount equal to the Excess Amount with the Collateral
Agent in a cash collateral account maintained (pursuant to documentation
reasonably satisfactory to the Administrative Agent) by and in the sole dominion
and control of the Collateral Agent. Any amounts so deposited shall be held by
the Collateral Agent as collateral for the Obligations and applied to the
prepayment of the applicable Eurodollar Loans at the end of the current Interest
Periods applicable thereto. On any Business Day on which (i) collected amounts
remain on deposit in or to the credit of such cash collateral account after
giving effect to the payments made on such day pursuant to this Section 2.12(h)
and (ii) the Borrower shall have delivered to the Collateral Agent a written
request or a telephonic request (which shall be promptly confirmed in writing)
that such remaining collected amounts be invested in the Permitted Investments
specified in such request, the Collateral Agent shall use its reasonable efforts
to invest such remaining collected amounts in such Permitted Investments;
PROVIDED, HOWEVER, that the Collateral Agent shall have continuous dominion and
full control over any such investments (and over any interest that accrues
thereon) to the same extent that it has dominion and control over such cash
collateral account and no Permitted Investment shall mature after the end of the
Interest Period for which it is to be applied. The Borrower shall not have the
right to withdraw any amount from such cash collateral account until the
applicable Eurodollar Loans and accrued interest thereon are paid in full or if
a Default or Event of Default then exists or would result.
SECTION 2.13. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender in respect of
the principal of or interest on any Eurodollar Loan made by such Lender or any
Fees or other amounts payable hereunder (other than changes in respect of (i)
taxes imposed on the overall net income of such Lender by the jurisdiction in
which such Lender has its principal office or by any political subdivision or
taxing
44
authority therein and (ii) any Taxes described in Section 2.19), or shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets or deposits with or for the account of or credit
extended by such Lender (except any such reserve requirement which is reflected
in the Adjusted LIBO Rate) or shall impose on such Lender or the interbank
eurodollar market any other condition affecting this Agreement or any Eurodollar
Loans of such Lender, and the result of any of the foregoing shall be to
increase the cost to such Lender of making or maintaining any Eurodollar Loan or
to reduce the amount of any sum received or receivable by such Lender hereunder
(whether of principal, interest or otherwise) by an amount deemed by such Lender
to be material, then from time to time the Borrower or the applicable Credit
Party will pay to such Lender upon demand such additional amount or amounts as
will compensate such Lender for such additional costs incurred or reduction
suffered.
(b) If any Lender shall have determined that the adoption after the date
hereof of any law, rule, regulation or guideline regarding capital adequacy, or
any change after the date hereof in any of the foregoing or in the
interpretation or administration of any of the foregoing by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any lending office of
such Lender) or any Lender's holding company with any request or directive
regarding capital adequacy (whether or not having the force of law) made or
issued after the date hereof by any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or its obligations pursuant hereto to a level
below that which such Lender or such Lender's holding company would have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's policies and the policies of such Lender's holding company with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time the Borrower or the applicable Credit Party shall pay to
such Lender upon demand such additional amount or amounts as will compensate
such Lender or such Lender's holding company for any such reduction suffered.
(c) A certificate of each Lender setting forth such amount or amounts as
shall be necessary to compensate such Lender or its holding company as specified
in paragraph (a) or (b) above, as the case may be, shall be delivered to the
Borrower through the Administrative Agent and shall be conclusive absent
manifest error. The Borrower or the applicable Credit Party shall pay each
Lender the amount shown as due on any such certificate delivered by it within 10
days after the Borrower's receipt of the same.
(d) In the event any Lender delivers a notice pursuant to paragraph (e)
below, the Borrower or the applicable Credit Party may require, at the
Borrower's or the applicable Credit Party's expense and subject to Section 2.15,
such Lender to assign, at par
45
plus accrued interest and fees, without recourse (in accordance with Section
9.04) all its interests, rights and obligations hereunder (including all of its
Commitments and the Loans at the time owing to it) to a financial institution
specified by the Borrower; PROVIDED that (i) such assignment shall not conflict
with or violate any law, rule or regulation or order of any court or other
Governmental Authority, (ii) the Borrower or the applicable Credit Party shall
have received the written consent of the Administrative Agent (which consent
shall not be unreasonably withheld) to such assignment and (iii) the Borrower or
the applicable Credit Party shall have paid to the assigning Lender all monies
accrued and owing hereunder to it (including pursuant to this Section 2.13).
(e) Promptly after any Lender has determined, in its sole judgment, that it
will make a request for increased compensation pursuant to this Section 2.13,
such Lender will notify the Borrower thereof. Failure on the part of any Lender
so to notify the Borrower or to demand compensation for any increased costs or
reduction in amounts received or receivable or reduction in return on capital
with respect to any period shall not constitute a waiver of such Lender's right
to demand compensation with respect to such period or any other period; PROVIDED
that the Borrower or the applicable Credit Party shall not be under any
obligation to compensate any Lender under paragraph (b) above with respect to
increased costs or reductions with respect to any period prior to the date that
is six months prior to such request if such Lender knew or could reasonably have
been expected to be aware of the circumstances giving rise to such increased
costs or reductions and of the fact that such circumstances would in fact result
in a claim for increased compensation by reason of such increased costs or
reductions; PROVIDED FURTHER that the foregoing limitation shall not apply to
any increased costs or reductions arising out of the retroactive application of
any law, regulation, rule, guideline or directive as aforesaid within such six
month period. The protection of this Section 2.13 shall be available to each
Lender regardless of any possible contention as to the invalidity or
inapplicability of the law, rule, regulation, guideline or other change or
condition which shall have occurred or been imposed.
SECTION 2.14. CHANGE IN LEGALITY. (a) Notwithstanding any other provision
herein, if the adoption of or any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written notice
to the Borrower and to the Administrative Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made by such
Lender hereunder, whereupon any request by a Credit Party for a Eurodollar
Borrowing shall, as to such Lender only, be deemed a request for an ABR
Loan unless such declaration shall be subsequently withdrawn; and
46
(ii) require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be
automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under subparagraphs (i) and
(ii) above, all payments and prepayments of principal which would otherwise have
been applied to repay the Eurodollar Loans that would have been made by such
Lender or the converted Eurodollar Loans of such Lender shall instead be applied
to repay the ABR Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan, if lawful, on the last day
of the Interest Period currently applicable to such Eurodollar Loan; in all
other cases such notice shall be effective on the date of receipt by the
Borrower.
SECTION 2.15. INDEMNITY. The Borrower shall indemnify each Lender against
any loss or expense (other than taxes) which such Lender may sustain or incur as
a consequence of (a) any failure by a Credit Party to fulfill on the date of any
Borrowing or proposed Borrowing hereunder the applicable conditions set forth in
Article IV, (b) any failure by a Credit Party to borrow or to refinance, convert
or continue any Loan hereunder after irrevocable notice of such Borrowing,
refinancing, conversion or continuation has been given pursuant to Section 2.03
or 2.10, (c) any payment, prepayment or conversion of a Eurodollar Loan required
by any other provision of this Agreement or otherwise made or deemed made on a
date other than the last day of the Interest Period applicable thereto, (d) any
default in payment or prepayment of the principal amount of any Loan or any part
thereof or interest accrued thereon, as and when due and payable (at the due
date thereof, whether by scheduled maturity, acceleration, irrevocable notice of
prepayment or otherwise) or (e) the occurrence of any Event of Default,
including, in each such case, any loss or reasonable expense sustained or
incurred or to be sustained or incurred in liquidating or employing deposits
from third parties acquired to effect or maintain such Loan or any part thereof
as a Eurodollar Loan. Such loss or reasonable expense shall exclude loss of
margin hereunder but shall include an amount equal to the excess, if any, as
reasonably determined by such Lender, of (i) its cost of obtaining the funds for
the Loan being paid, prepaid, converted or not borrowed, converted or continued
(assumed to be the Adjusted LIBO Rate applicable thereto) for the period from
the date of such payment, prepayment, conversion or failure to borrow, convert
or continue to the last day of the Interest Period for such Loan (or, in the
case of a failure to borrow, convert or continue, the Interest Period for such
Loan which would have commenced on the date of such failure) over (ii) the
amount of interest (as reasonably determined by such Lender) that would be
realized by such Lender in reemploying the funds so paid, prepaid, converted or
not borrowed, converted or continued for such period or Interest
47
Period, as the case may be. A certificate of any Lender setting forth any amount
or amounts which such Lender is entitled to receive pursuant to this Section
2.15 (and the reasons therefor) shall be delivered to the Borrower through the
Administrative Agent and shall be conclusive absent manifest error.
SECTION 2.16. PRO RATA TREATMENT. Except as required under Section 2.14 and
subject to Section 2.11, each Borrowing, each payment or prepayment of principal
of any Borrowing, each payment of interest on the Loans, each payment of the
Commitment Fees, each reduction of the Commitments, and each refinancing of any
Borrowing with, conversion of any Borrowing to or continuation of any Borrowing
as a Borrowing of any Type shall be allocated pro rata among the Lenders in
accordance with their respective applicable Commitments (or, if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of their applicable outstanding Loans). Each Lender agrees
that in computing such Lender's portion of any Borrowing, the Administrative
Agent may, in its discretion, round each Lender's percentage of such Borrowing,
computed in accordance with Section 2.01, to the next higher or lower whole
dollar amount.
SECTION 2.17. SHARING OF SETOFFS. Each Lender agrees to be bound by the
provisions of Section 2.17 of the Existing Credit Agreement as if such
provisions were set forth herein.
SECTION 2.18. PAYMENTS. (a) The Borrower and each other Loan Party shall
make each payment without set off or counterclaim (including principal of or
interest on any Borrowing or any Fees or other amounts) required to be made by
it hereunder and under any other Loan Document (excluding the Local Facility
Loan Documents) not later than 12:00 noon, New York City time, on the date when
due in Dollars to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, Attention of The Loan and Agency Services Group, in
immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document (excluding the Local Facility Loan Documents) shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day (except in the case of payment of
principal of a Eurodollar Borrowing if the effect of such extension would be to
extend such payment into the next succeeding month, in which event such payment
shall be due on the immediately preceding Business Day), and such extension of
time shall in such case be included in the computation of interest or Fees, if
applicable.
SECTION 2.19. TAXES. (a) Any and all payments by the Borrower or any other
Loan Party to the Administrative Agent or the Lenders hereunder or under any
other Loan Document (excluding payments by the applicable borrower under a Local
Facility Credit Agreement) shall be made free and clear of and without deduction
48
for any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, EXCLUDING (i) in the
case of each Lender and the Administrative Agent, taxes that would not be
imposed but for a connection between such Lender or the Administrative Agent (as
the case may be) and the jurisdiction imposing such tax, other than a connection
arising solely by virtue of the activities of such Lender or the Administrative
Agent (as the case may be) pursuant to or in respect of this Agreement or under
any other Loan Document, including entering into, lending money or extending
credit pursuant to, receiving payments under, or enforcing, this Agreement or
any other Loan Document, and (ii) in the case of each Lender and the
Administrative Agent, any United States withholding taxes payable with respect
to any payments made hereunder or under the other Loan Documents under laws
(including any statute, treaty, ruling, determination or regulation) in effect
on the Initial Date (as hereinafter defined) applicable to such Lender or the
Administrative Agent, as the case may be, but not excluding any United States
withholding taxes payable solely as a result of any change in such laws
occurring after the Initial Date (all such non- excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "TAXES"). For purposes of this Section 2.19, the term "INITIAL DATE" shall
mean (i) in the case of the Administrative Agent or any Lender, the date on
which such person became a party to this Agreement and (ii) in the case of any
assignment, including any assignment by a Lender to a new lending office, the
date of such assignment. If any Taxes shall be required by law to be deducted
from or in respect of any sum payable hereunder or under any other Loan Document
(excluding sums payable by the applicable borrower under a Local Facility Credit
Agreement) to any Lender or the Administrative Agent, (i) the sum payable by the
Borrower or any other Loan Party, as the case may be, shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.19) such Lender or
the Administrative Agent, as the case may be, receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
or such Loan Party, as the case may be, shall make such deductions and (iii) the
Borrower or such Loan Party, as the case may be, shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law. The Borrower and the other Loan Parties shall not, however,
be required to pay any amounts pursuant to clause (i) of the preceding sentence
to any Lender or the Administrative Agent (in the case of payments to be made by
the Borrower) not organized under the laws of the United States of America or a
state thereof (or, in the case of payments to be made by another Loan Party, not
organized under the laws of such Loan Party's jurisdiction) if such Lender or
the Administrative Agent fails to comply with the requirements of paragraph (f)
or (g), as the case may be, and paragraph (h) of this Section 2.19.
(b) In addition, the Borrower and each other Loan Party agrees to pay any
present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which
49
arise from the execution, delivery or registration of, or otherwise with respect
to, this Agreement or any other Loan Document (excluding those arising from such
actions by the applicable borrower under a Local Facility Credit Agreement)
(hereinafter referred to as "OTHER TAXES").
(c) The Borrower and each other Loan Party, as applicable, will indemnify
each Lender and the Administrative Agent for the full amount of Taxes and Other
Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.19) paid by such Lender or the Administrative
Agent, as the case may be, and any liability (including penalties, interest and
expenses including reasonable attorney's fees and expenses) arising therefrom or
with respect thereto whether or not such Taxes or Other Taxes were correctly or
legally asserted. A certificate as to the amount of such payment or liability
prepared by a Lender or the Administrative Agent, absent manifest error, shall
be final, conclusive and binding for all purposes; PROVIDED, that if the
Borrower or another Loan Party, as applicable, reasonably believes that such
Taxes were not correctly or legally asserted, such Lender or the Administrative
Agent, as the case may be, shall use reasonable efforts to cooperate with the
Borrower or such other Loan Party, as applicable, to obtain a refund of such
Taxes or Other Taxes. Such indemnification shall be made within 10 days after
the date any Lender or the Administrative Agent, as the case may be, makes
written demand therefor. If a Lender or the Administrative Agent shall become
aware that it is entitled to receive a refund in respect of Taxes or Other
Taxes, it shall promptly notify the Borrower or such other Loan Party, as
applicable, of the availability of such refund and shall, within 30 days after
receipt of a request by the Borrower or such other Loan Party, pursue or timely
claim such refund at the Borrower's or such other Loan Party's expense. If any
Lender or the Administrative Agent receives a refund in respect of any Taxes or
Other Taxes for which such Lender or the Administrative Agent has received
payment from the Borrower or another Loan Party hereunder, it shall promptly
repay such refund (plus any interest received) to the Borrower or such other
Loan Party, as applicable (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.19 with respect to
the Taxes or Other Taxes giving rise to such refund); PROVIDED that the Borrower
or such other Loan Party, upon the request of such Lender or the Administrative
Agent, agrees to return such refund (plus any penalties, interest or other
charges required to be paid) to such Lender or the Administrative Agent in the
event such Lender or the Administrative Agent is required to repay such refund
to the relevant taxing authority.
(d) Within 30 days after the date of any payment of Taxes or Other Taxes
withheld by the Borrower or another Loan Party, as the case may be, in respect
of any payment to any Lender or the Administrative Agent, the Borrower or such
Loan Party, as the case may be, will furnish to the Administrative Agent, at its
address referred to in Section 9.01, the original or a certified copy of a
receipt evidencing payment thereof.
50
(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.19 shall
survive the payment in full of principal and interest hereunder and the
termination of the Commitments.
(f) In the case of any Borrowing by the Borrower, this paragraph (f) shall
apply. Each Lender and the Administrative Agent that is not organized under the
laws of the United States of America or a state thereof agrees that at least 10
days prior to the first Interest Payment Date following the Initial Date in
respect of such Lender, it will deliver to the Borrower and the Administrative
Agent (if appropriate) two duly completed copies of either (i) United States
Internal Revenue Service Form 1001 or 4224 or successor applicable form, as the
case may be, certifying, as applicable, that such Lender or the Administrative
Agent, as the case may be, is entitled to receive payments under this Agreement
and the other Loan Documents payable to it without deduction or withholding of
any United States federal income taxes and backup withholding taxes or is
entitled to receive such payments at a reduced rate pursuant to a treaty
provision or (ii) in the case of a Lender that is not a "bank" within the
meaning of Section 881(c)(3) of the Code, (A) deliver to the Borrower and the
Administrative Agent (I) a statement under penalties of perjury that such Lender
(w) is not a "bank" under Section 881(c)(3)(A) of the Code, is not subject to
regulatory or other legal requirements as a bank in any jurisdiction, and has
not been treated as a bank for purposes of any tax, securities law or other
filing or submission made to any Governmental Authority, any application made to
a rating agency or qualification for any exemption from tax, securities law or
other legal requirements, (x) is not a 10-percent shareholder within the meaning
of Section 881(c)(3)(B) of the Code, (y) is not a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(c) of the Code and (z) is not a "conduit entity" within the meaning of
U.S. Treasury Regulations Section 1.881-3 and (II) an Internal Revenue Service
Form W-8 or successor applicable form; (B) deliver to the Borrower and the
Administrative Agent a further copy of said Form W-8, or any successor
applicable form or other manner of certification on or before the date that any
such Form W-8 expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form previously delivered by such Lender;
and (C) obtain such extensions of time for filing and completing such forms or
certifications as may be reasonably requested by the Borrower or the
Administrative Agent; unless in any such case an event (including any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders any such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States Federal income taxes or is
entitled to receive such payments at a reduced rate pursuant
51
to a treaty provision and (ii) in the case of a Form W-8 or W-9, that it is
entitled to an exemption from United States backup withholding tax. Each person
that shall become a participant pursuant to Section 9.04 shall, upon the
effectiveness of the related transfer, be required to provide all the forms and
statements required pursuant to this paragraph (f) to the Lender from which the
related participation shall have been purchased. Unless the Borrower and the
Administrative Agent have received forms, certificates and other documents
required by this Section 2.19(f) indicating that payments hereunder or under any
other Loan Document to or for any Lender not incorporated under the laws of the
United States or a state thereof are not subject to United States withholding
tax or are subject to such tax at a rate reduced by an applicable tax treaty,
the Borrower (or the applicable Domestic Subsidiary Borrower) or the
Administrative Agent shall withhold such taxes from such payments at the
applicable statutory rate.
(g) In the event any Loan Party (other than the Borrower) is required to
pay additional amounts pursuant to this Section 2.19, this paragraph (g) shall
apply. Each Lender and the Administrative Agent that is not incorporated within
or under the laws of the jurisdiction of such Loan Party and that is claiming
such additional amounts agrees that within a reasonable period of time following
the request of such Loan Party it will, to the extent it is legally entitled to
a reduction in the rate of or exemption from withholding taxes in the
jurisdiction of such Loan Party, deliver to such Loan Party and the
Administrative Agent any form or document required under the laws, regulations,
official interpretations or treaties enacted by, made or entered into with such
jurisdiction properly completed and duly executed by such Lender or
Administrative Agent establishing that any payments hereunder are exempt from
withholding tax or subject to a reduced rate of withholding tax in such
jurisdiction as the case may be; PROVIDED that, in the sole determination of
such Lender or the Administrative Agent, such form or document shall not be
otherwise disadvantageous to such Lender or the Administrative Agent.
(h) Any Lender claiming any additional amounts payable pursuant to this
Section 2.19 shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document requested in writing by the
Borrower or any affected Credit Party to change the jurisdiction of its
applicable lending office, if the making of such a filing or change would avoid
the need for or reduce the amount of any such additional amounts which would be
payable or may thereafter accrue and would not, in the sole determination of
such Lender, be otherwise disadvantageous to such Lender.
(i) Nothing contained in this Section 2.19 shall require any Lender or the
Administrative Agent to make available any of its tax returns (or any other
information that it deems to be confidential or proprietary).
52
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of UCAR and the Borrower represents and warrants to each of the
Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of UCAR, the Borrower and each of
the Subsidiaries (a) is a corporation duly organized, validly existing and in
good standing (or, if applicable in a foreign jurisdiction, enjoys the
equivalent status under the laws of any jurisdiction of organization outside the
United States) under the laws of the jurisdiction of its organization, (b) has
all requisite power and authority to own its property and assets and to carry on
its business as now conducted and as proposed to be conducted, (c) is qualified
to do business in every jurisdiction where such qualification is required,
except where the failure so to qualify could not reasonably be expected to
result in a Material Adverse Effect, and (d) has the corporate power and
authority to execute, deliver and perform its obligations under each of the Loan
Documents and each other agreement or instrument contemplated thereby to which
it is or will be a party and, in the case of the Credit Parties, to borrow
hereunder.
SECTION 3.02. AUTHORIZATION. The execution, delivery and performance by
UCAR, the Borrower and each of the Subsidiaries of each of the Loan Documents to
which it is or will be a party and, in the case of the Credit Parties, the
borrowings hereunder, and the other transactions contemplated hereby and thereby
(collectively, the "TRANSACTIONS") (a) have been duly authorized by all
corporate and stockholder action required to be obtained by UCAR, the Borrower
and the Subsidiaries and (b) will not (i) violate (A) any provision of any law,
statute, rule or regulation or of the certificate or articles of incorporation
or other constitutive documents or by-laws of UCAR, the Borrower or any
Subsidiary, (B) any applicable order of any court or any rule, regulation or
order of any Governmental Authority or (C) any provision of any indenture,
certificate of designation for preferred stock, agreement or other instrument to
which UCAR, the Borrower or any Subsidiary is a party or by which any of them or
any of their property is or may be bound, (ii) be in conflict with, result in a
breach of or constitute (alone or with notice or lapse of time or both) a
default under any such indenture, certificate of designation for preferred
stock, agreement or other instrument, where any such conflict, violation, breach
or default referred to in clause (i) or (ii) of this Section 3.02, individually
or in the aggregate could reasonably be expected to have a Material Adverse
Effect, or (iii) result in the creation or imposition of any Lien upon or with
respect to any property or assets now owned or hereafter acquired by UCAR, the
Borrower or any Subsidiary, other than the Liens created by the Loan Documents.
SECTION 3.03. ENFORCEABILITY. This Agreement has been duly executed and
delivered by UCAR, the Borrower and each other Credit Party which is party
hereto and constitutes, and each other
53
Loan Document when executed and delivered by UCAR, the Borrower and each other
Loan Party which is party thereto will constitute, a legal, valid and binding
obligation of UCAR, the Borrower and such Loan Party enforceable against UCAR,
the Borrower and such Loan Party in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting creditors' rights generally and
except as enforceability may be limited by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
SECTION 3.04. GOVERNMENTAL APPROVALS. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the Transactions, except for (a) filings
and recording necessary to satisfy the Collateral Requirement, (b) such as have
been made or obtained and are in full force and effect and (c) such actions,
consents, registrations, filings and approvals the failure to obtain or make
which could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.05. FINANCIAL STATEMENTS. UCAR has heretofore furnished to the
Lenders its consolidated balance sheets and consolidated statements of
operations, cash flows and stockholders' equity as of and for the fiscal year
ended December 31, 1997, audited by and accompanied by the opinion of KPMG Peat
Marwick LLP, independent public accountants. Such financial statements present
fairly the financial condition and results of operations of UCAR and its
consolidated subsidiaries as of such dates and for such periods. Except as
disclosed in the Information Memorandum, none of UCAR, the Borrower and the
Subsidiaries has or shall have as of the Effective Date any material Guarantee,
contingent liability or liability for taxes, or any long-term lease or unusual
forward or long-term commitment, including any interest rate or foreign currency
hedging transaction, which is not reflected in the foregoing statements or the
notes thereto. Such financial statements were prepared in accordance with GAAP
applied on a consistent basis.
SECTION 3.06. NO MATERIAL ADVERSE CHANGE. There has been no material
adverse change in the assets, liabilities (including contingent liabilities),
business, properties, financial condition or results of operations of UCAR and
its subsidiaries, taken as a whole, since December 31, 1997 (other than those
matters specifically disclosed in the Information Memorandum and then only to
the extent reflected in the financial projections contained therein; it being
understood that general references in the Information Memorandum to the
possibility of the development of adverse or worsening circumstances shall not
constitute specific disclosure for purposes of this exception).
SECTION 3.07. TITLE TO PROPERTIES; POSSESSION UNDER LEASES. (a) Each of
UCAR, the Borrower and the Subsidiaries has good and marketable title to, or
valid leasehold interests in, or easements or other limited property interests
in, all its material
54
properties and assets, except for minor defects in title that do not interfere
with its ability to conduct its business as currently conducted or to utilize
such properties and assets for their intended purposes. All such material
properties and assets are free and clear of Liens, other than Liens expressly
permitted by Section 6.02.
(b) Each of UCAR, the Borrower and the Subsidiaries has complied with all
obligations under all material leases to which it is a party, except where the
failure to comply would not have a Material Adverse Effect, and all such leases
are in full force and effect, except leases in respect of which the failure to
be in full force and effect could not reasonably be expected to have a Material
Adverse Effect. Each of UCAR, the Borrower and the Subsidiaries enjoys peaceful
and undisturbed possession under all such material leases, other than leases
which, individually or in the aggregate, are not material to the Borrower and
the Subsidiaries, taken as a whole, and in respect of which the failure to enjoy
peaceful and undisturbed possession could not reasonably be expected to,
individually or in the aggregate, result in a Material Adverse Effect.
(c) Each of UCAR, the Borrower and the Subsidiaries owns or has licenses to
use, or could obtain ownership of or licenses to use, on terms not materially
adverse to it, all patents, trademarks, service marks, trade names, copyrights
and rights with respect thereto necessary for the present conduct of its
business, without any known conflict with the rights of others, and free from
any burdensome restrictions, except where such conflicts and restrictions could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 3.08. SUBSIDIARIES. (a) Schedule 3.08 sets forth as of the
Effective Date the name and jurisdiction of incorporation of each Subsidiary
and, as to each such Subsidiary, the percentage of each class of Capital Stock
owned by the Borrower or by any Subsidiary.
(b) As of the Effective Date, there are no outstanding subscriptions,
options, warrants, calls, rights or other agreements or commitments (other than
those granted to employees, consultants or directors and directors' qualifying
shares) of any nature relating to any Capital Stock of UCAR, the Borrower or any
Subsidiary, except under the Loan Documents or as set forth on Schedule 3.08.
SECTION 3.09. LITIGATION; COMPLIANCE WITH LAWS. (a) Except as set forth in
Schedule 3.09, there are not any material actions, suits or proceedings at law
or in equity or by or before any Governmental Authority now pending or, to the
knowledge of the Borrower, threatened against or affecting UCAR, the Borrower or
any Subsidiary or any business, property or rights of any such person (i) which
involve any Loan Document or, as of the Effective Date, the Transactions or (ii)
as to which there is a reasonable
55
possibility of an adverse determination and which, if adversely determined,
could, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
(b) None of UCAR, the Borrower, the Subsidiaries and their respective
material properties or assets is in violation of (nor will the continued
operation of their material properties and assets as currently conducted
violate) any law, rule or regulation (including any Environmental Law), or is in
default with respect to any judgment, writ, injunction or decree of any
Governmental Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect. It is understood that the
violations that occurred prior to March 13, 1998, and that gave rise to the
Litigation Liabilities shall not be deemed a breach of this Section 3.09(b).
SECTION 3.10. AGREEMENTS. (a) None of UCAR, the Borrower and the
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(b) None of UCAR, the Borrower and the Subsidiaries is in default in any
manner under any provision of any indenture or other agreement or instrument
evidencing Indebtedness, or any other material agreement or instrument to which
it is a party or by which it or any of its properties or assets are or may be
bound, in either case where such default could reasonably be expected to result
in a Material Adverse Effect. Immediately after giving effect to the
Transactions, no Default or Event of Default shall have occurred and be
continuing.
SECTION 3.11. FEDERAL RESERVE REGULATIONS. (a) None of UCAR, the Borrower
and the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately, (i) to purchase
or carry Margin Stock or to extend credit to others for the purpose of
purchasing or carrying Margin Stock or to refund indebtedness originally
incurred for such purpose, or (ii) for any purpose which entails a violation of,
or which is inconsistent with, the provisions of the Regulations of the Board,
including Regulation U or X.
SECTION 3.12. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY ACT.
None of UCAR, the Borrower and the Subsidiaries is (a) an "investment company"
as defined in, or subject to regulation under, the Investment Company Act of
1940 or (b) a "holding company" as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935.
56
SECTION 3.13. USE OF PROCEEDS. The Credit Parties will use the proceeds of
the Loans only for the purposes specified in the preamble to this Agreement.
SECTION 3.14. TAX RETURNS. Each of UCAR, the Borrower and the Subsidiaries
has timely filed or caused to be timely filed all Federal, and all material
state and local, tax returns required to have been filed by it and has paid or
caused to be paid all taxes shown thereon to be due and payable by it and all
assessments in excess of $2,000,000 in the aggregate received by it, except
taxes or assessments that are being contested in good faith by appropriate
proceedings in accordance with Section 5.03 and for which such person has set
aside on its books adequate reserves and taxes, assessments, charges, levies or
claims in respect of property taxes for property that UCAR, the Borrower or a
Subsidiary has determined to abandon where the sole recourse for such tax,
assessment, charge, levy or claim is to such property. Each of UCAR, the
Borrower and the Subsidiaries has paid in full or made adequate provision (in
accordance with GAAP) for the payment of all taxes due with respect to all
periods ending on or before the Effective Date, which taxes, if not paid or
adequately provided for, could reasonably be expected to have a Material Adverse
Effect. Except as set forth on Schedule 3.14, as of the Effective Date, with
respect to each of UCAR, the Borrower and the Subsidiaries, (a) no material
claims are being asserted in writing with respect to any taxes, (b) no presently
effective waivers or extensions of statutes of limitation with respect to taxes
have been given or requested, (c) no tax returns are being examined by, and no
written notification of intention to examine has been received from, the
Internal Revenue Service or, with respect to any material potential tax
liability, any other taxing authority and (d) no currently pending issues have
been raised in writing by the Internal Revenue Service or, with respect to any
material potential tax liability, any other taxing authority. For purposes
hereof, "TAXES" shall mean any present or future tax, levy, impost, duty,
charge, assessment or fee of any nature (including interest, penalties and
additions thereto) that is imposed by any Governmental Authority.
SECTION 3.15. NO MATERIAL MISSTATEMENTS. (a) The written information,
reports, financial statements, exhibits and schedules furnished by or on behalf
of UCAR, the Borrower or any of the Subsidiaries to the Administrative Agent or
any Lender in connection with the negotiation of any Loan Document or included
therein or delivered pursuant thereto (including the Confidential Information
Memorandum (the "INFORMATION MEMORANDUM") dated October 1998 relating to UCAR
and its subsidiaries), when taken as a whole, did not contain, and as they may
be amended, supplemented or modified from time to time, will not contain, as of
the Effective Date any material misstatement of fact and did not omit, and as
they may be amended, supplemented or modified from time to time, will not omit,
to state as of the Effective Date any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not materially misleading in their presentation of the
refinancing (as
57
described in the Information Memorandum) or of UCAR, the Borrower, and the
Subsidiaries, taken as a whole.
(b) All financial projections concerning UCAR, the Borrower and the
Subsidiaries that are or have been made available to the Administrative Agent or
any Lender by UCAR, the Borrower or any Subsidiary, including those contained in
the Information Memorandum, unless otherwise disclosed, have been or will be
prepared in good faith based upon assumptions believed by UCAR and the Borrower
to be reasonable.
SECTION 3.16. EMPLOYEE BENEFIT PLANS. Each of UCAR, the Borrower and the
ERISA Affiliates is in compliance with the applicable provisions of ERISA and
the provisions of the Code relating to ERISA and the regulations and published
interpretations thereunder and any similar applicable non-U.S. law except for
such noncompliance which could not reasonably be expected to result in a
Material Adverse Effect. No Reportable Event has occurred as to which UCAR, the
Borrower or any ERISA Affiliate was required to file a report with the PBGC,
other than reports for which the 30 day notice requirement is waived, reports
that have been filed and reports the failure of which to file could not
reasonably be expected to result in a Material Adverse Effect. As of the
Effective Date, the present value of all benefit liabilities under each Plan of
UCAR, the Borrower and the ERISA Affiliates (on a termination basis and based on
the actual assumptions used by such Plan under Section 412 of the Code) did not,
as of the last annual valuation date applicable thereto for which a valuation is
available, exceed by more than $7,500,000 the value of the assets of such Plan,
and the present value of all benefit liabilities of all underfunded Plans (based
on the actual assumptions used by such Plan under Section 412 of the Code) did
not, as of the last annual valuation dates applicable thereto for which
valuations are available, exceed by more than $15,000,000 the value of the
assets of all such underfunded Plans. None of UCAR, the Borrower and the ERISA
Affiliates has incurred or could reasonably be expected to incur any Withdrawal
Liability that could reasonably be expected to result in a Material Adverse
Effect. None of UCAR, the Borrower and the ERISA Affiliates has received any
written notification that any Multiemployer Plan is in reorganization or has
been terminated within the meaning of Title IV of ERISA, and no Multiemployer
Plan is reasonably expected to be in reorganization or to be terminated, where
such reorganization or termination has resulted or could reasonably be expected
to result, through increases in the contributions required to be made to such
Plan or otherwise, in a Material Adverse Effect.
SECTION 3.17. ENVIRONMENTAL MATTERS. Except as set forth in Schedule 3.17:
(a) There has not been a Release or threatened Release of Hazardous
Materials at, on, under or around the properties currently owned or currently or
formerly operated by UCAR, the Borrower and the Subsidiaries (the "PROPERTIES")
in amounts or concentrations which (i) constitute or constituted a violation of
58
Environmental Laws, except as could not reasonably be expected to have a
Material Adverse Effect, (ii) would reasonably be expected to give rise to an
Environmental Claim which, in any such case or in the aggregate, is reasonably
likely to result in a Material Adverse Effect or (iii) could reasonably be
expected to impair materially the fair saleable value of any material Property.
(b) The Properties and all operations of UCAR, the Borrower and the
Subsidiaries are in compliance, and in all prior periods have been in
compliance, with all Environmental Laws, and all necessary Environmental Permits
have been obtained and are in effect, except to the extent that such
non-compliance or failure to obtain any necessary permits, in the aggregate, are
not reasonably likely to result in a Material Adverse Effect.
(c) None of UCAR, the Borrower and the Subsidiaries has received any
written notice of an Environmental Claim in connection with the Properties or
the operations of the Borrower or the Subsidiaries or with regard to any person
whose liabilities for environmental matters UCAR, the Borrower or the
Subsidiaries has retained or assumed, in whole or in part, contractually, by
operation of law or otherwise, which, in either such case or in the aggregate,
is reasonably likely to result in a Material Adverse Effect.
(d) Hazardous Materials have not been transported from the Properties, nor
have Hazardous Materials been generated, treated, stored or disposed of at, on,
under or around any of the Properties in a manner that could reasonably be
expected to give rise to liability of UCAR, the Borrower or any Subsidiary under
any Environmental Law, nor have any of UCAR, the Borrower and the Subsidiaries
retained or assumed any liability, contractually, by operation of law or
otherwise, with respect to the generation, treatment, storage or disposal of
Hazardous Materials, which, in each case, individually or in the aggregate, is
reasonably likely to result in a Material Adverse Effect.
(e) No Lien in favor of any Governmental Authority for (i) any liability
under any Environmental Law or (ii) damages arising from or costs incurred by
such Governmental Authority in response to a Release or threatened Release of
Hazardous Materials into the environment has been recorded with respect to the
Properties except for Liens permitted by Section 6.02 or by the Existing Credit
Agreement.
(f) During the period from the date of the environmental assessment report
prepared by ENVIRON Corporation in connection with the Recapitalization to the
Effective Date, no event has occurred or been discovered, no liability has been
incurred and no Environmental Claim has been asserted that, had it been in
existence at the time such report was issued, would have materially adversely
altered the conclusions contained therein with respect to the properties,
activities and operations covered thereby.
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SECTION 3.18. CAPITALIZATION OF UCAR AND THE BORROWER. The authorized
Capital Stock, the par value thereof and the amount of such authorized Capital
Stock issued and outstanding for each of UCAR and the Borrower as of October 31,
1998 is set forth on Schedule 3.18 (except for changes in the outstanding common
stock of UCAR due to exercises under employee stock option or employee stock
purchase plans in the ordinary course since August 31, 1998). All outstanding
shares of Capital Stock of the Borrower are fully paid and nonassessable, are
owned beneficially and of record by UCAR and are free and clear of all Liens and
encumbrances whatsoever other than the Liens created by the Loan Documents.
SECTION 3.19. SECURITY DOCUMENTS. (a) Each Pledge Agreement is effective to
create in favor of the Collateral Agent, for the ratable benefit of the Secured
Parties secured thereby, a legal, valid and enforceable security interest in the
Collateral described therein and, when certificates or promissory notes
representing the Collateral (as defined in the applicable Pledge Agreement) are
delivered to the Collateral Agent and the other actions specified in such Pledge
Agreement have been taken, each such Pledge Agreement will constitute a duly
perfected first priority Lien on, and security interest in, all right, title and
interest of each Pledgor thereunder in such Collateral, in each case prior and
superior in right to any other person, subject to the agreements listed in
Schedule 3.08.
(b) Each Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties secured
thereby, a legal, valid and enforceable security interest in the Collateral
described therein and, when financing statements in appropriate form are filed
in the offices specified on the schedules to each such Security Agreement and
the other actions specified in such Security Agreement have been taken, each
such Security Agreement will constitute a duly perfected Lien on, and security
interest in, all right, title and interest of the Pledgors thereunder in such
Collateral and, to the extent contemplated therein and subject to ss. 9-306 of
the Uniform Commercial Code, the proceeds thereof, in each case prior and
superior in right to any other person, other than with respect to Liens
expressly permitted by Section 6.02 and by the Existing Credit Agreement.
(c) Each Mortgage is effective to create in favor of the Collateral Agent,
for the ratable benefit of the Secured Parties secured thereby, a legal, valid
and enforceable Lien on all of the Loan Parties' right, title and interest in
and to the Mortgaged Properties thereunder and, to the extent contemplated
therein and subject to ss. 9-306 of the Uniform Commercial Code, the proceeds
thereof, and when each such Mortgage is filed in the offices specified on the
schedules thereto, when financing statements in appropriate form are filed in
the offices specified on the schedules thereto and when the other actions
required by applicable law and specified on the schedules thereto have been
taken, each Mortgage will constitute an enforceable mortgage Lien on, and duly
perfected security interest in, all right, title and
60
interest of the Loan Parties in the Mortgaged Property subject thereto and, to
the extent contemplated therein and subject to ss. 9- 306 of the Uniform
Commercial Code, the proceeds thereof, in each case prior and superior in right
to any other person, other than with respect to the rights of persons pursuant
to Liens expressly permitted by Section 6.02 and by the Existing Credit
Agreement.
(d) The Intellectual Property Security Agreement is effective to create in
favor of the Collateral Agent, for the ratable benefit of the Secured Parties
secured thereby, a legal, valid and enforceable security interest in the
Collateral described therein, and when financing statements in appropriate form
are filed in the offices specified in the schedules thereto and the Intellectual
Property Security Agreement is filed in the United States Patent and Trademark
Office and the United States Copyright Office, the Intellectual Property
Security Agreement will constitute a duly perfected Lien on, and security
interest in, all right, title and interest of the Pledgors in such Collateral
and, to the extent contemplated therein and subject to ss. 9-306 of the Uniform
Commercial Code, the proceeds thereof, in each case prior and superior in right
to any other person (it being understood that subsequent recordings in the
United States Patent and Trademark Office and the United States Copyright Office
may be necessary to perfect a lien on registered trademarks, trademark
applications and copyrights acquired by the Pledgors after the date hereof),
other than with respect to the rights of persons pursuant to Liens expressly
permitted by Section 6.02 and by the Existing Credit Agreement.
SECTION 3.20. LABOR MATTERS. Except as set forth in Schedule 3.20, there
are no strikes pending or threatened against UCAR, the Borrower or any
Subsidiary which, individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect. The hours worked and payments made to
employees of UCAR, the Borrower and the Subsidiaries have not been in violation
in any material respect of the Fair Labor Standards Act or any other applicable
law dealing with such matters. All material payments due from UCAR, the Borrower
or any Subsidiary or for which any claim may be made against UCAR, the Borrower
or any Subsidiary, on account of wages and employee health and welfare insurance
and other benefits, have been paid or accrued as a liability on the books of
UCAR, the Borrower or such Subsidiary to the extent required by GAAP. None of
the consummation of the Recapitalization, the consummation of the refinancing
effected in October 1995, the consummation of the refinancing effected in March
1997 and the Transactions has given or will give rise to a right of termination
or right of renegotiation on the part of any union under any collective
bargaining agreement to which UCAR, the Borrower or any Subsidiary (or any
predecessor) is a party or by which UCAR, the Borrower or any Subsidiary (or any
predecessor) is bound, other than collective bargaining agreements which,
individually or in the aggregate, are not material to UCAR, the Borrower and the
Subsidiaries taken as a whole.
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SECTION 3.21. NO FOREIGN ASSETS CONTROL REGULATION VIOLATION. None of the
Transactions will result in a violation of any of the foreign assets control
regulations of the United States Treasury Department, 31 C.F.R., Subtitle B,
Chapter V, as amended (including the Foreign Assets Control Regulations, the
Transaction Control Regulations, the Cuban Assets Control Regulations, the
Foreign Funds Control Regulations, the Iranian Assets Control Regulations, the
Nicaraguan Trade Control Regulations, the South African Transactions
Regulations, the Libyan Sanctions Regulations, the Soviet Gold Coin Regulations,
the Panamanian Transactions Regulations, the Kuwaiti Assets Control Regulations
and the Iraqi Sanctions Regulations contained in said Chapter V), or any ruling
issued thereunder or any enabling legislation or Presidential Executive Order
granting authority therefor, nor will the proceeds of the Loans be used by any
of the Credit Parties in a manner that would violate any thereof.
SECTION 3.22. INSURANCE. Each of UCAR, the Borrower and the Subsidiaries
carries and maintains with respect to its insurable properties insurance
(including, to the extent consistent with past practices, self-insurance) with
financially sound and reputable insurers of the types, to such extent and
against such risks as is customary with companies in the same or similar
businesses.
SECTION 3.23. LOCATION OF REAL PROPERTY AND LEASED PREMISES. (a) Schedule
3.23(a) lists completely and correctly as of the Effective Date all real
property owned by UCAR, the Borrower, each domestic Subsidiary, each Subsidiary
that is a borrower under a Local Facility and each other Subsidiary that is
required to grant a Mortgage pursuant to the Collateral Requirement and the
address thereof. As of the Effective Date, UCAR, the Borrower and the
Subsidiaries own in fee all the real property set forth as being owned by them
on Schedule 3.23(a).
(b) Schedule 3.23(b) lists completely and correctly as of the Effective
Date, all real property leased by UCAR, the Borrower, each domestic Subsidiary,
each Subsidiary that is a borrower under a Local Facility and each other
Subsidiary that is required to grant a leasehold mortgage pursuant to the
Collateral Requirement and the address thereof. As of the Effective Date, UCAR,
the Borrower and the Subsidiaries have valid leases in all the real property set
forth as being leased by them on Schedule 3.23(b).
SECTION 3.24. LITIGATION LIABILITIES. The sum of the aggregate Litigation
Payments plus Reserves in respect of Litigation Liabilities does not, and is not
reasonably expected to, exceed $400,000,000 (including $90,000,000 (calculated
on a present value basis) of payments to the Department of Justice); PROVIDED
that it is understood that all other Litigation Payments and Reserves will be
calculated on a gross dollar basis for purposes of determining the accuracy of
this representation.
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SECTION 3.25. YEAR 2000. Any reprogramming required to permit the proper
functioning, in and following the year 2000, of (i) UCAR's, the Borrower's and
each Subsidiaries' computer systems and (ii) equipment containing embedded
microchips (including systems and equipment supplied by others or with which
their systems interface) and the testing of all such systems and equipment, as
so reprogrammed, will be completed in all material respects by June 30, 1999.
The cost to UCAR, the Borrower and each Subsidiary of such reprogramming and
testing and of the reasonably foreseeable consequences of year 2000 to UCAR, the
Borrower and each Subsidiary (including, without limitation, reprogramming
errors and the failure of others' systems or equipment) could not reasonably be
expected to result in a Default or a Material Adverse Effect. Except for such of
the reprogramming referred to in the preceding sentence as may be necessary, the
computer and management information systems of UCAR, the Borrower and each
Subsidiary are and, with ordinary course upgrading and maintenance, will
continue for the term of this Agreement to be, sufficient to permit UCAR, the
Borrower and each Subsidiary to conduct its businesses without Material Adverse
Effect.
ARTICLE IV
CONDITIONS
SECTION 4.01. EFFECTIVE DATE. The obligations of the Lenders to make Loans
hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.08):
(a) The Administrative Agent (or its counsel) shall have received from
UCAR, the Borrower and each Lender either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party
has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent, the Collateral Agent and
the Lenders and dated the Effective Date) of each of (i) ▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇ LLP, counsel for UCAR and the Borrower, substantially to the effect
set forth in the form of Exhibit J-1, (ii) the General Counsel of UCAR and
the Borrower, substantially to the effect set forth in the form of Exhibit
J-2, and (iii) local counsel in each jurisdiction listed on Schedule 4.01,
substantially to the effect set forth in the form of Exhibit J-3, and, in
the case of each such opinion required by this paragraph, covering such
other matters relating to the Loan Parties, the Loan Documents or the
Transactions as the Required Lenders shall reasonably request. The Borrower
hereby requests such counsel to deliver such opinions.
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(c) The Administrative Agent shall have received (i) in the case of
each domestic Loan Party, each of the items referred to in clauses (A), (B)
and (C) below and, in the case of each other Loan Party, as requested by
the Administrative Agent, the equivalent documentation in its jurisdiction
of organization: (A) a copy of the certificate or articles of
incorporation, including all amendments thereto, of each Loan Party,
certified as of a recent date by the Secretary of State of the state of its
organization, and a certificate as to the good standing of each Loan Party
as of a recent date from such Secretary of State; (B) a certificate of the
Secretary or Assistant Secretary of each Loan Party dated the Effective
Date and certifying (w) that attached thereto is a true and complete copy
of the by-laws of such Loan Party as in effect on the Effective Date and at
all times since a date immediately prior to the date of the resolutions
described in clause (x) below, (x) that attached thereto is a true and
complete copy of the resolutions duly adopted by the Board of Directors of
such Loan Party authorizing the execution, delivery and performance of the
Loan Documents to which such person is a party and, in the case of the
Credit Parties, the borrowings under this Agreement, and that such
resolutions have not been modified, rescinded or amended and are in full
force and effect, (y) that the certificate or articles of incorporation of
such Loan Party have not been amended since the date of the last amendment
thereto shown on the certificate of good standing furnished pursuant to
clause (A) above, and (z) as to the incumbency and specimen signature of
each officer executing any Loan Document or any other document delivered in
connection herewith on behalf of such Loan Party; and (C) a certificate of
another officer as to the incumbency and specimen signature of the
Secretary or Assistant Secretary executing the certificate pursuant to (B)
above; and (ii) such other documents as the Lenders, Cravath, Swaine &
▇▇▇▇▇, counsel for the Administrative Agent, or, in the case of any Local
Facility or foreign Credit Party, counsel for the Administrative Agent in
the jurisdiction of such Local Facility or foreign Credit Party, may
reasonably request.
(d) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (b) and (c) of Section 4.02.
(e) The Collateral Requirement shall have been satisfied.
(f) The Guarantee Requirement shall have been satisfied.
(g) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
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required to be reimbursed or paid by any Loan Party hereunder or under any
other Loan Document.
(h) The Lenders shall have received a reasonably satisfactory pro
forma consolidated balance sheet of UCAR as of September 30, 1998,
reflecting all pro forma adjustments as if the Transactions had been
consummated on such date, together with a certificate of the Borrower
signed by a Financial Officer of the Borrower to the effect that such
balance sheet fairly presents the pro forma financial position of UCAR and
its subsidiaries in accordance with GAAP, and such pro forma consolidated
balance sheet shall be consistent in all material respects with the
forecasts and other information previously provided to the Lenders.
(i) All requisite material governmental authorities and all material
third parties shall have been approved or consented to the Transactions and
the other transactions contemplated hereby to the extent required and all
applicable appeal periods shall have expired.
(j) The Senior Subordinated Indenture shall have been amended so that,
after giving effect to such amendment, the Senior Subordinated Indenture
will not prohibit the incurrence of Indebtedness (including in the form of
Guarantees) and the granting of liens under this Agreement, the Existing
Credit Agreement and the other Loan Documents on terms reasonably
satisfactory in form and substance to the Administrative Agent.
(k) The Existing Credit Agreement and the other Loan Documents shall
have been amended, to the satisfaction of the Administrative Agent, in
order to effect the Transactions, including the incurrence of Indebtedness
under (including in the form of Guarantees) and the granting of Liens in
respect of Loans under this Agreement.
(l) The amendment and restatement of the Existing Credit Agreement
shall have become effective in accordance with its terms.
(m) As of the Effective Date, immediately prior to giving effect to
the amendment and restatement of the Existing Credit Agreement, no Default
shall have occurred and be continuing under the Existing Credit Agreement.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.08) at or prior to 3:00 p.m., New York City time, on
January 15, 1999 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
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SECTION 4.02. EACH BORROWING. On the date of each Borrowing, the following
conditions must be satisfied (or waived pursuant to Section 9.08):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03.
(b) The representations and warranties set forth in Article III hereof
shall be true and correct in all material respects on and as of the date of
such Borrowing with the same effect as though made on and as of such date,
except to the extent such representations and warranties expressly relate
to an earlier date.
(c) At the time of and immediately after such Borrowing, no Event of
Default or Default shall have occurred and be continuing.
(d) At the time of and immediately after such Borrowing, the
Administrative Agent shall have received a certificate of the Borrower
signed by a Financial Officer of the Borrower (i) certifying that each
condition required to be met in connection with the incurrence of
additional Indebtedness under Section 4.03(b), 4.03(c) and/or 4.03(f), as
applicable, of the Senior Subordinated Indenture (or, if applicable, the
analogous provision of each Refinancing Note Indenture) has been satisfied,
(ii) certifying that the Loans to be made will constitute "Senior
Indebtedness" for purposes of the Senior Subordinated Indenture and each
applicable Refinancing Note Indenture and (iii) setting forth in reasonable
detail the calculations necessary to certify as to such compliance.
Each Borrowing shall be deemed to constitute a representation and warranty by
UCAR and the Borrower on the date of such Borrowing as to the matters specified
in paragraphs (b) and (c) of this Section 4.02.
ARTICLE V
AFFIRMATIVE COVENANTS
Each of UCAR and the Borrower covenants and agrees with each Lender that so
long as this Agreement shall remain in effect and until the Commitments have
been terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document shall have been paid
in full, unless the Required Lenders shall otherwise consent in writing, each of
UCAR and the Borrower will, and will cause each of the Subsidiaries to:
SECTION 5.01. EXISTENCE; BUSINESSES AND PROPERTIES. (a) Do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence, except as
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otherwise expressly permitted under Section 6.05, and except for the liquidation
or dissolution of Subsidiaries if the assets of such corporations to the extent
they exceed estimated liabilities are acquired by the Borrower or a Wholly Owned
Subsidiary in such liquidation or dissolution; PROVIDED that Subsidiaries which
are Guarantors may not be liquidated into Subsidiaries that are not Guarantors
and domestic Subsidiaries may not be liquidated into foreign Subsidiaries.
(b) Do or cause to be done all things necessary to obtain, preserve, renew,
extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; comply in all material respects with
all applicable laws, rules, regulations (including any Environmental Law) and
orders of any Governmental Authority, whether now in effect or hereafter
enacted; and at all times maintain and preserve all property material to the
conduct of such business and keep such property in good repair, working order
and condition and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith, if any,
may be properly conducted at all times (in each case except as expressly
permitted by this Agreement).
SECTION 5.02. INSURANCE. (a) Keep its insurable properties insured at all
times by financially sound and reputable insurers in such amounts as shall be
customary for similar businesses and maintain such other insurance (including,
to the extent consistent with past practices, self-insurance), of such types, to
such extent and against such risks, as is customary with companies in the same
or similar businesses.
(b) Cause all such property and casualty insurance policies with respect to
the Mortgaged Properties to be endorsed or otherwise amended to include a
"standard" or "New York" lender's loss payable endorsement, in form and
substance reasonably satisfactory to the Administrative Agent and the Collateral
Agent, which endorsement shall provide that, from and after the Effective Date,
if the insurance carrier shall have received written notice from the
Administrative Agent or the Collateral Agent of the occurrence of an Event of
Default, the insurance carrier shall pay all proceeds otherwise payable to the
Borrower or the Loan Parties under such policies directly to the Collateral
Agent; cause all such policies to provide that neither the applicable Loan
Party, the Administrative Agent, the Collateral Agent nor any other party shall
be a coinsurer thereunder and to contain a "Replacement Cost Endorsement",
without any deduction for depreciation, and such other provisions as the
Administrative Agent or the Collateral Agent may reasonably (in light of a
Default or a material development in respect of the insured Mortgaged Property)
require from time to time to protect their interests; deliver original or
certified copies of all such policies to the Collateral Agent; cause each such
policy to provide that it shall not be canceled, modified or not renewed (i) by
reason of nonpayment of premium upon
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not less than 10 days' prior written notice thereof by the insurer to the
Administrative Agent and the Collateral Agent or (ii) for any other reason upon
not less than 30 days' prior written notice thereof by the insurer to the
Administrative Agent and the Collateral Agent; deliver to the Administrative
Agent and the Collateral Agent, prior to the cancellation, modification or
nonrenewal of any such policy of insurance, a copy of a renewal or replacement
policy (or other evidence of renewal of a policy previously delivered to the
Administrative Agent and the Collateral Agent), or insurance certificate with
respect thereto, together with evidence reasonably satisfactory to the
Administrative Agent and the Collateral Agent of payment of the premium
therefor.
(c) If at any time the area in which the Premises (as defined in the
Mortgages) are located is designated (i) a "flood hazard area" in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency (or any
successor agency), obtain flood insurance in such reasonable total amount as the
Administrative Agent, the Collateral Agent or the Required Lenders may from time
to time reasonably require, and otherwise comply with the National Flood
Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as
it may be amended from time to time, or (ii) a "Zone 1" area (as so designated
in the National Ocean and Earthquake Risk Map), obtain earthquake insurance in
such reasonable total amount as the Administrative Agent, the Collateral Agent
or the Required Lenders may from time to time reasonably require.
(d) With respect to each Mortgaged Property, carry and maintain
comprehensive general liability insurance and coverage on an occurrence basis
against claims made for personal injury (including bodily injury, death and
property damage) and umbrella liability insurance against any and all claims, in
no event for a combined single limit of less than $1,000,000, naming the
Collateral Agent as an additional insured, on forms reasonably satisfactory to
the Collateral Agent.
(e) Notify the Administrative Agent and the Collateral Agent promptly
whenever any separate insurance concurrent in form or contributing in the event
of loss with that required to be maintained under this Section 5.02 is taken out
by UCAR, the Borrower or any Subsidiary; and promptly deliver to the
Administrative Agent and the Collateral Agent a duplicate original copy of such
policy or policies, or insurance certificate with respect thereto.
(f) In connection with the covenants set forth in this Section 5.02, it is
understood and agreed that:
(i) none of the Administrative Agent, the Collateral Agent, the
Lenders and their respective agents or employees shall be liable for any
loss or damage insured by the insurance policies required to be maintained
under this Section 5.02, it being understood that (A) the Borrower and the
other Loan Parties shall look solely to their insurance
68
companies or any other parties other than the aforesaid parties for the
recovery of such loss or damage and (B) such insurance companies shall have
no rights of subrogation against the Administrative Agent, the Collateral
Agent, the Lenders or their agents or employees. If, however, the insurance
policies do not provide waiver of subrogation rights against such parties,
as required above, then each of UCAR and the Borrower hereby agree, to the
extent permitted by law, to waive, and to cause each Subsidiary to waive,
its right of recovery, if any, against the Administrative Agent, the
Collateral Agent, the Lenders and their agents and employees; and
(ii) the designation of any form, type or amount of insurance coverage
by the Administrative Agent, the Collateral Agent or the Required Lenders
under this Section 5.02 shall in no event be deemed a representation,
warranty or advice by the Administrative Agent, the Collateral Agent or the
Lenders that such insurance is adequate for the purposes of the business of
UCAR, the Borrower and the Subsidiaries or the protection of their
properties.
SECTION 5.03. TAXES. Pay and discharge promptly when due all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or in respect of its property, before the same shall become
delinquent or in default, as well as all lawful claims for labor, materials and
supplies or otherwise which, if unpaid, might give rise to a Lien upon such
properties or any part thereof; PROVIDED, HOWEVER, that such payment and
discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as (a) the validity or amount thereof shall be
contested in good faith by appropriate proceedings and UCAR, the Borrower or the
affected Subsidiary, as applicable, shall have set aside on its books adequate
reserves with respect thereto, (b) such tax, assessment, charge, levy or claim
is in respect of property taxes for property that UCAR, the Borrower or one of
the Subsidiaries has determined to abandon and the sole recourse for such tax,
assessment, charge, levy or claim is to such property or (c) the amount of such
taxes, assessments, charges, levies and claims and interest and penalties
thereon does not exceed $1,000,000 in the aggregate.
SECTION 5.04. FINANCIAL STATEMENTS, REPORTS, ETC. In the case of the
Borrower, furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, a consolidated
balance sheet and related statements of operations, cash flows and
stockholders' equity showing the financial condition of UCAR, the Borrower
and the Subsidiaries as of the close of such fiscal year and the
consolidated results of their operations during such year, all audited by
KPMG Peat Marwick LLC or other independent public accountants of recognized
national standing reasonably acceptable to the Administrative Agent and
accompanied by an opinion of such
69
accountants (which shall not be qualified in any material respect) to the
effect that such consolidated financial statements fairly present the
financial condition and results of operations of UCAR, the Borrower and the
Subsidiaries on a consolidated basis in accordance with GAAP;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, a consolidated balance sheet and related
statements of operations, cash flows and stockholders' equity showing the
financial condition of UCAR, the Borrower and the Subsidiaries as of the
close of such fiscal quarter and the consolidated results of their
operations during such fiscal quarter and the then-elapsed portion of the
fiscal year, all certified by one of its ▇▇▇▇▇ cial Officers on behalf of
the Borrower as fairly presenting the financial condition and results of
operations of UCAR, the Borrower and the Subsidiaries on a consolidated
basis in accordance with GAAP (except for the absence of footnotes),
subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under (a)
or (b) above, a certificate of the accounting firm or Financial Officer on
behalf of the Borrower opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to
accounting matters and disclaim responsibility for legal interpretations)
(i) certifying that no Event of Default or Default has occurred or, if such
an Event of Default or Default has occurred, specifying the nature and
extent thereof and any corrective action taken or proposed to be taken with
respect thereto and (ii) setting forth computations in detail reasonably
satisfactory to the Administrative Agent demonstrating compliance with the
covenants contained in Sections 6.10, 6.11 and 6.12 (it being understood
that the information required by this clause (ii) may be provided in a
certificate of a Financial Officer on behalf of the Borrower instead of
from such accounting firm);
(d) promptly after the same become publicly available, copies of all
periodic and other publicly available reports, proxy statements and, to the
extent requested by the Administrative Agent, other materials filed by
UCAR, the Borrower or any Subsidiary with the Securities and Exchange
Commission, or any governmental authority succeeding to any of or all the
functions of said Commission, or with any national securities exchange, or
distributed to its shareholders generally, as the case may be;
(e) if, as a result of any change in accounting principles and
policies from those as in effect on the date of this Agreement, the
consolidated financial statements of UCAR, the Borrower and the
Subsidiaries delivered pursuant to paragraph (a) or (b) above will differ
in any material respect from the consolidated financial statements that
would have been delivered pursuant to such clauses had no such change in
70
accounting principles and policies been made, then, together with the first
delivery of financial statements pursuant to paragraph (a) and (b) above
following such change, a schedule prepared by a Financial Officer on behalf
of the Borrower reconciling such changes to what the financial statements
would have been without such changes;
(f) within 90 days after the beginning of each fiscal year, a copy of
an operating and capital expenditure budget for such fiscal year;
(g) promptly following the creation or acquisition of any Subsidiary,
a certificate of the Borrower signed by a Responsible Officer of the
Borrower, identifying such new Subsidiary and the ownership interest of the
Borrower and the Subsidiaries therein;
(h) simultaneously with the delivery of any financial statements
pursuant to paragraph (a) or (b) above, a balance sheet and related
statements of operations, cash flows and stockholder's equity for each
unconsolidated Subsidiary for the applicable period;
(i) promptly, a copy of all reports submitted in connection with any
material interim or special audit made by independent accountants of the
books of UCAR, the Borrower or any Subsidiary; and
(j) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of UCAR, the Borrower
or any Subsidiary, or compliance with the terms of any Loan Document, or
such consolidating financial statements, or such financial statements
showing the results of operations of any Unrestricted Subsidiary, as in
each case the Administrative Agent or any Lender, acting through the
Administrative Agent, may reasonably request.
SECTION 5.05. LITIGATION AND OTHER NOTICES. Furnish to the Administrative
Agent and each Lender written notice of the following promptly after any
Responsible Officer of the Borrower obtains actual knowledge thereof:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) proposed to be taken with
respect thereto;
(b) the filing or commencement of, or any written threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority, against UCAR, the Borrower or any Subsidiary thereof in respect
of which there is a reasonable possibility of an adverse determination and
which, if adversely determined, could reasonably be expected to result in a
Material Adverse Effect; and
71
(c) any other development specific to UCAR, the Borrower or any
Subsidiary that is not a matter of general public knowledge and that has
resulted in, or could reasonably be expected to result in, a Material
Adverse Effect.
SECTION 5.06. EMPLOYEE BENEFITS. (a) Comply in all material respects with
the applicable provisions of ERISA and the provisions of the Code relating to
ERISA and any applicable similar non-U.S. law and (b) furnish to the
Administrative Agent (i) as soon as possible after, and in any event within 30
days after any Responsible Officer of UCAR, the Borrower or any ERISA Affiliate
knows or has reason to know that, any Reportable Event has occurred, a statement
of a Financial Officer on behalf of the Borrower setting forth details as to
such Reportable Event and the action proposed to be taken with respect thereto,
together with a copy of the notice, if any, of such Reportable Event given to
the PBGC, (ii) promptly after any Responsible Officer learns of receipt thereof,
a copy of any notice that the Borrower or any ERISA Affiliate may receive from
the PBGC relating to the intention of the PBGC to terminate any Plan or Plans
(other than a Plan maintained by an ERISA Affiliate that is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Code Section 414) or to
appoint a trustee to administer any such Plan, (iii) within 30 days after the
due date for filing with the PBGC pursuant to Section 412(n) of the Code a
notice of failure to make a required installment or other payment with respect
to a Plan, a statement of a Financial Officer on behalf of the Borrower setting
forth details as to such failure and the action proposed to be taken with
respect thereto, together with a copy of any such notice given to the PBGC and
(iv) promptly after any Responsible Officer learns thereof and in any event
within 30 days after receipt thereof by UCAR, the Borrower or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, a copy of each notice
received by UCAR, the Borrower or any ERISA Affiliate concerning (A) the
imposition of Withdrawal Liability or (B) a determination that a Multiemployer
Plan is, or is expected to be, terminated or in reorganization, in each case
within the meaning of Title IV of ERISA; PROVIDED that in the case of each of
clauses (i) through (iv) above, notice to the Administrative Agent shall only be
required if such event or condition, together with all other events or
conditions referred to in clauses (i) through (iv) above, could reasonably be
expected to result in liability of UCAR, the Borrower or any Subsidiary in an
aggregate amount exceeding $7,500,000.
SECTION 5.07. MAINTAINING RECORDS; ACCESS TO PROPERTIES AND INSPECTIONS.
Maintain all financial records in accordance with GAAP and permit any persons
designated by the Administrative Agent or any Lender to visit and inspect the
financial records and the properties of UCAR, the Borrower or any Subsidiary at
reasonable times, upon reasonable prior notice to UCAR or the Borrower, and as
often as reasonably requested and to make extracts from and copies of such
financial records, and permit any persons designated by the Administrative Agent
or any Lender upon reasonable prior notice to UCAR or the Borrower to discuss
the affairs, finances and condition of the Borrower or any Subsidiary with the
officers thereof and
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independent accountants therefor (subject to reasonable requirements of
confidentiality, including requirements imposed by law or by contract).
SECTION 5.08. USE OF PROCEEDS. Use the proceeds of the Loans only for the
purposes set forth in the preamble to this Agreement.
SECTION 5.09. COMPLIANCE WITH ENVIRONMENTAL LAWS. Comply, and cause all
lessees and other persons occupying its Properties to comply, with all
Environmental Laws and Environmental Permits applicable to its operations and
Properties; obtain and renew all Environmental Permits necessary for its
operations and Properties; and conduct any Remedial Action in accordance with
Environmental Laws, except, in each case with respect to this Section 5.09, to
the extent the failure to do so, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
SECTION 5.10. PREPARATION OF ENVIRONMENTAL REPORTS. If a Default caused by
reason of a breach of Section 3.17 or 5.09 shall have occurred and be
continuing, at the request of the Required Lenders through the Administrative
Agent, provide to Lenders within 90 days after such request, at the expense of
the Borrower, an environmental site assessment report for the Properties which
are the subject of such Default prepared by an environmental consulting firm
reasonably acceptable to the Administrative Agent, indicating the presence or
absence of Hazardous Materials and the estimated cost of any Remedial Action
required under any applicable Environmental Law in connection with such
Properties.
SECTION 5.11. FURTHER ASSURANCES. Execute any and all further documents,
financing statements, agreements and instruments, and take all further action
(including filing Uniform Commercial Code and other financing statements) that
may be required under applicable law, or which the Collateral Agent may
reasonably request, (a) in order to effectuate the transactions contemplated by
the Loan Documents (other than the Local Facility Loan Documents), (b) in order
to cause the Guarantee Requirement and Collateral Requirement to be satisfied at
all times and (c) in order to grant, preserve, protect and perfect the validity
and first priority (subject to Liens permitted by Section 6.02 and the Existing
Credit Agreement) of the security interests created or intended to be created by
the Security Documents. All such security interests and Liens will be created
under the Security Documents and other instruments and documents in form and
substance reasonably satisfactory to the Collateral Agent, and UCAR, the
Borrower and the Subsidiaries shall deliver or cause to be delivered to the
Administrative Agent all such instruments and documents (including legal
opinions and lien searches) as the Required Lenders shall reasonably request to
evidence compliance with this Section 5.11. UCAR and the Borrower agree to
provide, and to cause each Subsidiary to provide, such evidence as the
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Collateral Agent shall reasonably request as to the perfection and priority
status of each such security interest and Lien.
SECTION 5.12. SIGNIFICANT SUBSIDIARIES. Cause Significant Subsidiaries at
all times to (a) account for 85% or more of the consolidated assets of the
Borrower and (b) have accounted for 85% or more of EBITDA for each of the two
consecutive periods of four fiscal quarters immediately preceding the date of
determination, after giving effect to the designation of any Significant
Subsidiary on such date.
SECTION 5.13. FISCAL YEAR. In the case of each of UCAR, the Borrower and
the Subsidiaries, cause its respective fiscal year to end on December 31.
SECTION 5.14. DIVIDENDS. In the case of the Borrower, permit its
Subsidiaries to pay dividends and cause such dividends to be paid to the extent
required to pay the monetary Obligations, subject to restrictions permitted by
Section 6.09(d) and under the Existing Credit Agreement and to prohibitions
imposed by applicable requirements of law.
SECTION 5.15. INTEREST/EXCHANGE RATE PROTECTION AGREEMENTS. Maintain in
effect one or more Interest/Exchange Rate Protection Agreements with any of the
Lenders or other financial institutions reasonably satisfactory to the
Administrative Agent, the effect of which shall be to limit at all times the
interest payable in connection with 40% of the aggregate principal amount of
Borrowings projected to be outstanding at such time, in each case to a maximum
rate and on terms and conditions comparable to those set forth in the
Interest/Exchange Rate Protection Agreements in effect on the Effective Date or
otherwise reasonably acceptable, taking into account current market conditions,
to the Administrative Agent, and deliver evidence of the execution and delivery
thereof to the Administrative Agent.
SECTION 5.16. CORPORATE SEPARATENESS. Cause the management, business and
affairs of each of the Unrestricted Subsidiaries to be conducted in such a
manner so that each Unrestricted Subsidiary will be perceived as a legal entity
separate and distinct from UCAR, the Borrower and the Subsidiaries.
ARTICLE VI
NEGATIVE COVENANTS
Each of UCAR and the Borrower covenants and agrees with each Lender that,
so long as this Agreement shall remain in effect and until the Commitments have
been terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document have been paid in
full, unless the Required Lenders shall otherwise consent in writing,
74
neither UCAR nor the Borrower will, and neither will cause or permit any of the
Subsidiaries to:
SECTION 6.01. INDEBTEDNESS. Incur, create, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness existing on the Effective Date and set forth in
Schedule 6.01, but not any extensions, renewals or replacements of such
Indebtedness except (i) renewals and extensions expressly provided for in
the agreements evidencing any such Indebtedness as the same are in effect
on the Effective Date and (ii) refinancings and extensions of any such
Indebtedness if the interest rate with respect thereto and other terms
thereof are no less favorable to the obligor thereon or to the Lenders than
the Indebtedness being refinanced or extended and the average life to
maturity thereof is greater than or equal to that of the Indebtedness being
refinanced or extended; PROVIDED that such Indebtedness permitted under
clause (i) or clause (ii) above shall not be (A) Indebtedness of an obligor
that was not an obligor with respect to the Indebtedness being extended,
renewed or refinanced, (B) in a principal amount which exceeds the
Indebtedness being renewed, extended or refinanced or (C) incurred, created
or assumed if any Default or Event of Default has occurred and is
continuing or would result therefrom;
(b) Indebtedness created hereunder, under the Existing Credit
Agreement and under the other Loan Documents; PROVIDED that no principal
amount of Indebtedness under any Local Facility described in clause (b) of
the definition of "Local Facility" may be incurred unless the Tranche A
Exposure shall be simultaneously and permanently reduced by an aggregate
amount not less than such principal amount; PROVIDED FURTHER that, with
respect to Indebtedness under the Existing Credit Agreement, (i) no
Guarantor shall Guarantee the Obligations under the Existing Credit
Agreement unless it shall also Guarantee on a PARI PASSU basis the
Obligations under this Agreement and (ii) if any additional or more
restrictive representation, warranty, covenant, condition, event of default
or other term shall be contained in the Tranche C Facility Credit
Agreement, the Borrower agrees that such additional or more restrictive
representation, warranty, covenant, condition, event of default or other
term shall be incorporated herein (and, to the extent that any such
additional or more restrictive term shall subsequently be amended to be
less restrictive, such amendment shall also be incorporated herein);
(c) (i) in the case of UCAR, any Senior Subordinated Guarantee, (ii)
in the case of the Borrower, Senior Subordinated Notes in an aggregate
principal amount (the "SUBORDINATED PRINCIPAL") not to exceed the sum of
(A) $200,000,000 and (B) the aggregate principal amount of Senior
Subordinated Notes issued after the Second Closing Date
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in payment of interest thereon pursuant to the terms thereof (less the
principal amount of any Senior Subordinated Notes that is repaid after the
Second Closing Date) and (iii) in the case of the Borrower, Refinancing
Notes in an aggregate principal amount not to exceed the sum at the time
immediately prior to issuance and refinancing of (A) the Subordinated
Principal, (B) any premium payable and reasonable expenses incurred in
connection with such refinancing and (C) if the Refinancing Notes are
issued at a time when there is accrued but unpaid interest on the
Subordinated Principal, the amount of such accrued but unpaid interest;
(d) Indebtedness of the Borrower and the Subsidiaries pursuant to
Interest/Exchange Rate Protection Agreements entered into in order to fix
the effective rate of interest, or to hedge against currency fluctuations,
on the Loans and other Indebtedness or to hedge against currency
fluctuations with respect to purchases and sales of goods in the ordinary
course, in each case, PROVIDED that such transactions shall be entered into
for business purposes and not for the purpose of speculation;
(e) Indebtedness owed to (including obligations in respect of letters
of credit for the benefit of) any person providing worker's compensation,
health, disability or other employee benefits or property, casualty or
liability insurance to the Borrower or any Subsidiary, pursuant to
reimbursement or indemnification obligations to such person;
(f) (i) Indebtedness of the Borrower or any Wholly Owned Subsidiary
that is a Guarantor to any Subsidiary or to the Borrower; (ii) Indebtedness
of the Borrower or any Wholly Owned Subsidiary that is not a Guarantor to
any Subsidiary; (iii) Indebtedness of any Subsidiary to the Borrower or
another Subsidiary incurred pursuant to a Permitted Foreign Transfer
(subject in the case of Specified Permitted Transactions to the limitations
set forth in Section 6.04(k)); and (iv) so long as at the time of
incurrence no Default or Event of Default shall have occurred and be
continuing, Indebtedness of UCAR to the Borrower incurred for the purpose
of making permitted investments in Unrestricted Subsidiaries (and in an
amount limited to the amount of investments so permitted), in each case
subject to compliance with the provisions of the Pledge Agreements to the
extent applicable to such Indebtedness;
(g) Indebtedness of the Borrower or a Subsidiary which represents the
assumption by the Borrower or such Subsidiary of Indebtedness of a
Subsidiary in connection with the permitted merger of such Subsidiary with
or into the assuming person or the purchase of all or substantially all the
assets of such Subsidiary;
(h) Indebtedness of the Borrower or any Subsidiary in respect of
performance bonds, bid bonds, appeal bonds, surety
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bonds and similar obligations and trade-related letters of credit, in each
case provided in the ordinary course of business, including those incurred
to secure health, safety and environmental obligations in the ordinary
course of business, and any extension, renewal or refinancing thereof to
the extent not provided to secure the repayment of other Indebtedness and
to the extent that the amount of refinancing Indebtedness is not greater
than the amount of Indebtedness being refinanced;
(i) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business; PROVIDED that such
Indebtedness is extinguished within two Business Days of its incurrence;
(j) Indebtedness of a Subsidiary acquired after the date hereof and
Indebtedness of a corporation merged or consolidated with or into the
Borrower or a Subsidiary after the date hereof, which Indebtedness in each
case exists at the time of such acquisition, merger, consolidation or
conversion into a Subsidiary and is not created in contemplation of such
event and where such acquisition, merger or consolidation is permitted by
this Agreement, PROVIDED that the aggregate principal amount of
Indebtedness under this paragraph (j) shall not exceed $25,000,000 for the
Borrower and all Subsidiaries;
(k) Capital Lease Obligations, mortgage financings and purchase money
Indebtedness incurred by the Borrower or any Subsidiary prior to or within
270 days after a Capital Expenditure permitted under Section 6.10 in order
to finance such Capital Expenditure, and extensions, renewals and
refinancings thereof if the interest rate with respect thereto and other
terms thereof are no less favorable to the Borrower or such Subsidiary than
the Indebtedness being refinanced and the average life to maturity thereof
is greater than or equal to that of the Indebtedness being refinanced;
PROVIDED that such refinancing Indebtedness shall not be (i) Indebtedness
of an obligor that was not an obligor with respect to the Indebtedness
being extended, renewed or refinanced, (ii) in a principal amount which
exceeds the Indebtedness being renewed, extended or refinanced or (iii)
incurred, created or assumed if any Default or Event of Default has
occurred and is continuing or would result therefrom;
(l) Capital Lease Obligations incurred by the Borrower or any
Subsidiary in respect of any Sale and Leaseback Transaction that is
permitted under Section 6.03;
(m) other Indebtedness of the Borrower and the Subsidiaries in an
aggregate principal amount at any time outstanding not in excess of
$100,000,000, $20,000,000 of which may be incurred on a secured basis;
77
(n) Indebtedness of UCAR consisting of contingent liabilities or
Indebtedness of the type referred to in the proviso contained in the
definition of "Unrestricted Subsidiary"; and
(o) all premium (if any), interest (including post-petition interest),
fees, expenses, indemnities, charges and additional or contingent interest
on obligations described in clauses (a) through (n) above.
Notwithstanding anything to the contrary in this Agreement or any other Loan
Document, no Refinancing Notes shall be issued (and no Indebtedness shall be
incurred under the Refinancing Note Indenture) unless: (a) concurrently with the
issuance of any Refinancing Notes, Senior Subordinated Notes in a principal
amount equal to the principal amount of such Refinancing Notes (less any amount
issued pursuant to clause (iii)(B) or (iii)(C) of paragraph (c) above) shall
have been redeemed or repurchased (or called for redemption, so long as the
redemption price has been indefeasibly deposited with the trustee in respect of
such Senior Subordinated Notes (the "TRUSTEE")) and cancelled upon delivery to
the Trustee, at a price not in excess of 100% of the principal amount thereof
(plus interest accrued to the date of redemption or repurchase and not paid in
cash and plus any premium in respect of such redemption or repurchase (so long
as the premium on repurchase does not exceed 104.5%, or if lower at the time
such repurchase is made, the scheduled premium set forth in the Senior
Subordinated Indenture)), (b) the terms of the Refinancing Notes and the
Refinancing Note Indenture (other than the interest rate, the interest payment
dates and any redemption premiums, which shall be determined at the time of
issuance of the Refinancing Notes) shall be reasonably satisfactory to the
Required Lenders (PROVIDED, HOWEVER, that such terms of the Refinancing Notes
and the Refinancing Note Indenture shall be deemed to be satisfactory to the
Required Lenders if the Refinancing Notes are issued with substantially the same
terms as the Senior Subordinated Notes that are being refinanced (other than any
changes thereto that are not adverse in any respect to the interests of the
Lenders)), (c) the interest rate of the Refinancing Notes shall be a fixed, non-
increasing interest rate per annum not in excess of the rate payable in respect
of the Senior Subordinated Notes, payable on a principal amount of the
Refinancing Notes not in excess of the gross proceeds of the sale thereof and
interest on the Refinancing Notes shall be payable semiannually and (d) the
Refinancing Notes shall mature not earlier than the maturity date of the Senior
Subordinated Notes.
SECTION 6.02. LIENS. Create, incur, assume or permit to exist any Lien on
any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned
78
or hereafter acquired by it or on any income or revenues or rights in respect of
any thereof, or sell or transfer any account receivable or any right in respect
thereof, except:
(a) Liens on property or assets of the Borrower and its Subsidiaries
existing on the Effective Date and set forth in Schedule 6.02; PROVIDED
that such Liens shall secure only those obligations which they secure on
the Effective Date (and extensions, renewals and refinancings of such
obligations permitted by Section 6.01(a)) and shall not subsequently apply
to any other property or assets of UCAR, the Borrower or any Subsidiary;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset of the Borrower or any
Subsidiary prior to the acquisition thereof by the Borrower or any
Subsidiary; PROVIDED that (i) such Lien is not created in contemplation of
or in connection with such acquisition and (ii) such Lien does not apply to
any other property or asset of the Borrower or any Subsidiary;
(d) any Lien on any property or asset of a Subsidiary securing
Indebtedness permitted by Section 6.01(j); PROVIDED that such Lien does not
apply to any other property or assets of UCAR, the Borrower or any
Subsidiary not securing such Indebtedness at the date of acquisition of
such property or asset (other than after acquired property subjected to a
Lien securing Indebtedness incurred prior to such date and permitted
hereunder which contains a requirement for the pledging of after acquired
property);
(e) Liens for taxes, assessments or other governmental charges or
levies not yet delinquent, or which are for less than $1,000,000 in the
aggregate, or which are being contested in compliance with Section 5.03 or
for property taxes on property that UCAR, the Borrower or one of the
Subsidiaries has determined to abandon if the sole recourse for such tax,
assessment, charge, levy or claim is to such property;
(f) carriers', warehousemen's, mechanic's, materialmen's, repairmen's
or other like Liens arising in the ordinary course of business and securing
obligations that are not due and payable or that are being contested in
good faith by appropriate proceedings and in respect of which, if
applicable, UCAR, the Borrower or the relevant Subsidiary shall have set
aside on its books reserves in accordance with GAAP;
(g) pledges and deposits made in the ordinary course of business in
compliance with the Federal Employers Liability Act or any other workmen's
compensation, unemployment insurance and other social security laws or
regulations and deposits securing liability to insurance carriers under
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insurance or self-insurance arrangements in respect of such obligations;
(h) deposits to secure the performance of bids, trade contracts (other
than for Indebtedness), leases (other than Capital Lease Obligations),
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business,
including those incurred to secure health, safety and environmental
obligations in the ordinary course of business;
(i) zoning restrictions, easements, trackage rights, leases (other
than Capital Lease Obligations), licenses, special assessments,
rights-of-way, restrictions on use of real property and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and do not materially detract from
the value of the property subject thereto or interfere with the ordinary
conduct of the business of UCAR, the Borrower or any of the Subsidiaries;
(j) purchase money security interests in real property, improvements
thereto or equipment hereafter acquired (or, in the case of improvements,
constructed) by the Borrower or any Subsidiary (including the interests of
vendors and lessors under conditional sale and title retention agreements);
PROVIDED that (i) such security interests secure Indebtedness or Sale and
Lease-Back Transactions permitted by Section 6.01, (ii) such security
interests are incurred, and the Indebted ness secured thereby is created,
within 270 days after such acquisition (or construction), (iii) the
Indebtedness secured thereby does not exceed 100% of the cost of such real
property, improvements or equipment at the time of such acquisition (or
construction), (iv) such expenditures are permitted by this Agreement and
(v) such security interests do not apply to any other property or assets of
the Borrower or any Subsidiary (other than to accessions to such real
property, improvements or equipment and provided that individual financings
of equipment provided by a single lender may be cross-collateralized to
other financings of equipment provided solely by such lender);
(k) Liens securing reimbursement obligations in respect of
trade-related letters of credit permitted under Section 6.01 and covering
the goods (or the documents of title in respect of such goods) financed by
such letters of credit;
(l) Liens arising out of capitalized or operating lease transactions
permitted under Section 6.03, so long as such Liens (i) attach only to the
property sold in such transaction and any accessions thereto and (ii) do
not interfere with the business of UCAR, the Borrower or any Subsidiary in
any material respect;
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(m) Liens consisting of interests of lessors under capital leases
permitted by Section 6.01;
(n) Liens securing judgments for the payment of money in an aggregate
amount not in excess of $7,500,000 (except to the extent covered by
insurance as to which the insurer has acknowledged in writing its
obligation to cover), unless such judgments shall remain undischarged for a
period of more than 30 consecutive days during which execution shall not be
effectively stayed;
(o) any Lien arising by operation of law pursuant to Section 107(1) of
CERCLA or pursuant to analogous state or foreign law, for costs or damages
which are not yet due (by virtue of a written demand for payment by a
Governmental Authority) or which are being contested in compliance with the
standard set forth in Section 5.03(a), or on property that the Borrower or
a Subsidiary has determined to abandon if the sole recourse for such costs
or damages is to such property, PROVIDED that the liability of the Borrower
and the Subsidiaries with respect to the matter giving rise to all such
Liens shall not, in the reasonable estimate of the Borrower (in light of
all attendant circumstances, including the likelihood of contribution by
third parties), exceed $7,500,000;
(p) any leases or subleases to other persons of properties or assets
owned or leased by the Borrower or a Subsidiary;
(q) Liens which are contractual rights of set-off (i) relating to the
establishment of depository relations with banks not given in connection
with the issuance of Indebtedness or (ii) pertaining to pooled deposit
and/or sweep accounts of the Borrower and/or any Subsidiary to permit
satisfaction of overdraft or similar obligations incurred in the ordinary
course of business of the Borrower and its Subsidiaries;
(r) other Liens with respect to property or assets not constituting
collateral for the Obligations with an aggregate fair market value of not
more than $20,000,000 at any time;
(s) any Lien arising as a result of a transaction permitted under
Section 6.05(h) or (i) or under Section 6.13;
(t) the sale of accounts receivable in connection with collection in
the ordinary course of business and Liens which might arise as a result of
the sale or other disposition of accounts receivable pursuant to Section
6.05(h); and
(u) the replacement, extension or renewal of any Lien permitted by
clause (c), (d) or (j) above; PROVIDED that such replacement, extension or
renewal Lien shall not cover any property other than the property that was
subject to such Lien
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prior to such replacement, extension or renewal; and PROVIDED FURTHER that
the Indebtedness and other obligations secured by such replacement,
extension or renewal Lien are permitted by this Agreement.
SECTION 6.03. SALE AND LEASE-BACK TRANSACTIONS. Enter into any arrangement,
directly or indirectly, with any person whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
which it intends to use for substantially the same purpose or purposes as the
property being sold or transferred (a "SALE AND LEASE-BACK TRANSACTION"), other
than any Sale and Lease-Back Transaction which involves a sale by the Borrower
or a Subsidiary solely for cash consideration on terms not less favorable than
would prevail in an arm's-length transaction and which (a) results in a Capital
Lease Obligation or an operating lease, in either case entered into to finance a
Capital Expenditure permitted by Section 6.10 consisting of the initial
acquisition by the Borrower or such Subsidiary of the property sold or
transferred in such Sale and Lease-Back Transaction, PROVIDED that such Sale and
Lease-Back Transaction occurs within 270 days after such acquisition or (b)
results in a Capital Lease Obligation or an operating lease entered into for any
other purpose; PROVIDED that the proceeds of any such Sale and Lease-Back
Transaction in reliance upon this clause (b) shall be deemed subject to Section
2.12(e).
SECTION 6.04. INVESTMENTS, LOANS AND ADVANCES. Purchase, hold or acquire
any capital stock, evidences of indebtedness or other securities of, make or
permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) investments (i) existing on the Effective Date in the capital
stock of the Subsidiaries; (ii) by UCAR in the capital stock of the
Borrower; (iii) by the Borrower or any Subsidiary in any Wholly Owned
Subsidiary that is a Guarantor (so long as such Guarantor shall remain a
Wholly Owned Subsidiary after giving effect to such investment); (iv) by
any Wholly Owned Subsidiary in any Wholly Owned Subsidiary that is a
Guarantor; (v) by any Subsidiary that is not a Guarantor in any Wholly
Owned Subsidiary that is not a Guarantor (so long as such Subsidiary shall
remain a Wholly Owned Subsidiary after giving effect to such investment);
or (vi) that constitute Permitted Foreign Transfers (subject in the case of
Specified Permitted Transactions to the limitations set forth in paragraph
(k) below);
(b) Permitted Investments and investments that were Permitted
Investments when made;
(c) investments arising out of the receipt by the Borrower or any
Subsidiary of noncash consideration for the sale of assets permitted under
Section 6.05 provided that such consideration (if the stated amount or
value thereof is in
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excess of $1,000,000) is pledged upon receipt pursuant to the Pledge
Agreements to the extent required thereby;
(d) intercompany loans permitted to be incurred as Indebtedness under
Section 6.01;
(e) (i) loans and advances to employees of UCAR, the Borrower or the
Subsidiaries not to exceed $6,000,000 in the aggregate at any time
outstanding (excluding up to $3,000,000 in loans existing on the Effective
Date to former employees) and (ii) advances of payroll payments and
expenses to employees in the ordinary course of business;
(f) (i) accounts receivable arising and trade credit granted in the
ordinary course of business and any securities received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to
the extent reasonably necessary in order to prevent or limit loss and (ii)
prepayments and other credits to suppliers made in the ordinary course of
business consistent with the past practices of UCAR, the Borrower and the
Subsidiaries;
(g) Interest/Exchange Rate Protection Agreements permitted pursuant to
Section 6.01(d);
(h) investments, other than investments listed in paragraphs (a)
through (g) of this Section, existing on the Effective Date and set forth
on Schedule 6.04;
(i) investments resulting from pledges and deposits referred to in
Section 6.02(g) or (h);
(j) investments constituting Permitted Business Acquisitions made
either as Capital Expenditures pursuant to Section 6.10 or, to the extent
not used for other purposes permitted hereunder, made with funds that if
not so spent would constitute Net Proceeds under clause (a) of the
definition of "Net Proceeds" (subject to the limitation set forth in the
second proviso to such clause (a));
(k) investments constituting Permitted Other Acquisitions or Specified
Permitted Transactions; PROVIDED that the sum of (i) the aggregate amount
of Specified Permitted Transactions and (ii) the aggregate amount of
consideration (whether cash or property, as valued at the time each such
investment is made) for all Permitted Other Acquisitions acquired after the
Effective Date shall not exceed (net of any return representing return of
capital of (but not return on) any such investment) at any time (A) the
amount set forth on Schedule A for the Leverage Ratio that is in effect at
such time (it being agreed that any such investment permitted when made
shall not cease to be permitted as a result of the applicable Leverage
Ratio subsequently changing) PLUS, (B) to the extent not used for other
purposes permitted hereunder, the funds that if not so spent would
83
constitute Net Proceeds under clause (a) of the definition of "Net
Proceeds" (subject to the limitation set forth in the second proviso to
such clause (a));
(l) investments in Permitted Business Acquisitions and Unrestricted
Subsidiaries to the extent made with proceeds of the issuance of Capital
Stock of UCAR (to the extent not previously used to prepay Indebtedness
(other than Revolving Loans or Swingline Loans), make any investment or
capital expenditure or otherwise for any purpose resulting in a deduction
to Excess Cash Flow in any fiscal year) issued after the Original Closing
Date (after application of the Net Proceeds of such issuance to prepay
Obligations in accordance with Section 2.12(d) and the Existing Credit
Agreement); and
(m) investments by the Borrower or any Subsidiary in any Subsidiary
resulting from or in connection with the formation of a European holding
company and any related reorganization or restructuring of the Subsidiaries
that occurs in connection therewith; PROVIDED that, after giving effect to
any such formation, reorganization or restructuring (COLLECTIVELY, THE
"EUROPEAN HOLDING COMPANY STRATEGY"), the Collateral Requirement and
Guarantee Requirement shall be satisfied in a manner reasonably
satisfactory to the Administrative Agent.
PROVIDED, HOWEVER, that the aggregate amount of the consideration (whether cash
or property, as valued at the time each such investment is made) for all
investments made in Unrestricted Subsidiaries (other than investments made
therein pursuant to paragraph (l) above) after the Effective Date shall not
exceed (net of return of capital of (but not return on) any such investment)
$50,000,000 at any time, PROVIDED FURTHER, HOWEVER, that no more than
$25,000,000 of such amount at any time may be invested in Unrestricted
Subsidiaries not engaged primarily in Related Businesses.
SECTION 6.05. MERGERS, CONSOLIDATIONS, SALES OF ASSETS AND ACQUISITIONS.
Merge into or consolidate with any other person, or permit any other person to
merge into or consolidate with it, or sell, transfer, lease or otherwise dispose
of (in one transaction or in a series of transactions) all or any substantial
part of its assets (whether now owned or hereafter acquired), other than assets
of UCAR constituting an Unrestricted Subsidiary, or any Capital Stock of any
Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a
series of transactions) all or any substantial part of the assets of any other
person, except that this Section shall not prohibit:
(a) the purchase and sale of inventory in the ordinary course of
business by the Borrower or any Subsidiary or the acquisition of any asset
of any person in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect thereto
no Event of Default or Default shall have
84
occurred and be continuing (i) the merger of any Subsidiary into the
Borrower in a transaction in which the Borrower is the surviving
corporation and (ii) the merger or consolidation of any Subsidiary into or
with any other Wholly Owned Subsidiary in a transaction in which the
surviving entity is a Wholly Owned Subsidiary (which shall be a domestic
Subsidiary if the non-surviving person shall be a domestic Subsidiary) and,
in the case of each of clauses (i) and (ii), no person other than the
Borrower or a Wholly Owned Subsidiary receives any consideration;
(c) Sale and Lease-Back Transactions permitted by Section 6.03;
(d) investments permitted by Section 6.04;
(e) subject to Section 6.07, sales, leases or transfers (i) from the
Borrower or any Subsidiary to the Borrower or to a domestic Wholly Owned
Subsidiary, (ii) from any foreign Subsidiary to any foreign Wholly Owned
Subsidiary or to the Borrower or (iii) constituting Permitted Foreign
Transfers (subject in the case of Specified Permitted Transactions to the
limitations set forth in Section 6.04(k));
(f)(i) the lease of all or any part of the Borrower's facility located
in ▇▇▇▇▇▇▇▇, Illinois and (ii) sales, leases or other dispositions of
equipment or real property of the Borrower or the Subsidiaries determined,
in the case of this clause (ii), by the Board of Directors or senior
management of the Borrower to be no longer useful or necessary in the
operation of the business of the Borrower or the Subsidiaries; PROVIDED
that in the case of this clause (ii), (x) the Net Proceeds thereof shall be
applied in accordance with Section 2.12(d) and (y) the fair market value of
assets sold, leased or otherwise disposed of in any one year shall not
exceed $3,000,000 in the aggregate;
(g) sales, leases or other dispositions of inventory of the Borrower
and the Subsidiaries determined by the Board of Directors or senior
management of the Borrower to be no longer useful or necessary in the
operation of the business of the Borrower and the Subsidiaries; PROVIDED
that the Net Proceeds thereof shall be applied in accordance with Section
2.12(d);
(h) sales or other dispositions of accounts receivable of foreign
Subsidiaries in connection with factoring arrangements so long as the
aggregate face amount at any time outstanding of receivables subject to
such arrangements does not exceed $50,000,000;
(i) sales or other dispositions by the Borrower or any Subsidiary of
assets (other than receivables, except to the extent disposed of
incidentally in connection with an asset disposition otherwise permitted
hereby), including Capital Stock of Subsidiaries, for consideration in an
aggregate
85
amount not exceeding 25% of the book value of the Total Assets set forth in
UCAR's and its subsidiaries' June 30, 1998 quarterly consolidated financial
statements (which book value equals $1,273,000,000); PROVIDED that (i) each
such disposition shall be for a consideration determined in good faith by
the Board of Directors or senior management of the Borrower to be at least
equal to the fair market value (if any) of the asset sold, (ii) the
aggregate amount of all noncash consideration included in the proceeds of
any such disposition may not exceed 15% of the fair market value of such
proceeds; PROVIDED, HOWEVER, that obligations of the type referred to in
clause (a) or (e) of the definition of "Permitted Investments" (without
regard to the maturity or the credit rating thereof) shall not be deemed
non-cash proceeds if such obligations are promptly sold for cash and the
proceeds of such sale are included in the calculation of Net Proceeds from
such sale, (iii) the aggregate Net Proceeds of all such dispositions under
this paragraph (i) shall be applied in accordance with Section 2.12(d),
except as contemplated by the last sentence of this paragraph and (iv) no
Default or Event of Default shall have occurred and be continuing
immediately prior to or after such disposition; PROVIDED FURTHER that
notwithstanding the first proviso to clause (a) of the definition of "Net
Proceeds", no Mortgaged Property (other than Mortgaged Properties which are
part of UCAR's Graphite and Carbon Specialties Business) may be sold,
transferred, leased or otherwise disposed of at any time unless the Net
Proceeds thereof shall be applied immediately to the prepayment of
Obligations in accordance with Section 2.12(d) or within 10 Business Days
to the acquisition of property having a value equivalent to or greater than
the value of such Mortgaged Property and such newly acquired property is
thereupon either made a Mortgaged Property subject to a Mortgage on terms
reasonably satisfactory to the Collateral Agent or constitutes an addition
to a Mortgaged Property and is subject to the Mortgage on such Mortgaged
Property; and PROVIDED FURTHER that no sale may be made of the Capital
Stock of (x) any Credit Party, UCAR Carbon Company Inc., UCAR Holdings Inc.
or UCAR Holdings II Inc. or (y) except in connection with the sale of all
its outstanding Capital Stock that is held by the Borrower in any
Subsidiary, the Capital Stock of any other Subsidiary. Upon receipt by the
Borrower or any Subsidiary of the Net Proceeds of any transaction
contemplated by this paragraph (i), the Borrower shall promptly deliver a
certificate of the Borrower signed by a Responsible Officer of the Borrower
to the Administrative Agent setting forth the amount of the Net Proceeds
received in respect thereof and whether it shall apply such Net Proceeds to
prepay Obligations in accordance with Section 2.12(d) and the Existing
Credit Agreement or will use such Net Proceeds to purchase assets useful in
the business of the Borrower and the Subsidiaries within 12 months of such
receipt (subject to the second proviso to clause (a) of the definition of
"Net Proceeds");
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(j) sale or other disposition of UCAR's, the Borrower's or the
Subsidiaries' facilities owned and existing on the Effective Date in
Berlin, Germany and Welland, Canada; and
(k) intercompany sales, transfers, dispositions, acquisitions, mergers
and consolidations in connection with the implementation of the European
Holding Company Strategy; PROVIDED that, (i) any such sale or transfer is
made to, or any such merger into or consolidation with is effected with, a
Subsidiary at least 90% of the outstanding Capital Stock of which is owned
directly by the Borrower or a Wholly Owned Subsidiary and (ii) after giving
effect to any such sale, transfer, disposition, acquisition, merger or
consolidation, the Collateral Requirement and Guarantee Requirement shall
be satisfied in a manner reasonably satisfactory to the Administrative
Agent.
SECTION 6.06. DIVIDENDS AND DISTRIBUTIONS. Declare or pay, directly or
indirectly, any dividend or make any other distribution (by reduction of capital
or otherwise), whether in cash, property, securities or a combination thereof,
with respect to any shares of its Capital Stock (other than dividends and
distributions on the common stock of UCAR payable solely by the issuance of
additional shares of common stock of UCAR or rights, warrants or options to
acquire common stock of UCAR) or directly or indirectly redeem, purchase, retire
or otherwise acquire for value (or permit any Subsidiary to purchase or acquire)
any shares of any class of its Capital Stock or set aside any amount for any
such purpose (collectively, the "RESTRICTED EQUITY PAYMENTS"); PROVIDED,
HOWEVER, that:
(a) any Subsidiary may declare and pay dividends to, repurchase its
Capital Stock from or make other distributions to the Borrower or to any
Wholly Owned Subsidiary (or, in the case of non-Wholly Owned Subsidiaries,
to the Borrower or any Subsidiary and to each other owner of Capital Stock
of such Subsidiary on a pro rata basis (or more favorable basis from the
perspective of the Borrower or such Subsidiary) based on their relative
ownership interests);
(b) the Borrower may declare and pay dividends or make other
distributions to UCAR in respect of overhead, tax liabilities, legal,
accounting and other professional fees and expenses and any fees and
expenses associated with registration statements filed with the Securities
and Exchange Commission and subsequent ongoing public reporting
requirements, in each case to the extent actually incurred by UCAR in
connection with the business of its ownership of the Capital Stock of the
Borrower and the Unrestricted Subsidiaries;
(c) so long as no Default or Event of Default shall have occurred and
be continuing or would result therefrom, UCAR, the Borrower and the
Subsidiaries may make Restricted Equity Payments so long as, after giving
effect thereto, the
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aggregate amount of Restricted Junior Payments made after the Effective
Date shall not exceed the Restricted Junior Payment Amount applicable to
the fiscal year in which any such Restricted Equity Payment is made;
(d) UCAR or the Borrower may purchase or redeem, or the Borrower may
declare and pay dividends or make other distributions to UCAR the proceeds
of which are to be used to purchase or redeem, shares of Capital Stock (or
rights, options or warrants in respect of such shares) of UCAR (including
related stock appreciation rights or similar securities) held by present or
former directors, officers or employees of UCAR, the Borrower or any
Subsidiary or by any Plan upon such person's death, disability, retirement
or termination of employment or under the terms of any such Plan or any
other agreement under which such shares of stock or related rights were
issued; PROVIDED that the aggregate amount of such purchases or redemptions
(or dividends or distributions to UCAR) under this paragraph (d) shall not
exceed $5,000,000 per calendar year which, if not used in any year may be
carried forward to any subsequent calendar year; PROVIDED, HOWEVER, that
the aggregate amount of such purchases or redemptions (or dividends or
distributions to UCAR) that may be made pursuant to this paragraph (d)
shall not exceed $25,000,000; and
(e) the Borrower may declare and pay dividends or make other
distributions to UCAR in order to fund Litigation Payments; PROVIDED that
the amount of dividends and distributions permitted pursuant to this clause
(e), plus the amount of Restricted Debt Payments permitted pursuant to the
last sentence of Section 6.09(b), shall not exceed $400,000,000 (calculated
in the manner described in Section 3.24). It being understood that
$20,000,000 of such payments and distributions to UCAR in respect of
Litigation Liabilities have been made as of the Effective Date.
SECTION 6.07. TRANSACTIONS WITH AFFILIATES. (a) Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transaction with, any of its Affiliates or any
known direct or indirect holder of 10% or more of any class of capital stock of
UCAR, unless such transaction is (i) otherwise permitted under this Agreement
and (ii) upon terms no less favorable to the Borrower or such Subsidiary, as the
case may be, than it would obtain in a comparable arm's-length transaction with
a person which was not an Affiliate, PROVIDED that the foregoing restriction
shall not apply to the indemnification of directors of UCAR, the Borrower and
the Subsidiaries in accordance with customary practice.
(b) The foregoing paragraph (a) shall not prohibit, to the extent otherwise
permitted under this Agreement, (i) any issuance of securities, or other
payments, awards or grants in cash, securities or otherwise pursuant to, or the
funding of, employment arrangements or stock option, ownership or purchase
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plans approved by the Board of Directors of UCAR, (ii) loans or advances to
employees of UCAR, the Borrower or any Subsidiary in accordance with Section
6.04(e), (iii) transactions among UCAR, the Borrower and Wholly Owned
Subsidiaries and transactions among Wholly Owned Subsidiaries otherwise
permitted by this Agreement, (iv) Permitted Foreign Transfers (other than
Specified Permitted Transactions), (v) the payment of fees and indemnities to
directors, officers and employees of the Borrower and the Subsidiaries in the
ordinary course of business, (vi) transactions pursuant to permitted agreements
in existence on the Effective Date and set forth on Schedule 6.07, (vii)
payments pursuant to the Tax Sharing Agreement, (viii) any employment agreements
entered into by the Borrower or any of the Subsidiaries in the ordinary course
of business, (ix) dividends and repurchases permitted under Section 6.06, and
(x) any purchase by UCAR of Capital Stock of the Borrower or any contribution by
UCAR to the equity capital of the Borrower.
SECTION 6.08. BUSINESS OF UCAR, THE BORROWER AND THE SUBSIDIARIES. (a) In
the case of the Borrower and the Subsidiaries (taken as a whole), cease to
engage primarily in the business of manufacturing graphite and carbon electrodes
and (b) in the case of UCAR, engage at any time in any business or business
activity other than (i) the ownership of all the outstanding capital stock of
the Borrower together with activities directly related thereto, (ii) the
ownership of Unrestricted Subsidiaries together with activities directly related
thereto, (iii) performance of its obligations under the Loan Documents, under
intercompany Indebtedness and under Indebtedness incurred in accordance with
Section 6.01(n) and (iv) actions required by law to maintain its status as a
corporation and as a public company.
SECTION 6.09. INDEBTEDNESS AND OTHER MATERIAL AGREEMENTS. (a) Amend or
modify, or grant any waiver or release under, any instruments, agreements or
documents evidencing or related to the Senior Subordinated Notes or the
Refinancing Notes in any manner adverse to the Lenders.
(b) (i) Directly or indirectly, make any payment, retirement, repurchase or
redemption on account of the principal of the Senior Subordinated Notes, the
Refinancing Notes or intercompany Indebtedness owed to UCAR or directly or
indirectly prepay or defease any such Indebtedness prior to the stated maturity
date of such Indebtedness (collectively, "RESTRICTED DEBT PAYMENTS"), except
with the proceeds of Capital Stock of UCAR issued by UCAR after the Original
Closing Date (after application of the Net Proceeds of such issuance to prepay
Obligations in accordance with Section 2.12(d) and the Existing Credit
Agreement), PROVIDED, that, in addition to the foregoing, so long as no Default
or Event of Default shall have occurred and be continuing or would result
therefrom, the Borrower may make Restricted Debt Payments so long as, after
giving effect thereto, the aggregate amount of Restricted Junior Payments made
after the Effective Date shall not exceed the Restricted Junior Payment Amount
applicable to the fiscal year in which any such Restricted Debt Payment is made,
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(ii) make any payment or prepayment of any such Indebtedness that would violate
the terms of this Agreement or of such Indebtedness, any agreement or document
evidencing, related to or securing the payment or performance of such
Indebtedness or any subordination agreement or provision applicable to such
Indebtedness or (iii) pay in cash any amount in respect of such Indebtedness
that may at the Borrower's option be paid in kind thereunder; PROVIDED, HOWEVER,
that the proceeds of the Refinancing Notes may be applied to repay or prepay
Senior Subordinated Notes. Notwithstanding the foregoing, the Borrower may make
Restricted Debt Payments in respect of intercompany Indebtedness owed to UCAR in
order to fund Litigation Payments; PROVIDED that the amount of Restricted Debt
Payments that may be made to UCAR pursuant to this sentence, plus the amount of
dividends or other distributions permitted to be made to UCAR pursuant to
Section 6.06(e), shall not exceed $400,000,000 (calculated in the manner
described in Section 3.24) (it being understood that $20,000,000 of such
payments and distributions to UCAR in respect of Litigation Liabilities have
been made as of the Effective Date).
(c) Amend or modify in any manner adverse to the Lenders, or grant any
waiver or release under or terminate in any manner (if such action shall be
adverse to the Lenders), the certificate of incorporation or by-laws of the
Borrower or any Subsidiary.
(d) Permit any Subsidiary to enter into any agreement or instrument which
by its terms restricts the payment of dividends or the making of cash advances
by such Subsidiary to the Borrower or any Subsidiary that is a direct or
indirect parent of such Subsidiary other than those in effect on the Effective
Date and set forth on Schedule 6.09 (or replacements of such agreements on terms
no less favorable to the Lenders), and those arising under any Loan Document
(other than any Loan Document in respect of any Local Facility described in
clause (b) of the definition of "Local Facility").
SECTION 6.10. CAPITAL EXPENDITURES. Permit UCAR to make any Capital
Expenditures, or permit the aggregate amount of Capital Expenditures made by the
Borrower and the Subsidiaries, in any fiscal year to exceed the aggregate amount
set forth below:
YEAR AMOUNT
1998 $58,000,000
1999 88,000,000
2000 72,000,000
2001 58,000,000
2002 65,000,000
PROVIDED, HOWEVER, that (a) the Borrower may in any fiscal year, upon written
notice to the Administrative Agent, increase the amount of Capital Expenditures
permitted to be made pursuant to this Section by an amount up to $10,000,000 by
reducing the amount of Capital Expenditures permitted to be made pursuant to
this Section in the next succeeding fiscal year by the amount of such
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increase; PROVIDED that not more than $20,000,000 in the aggregate of increases
may be made pursuant to this clause (a) in any three- fiscal-year period, and
(b) to the extent that Capital Expenditures made in any fiscal year were less
than the amount set forth above for such fiscal year less any reduction made for
such fiscal year pursuant to clause (a), such unused amount may be carried
forward to the next succeeding fiscal year; PROVIDED that not more that
$20,000,000 may be carried forwarded from any fiscal year.
SECTION 6.11. INTEREST COVERAGE RATIO. Permit the ratio (the "INTEREST
COVERAGE RATIO") as of the last day of any fiscal quarter, which last day occurs
in any period set forth below for the four quarter period ended as of such day
of (a) EBITDA MINUS Capital Expenditures of UCAR, the Borrower and the
Subsidiaries to (b) Cash Interest Expense to be less than the ratio set forth
below for such period:
FROM AND INCLUDING: TO AND INCLUDING: RATIO:
July 1, 1998 December 31, 1998 2.00:1.00
January 1, 1999 June 30, 1999 2.00:1.00
July 1, 1999 December 31, 1999 2.00:1.00
January 1, 2000 June 30, 2000 2.00:1.00
July 1, 2000 December 31, 2000 2.50:1.00
January 1, 2001 June 30, 2001 3.00:1.00
July 1, 2001 December 31, 2002 3.00:1.00
SECTION 6.12. LEVERAGE RATIO. Permit the ratio (the "LEVERAGE RATIO") of
(a) Total Debt plus Reserves as of the last day of any fiscal quarter, which
last day occurs in any period set forth below to (b) EBITDA for the four quarter
period ended as of such day to be in excess of the ratio set forth below for
such period:
FROM AND INCLUDING: TO AND INCLUDING: RATIO:
July 1, 1998 December 31, 1998 4.50:1.00
January 1, 1999 September 30, 1999 4.50:1.00
October 1, 1999 December 31, 1999 4.25:1.00
January 1, 2000 June 30, 2000 4.00:1.00
July 1, 2000 December 31, 2000 3.50:1.00
January 1, 2001 June 30, 2001 3.00:1.00
July 1, 2001 December 31, 2002 3.00:1.00
SECTION 6.13. CAPITAL STOCK OF THE SUBSIDIARIES. Sell, transfer, lease or
otherwise dispose of, or make subject to any subscription, option, warrant,
call, right or other agreement or commitment of any nature, the Capital Stock of
any Subsidiary, other than (a) pursuant to the Loan Documents or pursuant to a
transaction permitted pursuant to Section 6.05 and subject to Section 2.12(d),
(b) sales, transfers and other dispositions of the Capital Stock of Subsidiaries
in connection with UCAR's sale of its Graphite and Carbon Specialties Business,
(c) in connection with
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transactions of the type described in Section 6.05(k) or 6.07(b)(i) and (d)
directors' qualifying shares.
ARTICLE VII
EVENTS OF DEFAULT
In case of the happening of any of the following events ("EVENTS OF
DEFAULT"):
(a) any representation or warranty made or deemed made by UCAR, the
Borrower or any Loan Party in any Loan Document (other than a Local
Facility Loan Document), or any representation, warranty, statement or
information contained in any report, certificate, financial statement or
other instrument furnished in connection with or pursuant to any Loan
Document (other than a Local Facility Loan Document), shall prove to have
been false or misleading in any material respect when so made, deemed made
or furnished by UCAR, the Borrower or any other Loan Party;
(b) default shall be made in the payment of any principal of any Loan
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
(c) default shall be made in the payment of any premium or interest on
any Loan or in the payment of any Fee or any other amount (other than an
amount referred to in (b) above) due under any Loan Document (other than a
Local Facility Loan Document), when and as the same shall become due and
payable, and such default shall continue unremedied for a period of five
Business Days;
(d) default shall be made in the due observance or performance by
UCAR, the Borrower or any Subsidiary of any covenant, condition or
agreement contained in Section 5.01(a) (with respect to the Borrower),
5.05(a), 5.08 or 5.12 or in Article VI;
(e) default shall be made in the due observance or performance by
UCAR, the Borrower, any Credit Party or any Subsidiary of any covenant,
condition or agreement contained in any Loan Document (other than a Local
Facility Loan Document) (other than those specified in (b), (c) or (d)
above) and such default shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent or the Required Lenders
to the Borrower;
(f) (i) UCAR, the Borrower or any Significant Subsidiary shall fail to
observe or perform any term, covenant, condition or agreement contained in
any agreement or instrument evidencing or governing any Indebtedness (other
than any
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Indebtedness under any Loan Document) having an aggregate principal or
notional amount in excess of $7,500,000, if the effect of any such failure
is to cause, or to permit the holder or holders of such Indebtedness or a
trustee on its or their behalf (with or without the giving of notice, the
lapse of time or both) to cause, such Indebtedness to become due prior to
its stated maturity, or UCAR, the Borrower or any Significant Subsidiary
shall fail to pay any principal in respect of any such Indebtedness at the
stated maturity thereof or (ii) an "Event of Default" shall occur under the
Existing Credit Agreement;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of UCAR, the Borrower or any Subsidiary, or of a
substantial part of the property or assets of UCAR, the Borrower or a
Subsidiary, under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for UCAR, the Borrower or any Subsidiary or for a substantial part of the
property or assets of UCAR, the Borrower or a Subsidiary or (iii) the
winding-up or liquidation of UCAR, the Borrower or any Subsidiary; and such
proceeding or petition shall continue undismissed for 60 days or an order
or decree approving or ordering any of the foregoing shall be entered;
(h) UCAR, the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or the filing of any petition
described in (g) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for UCAR, the Borrower or any Subsidiary or for a substantial part of the
property or assets of the Borrower or any Subsidiary, (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, (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due or (vii) take any action for
the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $7,500,000 (except to the extent covered by insurance
as to which the insurer has acknowledged in writing its obligation to
cover) shall be rendered against UCAR, the Borrower, any Significant
Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall
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not be effectively stayed, or any action shall be legally taken by a
judgment creditor to levy upon assets or properties of UCAR, the Borrower
or any Significant Subsidiary to enforce any such judgment;
(j) (i) a Reportable Event or Reportable Events, or a failure to make
a required installment or other payment (within the meaning of Section
412(n)(1) of the Code), shall have occurred with respect to any Plan, (ii)
a trustee shall be appointed by a United States district court to
administer any Plan, (iii) the PBGC shall institute proceedings (including
giving notice of intent thereof) to terminate any Plan, (iv) the Borrower
or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred Withdrawal Liability to such
Multiemployer Plan and the Borrower or such ERISA Affiliate does not have
reasonable grounds for contesting such Withdrawal Liability or is not
contesting such Withdrawal Liability in a timely and appropriate manner,
(v) the Borrower or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, (vi) the Borrower or any ERISA Affiliate shall engage in any
"prohibited transaction" (as defined in Section 406 of ERISA or Section
4975 of the Code) involving any Plan, (vii) any other similar event or
condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vii) above, such event or condition, together with all
other such events or conditions, if any, could reasonably be expected to
have a Material Adverse Effect;
(k) (i) any Loan Document (other than a Local Facility Loan Document)
shall for any reason be asserted by UCAR, the Borrower or any Subsidiary
not to be a legal, valid and binding obligation of any party thereto, (ii)
any security interest purported to be created by any Security Document and
to extend to assets which are not immaterial to UCAR, the Borrower and the
Subsidiaries on a consolidated basis shall cease to be, or shall be
asserted by the Borrower or any other Loan Party not to be, a valid,
perfected, first priority (except as otherwise expressly provided in this
Agreement or such Security Document) security interest in the securities,
assets or properties covered thereby, except to the extent that any such
loss of perfection or priority results from the failure of the Collateral
Agent to maintain possession of certificates representing securities
pledged under the Pledge Agreements or to file Uniform Commercial Code
continuation or other similar statements or (iii) the Obligations of UCAR
and the Borrower and the guarantee by UCAR thereof pursuant to the Parent
Guarantee Agreement shall cease to constitute senior indebtedness under the
subordination provisions of any document or instrument evidencing any
permitted subordinated Indebtedness or such subordination provisions shall
be invalidated or otherwise cease to be legal, valid and binding
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obligations of the parties thereto, enforceable in accordance with their
terms;
(l) the Administrative Agent or the Required Lenders shall have given
notice to the Borrower of any event of default under any Local Facility
Credit Agreement; or
(m) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to any Credit
Party described in paragraph (g) or (h) above), and at any time thereafter
during the continuance of such event, the Administrative Agent, at the request
of the Required Lenders, shall, by notice to the Borrower, take any or all of
the following actions, at the same or different times: (i) terminate forthwith
the Commitments and (ii) declare the Loans then outstanding to be forthwith due
and payable in whole or in part, whereupon the principal of the Loans so
declared to be due and payable, together with accrued interest and premiums
thereon and any unpaid accrued Fees and all other liabilities of the Credit
Parties accrued hereunder and under any other Loan Document (other than any
Local Facility Loan Document), shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Credit Parties, anything contained herein or in
any other Loan Document to the contrary notwithstanding; and in any event with
respect to any Credit Party described in paragraph (g) or (h) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest and premiums thereon and any unpaid
accrued Fees and all other liabilities of the Credit Parties accrued hereunder
and under any other Loan Document (other than any Local Facility Loan Document),
shall automatically become due and payable, without presentment, demand, protest
or any other notice of any kind, all of which are hereby expressly waived by the
Credit Parties, anything contained herein or in any other Loan Document to the
contrary notwithstanding. As soon as practicable following any acceleration
hereunder the Administrative Agent shall advise the Local Facility Lenders
thereof.
ARTICLE VIII
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
In order to expedite the transactions contemplated by this Agreement, The
Chase Manhattan Bank is hereby appointed to act as Administrative Agent and
Collateral Agent on behalf of the Lenders (for purposes of this Article VIII,
the Administrative Agent and the Collateral Agent are referred to collectively
as the "AGENTS"). Each of the Lenders and each assignee of any such Lender
hereby irrevocably authorizes the Agents to take such actions on behalf of such
Lender or assignee and to exercise such powers as are specifically delegated to
the Agents by the terms and provisions hereof and of the other Loan Documents,
together with
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such actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders, without hereby limiting any
implied authority, (a) to receive on behalf of the Lenders all payments of
principal of and interest on the Loans and all other amounts due to the Lenders
hereunder, and promptly to distribute to each Lender its proper share of each
payment so received; (b) to give notice on behalf of each of the Lenders to the
Borrower of any Event of Default specified in this Agreement of which the
Administrative Agent has actual knowledge acquired in connection with its agency
hereunder; and (c) to distribute to each Lender copies of all notices, financial
statements and other materials delivered by the Borrower pursuant to this
Agreement as received by the Administrative Agent. Without limiting the
generality of the foregoing, the Agents are hereby expressly authorized to
execute any and all documents (including releases) with respect to the
Collateral and the rights of the Secured Parties with respect thereto, as
contemplated by and in accordance with the provisions of this Agreement and the
Security Documents. In the event that any party other than the Lenders and the
Agents shall participate in all or any portion of the Collateral pursuant to the
Security Documents, all rights and remedies in respect of such Collateral shall
be controlled by the Collateral Agent.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents or other instruments
or agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility to the Borrower or any other
Loan Party on account of the failure of or delay in performance or breach by any
Lender of any of its obligations hereunder or to any Lender on account of the
failure of or delay in performance or breach by any other Lender or the Borrower
or any other Loan Party of any of their respective obligations hereunder or
under any other Loan Document or in connection herewith or therewith. Each of
the Agents may execute any and all duties here under by or through agents or
employees and shall be entitled to
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rely upon the advice of legal counsel selected by it with respect to all matters
arising hereunder and shall not be liable for any action taken or suffered in
good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any duty
to take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement unless it shall be requested in writing to do so by
the Required Lenders. The Lenders further acknowledge and agree that so long as
an Agent shall make any determination to be made by it hereunder or under any
other Loan Document in good faith, such Agent shall have no liability in respect
of such determination to any person.
Subject to the appointment and acceptance of a successor Agent as provided
below, either Agent may resign at any time by notifying the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor with the consent of the Borrower (not to be unreasonably
withheld). If no successor shall have been so appointed by the Required Lenders
and approved by the Borrower and shall have accepted such appointment within 30
days after the retiring Agent gives notice of its resignation, then the retiring
Agent may, on behalf of the Lenders with the consent of the Borrower (not to be
unreasonably withheld), appoint a successor Agent which shall be a bank with an
office in New York, New York, having a combined capital and surplus of at least
$500,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as Agent hereunder by a successor bank, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent and the retiring Agent shall be discharged from its duties and
obligations hereunder. After the Agent's resignation hereunder, the provisions
of this Article and Section 9.05 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of
its pro rata share (based on its Commit ments hereunder (or if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of its applicable outstanding Loans)) of any reasonable
expenses incurred for the benefit of the Lenders by the Agents, including
counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders, which shall not have been reimbursed by the Borrower
and (b) to indemnify and hold harmless each Agent and any of its directors,
officers, employees or agents, on demand, in the amount of such pro rata share,
from
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and against any and all liabilities, taxes, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against it in its capacity as Agent or any of them in any way relating to or
arising out of this Agreement or any other Loan Document or any action taken or
omitted by it or any of them under this Agreement or any other Loan Document, to
the extent the same shall not have been reimbursed by the Borrower; PROVIDED
that no Lender shall be liable to an Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or wilful
misconduct of such Agent or any of its directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without reliance
upon the Agents or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon the Agents or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement or any other Loan Document, any related agreement or any
document furnished hereunder or thereunder.
No Managing Agent shall have any liability hereunder by virtue of its
execution of this Agreement as a Managing Agent.
As soon as practicable after it becomes aware of an Event of Default that
has occurred and is continuing, the Administrative Agent shall notify each
Lender thereof.
In its capacity as Administrative Agent hereunder, the Administrative Agent
will serve as Representative of the Bank Indebtedness under the Senior
Subordinated Indenture and the Senior Subordinated Exchange Indenture and agrees
to notify each Lender of any notice received by it as such Representative.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at UCAR Global Enterprises Inc., ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of President (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇), and if to UCAR, to it in care of the Borrower;
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(b) if to the Swiss Borrower, to it at Avenue de Mont- Blanc ▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, Attention of Chairman (Telecopy No.
▇▇-▇▇-▇▇▇-▇▇▇▇), with a copy to the Borrower;
(c) if to the Administrative Agent, to The Loan and Agency Services
Group, 8th floor, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇) with a copy to ▇▇▇▇▇
▇▇▇▇▇▇, The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(d) if to a Lender, to it at its address (or telecopy number) set
forth in the Administrative Questionnaire delivered to the Administrative
Agent by such Lender in connection with the execution of this Agreement or
in the Assignment and Acceptance pursuant to which such Lender shall have
become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Loan Parties herein, in the other
Loan Documents and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the Lenders and shall
survive the making by the Lenders of the Loans, the execution and delivery to
the Lenders of the Loan Documents, regardless of any investigation made by the
Lenders or on their behalf, and shall continue in full force and effect as long
as the principal of or any accrued interest on any Loan or any Fee or any other
amount payable under this Agreement or any other Loan Document is outstanding
and unpaid and so long as the Commitments have not been terminated. Without
prejudice to the survival of any other agreements contained herein,
indemnification and reimbursement obligations contained herein (including
pursuant to Sections 2.13, 2.15, 2.19 and 9.05) shall survive the payment in
full of the principal and interest on any Loan hereunder and the termination of
the Commitments or this Agreement.
SECTION 9.03. BINDING EFFECT. This Agreement shall become effective when it
shall have been executed by UCAR, the Borrower, and the Administrative Agent and
when the Administrative Agent shall have received copies hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of UCAR,
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the Borrower, the Swiss Borrower, the Administrative Agent and each Lender and
their respective permitted successors and assigns.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
permitted successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of UCAR, the Borrower, the Swiss Borrower, the
Administrative Agent or the Lenders that are contained in this Agreement shall
bind and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its
interests, rights and obligations as a Lender under this Agreement (including
all or a portion of its Commitments and the Loans at the time owing to it);
PROVIDED, HOWEVER, that (i) except in the case of an assignment to another
Lender, an Affiliate of such Lender or a Related Fund of any Lender, in each
case, the Borrower and the Administrative Agent must each give its prior written
consent to such assignment (which consent shall not in either case be
unreasonably withheld or delayed), PROVIDED that the consent of the Borrower
shall not be required if an Event of Default shall have occurred and be
continuing, (ii) except in the case of an assignment to another Lender, an
Affiliate of such Lender or a Related Fund of such Lender, the amount of the
Loans or Commitments of the assigning Lender subject to such assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall be an amount not less
than $5,000,000 and an integral multiple of $1,000,000 or shall be the entire
remaining amount of such Loans or Commitments held by such assigning Lender,
(iii) unless the assignor ceases to be a Lender, the aggregate amount of the
Loans owing to and unused Commitments of such Lender after giving effect to such
assignment shall be not less than $5,000,000, (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500 (except
that no such processing and registration fee shall be payable in the case of an
assignee which is already a Lender, an Affiliate of such Lender or a Related
Fund of any Lender), and (v) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire. Upon
acceptance and recording pursuant to paragraph (e) of this Section 9.04, from
and after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five Business Days after the execution thereof
unless agreed otherwise by the Administrative Agent, (i) the assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Lender under
this Agreement and (ii) the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall
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cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.13, 2.15, 2.19 and 9.05, as well as to any Fees accrued for its
account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that the
outstanding balance of its Loans and its Commitments, in each case without
giving effect to assignments thereof which have not become effective, are as set
forth in such Assignment and Acceptance; (ii) except as set forth in clause (i)
above, such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto or thereto, or the financial condition of the Borrower or any other Loan
Party or the performance or observance by the Borrower or any other Loan Party
of any of its obligations under this Agreement, any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; (iii) such
assignee represents and warrants that it is legally authorized to enter into
such Assignment and Acceptance; (iv) such assignee confirms that it has received
copies of this Agreement and the other Loan Documents, together with copies of
the most recent financial statements delivered pursuant to this Agreement and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Acceptance;
(v) such assignee will independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (vi) such assignee appoints and authorizes the Administrative
Agent and the Collateral Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
delegated to the Administrative Agent by the terms hereof or thereof, together
with such powers as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all the obligations
which by the terms of this Agreement are required to be performed by it as a
Lender.
(d) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at its address referred to in subsection 9.01 a copy of
each Assignment and Acceptance delivered to it and a register (the "REGISTER")
for the recordation of the names and addresses of the Lenders and the
Commitments of, and principal amount of the Loans owing to, each Lender from
time to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Swiss Borrower,
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the Administrative Agent and the Lenders shall treat each person whose name is
recorded in the Register as the owner of Commitments and the Loans recorded
therein for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower, the Swiss Borrower, any Lender and their
representatives (including counsel and accountants), at any reasonable time and
from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower and the
Administrative Agent to such assignment, the Administrative Agent shall (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Lenders.
Notwithstanding anything to the contrary contained herein, no assignment under
Section 9.04(b) of any rights or obligations shall be effective unless and until
the Administrative Agent shall have recorded such assignment in the Register.
The Administrative Agent shall record the name of the transferor, the name of
the transferee, and the amount of the transfer in the Register after receipt of
all documents required pursuant to this Section 9.04 and such other documents as
the Administrative Agent may reasonably request.
(f) Each Lender may without the consent of the Borrower, the Swiss Borrower
or the Administrative Agent sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans owing to it);
PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the participating
banks or other entities shall be entitled to the benefit of the cost protection
provisions contained in Section 2.13, 2.15, 2.19 and 9.05 to the same extent as
if they were Lenders; PROVIDED that no such participating bank or entity shall
be entitled to receive any greater amount pursuant to such Sections than a
Lender would have been entitled to receive in respect of the amount of the
participation sold by such Lender to such participating bank or entity had no
sale occurred, and (iv) the Borrower, the Swiss Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower or any other Loan Party, as the case may be,
relating to its Loans and Fees and to approve any amendment, modification or
waiver of any provision of this Agreement or any other Loan Document (other than
amendments, modifications or waivers decreasing any Fee payable hereunder or the
amount of principal of or the rate at which interest is payable on the Loans,
extending any final maturity date or increasing any Commitment, in
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each case in respect of an Obligation in which the relevant participating bank
or entity is participating, or releasing all or substantially all of the
Collateral or any Guarantor (other than a Subsidiary which is not a Significant
Subsidiary) from its Guarantee Agreement unless all or substantially all the
Capital Stock of such Guarantor is sold in a transaction permitted by this
Agreement or as provided in Section 9.18). Each Lender will disclose the
identity of its participants to the Borrower and Administrative Agent if
requested by the Borrower or the Administrative Agent.
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower or any other Loan Party
furnished to such Lender by or on behalf of the Borrower or any Loan Party;
PROVIDED that, prior to any such disclosure, each such assignee or participant
or proposed assignee or participant shall execute an agreement whereby such
assignee or participant shall agree to be bound by Section 9.17.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank, and any Lender that is a fund
that invests in bank loans may, without the consent of the Administrative Agent
or the Borrower, pledge all or any portion of its Loans and Notes, if any, to
any trustee for, or any other representative of, holders of obligations owed, or
securities issued, by such fund, as security for such obligations or securities;
PROVIDED that any foreclosure or similar action by such trustee shall be subject
to the provisions of this Section concerning assignments; PROVIDED FURTHER that
no such assignment shall release a Lender from any of its obligations hereunder.
In order to facilitate such an assignment to a Federal Reserve Bank or to any
trustee or other representative, the Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes evidencing the Loans made to the Borrower by the assigning Lender
hereunder.
(i) None of UCAR, the Borrower and the other Credit Parties shall assign or
delegate any of its rights or duties hereunder and any attempted assignment
shall be null and void.
SECTION 9.05. EXPENSES; INDEMNITY. (a) The Borrower agrees to pay all
reasonable out-of-pocket expenses incurred by the Administrative Agent and the
Collateral Agent in connection with the preparation of this Agreement and the
other Loan Documents, or by the Administrative Agent or the Collateral Agent in
connection with the syndication of the Commitments or the administration of this
Agreement (including expenses incurred in connection with ongoing Collateral
examination to the extent incurred with the reasonable prior approval of the
Borrower) or in connection with any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions hereby
contemplated
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shall be consummated) or incurred by the Administrative Agent, the Collateral
Agent or any Lender in connection with the enforcement or protection of their
rights in connection with this Agreement and the other Loan Documents or in
connection with the Loans made hereunder, including the reasonable fees, charges
and disbursements of Cravath, Swaine & ▇▇▇▇▇, counsel for the Administrative
Agent and the Collateral Agent, and, in connection with any such enforcement or
protection, the reasonable fees, charges and disbursements of any other counsel
(including the reasonable allocated costs of internal counsel if a Lender elects
to use internal counsel in lieu of outside counsel) for the Administrative Agent
or any Lender (but no more than one such counsel for any Lender).
(b) The Borrower agrees to indemnify the Administrative Agent, the
Collateral Agent each Lender and each of their respective directors, trustees,
officers, employees and agents (each such person being called an "INDEMNITEE")
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees,
charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the execution
or delivery of this Agreement or any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto
and thereto of their respective obligations thereunder or the consummation of
the Transactions and the other transactions contemplated hereby and thereby,
(ii) the use of the proceeds of the Loans or (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto; PROVIDED that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee (treating, for this purpose
only, the Administrative Agent, or any Lender and its directors, trustees,
officers and employees as a single Indemnitee). Subject to and without limiting
the generality of the foregoing sentence, the Borrower agrees to indemnify each
Indemnitee against, and hold each Indemnitee harmless from, any Environmental
Claim, and any and all losses, claims, damages, liabilities and related
expenses, including reasonable counsel or consultant fees, charges and
disbursements, incurred by or asserted against any Indemnitee (and arising out
of, or in any way connected with or as a result of, any of the events described
in clause (i), (ii) or (iii) of the preceding sentence) arising out of, in any
way connected with, or as a result of (A) any Environmental Claim related in any
way to UCAR, the Borrower or any Subsidiary, (B) any violation of any
Environmental Law, (C) any act, omission, event or circumstance (including the
actual, proposed or threatened, Release, removal, presence, disposition,
discharge or transportation, storage, holding, existence, generation,
processing, abatement, handling or presence on, into, from or under any present,
past or future property of UCAR, the Borrower or any Subsidiary of any Hazardous
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Material); PROVIDED that such indemnity shall not, as to any Indemnitee, be
available to the extent that such Environmental Claim is, or such losses,
claims, damages, liabilities or related expenses are, determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or wilful misconduct of such Indemnitee or any of its
directors, trustees, officers or employees. The provisions of this Section 9.05
shall remain operative and in full force and effect regardless of the expiration
of the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Obligations, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Administrative Agent
or any Lender. All amounts due under this Section 9.05 shall be payable on
written demand therefor.
(c) Unless an Event of Default shall have occurred and be continuing, the
Borrower shall be entitled to assume the defense of any action for which
indemnification is sought hereunder with counsel of its choice at its expense
(in which case the Borrower shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by an Indemnitee except as set forth
below); PROVIDED, HOWEVER, that such counsel shall be reasonably satisfactory to
each such Indemnitee. Notwithstanding the Borrower's election to assume the
defense of such action, each Indemnitee shall have the right to employ separate
counsel and to participate in the defense of such action, and the Borrower shall
bear the reasonable fees, costs and expenses of such separate counsel, if (i)
the use of counsel chosen by the Borrower to represent such Indemnitee would
present such counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the Borrower and such
Indemnitee and such Indemnitee shall have reasonably concluded that there may be
legal defenses available to it that are different from or additional to those
available to the Borrower (in which case the Borrower shall not have the right
to assume the defense or such action on behalf of such Indemnitee); (iii) the
Borrower shall not have employed counsel reasonably satisfactory to such
Indemnitee to represent it within a reasonable time after notice of the
institution of such action; or (iv) the Borrower shall authorize such Indemnitee
to employ separate counsel at the Borrower's expense. The Borrower will not be
liable under this Agreement for any amount paid by an Indemnitee to settle any
claims or actions if the settlement is entered into without the Borrower's
consent, which consent may not be withheld or delayed unless such settlement is
unreasonable in light of such claims or actions against, and defenses available
to, such Indemnitee.
(d) Notwithstanding anything to the contrary in this Section 9.05, this
Section 9.05 shall not apply to taxes, it being understood that the Borrower's
only obligations with respect to taxes shall arise under Sections 2.13 and 2.19.
SECTION 9.06. RIGHT OF SETOFF. If an Event of Default shall have occurred
and be continuing, each Lender is hereby
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authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of the Borrower or
the Swiss Borrower against any of and all the obligations of the Borrower or the
Swiss Borrower now or hereafter existing under this Agreement or any other Loan
Document held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement or such other Loan Document and
although such obligations may be unmatured. The rights of each Lender under this
Section 9.06 are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
SECTION 9.07. APPLICABLE LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(OTHER THAN LETTERS OF CREDIT UNDER THE EXISTING CREDIT AGREEMENT AND AS
EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. WAIVERS; AMENDMENT. (a) No failure or delay of the
Administrative Agent, or any Lender in exercising any right or power hereunder
or under any other Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or
remedies which they would otherwise have. No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by UCAR, the
Borrower or any other Loan Party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. No notice or demand on UCAR, the Borrower or any other Loan
Party in any case shall entitle the Borrower to any other or further notice or
demand in similar or other circumstances.
(b) Neither this Agreement nor any other Loan Document nor any provision
hereof or thereof may be waived, amended or modified except, in the case of this
Agreement, pursuant to an agreement or agreements in writing entered into by
UCAR, the Borrower, the Swiss Borrower and the Required Lenders or, in the case
of any other Loan Document, pursuant to an agreement or agreements in writing
entered into by each party thereto and the Collateral Agent and consented to by
the Required Lenders; PROVIDED, HOWEVER, that no such agreement shall (i)
decrease the principal amount of, or extend the final maturity of, or decrease
the rate of interest on, any Loan without the prior written consent of each
Lender directly affected thereby, (ii) extend any Installment Date (other than
any final maturity), or extend any date on which payment of interest on any Loan
is due, without the
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prior written consent of Lenders holding Loans representing at least 80% of the
aggregate principal amount of each Tranche affected by such action, (iii)
advance any Installment Date without the prior written consent of Lenders
holding Loans representing at least 80% of the aggregate principal amount of the
then outstanding Loans, (iv) increase or extend the Commitment of any Lender or
decrease the Commitment Fees or other fees of any Lender without the prior
written consent of such Lender, (v) effect any waiver, amendment or modification
that by its terms adversely affects the rights in respect of payments or
collateral of Lenders participating in any Class differently from those of
Lenders participating in the other Class, without the consent of a majority in
interest of the Lenders participating in the adversely affected Class, or change
the relative rights in respect of payments or collateral of the Lenders
participating in different Classes without the consent of a majority in interest
of Lenders participating in each affected Class, (vi) release Collateral, in one
transaction or a series of transactions, representing in the aggregate (based on
the book value of such released Collateral) more than 10% of the book value of
Total Assets set forth in UCAR's most recent consolidated financial statements
delivered pursuant to Section 5.04 but less than all or substantially all the
Collateral, without the prior written consent of the Designated Lenders or (vii)
amend or modify the provisions of Section 2.09(f), Section 2.11(b) or Section
2.16, the provisions of this Section or the definition of "Required Lenders", or
release all or substantially all the Collateral or release any Guarantor (other
than any Subsidiary which is not a Significant Subsidiary) from its Guarantee
Agreement unless all or substantially all the Capital Stock of such Guarantor is
sold in a transaction permitted by this Agreement or as provided in Section
9.18, without the prior written consent of each Lender adversely affected
thereby; PROVIDED FURTHER that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent or the
Collateral Agent hereunder or under any other Loan Document without the prior
written consent of the Administrative Agent or the Collateral Agent acting as
such at the effective date of such agreement, as the case may be. Each Lender
shall be bound by any waiver, amendment or modification authorized by this
Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall
bind any assignee of such Lender.
SECTION 9.09. INTEREST RATE LIMITATION. Notwith standing anything herein to
the contrary, if at any time the applicable interest rate, together with all
fees and charges which are treated as interest under applicable law
(collectively the "CHARGES"), as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for, charged, received,
taken or reserved by any Lender, shall exceed the maximum lawful rate (the
"MAXIMUM RATE") which may be contracted for, charged, taken, received or
reserved by such Lender in accordance with applicable law, the rate of interest
payable hereunder, together with all Charges payable to such Lender, shall be
limited to the Maximum Rate; PROVIDED that such excess amount
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shall be paid to such Lender on subsequent payment dates to the extent not
exceeding the legal limitation.
SECTION 9.10. ENTIRE AGREEMENT. This Agreement, the other Loan Documents
and the agreements regarding certain Fees referred to herein constitute the
entire contract between the parties relative to the subject matter hereof. Any
previous agreement among or representations from the parties with respect to the
subject matter hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents, expressed
or implied, is intended to confer upon any party other than the parties hereto
and thereto any rights, remedies, obligations or liabilities under or by reason
of this Agreement or the other Loan Documents.
SECTION 9.11. 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 AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. 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 AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. SEVERABILITY. In the event any one or more of the provisions
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby. 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 9.13. 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 but one contract, and shall become effective as
provided in Section 9.03.
SECTION 9.14. HEADINGS. Article and Section headings and the Table of
Contents 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 9.15. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each of
UCAR, the Borrower and the Swiss Borrower hereby irrevocably and unconditionally
submits, for itself and its
108
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in 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 any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against UCAR, the Borrower, the Swiss
Borrower or any other Loan Party or their properties in the courts of any
jurisdiction.
(b) Each of UCAR, the Borrower and the Swiss Borrower hereby irrevocably
and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
or the other Loan Documents 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 9.01. 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 9.16. CONVERSION OF CURRENCIES. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum due hereunder
or under any other Loan Document in Dollars into another currency, the parties
hereto agree, to the fullest extent that they may legally and effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase Dollars with such
other currency in New York, New York, on the Business Day immediately preceding
the day on which final judgment is given.
(b) The obligations of UCAR, the Borrower and the Swiss Borrower in respect
of any sum due to the Administrative Agent or any Lender hereunder or under any
other Loan Document in Dollars shall, to the extent permitted by applicable law,
notwithstanding any judgment in a currency other than Dollars, be discharged
only to the extent that on the Business Day following receipt of any sum
adjudged to be so due in the judgment currency, the Administrative Agent or such
Lender may in accordance with normal banking procedures purchase Dollars in the
amount originally due to the
109
Administrative Agent or such Lender with the judgment currency. If the amount of
Dollars so purchased is less than the sum originally due to the Administrative
Agent or such Lender, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or such
Lender against the resulting loss.
SECTION 9.17. CONFIDENTIALITY. Each of the Lenders and the Administrative
Agent agrees that it shall maintain in confidence any information relating to
UCAR, the Borrower and the other Loan Parties furnished to it by or on behalf of
UCAR, the Borrower or the other Loan Parties (other than information that (a)
has become generally available to the public other than as a result of a
disclosure by such party, (b) has been independently developed by such Lender or
the Administrative Agent without violating this Section 9.17 or (c) was
available to such Lender or the Administrative Agent from a third party having,
to such person's knowledge, no obligations of confidentiality to UCAR, the
Borrower or any other Loan Party) and shall not reveal the same other than (i)
to its directors, trustees, officers, employees and advisors with a need to know
(so long as each such person shall have been instructed to keep the same
confidential in accordance with this Section 9.17) and (ii) as contemplated by
Section 9.04(g), except: (A) to the extent necessary to comply with law or any
legal process or the requirements of any Governmental Authority or of any
securities exchange on which securities of the disclosing party or any Affiliate
of the disclosing party are listed or traded, (B) as part of normal reporting or
review procedures to Governmental Authorities, (C) to its parent companies,
Affiliates or auditors (so long as each such person shall have been instructed
to keep the same confidential in accordance with this Section 9.17) and (D) in
order to enforce its rights under any Loan Document in a legal proceeding.
SECTION 9.18. RELEASE OF LIENS AND GUARANTEES. In the event that UCAR, the
Borrower or any Subsidiary conveys, sells, leases, assigns, transfers or
otherwise disposes of all or any portion of any of the Capital Stock, assets or
property of UCAR, the Borrower or any of the Subsidiaries in a transaction not
prohibited by Section 6.05, the Administrative Agent and the Collateral Agent
shall promptly (and the Lenders hereby authorize the Administrative Agent and
the Collateral Agent to) take such action and execute any such documents as may
be reasonably requested by the Borrower and at the Borrower's expense to release
any Liens created by any Loan Document in respect of such Capital Stock, assets
or property, and, in the case of a disposition of all or substantially all the
Capital Stock or assets of any Subsidiary Guarantor, terminate such Subsidiary
Guarantor's obligations under any Guarantee Agreements to which it is a party.
In addition, the Administrative Agent and the Collateral Agent agree to take
such actions as are reasonably requested by the Borrower and at the Borrower's
expense to terminate the Liens and security interests created by the Loan
Documents when all the Obligations are paid in full and Commitments are
terminated. Any representation, warranty or covenant contained in any Loan
Document relating to any such
110
Capital Stock, assets, property or Subsidiary shall no longer be deemed to be
made once such Capital Stock, assets or property is conveyed, sold, leased,
assigned, transferred or disposed of.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
UCAR INTERNATIONAL INC.,
by
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Controller
111
UCAR GLOBAL ENTERPRISES INC.,
by
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Controller
UCAR S.A.,
by
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent and Collateral Agent,
by
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
112
LENDER ADDENDUM
The undersigned Lender (i) agrees to all the provisions of the Credit
Agreement dated as of November 10, 1998, among UCAR International Inc., a
Delaware corporation, UCAR Global Enterprises Inc., a Delaware corporation (the
"BORROWER"), UCAR, S.A., the Lenders party thereto, The Chase Manhattan Bank, as
Administrative Agent and as Collateral Agent, Credit Suisse First Boston, as
Syndication Agent and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Syndication
Agent (as the same may be amended, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"), and (ii) becomes a party thereto, as a Lender,
with obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its U.S. Term Loan
Commitment and to UCAR S.A. in an aggregate principal amount not to exceed the
amount of its Swiss Term Loan Commitment, as set forth opposite the undersigned
Lender's name in Schedule 2.01 to the Credit Agreement, as such amount may be
changed from time to time as provided in the Credit Agreement. Capitalized terms
defined in the Credit Agreement shall have their respective defined meanings
herein.
CREDIT SUISSE FIRST BOSTON
-------------------------------
(Name of Lender)
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
Dated as of November 10, 1998
113
LENDER ADDENDUM
The undersigned Lender (i) agrees to all the provisions of the Credit
Agreement dated as of November 10, 1998, among UCAR International Inc., a
Delaware corporation, UCAR Global Enterprises Inc., a Delaware corporation (the
"BORROWER"), UCAR, S.A., the Lenders party thereto, The Chase Manhattan Bank, as
Administrative Agent and as Collateral Agent, Credit Suisse First Boston, as
Syndication Agent and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Syndication
Agent (as the same may be amended, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"), and (ii) becomes a party thereto, as a Lender,
with obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its U.S. Term Loan
Commitment and to UCAR S.A. in an aggregate principal amount not to exceed the
amount of its Swiss Term Loan Commitment, as set forth opposite the undersigned
Lender's name in Schedule 2.01 to the Credit Agreement, as such amount may be
changed from time to time as provided in the Credit Agreement. Capitalized terms
defined in the Credit Agreement shall have their respective defined meanings
herein.
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
------------------------------------
(Name of Lender)
By: ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Dated as of November 10, 1998
114
LENDER ADDENDUM
The undersigned Lender (i) agrees to all the provisions of the Credit
Agreement dated as of November 10, 1998, among UCAR International Inc., a
Delaware corporation, UCAR Global Enterprises Inc., a Delaware corporation (the
"BORROWER"), UCAR, S.A., the Lenders party thereto, The Chase Manhattan Bank, as
Administrative Agent and as Collateral Agent, Credit Suisse First Boston, as
Syndication Agent and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Syndication
Agent (as the same may be amended, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"), and (ii) becomes a party thereto, as a Lender,
with obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its U.S. Term Loan
Commitment and to UCAR S.A. in an aggregate principal amount not to exceed the
amount of its Swiss Term Loan Commitment, as set forth opposite the undersigned
Lender's name in Schedule 2.01 to the Credit Agreement, as such amount may be
changed from time to time as provided in the Credit Agreement. Capitalized terms
defined in the Credit Agreement shall have their respective defined meanings
herein.
BANKBOSTON N.A.
--------------------------
(Name of Lender)
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
Dated as of November 10, 1998
115
LENDER ADDENDUM
The undersigned Lender (i) agrees to all the provisions of the Credit
Agreement dated as of November 10, 1998, among UCAR International Inc., a
Delaware corporation, UCAR Global Enterprises Inc., a Delaware corporation (the
"BORROWER"), UCAR, S.A., the Lenders party thereto, The Chase Manhattan Bank, as
Administrative Agent and as Collateral Agent, Credit Suisse First Boston, as
Syndication Agent and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Syndication
Agent (as the same may be amended, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"), and (ii) becomes a party thereto, as a Lender,
with obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its U.S. Term Loan
Commitment and to UCAR S.A. in an aggregate principal amount not to exceed the
amount of its Swiss Term Loan Commitment, as set forth opposite the undersigned
Lender's name in Schedule 2.01 to the Credit Agreement, as such amount may be
changed from time to time as provided in the Credit Agreement. Capitalized terms
defined in the Credit Agreement shall have their respective defined meanings
herein.
THE BANK OF NOVA SCOTIA
---------------------------
(Name of Lender)
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. Relationship
Manager
Dated as of November 10, 1998
116
LENDER ADDENDUM
The undersigned Lender (i) agrees to all the provisions of the Credit
Agreement dated as of November 10, 1998, among UCAR International Inc., a
Delaware corporation, UCAR Global Enterprises Inc., a Delaware corporation (the
"BORROWER"), UCAR, S.A., the Lenders party thereto, The Chase Manhattan Bank, as
Administrative Agent and as Collateral Agent, Credit Suisse First Boston, as
Syndication Agent and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Syndication
Agent (as the same may be amended, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"), and (ii) becomes a party thereto, as a Lender,
with obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its U.S. Term Loan
Commitment and to UCAR S.A. in an aggregate principal amount not to exceed the
amount of its Swiss Term Loan Commitment, as set forth opposite the undersigned
Lender's name in Schedule 2.01 to the Credit Agreement, as such amount may be
changed from time to time as provided in the Credit Agreement. Capitalized terms
defined in the Credit Agreement shall have their respective defined meanings
herein.
Balanced High-Yield Fund II
Ltd.,
By: BHF-BANK AKTIENGESELLSCHAFT,
acting through its New York
Branch, as attorney-in-fact
---------------------------
(Name of Lender)
By: ▇▇▇▇▇ ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
Dated as of November 10, 1998
117
LENDER ADDENDUM
The undersigned Lender (i) agrees to all the provisions of the Credit
Agreement dated as of November 10, 1998, among UCAR International Inc., a
Delaware corporation, UCAR Global Enterprises Inc., a Delaware corporation (the
"BORROWER"), UCAR, S.A., the Lenders party thereto, The Chase Manhattan Bank, as
Administrative Agent and as Collateral Agent, Credit Suisse First Boston, as
Syndication Agent and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Syndication
Agent (as the same may be amended, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"), and (ii) becomes a party thereto, as a Lender,
with obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its U.S. Term Loan
Commitment and to UCAR S.A. in an aggregate principal amount not to exceed the
amount of its Swiss Term Loan Commitment, as set forth opposite the undersigned
Lender's name in Schedule 2.01 to the Credit Agreement, as such amount may be
changed from time to time as provided in the Credit Agreement. Capitalized terms
defined in the Credit Agreement shall have their respective defined meanings
herein.
INTEGRITY LIFE INS
---------------------------
(Name of Lender)
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: CFO
Dated as of November 10, 1998
118
LENDER ADDENDUM
The undersigned Lender (i) agrees to all the provisions of the Credit
Agreement dated as of November 10, 1998, among UCAR International Inc., a
Delaware corporation, UCAR Global Enterprises Inc., a Delaware corporation (the
"BORROWER"), UCAR, S.A., the Lenders party thereto, The Chase Manhattan Bank, as
Administrative Agent and as Collateral Agent, Credit Suisse First Boston, as
Syndication Agent and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Syndication
Agent (as the same may be amended, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"), and (ii) becomes a party thereto, as a Lender,
with obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its U.S. Term Loan
Commitment and to UCAR S.A. in an aggregate principal amount not to exceed the
amount of its Swiss Term Loan Commitment, as set forth opposite the undersigned
Lender's name in Schedule 2.01 to the Credit Agreement, as such amount may be
changed from time to time as provided in the Credit Agreement. Capitalized terms
defined in the Credit Agreement shall have their respective defined meanings
herein.
CIBC INC.
---------------------------
(Name of Lender)
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Director
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp.,
AS AGENT
Dated as of November 10, 1998
119
LENDER ADDENDUM
The undersigned Lender (i) agrees to all the provisions of the Credit
Agreement dated as of November 10, 1998, among UCAR International Inc., a
Delaware corporation, UCAR Global Enterprises Inc., a Delaware corporation (the
"BORROWER"), UCAR, S.A., the Lenders party thereto, The Chase Manhattan Bank, as
Administrative Agent and as Collateral Agent, Credit Suisse First Boston, as
Syndication Agent and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Syndication
Agent (as the same may be amended, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"), and (ii) becomes a party thereto, as a Lender,
with obligations applicable to such Lender thereunder, including, without
limitation, the obligation to make extensions of credit to the Borrower in an
aggregate principal amount not to exceed the amount of its U.S. Term Loan
Commitment and to UCAR S.A. in an aggregate principal amount not to exceed the
amount of its Swiss Term Loan Commitment, as set forth opposite the undersigned
Lender's name in Schedule 2.01 to the Credit Agreement, as such amount may be
changed from time to time as provided in the Credit Agreement. Capitalized terms
defined in the Credit Agreement shall have their respective defined meanings
herein.
PNC BANK, NATIONAL ASSOCIATION
---------------------------
(Name of Lender)
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Dated as of November 10, 1998
SCHEDULE A
--------------------------------------------------------------------
PERMITTED OTHER
ACQUISITIONS AND
SPECIFIED
EXCESS CASH FLOW PERMITTED
LEVERAGE RATIO SWEEP PERCENTAGE TRANSACTIONS
--------------------------------------------------------------------
--------------------------------------------------------------------
greater than or equal to 75% $75,000,000
2.75:1.0
--------------------------------------------------------------------
--------------------------------------------------------------------
greater than or equal
to 2.5:1.0 50% $75,000,000
and less than 2.75:1.0
--------------------------------------------------------------------
--------------------------------------------------------------------
greater than or equal
to 2.0:1.0 50% $100,000,000
and less than 2.5:1.0
--------------------------------------------------------------------
--------------------------------------------------------------------
less than 2.0:1.0 50% $125,000,000
--------------------------------------------------------------------
The applicable percentage of Excess Cash Flow referred to in Section 2.12(e) and
the aggregate amount of Permitted Other Acquisitions and Specified Permitted
Transactions for any date shall be determined by reference to the Leverage Ratio
as of the last day of the fiscal quarter most recently ended as of such date and
for the period (the "MEASURED PERIOD") referred to in Section 6.12 for which
such last day is the measuring date (and computed as provided in Section 6.12
with respect to each such Measured Period), and any change shall become
effective upon the delivery to the Administrative Agent of a certificate of the
Borrower signed by a Responsible Officer of the Borrower (which certificate may
be delivered prior to delivery of the relevant financial statements) with
respect to the financial statements to be delivered pursuant to Section 5.04 for
the most recently ended fiscal quarter (a) setting forth in reasonable detail
the calculation of the Leverage Ratio for such Measured Period and at the end of
such fiscal quarter and (b) stating that the signer has reviewed the terms of
this Agreement and other Loan Documents and has made, or caused to be made under
his or her supervision, a review in reasonable detail of the transactions and
condition of UCAR, the Borrower and the Subsidiaries during the accounting
period, and that the signer does not have knowledge of the existence as at the
date of such officer's certificate of any Event of Default or Default and shall
apply on and after such delivery date. It is understood that the foregoing
certificate of a Responsible Officer shall be permitted to be delivered prior
to, but in no event later than, the time of the actual delivery of the financial
statements required to be delivered pursuant to Section 5.04. Notwithstanding
the foregoing, at any time during which the Borrower has failed to deliver the
certificate required under Section 5.04(c) with respect to a fiscal quarter
following the date the delivery thereof is due, the Leverage Ratio shall be
deemed, solely for the purposes of this Schedule A, to be greater than 2.75,
until such time as Borrower shall deliver such compliance certificate.
Schedule 2.01
LENDERS AND COMMITMENTS
INSTITUTION SWISS TERM LOAN U.S. TERM LOAN TOTAL
COMMITMENTS COMMITMENTS COMMITMENTS
THE CHASE MANHATTAN BANK $30,694,444.45 $45,138,888.89 $75,833,333.34
CREDIT SUISSE FIRST BOSTON 15,515,873.01 22,817,460.32 38,333,333.33
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK 15,515,873.01 22,817,460.32 38,333,333.33
ARM FINANCIAL 4,047,619.05 5,952,380.95 10,000,000.00
BANKBOSTON, N.A. 4,047,619.05 5,952,380.95 10,000,000.00
THE BANK OF NOVA SCOTIA 6,071,428.57 8,928,571.43 15,000,000.00
BALANCED HIGH-YIELD FUND II LTD.,
BY: BHF-BANK AKTIENGESELLSCHAFT 2,023,809.52 2,976,190.48 5,000,000.00
CIBC INC. 4,047,619.05 5,952,380.95 10,000,000.00
PNC BANK, NATIONAL ASSOCIATION 3,035,714.29 4,464,285.71 7,500,000.00
TOTAL: $85,000,000.00 $125,000,000.00 $210,000,000.00
------
SCHEDULE 3.08
of UCAR International Inc. and
Outstanding Subscriptions, Options and Warrants
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
JURISDICTION OF OWNERSHIP BY UCAR
NAME OF SUBSIDIARY INCORPORATION INTERNATIONAL INC.
--------------------------------------------------------------------------------
1. UCAR Global Delaware 100%
Enterprises Inc.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
JURISDICTION OF OWNERSHIP BY UCAR GLOBAL
NAME OF SUBSIDIARY INCORPORATION ENTERPRISES INC.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
2. UCAR Carbon Company
Inc. Delaware 100%
3. UCAR Holdings II Inc. Delaware 100%
4. UCAR Carbon S.A. Brazil 95.30%
5. UCAR S.A. Switzerland 99.9%(a)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
JURISDICTION OF OWNERSHIP BY UCAR CARBON
NAME OF SUBSIDIARY INCORPORATION COMPANY INC.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
6. UCAR Holdings Inc. Delaware 100%
7. UCAR Limited United Kingdom 100%(b)
8. EMSA (Pty.) Ltd. South Africa 100%(c)
9. Carbographite Limited South Africa 100%(c)
10. UCAR International
Trading Inc. Delaware 100%
11. UCAR Carbon
Technology Corporation Delaware 100%
12. UCAR Carbon
Foreign Sales Virgin Islands 100%
Corporation
13. UCAR Composites California 100%
Inc.
14. Union Carbide
Grafito, Inc. New York 100%
15. Unicarbon Brazil 100%
Comercial Ltda.
16. UCAR Carbon
(Malaysia) Sdn. Bhd. Malaysia 100%
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
JURISDICTION OF OWNERSHIP BY UCAR
NAME OF SUBSIDIARY INCORPORATION HOLDINGS II
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
17. UCAR Holdings III Delaware 100%
Inc.
18. UCAR Holdings S.A. France 100%(d)
19. UCAR Electrodos, Spain 100%(e)
S.L.
20. UCAR Inc. Canada 100%
21. UCAR Elektroden Germany 70%
GmbH
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
JURISDICTION OF OWNERSHIP BY UCAR
NAME OF SUBSIDIARY INCORPORATION HOLDINGS GMBH
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
22. UCAR Grafit OAO Russia 96.27%
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
JURISDICTION OF OWNERSHIP BY UCAR
NAME OF SUBSIDIARY INCORPORATION HOLDINGS INC.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
23. UCAR Mexicana,
S.A. de C.V. Mexico 100%(f)
24. UCAR S.p.A. Italy 100%(g)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
JURISDICTION OF OWNERSHIP BY UCAR
NAME OF SUBSIDIARY INCORPORATION HOLDINGS S.A.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
25. UCAR S.N.C. France 100%(h)
26. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ France 70%
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
JURISDICTION OF OWNERSHIP BY UCAR
NAME OF SUBSIDIARY INCORPORATION MEXICANA, S.A. DE C.V.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
27. UCAR Carbon
Mexicana, S.A. de C.V. Mexico 100%(i)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
JURISDICTION OF OWNERSHIP BY UCAR CARBON
NAME OF SUBSIDIARY INCORPORATION MEXICANA, S.A. DE C.V.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
28. Servicios
Administratoes Carmex, Mexico 99.9%
S.A. de C.V.
29. Servicios DYC,
S.A. de C.V. Mexico 99.9%
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
JURISDICTION OF
NAME OF SUBSIDIARY INCORPORATION OWNERSHIP BY UCAR S.P.A.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
30. UCAR Energia S.r.l. Italy 100%
31. UCAR Specialties Italy 100%
S.r.l.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
JURISDICTION OF OWNERSHIP BY UCAR CARBON
NAME OF SUBSIDIARY INCORPORATION S.A.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
32. UCAR Produtos de
Carbono S.A. Brazil 99.9%
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
JURISDICTION OF OWNERSHIP BY UNICARBON
NAME OF SUBSIDIARY INCORPORATION COMERCIAL LTDA.
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33. UCAR Carbon S.A. Brazil 2.33%
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JURISDICTION OF
NAME OF SUBSIDIARY INCORPORATION OWNERSHIP BY UCAR S.A.
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34. UCAR Holding GmbH Austria 100%
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(a) 99.9% owned by UCAR Global Enterprises Inc. Nominees own three shares of
UCAR S.A.
(b) 99.9% owned by UCAR Carbon Company Inc. A nominee owns one share of UCAR
Limited.
(c) On April 21, 1997, UCAR Carbon Company Inc. (the "Company") purchased the
50% interest in EMSA (Pty.) Ltd. ("EMSA") and Carbographite Limited
("Carbographite") that it did not already own from Samancor Limited, a South
African company. Commencing April 22, 1997, EMSA's and Carbographite's assets,
liabilities and results of operations are included in the Consolidated Financial
Statements.
(d) 99.4% owned by UCAR Holdings II Inc. UCAR International Inc., UCAR Global
Enterprises Inc., UCAR Carbon Company Inc. and three nominees each own one share
of UCAR Holdings S.A.
(e) 99.9% owned by UCAR Holdings II Inc. UCAR Carbon Company Inc. owns 0.1% of
UCAR Electrodos S.L.
(f) 99.9% owned by UCAR Holdings Inc. UCAR Carbon Company Inc. owns one share of
UCAR Mexicana, S.A. de C.V.
(g) 99.9% owned by UCAR Holdings Inc. and UCAR Carbon Company Inc. owns 0.1% of
UCAR S.p.A.
(h) 99.9% owned by UCAR Holdings S.A. UCAR Holdings III Inc. owns one share of
UCAR S.N.C.
(i) 99.9% owned by UCAR Mexicana, S.A. de C.V. UCAR Carbon Company Inc. owns
0.1% of UCAR Carbon Mexicana, S.A. de C.V.
SCHEDULE 3.09
PENDING LITIGATION OR PROCEEDINGS
ANTITRUST CASES AND PROCEEDINGS
DOFASCO INC. V. UCAR CARBON CANADA INC., ET AL., Court File No. 98-CV-149864,
Ontario Court (General Division), Canada. This case has been settled in
principle. An agreement is being prepared and the case has not yet been
dismissed.
ELLWOOD QUALITY STEELS CO. V. SGL CARBON CORPORATION, ET AL., Civil Action No.
98-1063 (United States District Court for the Western District of Pennsylvania).
This case has been settled in principle. An agreement is being prepared and the
case has not yet been dismissed.
NUCOR CORP. V. THE CARBIDE GRAPHITE GROUP, INC., ET AL., Civil Action ▇▇. ▇▇-
▇▇▇▇ (▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ for the Eastern District of Pennsylvania).
This case has been settled. An agreement has been signed but the case has not
yet been dismissed.
REPUBLIC ENGINEERED STEELS, INC. V. SHOWA DENKO CARBON, INC., ET AL., Civil
Action No. 98 CV-0902 (United States District Court for the Northern District of
Ohio, Eastern Division (Akron)). This case has been settled in principle. An
agreement is being prepared and the case has not yet been dismissed.
IN RE GRAPHITE ELECTRODES ANTITRUST LITIGATION, Master File No. 97-CV-4182
(United States District Court for the Eastern District of Pennsylvania). This
case has been settled. An agreement has been signed and the class has been
conditionally certified. The opt-out period expires on November 27, 1998. The
settlement has been preliminarily approved by the Court, with final approval
expected in December 1998. The case has not yet been dismissed.
IN RE SIMETCO, INC., Case ▇▇. ▇▇-▇▇▇▇▇ (▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Court for the
Northern District of Ohio at Canton). Motion by bankruptcy trustee (representing
debtor SiMETCO, Inc.) for a Rule 2004 Examination.
SHAREHOLDER DERIVATIVE CASE
JAROSLAWICZ ▇. ▇▇▇▇▇, ET AL., CV-98-033117 S (Conn. Super. Ct., ▇.▇. of
Stamford-Norwalk);
SECURITIES CLASS ACTION
IN RE UCAR INTERNATIONAL INC. SECURITIES LITIGATION, 98-CV-0600 (JBA)(United
States District Court for the District of Connecticut)
ANTITRUST INVESTIGATIONS
The Directorate General IV of the European Union, the antitrust
enforcement authorities of the European Union (the "EU authorities"), is
conducting an investigation into whether graphite electrode producers, including
the Borrower's French subsidiary, violated Article 85-1 of the Treaty of Rome,
the antitrust law of the European Union.
The Canadian Competition Bureau (the "Competition Bureau") has commenced a
criminal investigation as to whether there has been any violation of the
Canadian Competition Act (the "Canadian Act") by producers of graphite
electrodes. Under Section 45 of the Canadian Act, the maximum fine is Cdn$10
million. Under Section 46 of the Canadian Act, the amount of the fine is
discretionary and there is no maximum. UCAR and its subsidiaries have been
required by the Competition Bureau to produce documents and witnesses in Canada.
UCAR believes that Japanese antitrust authorities have commenced an
investigation of producers and distributors of graphite electrodes. Neither UCAR
nor its subsidiaries have any facilities or employees in Japan or have sold a
material quantity of graphite electrodes in Japan. The independent distributor
of their products in Japan has been required to produce documents and witnesses
in Japan.
THREATENED LITIGATION
UCAR and its subsidiaries have received oral and written notices or claims
from various domestic and foreign customers concerning recovery for alleged
violations of antitrust laws.
SCHEDULE 3.14
CREDIT AGREEMENT
TAXES
(a) None.
(b) UCAR has waived or extended the statutes of limitation in the following
jurisdictions:
EXTENSION
JURISDICTION YEAR ENTITY DATE
Federal 1993 UCAR Carbon Company, Inc. and Subsidiaries 3/31/99
Federal 1994 UCAR International Inc. Consolidated Group 3/31/99
California 1994 UCAR International Inc. Unitary Group 3/15/00
New York 1992/93 UCAR Carbon Company Inc. 6/30/99
New York 1994 UCAR Carbon Company Inc. 12/31/99
(c) UCAR INTERNATIONAL INC.
UCAR is currently under federal income tax audit for the years 1993, 1994
and 1995. No adjustment has been proposed by the IRS as of the Effective
Date.
UCAR S.P.A.
UCAR S.p.A. has appeals still outstanding for the years 1972 and 1975.
The results of a tax inspection covering the years 1986 and 1987,
completed on April 20, 1989, are still pending. In addition, UCAR
S.p.A. has appeals outstanding for the year 1989 that are expected to
close without any payment. UCAR S.p.A. has accrued ITL 2,400 million
(approx. $1,456,000) which it believes will adequately cover the
estimated tax liabilities related to all pending tax appeals for UCAR
S.p.A.
(d) None, other than included in paragraph (c).
SCHEDULE 3.17
CREDIT AGREEMENT
ENVIRONMENTAL MATTERS
Union Carbide Corporation had a license to process radioactive
material at UCAR's current Lawrenceburg, Tennessee site ("UCAR Lawrenceburg")
and did so in the 1960's and 1970's. The process was shut down and the license
was closed in the mid-1970's. The Nuclear Regulatory Commission ("NRC") has been
reviewing closed licenses to determine if additional clean-up is warranted. the
NRC reviewed its records for the UCAR Lawrenceburg site and mandated that
testing be conducted to ascertain whether regulated levels of residual
radiological contamination exist there.
Samples of the soil, water and surfaces at UCAR Lawrenceburg were
collected and analyzed. UCAR hired a radiological remediation contractor,
Nuclear Fuel Services ("NFS"), to review the analytical data and determine
whether contamination is present. NFS has reported to UCAR that, based upon its
review of the data collected, levels of contamination are above current NRC
closure criteria. UCAR commissioned NFS to develop a draft decommissioning plan
which was submitted to the NRC on August 20, 1998. The NRC is currently
reviewing the plan but has not indicated when we may expect their comments. The
plan may need to be modified based on the NRC's comments. Based upon cost
estimates received from NFS, UCAR has accrued a liability in the amount of
$1,300,000 to cover the cost to this clean-up and related fees and expenses.
Schedule 3.18 to Credit Agreement
CAPITALIZATION
1) UCAR International Inc.
(i) Authorized Capital Stock: 10,000,000 shares of Preferred Stock
100,000,000 shares of Common Stock
(ii) Par Value: $.01 per share
(iii) Authorized Capital Stock Issued
and Outstanding (as of 10/30/98) 44,979,425
2) UCAR Global Enterprises Inc.
(i) Authorized Capital Stock 1,500 shares of Common Stock
(ii) Par Value $.01 per share
(iii) Authorized Capital Stock Issued
and Outstanding 100 shares of Common Stock
SCHEDULE 3.20
CREDIT AGREEMENT
LABOR MATTERS
None.
SCHEDULE 3.23(a)
CREDIT AGREEMENT
LOCATION OF REAL PROPERTY
OWNER LOCATION
UCAR S.N.C. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
UCAR Electrodos, S.L. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇/▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇
Navarra, (Espana) (Spain)
UCAR Mexicana S.A. de C.V. Carretara ▇▇▇▇▇▇ ▇▇▇▇▇▇
Km. 20 #600. Ote.
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
Calle ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
No. 702 Pte.
Co. Industrial Entre
La Calle ▇▇▇▇▇ ▇▇▇▇▇ y
▇▇. ▇▇▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Monterrey
Estado Nuevo ▇▇▇▇
▇▇▇▇ Mexico
UCAR Inc. ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
UCAR S.p.A. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇
UCAR Specialties S.r.l. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇
UCAR Carbon Company Inc. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Hwt 79N @ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
UNION Carbide Grafito, Inc. Yabucoa, Puerto Rico
EMS (Pty.) Ltd. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
UCAR Productos de Carbono S.A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
▇▇. ▇▇-▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇
UCAR Productos de Carbono S.A. ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
& UCAR S.A. 9(degree) andar-ej. 9I3e94
01451-000 Sao Paulo-SP
Brazil
UCAR Limited Claywheels ▇▇▇▇
▇▇▇▇▇▇▇ Bridge
Shiffield, S6 INF
England
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 30, ▇▇▇ ▇▇▇▇▇ Jouvei
▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇ Codex
F-69631
France
▇▇▇▇▇▇▇ ▇▇▇▇▇▇/UCAR S.N.C. Usine de Notre-Dame-de-Braincon
La Lechere
F-73264 Aigueblanche Cedex
France
SCHEDULE 3.23(b)
CREDIT AGREEMENT
LOCATION OF LEASED PREMISES
OWNER LOCATION
UCAR S.N.C. Usine de Notre-Dame-de-Braincon
La Lechere
F-73264 Aigueblanche Cedex
France
(Lessor is ▇▇▇▇▇▇▇ ▇▇▇▇▇▇)
▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇-▇▇▇▇
SILIC 214
F-94518 RUNGIS, Cedex
France
UCAR S.A. 33 Ave. do Mont Blanc
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
UCAR Electrodos, S.L. Avda Lendakari
▇▇▇▇▇▇▇, 11-3(degree)
35-D
▇▇▇▇▇-▇▇▇▇▇▇
▇▇▇▇▇
UCAR S.p.A. ▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇▇
UCAR Specialties S.r.l. Forno Allione: Portion of
building in North section of
Plan with access and
connections to water and power
UCAR Carbon Company Inc. ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇-▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
UCAR Composites Inc. ▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
UCAR Elektroden GmbH ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
EMSA (Pty.) Ltd. Barphil Building
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
UCAR GRAFIT OAO ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
UCAR International Trading Inc. Jianguo ▇▇▇ ▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇ #▇▇-▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Unit B on 13th Floor
The Prudential Assurance Tower
▇▇. ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Schedule 4.01
Local Jurisdictions
(1) ▇▇▇▇▇▇▇▇▇▇ County, Tennessee
(2) Maury County, Tennessee
(3) ▇▇▇▇▇▇▇▇ County, Tennessee
(4) Cuyahoga County, Ohio
(5) ▇▇▇▇▇▇▇▇ County, Illinois
(6) ▇▇▇▇▇▇▇▇ County, W. Virginia
(7) Niagra County, New York
SCHEDULE 6.01 - INDEBTEDNESS @ 10/30/98* *
BORROWER LENDER TYPE U.S. $ OR EQUIV.
UCAR CARBON S.A.(BRAZIL) UNIBANCO IMPORT FINANCE $699,611.10 @ OCT 30,1998
UCAR CARBON S.A.(BRAZIL) BFB IMPORT FINANCE $589,244.96 @ OCT 30,1998
UCAR CARBON S.A.(BRAZIL) BFB(1) IMPORT FINANCE $1,955,505.78 @ OCT 30,1998
UCAR CARBON S.A.(BRAZIL) CCF IMPORT FINANCE $2,245,722.65 @ OCT 30,1998
UCAR CARBON S.A.(BRAZIL) BOSTON(1)(2) IMPORT FINANCE $1,999,342.72 @ OCT 30,1998
UCAR CARBON S.A.(BRAZIL) BFB IMPORT FINANCE $690,946.33 @ OCT 30,1998
@ OCT 30,1998
UCAR CARBON S.A.(BRAZIL) UNIBANCO ACC - IMPORT/EXPORT $620,804.13 @ OCT 30,1998
FINANCING NOTE @ OCT 30,1998
UCAR CARBON S.A.(BRAZIL) UNIBANCO DISCOUNTED A/R $813,684.23 @ OCT 30,1998
UCAR CARBON S.A.(BRAZIL) MERCANTIL DISCOUNTED A/R $838,306.28 @ OCT 30,1998
UCAR CARBON S.A.(BRAZIL) REAL DISCOUNTED A/R $1,415,912.64 @ OCT 30,1998
UCAR CARBON S.A.(BRAZIL) BOSTON DISCOUNTED A/R $1,309,364.58 @ OCT 30,1998
UCAR CARBON S.A.(BRAZIL) REAL DISCOUNTED A/R $2,837,988.53 @ OCT 30,1998
UCAR CARBON S.A.(BRAZIL) SUMITOMO DISCOUNTED A/R $1,192,129.28 @ OCT 30,1998
UCAR CARBON S.A.(BRAZIL) TOKIO DISCOUNTED A/R $1,559,313.26 @ OCT 30,1998
SUBTOTAL BRAZIL $18,767,876.47
UCAR ELEKTRODEN(Germany) BHF FAC CREDIT AGREEMENT $10,447,400.24 @ OCT 30,1998
UCAR SPA(Italy) BANCA NATIONALE DEL LAVORO BANK GUARANTY $246,558.58 @ OCT 30,1998
UCAR SPA(Italy) BANCA COMMERCIALE ITALIANO(IMI) BANK GUARANTY $734,781.28 @ OCT 30,1998
UCAR SPA(Italy) INSTITUTO MOBLIERE ITALIANO IND DEV FINANCE $1,210,156.01 @ OCT 30,1998
UCAR SPECIALTIES SRI BANCA POPOLARE DI SONDRIO OVERDRAFT LINE $1,524,625.27 @ OCT 30,1998
UCAR GLOBAL ENTERPRISES UCAR INTERNATIONAL INTERCO LOAN $116,548,792.47 @ OCT 30,1998
UCAR GLOBAL ENTERPRISES UCAR INC.(Canada) INTERCO LOAN $5,000,000.00 @ OCT 30,1998
UCAR GLOBAL ENTERPRISES UCAR MEXICANA S.A.(Mexico) INTERCO LOAN $27,000,000.00 @ OCT 30,1998
UCAR GLOBAL ENTERPRISES UCAR HOLDINGS ll INTERCO LOAN $37,636,768.13 @ OCT 30,1998
UCAR CARBON COMPANY UCAR ELECTRODOS(Spain) INTERCO LOAN $35,171,508.63 @ OCT 30,1998
UCAR CARBON COMPANY UCAR SNC(France) INTERCO LOAN $43,400,000.00 @ OCT 30,1998
UCAR CARBON COMPANY UCAR LTD(U.K.) INTERCO LOAN $23,792,136.36 @ OCT 30,1998
UCAR CARBON COMPANY UCAR SPA(Italy) INTERCO LOAN $10,172,203.24 @ OCT 30,1998
UCAR CARBON COMPANY UCAR EMSA(▇▇.▇▇▇▇▇▇) INTERCO LOAN $29,746,183.12 @ OCT 30,1998
UCAR HOLDINGS UCAR GLOBAL ENTERPRISES INTERCO LOAN $66,470,056.09 @ OCT 30,1998
UCAR INTERNATIONAL UCAR GLOBAL ENTERPRISES INTERCO LOAN $511,565,445.00 @ OCT 30,1998
UCAR CARBON COMPANY UCAR INTERNATIONAL INTERCO LOAN(NOTE) $172,878,070.94 @ OCT 30,1998
UCAR GLOBAL ENTERPRISES UCAR CARBON COMPANY INTERCO LOAN $2,912,141.00 @ OCT 30,1998
UCAR S.A.(Switzerland) UCAR GLOBAL ENTERPRISES INTERCO LOAN $83,403,591.00 @ OCT 30,1998
UCAR CARBON S.A.(BRAZIL) UCAR PRODUCTS de CARBONO S.A. INTERCO LOAN $12,307,388.08 @ OCT 30,1998
UCAR SNC(FRANCE) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ INTERCO LOAN $15,300,000.00 @ OCT 30,1998
UCAR SNC(FRANCE) UCAR HOLDINGS S.A.(FRANCE) INTERCO LOAN $35,365,000.00 @ OCT 30,1998
** BALANCES ARE PRESENTED AS OF10/30/98 AND ARE SUBJECT TO CHANGES IN THE
ORDINARY COURSE OF BUSINESS OCCURING BETWEEN 10/30/98 AND THE EFFECTIVE
DATE , WHICH ARE NOT MATERIAL.
SCHEDULE 6.02
EXISTING LIENS
BRAZIL
10/16/96 TAX LITIGATION HYSTER , FORKLIFT R $ $45,000.00
STATE OF BAHIA TRUCK US $ $37,957.00
10/16/96 TAX LITIGATION HYSTER , FORKLIFT R $ $95,000.00
STATE OF BAHIA TRUCK US $ $80,132.00
8/22/97 LABOR HYSTER , FORKLIFT R $ $79,000.00
LITIGATION TRUCK US $ $66,636.00
8/22/97 LABOR HYSTER , FORKLIFT R $ $71,000.00
LITIGATION TRUCK US $ $59,888.00
TOTAL R $ $290,000.00
TOTAL US $ $244,613.00
UCAR INC.
(CANADA) SECURED PARTY DESCRIPTION
1 MUNICIPAL SAVINGS & LOAN EQUIPMENT
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇ 1 KONICA ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ WI/RADF AND ALL PROCEEDS
OF THE FOREGOING
2 AT & T CAPITAL CANADA INC. EQUIPMENT AND OTHER
900 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
3 AT & T CAPITAL CANADA INC. EQUIPMENT AND OTHER
600 - ▇▇▇▇ ▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
4 CHASE MANHATTAN BANK OF CANADA INVENTORY, EQUIPMENT, ACCOUNTS & OTHER
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ (MOTOR VEHICLES INCLUDED)
TORONTO, ONTARIO
5 MTC LEASING EQUIPMENT
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ PHOTOCOPIER SYSTEM 10379-42705
BURLINGTON, ONTARIO
UCAR CARBON SECURED PARTY DESCRIPTION
CANADA INC.
1 MUNICIPAL FINANCIAL LEASING CORP. EQUIPMENT
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇ 1 RICOH, MODEL FT6750 COPIER & PROCEEDS
MARKHAM, ONTARIO OF THE FOREGOING
2 TRIATHLON LEASING INC EQUIPMENT AND OTHER
▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇ (MOTOR VEHICLES INCLUDED)
TORONTO, ONTARIO
AND
GENERAL ELECTRIC CAPITAL CANADA EQUIPMENT AND OTHER
LEASING
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇ (MOTOR VEHICLES INCLUDED)
MISSISSAUGA, ONTARIO
UCAR SpA MORTGAGE AND PRIVILIGE AT ITL 2,080,000,000.00
▇▇▇▇▇▇▇, ITALY
PLANT FIXED ASSETS SECURING DEBT US$ 1,200,000.00
TO
INSTITUTO MOBILIARE ITALIANO
UCAR SNC USUAL REGISTRATIONS OF LEASING AGREEMENTS :
PHOTOCOPIER AND SOFTWARE
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ USUAL REGISTRATIONS OF LEASING AGREEMENTS :
COMPUTER EQUIPMENT, PHOTOCOPIERS, STAMPING
EQUIPMENT, COMMERCIAL VEHICLES, TRUCKS
MINORITY SHAREHOLDER HAS A RIGHT OF FIRST REFUSAL
FOR PURCHASE OF UCAR'S SHARES IN ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
UCAR ELEKTRODEN
GMBH MINORITY SHAREHOLDER HAS A RIGHT OF FIRST REFUSAL
FOR PURCHASE OF UCAR'S SHARES IN UCAR ELEKTRODEN GMBH
SCHEDULE 6.04
CREDIT AGREEMENT
INVESTMENTS
None.
SCHEDULE 6.07
CREDIT AGREEMENT
TRANSACTIONS WITH AFFILIATES
UCAR Elektroden GmbH (for purposes of the Schedule, "Elektroden")
has a tolling agreement with UCAR Grafit OAO (for purposes of this Schedule,
"Grafit") whereby Elektroden supplies molded ungraphitized electrodes to Grafit
for graphitization and Grafit returns the graphitized electrodes, scrap and
rejects to Elektroden. Under this agreement, Elektroden is required to supply up
to 13,900 metric tons of ungraphitized electrodes, and, based upon shipment of
13,900 metric tons by Elektroden, Grafit is expected to return approximately
10,000 metric tons of graphitized electrodes. The tolling price paid to Grafit
is 1,960 DM per metric ton for finished product. Prices for burnt scrap and
rejects and graphitized scrap and rejects are 820 DM per metric ton and 1,268 DM
per metric ton, respectively.
The agreement expires on December 31, 1998.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is a party to the following agreements involving UCAR
Subsidiaries:
(i) A Sub-Contracting Agreement with UCAR SNC whereby UCAR SNC
manufactures all of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇'▇ products. The price
term of the agreement includes the cost of raw material,
direct labor and variable expense.
(ii) A Lease Agreement for real property whereby ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
leases to UCAR SNC certain real property used in conjunction
with UCAR SNC's obligations under the subcontracting
agreement referred to in (i) above. See also Schedule
3.23(b) for reference to leased property.
(iii) A Technology License Agreement whereby ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
licenses certain technical information and patent rights to
UCAR. Carbon Company Inc. (for purposes of this Schedule,
`UCAR Carbon").
(iv) A Research and Development, License and Services Agreement
among ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, UCAR Carbon and Aluminium Pecheney
whereby (i) the parties agree to cooperate for their mutual
benefits in certain research and development activities,
(ii) UCAR Carbon licenses its technical information and
patent rights for the manufacture, use and sale of certain
products to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, (iii) Aluminium Pecheney agrees
to cooperate in the marketing and sales of certain products
by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and (iv) UCAR Carbon agrees to provide
certain training and instruction of personnel of ▇▇▇▇▇▇▇
▇▇▇▇▇▇. The consideration for the contributions to this
agreement made by Aluminium Pechiney and UCAR Carbon is a
percentage of the sales of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ during the term of
the agreement.
SCHEDULE 6.09
CREDIT AGREEMENT
RESTRICTIVE AGREEMENTS
Pursuant to the Articles of Association of UCAR Elektroden GmbH, a
vote of 75% of the votes polled at a duly convened shareholder's meeting is
required to distribute profits. For purposes of such a determination, 75% of the
total share capital must be represented to constitute a quorum.
January 7, 1999
The undersigned institution, a Lender under the Credit Agreement dated
as of October 19, 1995, as amended and restated as of March 19, 1997, and
November 10, 1998, among UCAR International Inc. ("Holdco"), UCAR Global
Enterprises Inc. (the "Borrower"), the Subsidiary Borrowers party thereto, the
Lenders party thereto, the Fronting Banks party thereto and The Chase Manhattan
Bank, as administrative agent and as collateral agent (the "Restated
Agreement"), and/or the Credit Agreement dated as of November 10, 1998, among
Holdco, the Borrower, UCAR S.A., the Lenders party thereto, The Chase Manhattan
Bank, as administrative agent and as collateral agent, Credit Suisse First
Boston, as syndication agent, and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
syndication agent (the "Tranche C Agreement" and collectively with the Restated
Agreement, the "Credit Agreements"), hereby consents to the existence of an
asserted lien on the assets of Holdco in favor of the United States Department
of Justice (the "DOJ") securing the obligation of Holdco under its settlement
agreement with the DOJ to pay a fine in a remaining amount of $90,000,000,
constituting a portion of the Litigation Liabilities (as defined in the Credit
Agreements).
Consent Under the
Restated Agreement
Lender /s/
----------------------------
by
-------------------------
Name:
Title:
Consent Under the
Tranche C Agreement
Lender /s/
----------------------------
by
-------------------------
Name:
Title:
