EXHIBIT 10.1
CONFORMED COPY
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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.,
UCAR GLOBAL ENTERPRISES INC.,
THE SUBSIDIARY BORROWERS PARTY HERETO,
THE LENDERS PARTY HERETO,
THE FRONTING BANKS PARTY HERETO,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
and Collateral 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............................................. 37
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments................................................. 38
SECTION 2.02. Loans....................................................... 41
SECTION 2.03. Borrowing Procedure......................................... 43
SECTION 2.04. Evidence of Debt; Repayment of Loans........................ 43
SECTION 2.05. Fees........................................................ 44
SECTION 2.06. Interest on Loans........................................... 45
SECTION 2.07. Default Interest............................................ 46
SECTION 2.08. Alternate Rate of Interest.................................. 46
SECTION 2.09. Termination and Reduction of Commitments.................... 46
SECTION 2.10. Conversion and Continuation of Borrowings................... 47
SECTION 2.11. Repayment of Term Borrowings and Reduction
of the Tranche A Exposure; Reallocation of
the Tranche A Exposure...................................... 49
SECTION 2.12. Prepayment.................................................. 52
SECTION 2.13. Reserve Requirements; Change in
Circumstances............................................... 55
SECTION 2.14. Change in Legality.......................................... 57
SECTION 2.15. Indemnity................................................... 58
SECTION 2.16. Pro Rata Treatment.......................................... 59
SECTION 2.17. Sharing of Setoffs.......................................... 59
SECTION 2.18. Payments.................................................... 60
SECTION 2.19. Taxes....................................................... 60
SECTION 2.20. Letters of Credit........................................... 64
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers........................................ 73
SECTION 3.02. Authorization............................................... 74
SECTION 3.03. Enforceability.............................................. 74
SECTION 3.04. Governmental Approvals...................................... 74
SECTION 3.05. Financial Statements........................................ 75
SECTION 3.06. No Material Adverse Change.................................. 75
SECTION 3.07. Title to Properties; Possession Under Leases................ 75
SECTION 3.08. Subsidiaries................................................ 76
SECTION 3.09. Litigation; Compliance with Laws............................ 76
SECTION 3.10. Agreements.................................................. 76
SECTION 3.11. Federal Reserve Regulations................................. 77
SECTION 3.12. Investment Company Act; Public Utility
Holding Company Act....................................... 77
SECTION 3.13. Use of Proceeds............................................. 77
SECTION 3.14. Tax Returns................................................. 77
SECTION 3.15. No Material Misstatements................................... 78
SECTION 3.16. Employee Benefit Plans...................................... 78
SECTION 3.17. Environmental Matters....................................... 79
SECTION 3.18. Capitalization of UCAR and the Borrower..................... 80
SECTION 3.19. Security Documents.......................................... 80
SECTION 3.20. Labor Matters............................................... 81
SECTION 3.21. No Foreign Assets Control Regulation
Violation................................................. 82
SECTION 3.22. Insurance................................................... 82
SECTION 3.23. Location of Real Property and Leased
Premises.................................................. 82
SECTION 3.24. Litigation Liabilities...................................... 82
SECTION 3.25. Year 2000................................................... 83
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date.............................................. 83
SECTION 4.02. Each Credit Event........................................... 85
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Existence; Businesses and Properties........................ 87
SECTION 5.02. Insurance................................................... 87
SECTION 5.03. Taxes....................................................... 89
SECTION 5.04. Financial Statements, Reports, etc.......................... 89
SECTION 5.05. Litigation and Other Notices................................ 91
SECTION 5.06. Employee Benefits........................................... 92
SECTION 5.07. Maintaining Records; Access to Properties
and Inspections........................................... 92
SECTION 5.08. Use of Proceeds............................................. 93
SECTION 5.09. Compliance with Environmental Laws.......................... 93
SECTION 5.10. Preparation of Environmental Reports........................ 93
SECTION 5.11. Further Assurances.......................................... 93
SECTION 5.12. Significant Subsidiaries.................................... 93
SECTION 5.13. Fiscal Year................................................. 94
SECTION 5.14. Dividends................................................... 94
SECTION 5.15. Interest/Exchange Rate Protection Agreements................ 94
SECTION 5.16. Corporate Separateness...................................... 94
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Indebtedness................................................ 94
SECTION 6.02. Liens....................................................... 98
SECTION 6.03. Sale and Lease-Back Transactions............................ 101
SECTION 6.04. Investments, Loans and Advances............................. 101
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions.............................................. 103
SECTION 6.06. Dividends and Distributions................................. 106
SECTION 6.07. Transactions with Affiliates................................ 107
SECTION 6.08. Business of UCAR, the Borrower and the
Subsidiaries.............................................. 108
SECTION 6.09. Indebtedness and Other Material
Agreements................................................ 108
SECTION 6.10. Capital Expenditures........................................ 109
SECTION 6.11. Interest Coverage Ratio..................................... 109
SECTION 6.12. Leverage Ratio.............................................. 110
SECTION 6.13. Capital Stock of the Subsidiaries........................... 110
ARTICLE VII
EVENTS OF DEFAULT......................................................... 110
ARTICLE VIII
THE ADMINISTRATIVE AGENT AND
THE COLLATERAL AGENT.................................................... 114
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices...................................................... 117
SECTION 9.02. Survival of Agreement........................................ 117
SECTION 9.03. Binding Effect............................................... 118
SECTION 9.04. Successors and Assigns....................................... 118
SECTION 9.05. Expenses; Indemnity.......................................... 122
SECTION 9.06. Right of Setoff.............................................. 125
SECTION 9.07. Applicable Law............................................... 125
SECTION 9.08. Waivers; Amendment........................................... 125
SECTION 9.09. Interest Rate Limitation..................................... 127
SECTION 9.10. Entire Agreement............................................. 127
SECTION 9.11. Waiver of Jury Trial......................................... 127
SECTION 9.12. Severability................................................. 127
SECTION 9.13. Counterparts................................................. 128
SECTION 9.14. Headings..................................................... 128
SECTION 9.15. Jurisdiction; Consent to Service of Process.................. 128
SECTION 9.16. Conversion of Currencies..................................... 128
SECTION 9.17. Confidentiality ............................................. 129
SECTION 9.18. Release of Liens and Guarantees.............................. 129
SECTION 9.19 Subsidiary Borrowers......................................... 130
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 Local Facility Credit Agreement
Exhibit F Form of Parent Guarantee Agreement
Exhibit G Form of Domestic Pledge Agreement
Exhibit H Form of Subsidiary Guarantee Agreement
Exhibit I Form of Tranche A Letter of Credit
Exhibit J Form of Domestic Security Agreement
Exhibit K Form of Intellectual Property Security
Agreement
Exhibit L Form of Subsidiary Borrower Agreement
Exhibit M Form of Subsidiary Borrower Termination
Exhibit N-1 Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP
Exhibit N-2 Form of Opinion of General Counsel
Exhibit N-3 Forms of Opinion of Local Counsel
Schedule A Adjustments
Schedule 2.01(a) Lenders, Commitments and Outstanding Loans on
date hereof
Schedule 2.01(b) Lenders, Commitments and Outstanding Loans on
Effective Date
Schedule 2.20 Fronting Banks, Tranche A Letters of Credit and
Credit Parties
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
Schedule 9.01 Notice Information for Fronting Banks and
Credit Parties (other than the Borrower)
CREDIT AGREEMENT (this "AGREEMENT") dated as
of October 19, 1995, as amended and restated as of
March 19, 1997, and November 10, 1998, among UCAR
INTERNATIONAL INC., a Delaware corporation ("UCAR"),
UCAR GLOBAL ENTERPRISES INC., a Delaware corporation
(the "BORROWER"), the SUBSIDIARY BORROWERS party
hereto, the LENDERS party hereto, the FRONTING BANKS
party hereto and THE CHASE MANHATTAN BANK, a New York
banking corporation, as administrative agent (in such
capacity, the "ADMINISTRATIVE AGENT") and as
collateral agent (in such capacity, the "COLLATERAL
AGENT").
The parties hereto have entered into a Credit Agreement dated
as of October 19,1995, as amended and restated as of March 19, 1997 (the
"EXISTING CREDIT AGREEMENT"). The parties hereto have agreed that, 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) this Agreement and (b) the Tranche C
Facility Credit Agreement, under which the Lenders or lenders under the Tranche
C Facility 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 (i) the Tranche A Term
Loans, (ii) the Tranche A Letters of Credit and Tranche A Reimbursement Loans,
(iii) the Tranche B Term Loans and (iv) the Revolving Credit Commitments,
Revolving Loans and Swingline Loans and (b) the Tranche C Facility Credit
Agreement will govern the Tranche C Term Loans.
On the Second Closing Date, the Lenders extended credit to the
relevant Credit Parties in the form of (a) Tranche A Term Loans, the aggregate
outstanding principal amount of which is $20,467,843.22 on the date hereof, (b)
Tranche A Letters of Credit supporting Local Facilities, the aggregate
outstanding stated amount of which is $219,532,156.78 on the date hereof, and
(c) Tranche B Term Loans, the aggregate outstanding principal amount of which is
$119,400,000 on the date hereof. The proceeds of the Term Loans and the Local
Facilities were used to provide funding for the refinancing of all the
outstanding term loans and letters of credit under this Agreement and local
facilities on the Second Closing Date and the payment of related fees, expenses
and other transaction costs. The Tranche A Letters of Credit were, and will
continue to be, used to support Indebtedness under the Local Facilities.
The Lenders extended, and, subject to the terms and conditions
set forth herein, will continue to extend, credit to the relevant Credit Parties
in the form of (a) Revolving Loans and Swingline Loans from time to time during
the Revolving Availability Period, in an aggregate principal amount at any time
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outstanding not in excess of $250,000,000 less the Revolving L/C Exposure at
such time, (b) Revolving Letters of Credit from time to time during the
Revolving Availability Period, in an aggregate stated amount at any time
outstanding not in excess of the lesser of (i) $200,000,000 and (ii)
$250,000,000 less the principal amount of outstanding Revolving Loans and
Swingline Loans at such time and (c) Tranche A Letters of Credit and Tranche A
Reimbursement Loans issued or made as described in Section 2.11(b) from time to
time prior to the Tranche A Maturity Date, in an aggregate principal and stated
amount that will not result in the Tranche A Exposure exceeding $219,532,156.78,
subject to increases in the stated amount of Tranche A Letters of Credit
effected pursuant to Section 2.11(b)(iii) and resulting from the proportionate
repayment of Tranche A Term Borrowings.
The Revolving Letters of Credit and the proceeds of Revolving
Loans and Swingline Loans have been, and will continue to be, used for general
corporate purposes of the Borrower and its Subsidiaries, including the financing
of Litigation Payments.
The Lenders are willing to extend such credit to the Credit
Parties and the Fronting Banks are willing to issue Letters of Credit for the
account of the Credit Parties, in each case on the terms and subject to the
conditions set forth herein. Accordingly, the parties hereto agree as follows:
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 ABR Term Loan, ABR Tranche A
Reimbursement Loan, ABR Revolving Loan or Swingline Loan.
"ABR REVOLVING LOAN" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Alternate Base Rate in
accordance with the provisions of Article II.
"ABR TERM LOAN" shall mean any Term Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ABR TERM OR REIMBURSEMENT BORROWING" shall mean a Borrowing
comprised of ABR Term Loans or a Borrowing comprised of ABR Tranche A
Reimbursement Loans, as applicable.
"ABR TERM, REIMBURSEMENT OR REVOLVING BORROWING" shall mean a
Borrowing comprised of ABR Term Loans, a Borrowing comprised of ABR Tranche A
Reimbursement Loans or a Borrowing comprised of ABR Revolving Loans, as
applicable.
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"ABR TRANCHE A REIMBURSEMENT LOAN" shall mean any Tranche A
Reimbursement 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(c).
"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.
"AGGREGATE REVOLVING CREDIT EXPOSURE" shall mean the
aggregate amount of the Lenders' Revolving Credit Exposures.
"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.
"APPLICABLE PERCENTAGE" of any Tranche A Lender or Revolving
Credit Lender at any time shall mean the percentage of the Total Tranche A
Reimbursement Commitment or the Total Revolving Credit Commitment, as
applicable, represented by such Lender's Tranche A Reimbursement Commitment or
Revolving Credit Commitment, as applicable. In the event the Tranche A
Reimbursement Commitments or the Revolving Credit Commitments shall have expired
or been terminated, the Applicable Percentages shall be determined on the basis
of the Tranche A Reimbursement Commitments or the Revolving Credit Commitments,
as applicable,
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most recently in effect, but giving effect to any assignments
pursuant to Section 9.04.
"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) 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 or (b) a
Swingline Loan.
"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 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) 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)), (iii) expenditures of proceeds of
insurance settlements, condemnation awards and other settlements in respect of
lost, destroyed, damaged or condemned
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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 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.
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"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 Revolving Loans, Tranche A Term
Loans, Tranche A Reimbursement Loans, Tranche B Term Loans or Swingline Loans
and, when used in reference to any Commitment, refers to whether such Commitment
is a Revolving Credit Commitment, Tranche A Term Loan Commitment, Tranche A
Reimbursement Commitment, Tranche B Term Loan Commitment or Swingline Loan
Commitment.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"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
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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 each
foreign Credit Party that has borrowed (or will at such time borrow) Revolving
Loans or that has had (or will at such time have) a Revolving Letter of Credit
issued for its account, and by each foreign Subsidiary that is required pursuant
to the terms hereof to Guarantee the Obligations of such foreign Credit Party in
respect of such Revolving Loans or Revolving Letters of Credit, and there shall
have been duly and validly pledged thereunder, for the ratable benefit of the
Secured Parties holding Obligations of such foreign Credit Party or foreign
Guarantor in respect of such Revolving Loans, Revolving Letters of Credit or
Guarantees, as security for all such Obligations of such foreign Credit Party or
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 such foreign
Credit Party or foreign Guarantor, (B) all the outstanding Capital Stock of or
other equity interests in such foreign Credit Party or foreign Guarantor, and of
any Subsidiary directly or indirectly owning any outstanding Capital Stock of or
other equity interests in such foreign Credit Party or 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 such foreign Credit Party or 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 a foreign Credit Party
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 such foreign Credit Party or foreign Guarantor in
respect of such Revolving Loans, Revolving Letters of Credit or Guarantees, as
security for all such Obligations of such foreign Credit Party or 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
such foreign Credit Party or foreign Guarantor that shall not have been pledged
pursuant to the Domestic Pledge Agreement; (iv) one or more other Pledge
Agreements shall have been duly executed and delivered by each domestic
Guarantor directly owning any Capital Stock of (A) a foreign Credit Party that
has borrowed (or will at such time borrow) under a Local Facility or that has
had (or will at such time have) a Tranche A Letter of Credit issued for its
account and (B) any foreign
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Guarantor of the Obligations of such foreign Credit Party described in (A)
above, and there shall have been duly and validly pledged thereunder, for the
ratable benefit of the Secured Parties holding Obligations of such foreign
Credit Party or foreign Guarantor in respect of such loans under a Local
Facility, Tranche A Letters of Credit or Guarantees, as security for all such
Obligations of such foreign Credit Party or 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 such foreign Credit
Party or foreign Guarantor that shall not have been pledged pursuant to the
Domestic Pledge Agreement; and (v) 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
Tranche C Facility 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 each foreign Credit Party that has borrowed (or
will at such time borrow) Revolving Loans or that has had (or will at such time
have) a Revolving Letter of Credit issued for its account, and by each foreign
Subsidiary that is required pursuant to the terms hereof to Guarantee the
Obligations of such foreign Credit Party in respect of such Revolving Loans or
Revolving Letters of Credit, and such Security Agreements shall create in favor
of the Collateral Agent, for the ratable benefit of the Secured Parties holding
Obligations of such foreign Credit Party or foreign Guarantor in respect of such
Revolving Loans, Revolving Letters of Credit or Guarantees, as security for all
such Obligations of such foreign Credit Party or 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 Tranche C Facility Credit Agreement) all the Collateral (as such term is
defined in such Security Agreements) owned by such foreign Credit Party or
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 the Tranche C Facility 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
9
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 Tranche C Facility 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 any foreign Credit Party that has borrowed (or will
at such time borrow) Revolving Loans or that has had (or will at such time have)
a Revolving Letter of Credit issued for its account, and by each foreign
Subsidiary that is required to Guarantee the Obligations of such foreign Credit
Party in respect of such Revolving Loans or Revolving Letters of Credit, 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 such foreign Credit Party or foreign
Guarantor in respect of such Revolving Loans, Revolving Letters of Credit or
Guarantees, as security for all such Obligations of such foreign Credit Party or
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 Tranche C Facility 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 Tranche C Facility 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 a foreign Credit Party or
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.
10
"COMMITMENTS" shall mean, with respect to any Lender, such
Lender's Revolving Credit Commitment, Tranche A Reimbursement Commitment,
Tranche A Term Loan Commitment, Tranche B Term Loan Commitment and Swingline
Loan Commitment and, with respect to any Fronting Bank, its Tranche A L/C
Commitment and its Revolving L/C
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.
"CREDIT EVENT" shall have the meaning given such term in
Section 4.02.
"CREDIT PARTIES" shall mean the Borrower and the
Subsidiary Borrowers.
"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 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 (other than Swingline Loans), Letter of Credit Exposures, Swingline
Exposures and unused Commitments (excluding commitments to issue Letters of
Credit or make Swingline Loans) representing at least 66-2/3% of the sum of all
Loans (other than Swingline Loans) outstanding, Letter of Credit Exposures,
11
Swingline Exposures and unused Commitments (except commitments to issue Letters
of Credit or make Swingline Loans) at such time.
"DOLLAR EQUIVALENT" shall mean, with respect to any amount in
a currency other than Dollars on any date, the equivalent in Dollars of such
amount, determined by the Administrative Agent as provided in the applicable
Local Facility Credit Agreement.
"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 G, 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 J, among UCAR, the Borrower and the
domestic Subsidiaries and the Collateral Agent for the benefit of the Secured
Parties.
"DOMESTIC SUBSIDIARY BORROWER" shall have the meaning given
such term in Section 2.19(f).
"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.
"EFFECTIVENESS AGREEMENT" shall mean the Effectiveness
Agreement dated as of March 17, 1997, among UCAR, the Borrower, the Lenders, the
Departing Lenders (as defined therein), the Fronting Banks, the Administrative
Agent and the Collateral Agent.
12
"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 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.
13
"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 Eurodollar Term Loan,
Eurodollar Tranche A Reimbursement Loan or Eurodollar Revolving
Loan.
"EURODOLLAR REVOLVING LOAN" shall mean any Revolving Loan
bearing interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"EURODOLLAR TERM LOAN" shall mean any Term Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"EURODOLLAR TERM OR REIMBURSEMENT BORROWING" shall mean a
Borrowing comprised of Eurodollar Term Loans or a Borrowing comprised of
Eurodollar Tranche A Reimbursement Loans, as applicable .
"EURODOLLAR TERM, REIMBURSEMENT OR REVOLVING LOAN" shall mean
a Borrowing comprised of Eurodollar Term Loans, a Borrowing comprised of
Eurodollar Tranche A Reimbursement Loans or a Borrowing comprised of Eurodollar
Revolving Loans, as applicable.
"EURODOLLAR TRANCHE A REIMBURSEMENT LOAN" shall mean any
Tranche A Reimbursement 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 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
14
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 Tranche
C Facility 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), 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 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 Tranche C Facility 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.
15
"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, the L/C
Participation Fees, the Fronting Bank 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.
"FOREIGN CURRENCY COMPONENT" shall mean, with respect to (a)
any portion of the stated amount of a Tranche A Letter of Credit issued in
respect of borrowings under a Local Facility denominated in a currency other
than Dollars, the difference between (i) the amount of such portion and (ii) the
quotient obtained by dividing the amount of such portion by 1.0526, and (b) the
principal amount of any Local Facility denominated in a currency other than
Dollars, an amount in Dollars equal to 5.00% of the Dollar Equivalent of such
amount as of the date of issuance of the applicable Tranche A Letter of Credit.
"FRONTING BANKS" shall mean the persons listed on Schedule
2.20 and any other person that may become a Fronting Bank hereunder from time to
time, each in its capacity as the issuer of Letters of Credit hereunder and its
successors in such capacity.
"FRONTING BANK FEES" shall have the meaning given to such term
in Section 2.05(b).
"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
16
(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 or a Local
Facility 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 the event that any foreign Credit Party has
borrowed or obtained (or will at such time borrow or obtain) Revolving Loans or
Revolving Letters of Credit, 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 such foreign Credit Party 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 a foreign Credit Party or 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.
"GUARANTORS" shall mean UCAR, the Borrower and the
Subsidiary Guarantors.
17
"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 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.
18
"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 K,
among UCAR, the Borrower, the domestic Subsidiaries and the Collateral Agent for
the benefit of the Secured Parties.
"INTEREST COMPONENT" shall mean, with respect to (a) any
portion of the stated amount of a Tranche A Letter of Credit issued in respect
of borrowings under a Local Facility denominated in Dollars, the difference
between (i) the amount of such portion and (ii) the quotient obtained by
dividing the amount of such portion by 1.0103, and (b) the principal amount of
any Local Facility or any Tranche A Reimbursement Loan or Tranche A Term Loan,
an amount equal to 1.03% of such principal amount.
"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 may elect, and the
date any Eurodollar Borrowing is converted to an
19
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.
"L/C DISBURSEMENTS" shall mean Tranche A L/C Disbursements and
Revolving L/C Disbursements.
"L/C PARTICIPATION FEE" shall have the meaning given such term
in Section 2.05(b).
"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. Unless the context otherwise
requires, the term "Lenders" shall include the Swingline Lender.
"LETTER OF CREDIT COMMITMENT" shall mean, with respect to any
Fronting Bank, such Fronting Bank's Tranche A L/C Commitment and Revolving L/C
Commitment.
"LETTER OF CREDIT EXPOSURE" shall mean, with respect to any
Lender at any time, such Lender's Tranche A L/C Exposure and Revolving L/C
Exposure at such time.
"LETTERS OF CREDIT" shall mean Tranche A Letters of Credit and
Revolving Letters of Credit.
"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
20
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 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 Tranche C
Facility Credit Agreement, the Notes, if any, the notes, if any, issued under
the Tranche C Facility Credit Agreement, the Guarantee Agreements, the Security
Documents, the Indemnity, Subrogation and Contribution Agreement, the Local
Facility Loan Documents and the Letters of Credit.
"LOAN PARTIES" shall mean the Borrower, the other Credit
Parties, the Guarantors and the Pledgors.
"LOANS" shall mean the Revolving Loans, the Term Loans,
and the Swingline Loans.
"LOCAL FACILITY" shall mean each loan facility permitting
borrowings by a Credit Party 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 by the Borrower and approved in writing
by the Administrative Agent.
"LOCAL FACILITY CREDIT AGREEMENT" shall mean each credit
agreement between a foreign Credit Party and one or more lenders in
substantially the form of Exhibit E, with such changes therefrom as shall in the
reasonable judgment of the Administrative Agent be necessary or advisable under
applicable law.
"LOCAL FACILITY LENDERS" shall mean each lender under a Local
Facility.
21
"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.
"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 Fronting
Banks, the Administrative Agent or the Collateral Agent under any Loan Document
(other than Local Facility Loan Documents).
"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 Tranche C Facility
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
22
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 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 the Borrower or any
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 provided in this Agreement after
the filing of any petition in
23
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 Tranche C Facility Credit Agreement after the maturity of the loans
thereunder and interest accruing at the applicable rate provided in the Tranche
C Facility 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
Tranche C Facility 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 this 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 borrower party to the Tranche C Facility Credit
Agreement, when and as due, and (e) all other obligations and liabilities of
every nature of the Credit Parties and the borrowers under the Tranche C
Facility 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 Tranche C Facility 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 Tranche C Facility 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 borrower under the Tranche C Facility Credit Agreement
pursuant to the terms of this Agreement, the Tranche C Facility 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 Tranche C Facility 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 F, made by UCAR and the Borrower
in favor of the Collateral Agent for the benefit of the Secured Parties.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
24
"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 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
25
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 this Agreement as a direct consequence of any reallocation
made pursuant to Section 2.11(b).
"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
▇▇▇▇▇'▇, 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 ▇▇▇▇▇'▇; (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 uncondi tionally 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 ▇▇▇▇▇'▇ (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 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
26
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.
"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
27
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.
"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).
28
"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 (other than Swingline Loans), Letter of Credit Exposures, Swingline
Exposures and unused Commitments (excluding commitments to issue Letters of
Credit or make Swingline Loans) representing at least 51% of the sum of all
Loans (other than Swingline Loans) outstanding, Letter of Credit Exposures,
Swingline Exposures and unused Commitments (excluding commitments to issue
Letters of Credit or make Swingline Loans) 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 all Letters of Credit shall have been canceled or expired
and all amounts drawn thereunder shall have been reimbursed in full) and (b) the
"Required Lenders" under the Tranche C Facility Credit Agreement (unless all
commitments under the Tranche C Facility 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 Tranche C Facility Credit Agreement shall have
been paid in full).
"RESERVES" shall mean, with respect to UCAR, the Borrower and
its subsidiaries on a consolidated basis at any date 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
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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 AVAILABILITY PERIOD" shall mean the period from and
including the Effective Date to but excluding the earlier of the Revolving
Credit Maturity Date and the date of the termination of the Revolving Credit
Commitments.
"REVOLVING CREDIT BORROWING" shall mean a Borrowing
comprised of Revolving Loans.
"REVOLVING CREDIT COMMITMENT" shall mean, with respect to each
Lender, the commitment, if any, of such Lender to make Revolving Loans and to
acquire participations in Revolving Letters of Credit and Swingline Loans
hereunder, expressed as an amount representing the maximum aggregate amount of
such Lender's Revolving Credit Exposure 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 Section 9.04. The initial amount of each Lender's
Revolving Credit Commitment is set forth on Schedule 2.01(a), or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Revolving Credit Commitment, as applicable.
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any
Lender at any time, the aggregate principal amount at such time of all
outstanding Revolving Loans of such Lender PLUS the amount at such time of such
Lender's Revolving L/C Exposure PLUS the amount at such time of such Lender's
Swingline Exposure.
"REVOLVING CREDIT LENDER" shall mean a Lender with a
Revolving Credit Commitment.
"REVOLVING CREDIT MATURITY DATE" shall mean December 31,
2001.
"REVOLVING L/C COMMITMENT" shall mean, with respect to any
Fronting Bank, the commitment of such Fronting Bank to issue Letters of Credit
pursuant to Section 2.20(b).
"REVOLVING L/C DISBURSEMENT" shall mean a payment or
disbursement made by a Fronting Bank pursuant to a Revolving Letter of Credit.
"REVOLVING L/C EXPOSURE" shall mean at any time the sum of (a)
the aggregate undrawn amount of all outstanding Revolving Letters of Credit at
such time PLUS (b) the aggregate principal amount of all Revolving L/C
Disbursements that have not yet been reimbursed at such time. The Revolving L/C
Exposure of any
30
Revolving Credit Lender at any time shall mean its Applicable Percentage of the
aggregate Revolving L/C Exposure at such time.
"REVOLVING LETTER OF CREDIT" shall mean any letter of credit
issued pursuant to Section 2.20(b).
"REVOLVING LOANS" shall mean the revolving loans made by the
Lenders to the Credit Parties pursuant to Section 2.01(b)(i). Each Revolving
Loan shall be a Eurodollar Revolving Loan or an ABR Revolving Loan.
"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 Tranche C Facility Credit Agreement, the lenders under the Local Facility
Credit Agreements, the Fronting Banks, the Administrative Agent, the
administrative agent under the Tranche C Facility 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 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
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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 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
32
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 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.
33
"SUBSIDIARY BORROWER" shall mean each Subsidiary that (a) was
a party hereto immediately prior to the Effective Date, but only for purposes of
constituting an eligible account party under a Letter of Credit issued
hereunder, or (b) is a Wholly Owned Subsidiary of the Borrower designated as a
Subsidiary Borrower by the Borrower pursuant to Section 9.19 and approved by the
Administrative Agent that has not ceased to be a Subsidiary Borrower pursuant to
such Section; PROVIDED that any such Subsidiary Borrower described under this
clause (b) that is to be an account party under a Letter of Credit issued
hereunder must also be approved by the applicable Fronting Bank.
"SUBSIDIARY BORROWER AGREEMENT" shall mean a Subsidiary
Borrower Agreement substantially in the form of Exhibit L.
"SUBSIDIARY BORROWER TERMINATION" shall mean a Subsidiary
Borrower Termination substantially in the form of Exhibit M.
"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 H, 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.
"SWINGLINE EXPOSURE" shall mean at any time the aggregate
principal amount of all outstanding Swingline Loans at such time. The Swingline
Exposure of any Revolving Credit Lender at any time shall mean its Applicable
Percentage of the aggregate Swingline Exposure at such time.
"SWINGLINE LENDER" shall mean The Chase Manhattan Bank in
its capacity as Swingline Lender hereunder.
"SWINGLINE LOAN COMMITMENT" shall mean the commitment of the
Swingline Lender to make Swingline Loans as set forth in Section 2.01(c).
"SWINGLINE LOANS" shall mean the swingline loans made by the
Swingline Lender to the Borrower pursuant to Section 2.01(c).
"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
34
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).
"TERM BORROWING" shall mean a Borrowing comprised of Term
Loans.
"TERM COMMITMENTS" shall mean the Tranche A Term Loan
Commitments and the Tranche B Term Loan Commitments.
"TERM LOANS" shall mean the term loans made by the
Lenders to the Borrower as described in Section 2.01(a) and
Section 2.01(b)(ii). Each Term Loan shall be a Eurodollar Term Loan
or an ABR Term Loan.
"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.
"TOTAL REVOLVING CREDIT COMMITMENT" shall mean, at any
time, the aggregate amount of the Revolving Credit Commitments, as
in effect at such time. The Total Revolving Credit Commitment as of
the date hereof is $250,000,000.
"TOTAL TRANCHE A REIMBURSEMENT COMMITMENT" shall mean, at any
time, the aggregate amount of the Tranche A Reimbursement Commitments, as in
effect at such time. The Total Tranche A Reimbursement Commitment as of the date
hereof is $219,532,156.78.
"TRANCHE A EXPOSURE" shall mean at any time the aggregate
principal amount at such time of all Tranche A Reimbursement Loans PLUS the
amount at such time of the Tranche A L/C Exposure PLUS an amount equal to the
aggregate amounts of the Interest Components and Foreign Currency Components
held in reserve pursuant to Section 2.11(b)(ii) and not subsequently applied
pursuant to Section 2.11(b)(iv). The Tranche A Exposure of any Tranche A Lender
at any time shall mean its Applicable Percentage of the Tranche A Exposure at
such time.
35
"TRANCHE A L/C COMMITMENT" shall mean, with respect to each
Fronting Bank, the commitment of such Fronting Bank to issue Letters of Credit
pursuant to Section 2.20(a).
"TRANCHE A L/C DISBURSEMENT" shall mean a payment or
disbursement made by a Fronting Bank pursuant to a Tranche A Letter of Credit.
"TRANCHE A L/C EXPOSURE" shall mean at any time the sum of (a)
the aggregate undrawn amount of all outstanding Tranche A Letters of Credit at
such time PLUS (b) the aggregate principal amount of all Tranche A L/C
Disbursements that have not yet been reimbursed (by the making of Tranche A
Reimbursement Loans or otherwise) at such time. The Tranche A L/C Exposure of
any Tranche A Lender at any time shall mean its Applicable Percentage of the
aggregate Tranche A L/C Exposure at such time.
"TRANCHE A LENDER" shall mean a Lender with a Tranche A
Reimbursement Commitment, a Tranche A Term Loan Commitment or
Tranche A Exposure.
"TRANCHE A LETTER OF CREDIT" shall mean any letter of credit
issued as described in Section 2.20(a).
"TRANCHE A LOANS" shall mean Tranche A Term Loans and Tranche
A Reimbursement Loans.
"TRANCHE A MATURITY DATE" shall mean December 31, 2001.
"TRANCHE A REIMBURSEMENT BORROWING" shall mean a Borrowing
comprised of Tranche A Reimbursement Loans.
"TRANCHE A REIMBURSEMENT COMMITMENT" shall mean, with respect
to each Lender, the commitment, if any, of such Lender to make Tranche A
Reimbursement Loans and to acquire participations in Tranche A Letters of Credit
hereunder, expressed as an amount representing the maximum aggregate amount of
such Lender's Tranche A Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.09, (b) increased from time to
time pursuant to 2.11(b) and (c) reduced or increased from time to time pursuant
to Section 9.04. The initial amount of each Lender's Tranche A Reimbursement
Commitment is set forth on Schedule 2.01(a), or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Tranche A Reimbursement
Commitment, as applicable.
"TRANCHE A REIMBURSEMENT LOANS" shall mean the loans made by
the Lenders to the Borrower pursuant to Section 2.01(b)(ii). Each Tranche A
Reimbursement Loan shall be a Eurodollar Tranche A Reimbursement Loan or an ABR
Tranche A Reimbursement Loan.
"TRANCHE A TERM BORROWING" shall mean a Borrowing comprised of
Tranche A Term Loans.
"TRANCHE A TERM LOAN COMMITMENT" shall mean, with respect to
each Lender, the commitment pursuant to which such Lender made its Tranche A
Term Loan hereunder as set forth in Section 2.01(a)(i).
36
"TRANCHE A TERM LOANS" shall mean the term loans made by the
Lenders to the Borrower as described in Section 2.01(a)(i).
"TRANCHE B MATURITY DATE" shall mean December 31, 2002.
"TRANCHE B TERM BORROWING" shall mean a Borrowing comprised of
Tranche B Term Loans.
"TRANCHE B TERM LOAN COMMITMENT" shall mean, with respect to
each Lender, the commitment pursuant to which such Lender made its Tranche B
Term Loans hereunder as set forth in Section 2.01(a)(ii).
"TRANCHE B TERM LOANS" shall mean the term loans made by the
Lenders to the Borrower as described in Section 2.01(a)(ii).
"TRANCHE C FACILITY" shall mean the senior secured term loan
facility of the Borrower and UCAR S.A., a Wholly Owned Subsidiary of the
Borrower organized under the laws of Switzerland, in an aggregate principal
amount of $210,000,000.
"TRANCHE C FACILITY CREDIT AGREEMENT" shall mean the Credit
Agreement dated as of the date hereof among UCAR, the Borrower, UCAR S.A., the
lenders party thereto, 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.
"TRANCHE C TERM LOANS" shall mean the term loans made under
the Tranche C Facility Credit Agreement.
"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
37
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), 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 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.
"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, (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
38
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. (a) Subject to the terms
and conditions and relying upon the representations and warranties
of UCAR and the Borrower set forth herein as of the Second Closing
Date and in the Effectiveness Agreement, as applicable, each Lender,
severally and not jointly:
(i) made a Tranche A Term Loan to the Borrower on the Second
Closing Date, the outstanding principal amount of which as of the date
hereof is set forth opposite its name on Schedule 2.01(a); and
(ii) made a Tranche B Term Loan to the Borrower on the Second
Closing Date, the outstanding principal amount of which as of the date
hereof is set forth opposite its name on Schedule 2.01(a).
(b) 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:
(i) to make U.S. dollar-denominated Revolving Loans to the
Borrower and any other Credit Party from time to time during the
Revolving Availability Period, in an aggregate principal amount at any
time outstanding that will not result
39
in such Lender's Revolving Credit Exposure exceeding its
Revolving Credit Commitment; and
(ii) to make Tranche A Reimbursement Loans to the Borrower, as
contemplated herein, at any time and from time to time on or after the
Effective Date, and until the earlier of the Tranche A Maturity Date
and the termination of the Tranche A Reimbursement Commitment of such
Lender in accordance with the terms hereof, in an aggregate principal
amount at any time outstanding that will not result in such Lender's
Tranche A Exposure exceeding its Tranche A Reimbursement Commitment.
(c) (i) The Swingline Lender hereby agrees, subject to the
terms and conditions and relying upon the representations and warranties of UCAR
and the Borrower herein set forth, and subject to the limitations set forth
below with respect to the maximum amount of Swingline Loans permitted to be
outstanding from time to time, to make a portion of the Revolving Credit
Commitments available to the Borrower from time to time during the Revolving
Availability Period in an aggregate principal amount not to exceed the Swingline
Loan Commitment, by making Swingline Loans to the Borrower. Swingline Loans may
be made notwithstanding the fact that such Swingline Loans, when aggregated with
the Swingline Lender's outstanding Revolving Loans, Revolving L/C Exposure and
outstanding Swingline Loans, may exceed the Swingline Lender's Revolving Credit
Commitment. The original amount of the Swingline Loan Commitment is $10,000,000.
The Swingline Loan Commitment shall expire on the date the Revolving Credit
Commitments are terminated and all Swingline Loans and all other amounts owed
hereunder with respect to Swingline Loans shall be paid in full no later than
that date. The Borrower shall give the Swingline Lender telephonic, written or
telecopy notice (in the case of telephonic notice, such notice shall be promptly
confirmed in writing or by telecopy) not later than 12:00 (noon), New York City
time, on the day of a proposed borrowing. Such notice shall be delivered on a
Business Day, shall be irrevocable, shall refer to this Agreement and shall
specify the requested date (which shall be a Business Day) and amount of such
Swingline Loan. The Swingline Lender shall give the Administrative Agent, which
shall in turn give to each Lender, prompt written or telecopy advice of any
notice received from the Borrower pursuant to this paragraph.
(ii) In no event shall (A) the aggregate principal amount of
Swingline Loans outstanding at any time exceed the aggregate Swingline Loan
Commitment in effect at such time, (B) the Aggregate Revolving Credit Exposure
at any time exceed the Total Revolving Credit Commitment at such time or (C) the
aggregate Swingline Loan Commitment exceed at any time the Total Revolving
Credit Commitment in effect at such time. Swingline Loans may only be made as
ABR Loans.
(iii) With respect to any Swingline Loans which have not been
voluntarily prepaid by the Borrower, the Swingline Lender (by request to the
Administrative Agent) or Administrative Agent at any time may, and shall at any
time Swingline Loans in an amount not less than $5,000,000 shall have been
outstanding for more than 10 days, on one Business Day's notice, require each
Revolving Credit
40
Lender, including the Swingline Lender, and each Lender hereby agrees, subject
to the provisions of this Section 2.01(c), to make a Revolving Loan (which shall
be funded as an ABR loan) in an amount equal to such Lender's Applicable
Percentage of the amount of the Swingline Loans ("REFUNDED SWINGLINE LOANS")
outstanding on the date notice is given which the Swingline Lender requests the
Lenders to prepay; PROVIDED that so long as no Default or Event of Default shall
have occurred and be continuing, the Lenders shall not be required to make such
Revolving Loans if the aggregate principal amount of Swingline Loans outstanding
as of the most recent Tuesday (or the first Business Day occurring after any
such Tuesday if such Tuesday is not a Business Day) is less than $1,000,000.
(iv) In the case of Revolving Loans made by Lenders other than
the Swingline Lender under the immediately preceding paragraph (iii), each such
Lender shall make the amount of its Revolving Loan available to the
Administrative Agent, in same day funds, at the office of the Administrative
Agent located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, not later than 1:00 p.m.,
New York City time, on the Business Day next succeeding the date such notice is
given. The proceeds of such Revolving Loans shall be immediately delivered to
the Swingline Lender (and not to the Borrower) and applied to repay the Refunded
Swingline Loans. On the day such Revolving Loans are made, the Swingline
Lender's Applicable Percentage of the Refunded Swingline Loans shall be deemed
to be paid with the proceeds of a Revolving Loan made by the Swingline Lender
and such portion of the Swingline Loans deemed to be so paid shall no longer be
outstanding as Swingline Loans and shall be outstanding as Revolving Loans of
Lenders. The Borrower authorizes the Administrative Agent and the Swingline
Lender to charge the Borrower's account with the Administrative Agent (up to the
amount available in such account) in order to pay immediately to the Swingline
Lender the amount of such Refunded Swingline Loans to the extent amounts
received from Lenders, including amounts deemed to be received from the
Swingline Lender, are not sufficient to repay in full such Refunded Swingline
Loans. If any portion of any such amount paid (or deemed to be paid) to the
Swingline Lender should be recovered by or on behalf of the Borrower from the
Swingline Lender in bankruptcy, by assignment for the benefit of creditors or
otherwise, the loss of the amount so recovered shall be ratably shared among all
Lenders in the manner contemplated by Section 2.17. Subject to the compliance by
the Swingline Lender with the provisions of subparagraph (vii) below, each
Lender's obligation to make the Revolving Loans referred to in this paragraph
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or
other right which such Lender may have against the Swingline Lender, the
Borrower or any other person for any reason whatsoever; (B) the occurrence or
continuance of an Event of Default or a Default; (C) any adverse change in the
condition (financial or otherwise) of UCAR or any of its subsidiaries; (D) any
breach of this Agreement by UCAR, the Borrower, the other Credit Parties or any
other Lender; or (E) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. Nothing in this Section 2.01(c)
shall be deemed to relieve any Lender from its obligation to fulfill its
Commitments hereunder or to prejudice any rights that the Borrower may have
against any Lender as a result of any default by such Lender hereunder.
41
(v) A copy of each notice given by the Swingline Lender or the
Administrative Agent pursuant to this Section 2.01(c) shall be promptly
delivered by the Swingline Lender to the Administrative Agent and the Borrower.
Upon the making of a Revolving Loan by a Lender pursuant to this Section
2.01(c), the amount so funded shall no longer be owed in respect of Swingline
Loans.
(vi) If as a result of any bankruptcy or similar proceeding
Revolving Loans are not made pursuant to this Section 2.01(c) sufficient to
repay any amounts owed to the Swingline Lender as a result of a nonpayment of
outstanding Swingline Loans, each Lender agrees to purchase, and shall be deemed
to have purchased, a participation in such outstanding Swingline Loans in an
amount equal to its Applicable Percentage of the unpaid amount together with
accrued interest thereon. Upon one Business Day's notice from the Swingline
Lender, each Lender shall deliver to the Swingline Lender an amount equal to its
respective participation in same day funds at the office of the Swingline Lender
in New York, New York. In order to evidence such participation each Lender
agrees to enter into a participation agreement at the request of the Swingline
Lender in form and substance reasonably satisfactory to all parties. In the
event any Lender fails to make available to the Swingline Lender the amount of
such Lender's participation as provided in this Section 2.01(c), the Swingline
Lender shall be entitled to recover such amount on demand from such Lender
together with interest at the customary rate set by the Swingline Lender for
correction of errors among banks in New York City for one Business Day and
thereafter at the Alternate Base Rate.
(vii) Notwithstanding anything herein to the contrary, the
Swingline Lender shall not make any Swingline Loans at any time the Swingline
Lender is aware that the conditions to the making of such Swingline Loan set
forth in Section 4.02 have not been satisfied unless such conditions shall have
been waived in accordance with this Agreement.
(d) Within the limits set forth in paragraphs (b) and (c)
above, the Credit Parties may borrow, pay or prepay and reborrow Revolving Loans
and Swingline Loans. Amounts paid or prepaid in respect of Term Loans or Tranche
A Reimbursement Loans may not be reborrowed, except as contemplated by Section
2.11(b) with respect to Tranche A Reimbursement Loans.
SECTION 2.02. LOANS. (a) Each Loan (other than a Swingline
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 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).
The Loans comprising any Borrowing shall be in an aggregate principal amount
which is (i) an integral multiple of $1,000,000 (or, in the case of Swingline
Loans, $500,000) and not less than $5,000,000 (or, in the case of Swingline
Loans, $500,000), (ii) equal to the remaining available balance of the
applicable Class of Commitments or (iii) in the case of any Tranche A
Reimbursement Borrowing made pursuant to Section 2.11(b)(ii), an
42
amount not less than $2,000,000; PROVIDED that Revolving Loans used to pay
Refunded Swingline Loans may be in the amount of such Refunded Swingline Loans.
(b) Subject to Sections 2.08 and 2.14, each Borrowing shall be
comprised entirely of ABR Loans or (except in the case of Swingline Loans)
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).
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, (a) in the case of any Loan made to reimburse any
L/C Disbursement or to refund any Swingline Loan, apply the amounts so received
to effect such reimbursement or refund as contemplated by Section 2.20 or
Section 2.01(c) and (b) in the case of each Loan the proceeds of which are to be
received by a Credit Party, credit the amounts so received to an account
designated by such 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 applicable at the time to the Loans
comprising such Borrowing and
43
(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.
(e) Notwithstanding any other provision of this Agreement, a
Credit Party shall not be entitled to request any Tranche A Reimbursement
Borrowing or Revolving Credit Borrowing if the Interest Period requested with
respect thereto would end after the Tranche A Maturity Date or the Revolving
Credit Maturity Date,
as applicable.
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; PROVIDED, HOWEVER, that Borrowing Requests with
respect to Tranche A Reimbursement Borrowings being made to reimburse any
Tranche A L/C Disbursement may be delivered by no later than 12:00 (noon), New
York City time, on the date of such 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 Term
Borrowing, a Tranche A Reimbursement Borrowing or a Revolving Credit Borrowing
(and in the case of a Term Borrowing the Class of Commitments pursuant to which
the Loans comprising such Borrowing are to be made), 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) in the case of a Borrowing the
proceeds of which are to be received by the applicable Credit Party, 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 applicable 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.
(a) The outstanding principal balance of each Loan shall be payable
44
(i) in the case of a Revolving Loan or a Swingline Loan, on the Revolving Credit
Maturity Date and (ii) in the case of a Term Loan or Tranche A Reimbursement
Loan, 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.
(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. For the purpose of calculating any
Lender's Commitment Fee, the outstanding Swingline Loans during the period for
which such Lender's Commitment Fee is calculated shall be deemed to be zero. 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. For purposes
of calculating the Commitment Fee, the Tranche A Reimbursement Commitments shall
be deemed to be used to the extent there are outstanding Tranche A Reimbursement
Loans, Tranche A L/C Disbursements or Tranche A Letters of Credit and shall
otherwise be deemed to be unused.
45
(b) The applicable Credit Party agrees to pay (i) to each
Tranche A Lender and Revolving Credit Lender, through the Administrative Agent,
on the last day of March, June, September and December of each year and on the
date on which the Tranche A Reimbursement Commitments or the Revolving Credit
Commitments, as applicable, of all the Lenders shall have been terminated as
provided herein and no further Tranche A Letters of Credit or Revolving Letters
of Credit, as applicable, shall be outstanding, a fee (an "L/C PARTICIPATION
FEE") on such Lender's Applicable Percentage of the average daily aggregate
Tranche A L/C Exposure or Revolving L/C Exposure, as applicable (excluding in
each case the portion thereof attributable to unreimbursed L/C Disbursements),
during the preceding quarter (or shorter period commencing with the date of this
Agreement or ending with the Tranche A Maturity Date or the Revolving Credit
Maturity Date, as applicable, or the date on which the Tranche A Reimbursement
Commitments or the Revolving Credit Commitments, as applicable, shall be
terminated) at the rate per annum effective for each day in such period as set
forth on Schedule A and (ii) to each Fronting Bank, the fees separately agreed
upon by the Borrower and such Fronting Bank PLUS, in connection with the
issuance, amendment or transfer of any such Letter of Credit or any L/C
Disbursement thereunder, each applicable Fronting Bank's customary documentary
and processing charges (collectively, the "FRONTING BANK FEES"). All L/C
Participation Fees and Fronting Bank Fees that are payable on a per annum basis
shall be computed on the basis of the actual number of days elapsed in a year of
360 days.
(c) 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").
(d) 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, except that the Fronting Bank Fees shall be paid
directly to the applicable Fronting Banks. 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, 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, the ABR Margin applicable to the Class of Loans
comprising such ABR Borrowing and effective for such date as set forth on
Schedule A.
(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, the LIBOR Margin applicable to the Class of Loans comprising
such Eurodollar Borrowing and effective for such date as set forth on Schedule
A.
46
(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 other obligations (or the related
Commitments) under a particular Tranche or in respect of the Revolving Credit
Commitments or (ii) other overdue amounts owing to a Lender participating in no
more than one of the Tranches or the Revolving Credit Commitments, the rate that
would otherwise be applicable to ABR Loans of the applicable Class 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 ABR Borrowing. Each
determination by the Administrative Agent hereunder shall be conclusive absent
manifest error.
SECTION 2.09. TERMINATION AND REDUCTION OF COMMITMENTS. (a)
The Tranche A Reimbursement Commitments shall be automatically and permanently
terminated at 5:00 p.m., New York City time, on the Business Day next preceding
the Tranche A Maturity Date. The Revolving Credit Commitments shall be
automatically and permanently terminated at 5:00 p.m., New York City time, on
the Revolving Credit Maturity Date.
47
(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, any of the Tranche A Reimbursement Commitments or the Revolving Credit
Commitments; 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), (ii) the Total Tranche A Reimbursement
Commitment shall not be reduced to an amount that is less than the Tranche A
Exposure at the time and (iii) the Total Revolving Credit Commitment shall not
be reduced to an amount that is less than the Aggregate Revolving Credit
Exposure at the time.
(c) The Tranche A Reimbursement Commitments shall be
automatically and permanently reduced at 5:00 p.m., New York City time, on each
Installment Date by the portion of the amount set forth in Section 2.11(a) for
such Installment Date under the caption "Tranche A Term Loan Amount and Tranche
A Exposure" allocated to reduce the Tranche A Exposure pursuant to Section
2.11(c).
(d) The Tranche A Reimbursement Commitments shall be
automatically and permanently reduced by an amount equal to any amount applied
to reduce the Tranche A Exposure pursuant to paragraph (a), (d), (e) or (f) of
Section 2.12.
(e) The Revolving Credit Commitments shall be automatically
and permanently reduced by an amount equal to any amount applied under paragraph
(d), (e) or (f) of Section 2.12 to prepay Revolving Credit Borrowings (or that
would have been required to be so applied if Revolving Credit Borrowings equal
to such amount had been outstanding).
(f) 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 and, to the extent applicable, L/C Participation 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 Term,
Reimbursement or Revolving Borrowing into an ABR Term, Reimbursement or
Revolving 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 Term,
Reimbursement or Revolving Borrowing into a Eurodollar Term, Reimbursement or
Revolving Borrowing or to continue any Eurodollar Term, Reimbursement or
Revolving Borrowing as a Eurodollar Term, Reimbursement or Revolving 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 Term,
48
Reimbursement or Revolving 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 Term
Borrowing, Tranche A Reimbursement Borrowing or Revolving Borrowing, as
applicable;
(ii) if less than all the outstanding principal amount of any
Term Borrowing, Tranche A Reimbursement Borrowing or Revolving
Borrowing shall be converted or continued, then each resulting Term
Borrowing, Tranche A Reimbursement Borrowing or Revolving Borrowing, as
applicable, shall satisfy the limitations specified in Sections 2.02(a)
and (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 Term Loan, Tranche A
Reimbursement Loan or Revolving Loan, as applicable, of such Lender
resulting from such conversion and reducing the Term Loan, Tranche A
Reimbursement Loan or Revolving Loan, as applicable, (or portion
thereof) of such Lender being converted by an equivalent principal
amount; accrued interest on a Term Loan, Tranche A Reimbursement Loan
or Revolving Loan, as applicable, (or portion thereof) being converted
shall be paid by the applicable Credit Party at the time of conversion;
(iv) if any Eurodollar Term, Reimbursement or Revolving
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 Term Borrowing, Tranche A Reimbursement
Borrowing or Revolving Borrowing, as applicable, maturing or required
to be repaid in less than one month may not be converted into or
continued as a Eurodollar Term, Reimbursement or Revolving Borrowing;
(vi) any portion of a Eurodollar Term, Reimbursement or
Revolving Borrowing which Borrowing cannot be converted into or
continued as a Eurodollar Term, Reimbursement or Revolving 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 Term, Reimbursement or Revolving Borrowing, as
applicable; and
(vii) no Interest Period may be selected for any Eurodollar
Term or Reimbursement 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 Term or Reimbursement
Borrowings made pursuant to the same Commitments with Interest Periods
ending on or prior to such Installment Date and (B) the ABR Term or
Reimbursement Borrowings made pursuant to the same Commitments would
not be at least equal to
49
the principal amount of Term Borrowings and (based on the Borrower's
expected allocation on such Installment Date under Section 2.11(c))
Tranche A Reimbursement 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
Term Borrowing, Tranche A Reimbursement Borrowing or Revolving Borrowing that
the applicable Credit Party requests be converted or continued, (ii) whether
such Term Borrowing, Tranche A Reimbursement Borrowing or Revolving 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 Term Borrowing, Tranche A
Reimbursement Borrowing or Revolving 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 Term Borrowing, Tranche A Reimbursement Borrowing or
Revolving Borrowing. If the applicable Credit Party shall not have given notice
in accordance with this Section 2.10 to continue any Term Borrowing, Tranche A
Reimbursement Borrowing or Revolving Borrowing into a subsequent Interest Period
(and shall not otherwise have given notice in accordance with this Section 2.10
to convert such Term Borrowing, Tranche A Reimbursement Borrowing or Revolving
Borrowing), such Term Borrowing, Tranche A Reimbursement Borrowing or Revolving
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.
SECTION 2.11. REPAYMENT OF TERM BORROWINGS AND REDUCTION OF
THE TRANCHE A EXPOSURE; REALLOCATION OF THE TRANCHE A EXPOSURE. (a) The Term
Borrowings shall be payable as to principal and the Tranche A Exposure shall be
reduced 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, 1998, 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; PROVIDED
that (a) the $20,000,000 repayment of Tranche A Term Loans and/or reduction of
Tranche A Exposure and (b) the $400,000 repayment of Tranche B Term Loans, in
each case required to be effected on the December 31, 1998 Installment Date
shall instead be effected on the Effective Date and such early repayments and
reductions shall satisfy the requirement pursuant to this clause (a) to make
payments and effect reductions on the December 31, 1998 Installment Date:
50
TRANCHE A
TERM LOAN
AMOUNT AND TRANCHE B
ANNUAL PERIOD ENDING/ TRANCHE A TERM LOAN
INSTALLMENT DATE EXPOSURE AMOUNT
December 31, 1998 50,000,000 1,000,000
December 31, 1999 60,000,000 1,000,000
December 31, 2000 75,000,000 1,000,000
December 31, 2001 85,000,000 1,000,000
December 31, 2002 116,000,000
(b) The Borrower shall have the right at any time and from
time to time, but not more frequently than four times in any fiscal year (and
more frequently with the consent of the Administrative Agent, which consent
shall not be unreasonably withheld), upon at least 3 Business Days' prior
written or telecopy notice (or telephone notice promptly confirmed by written or
telecopy notice) to the Administrative Agent to:
(i) reduce the stated amount of any one or more Tranche A
Letters of Credit and apply all or any portion of the amount of such
reduction to increase or issue any other one or more Tranche A Letters
of Credit on a dollar for dollar basis;
(ii) reduce the stated amount of any Tranche A Letter of
Credit and request a Tranche A Reimbursement Borrowing in an amount not
in excess of the difference between the amount of such reduction and
the Interest Component or Foreign Currency Component, as applicable, in
respect thereof (which Interest Component or Foreign Currency
Component, as applicable, shall be held in reserve and be available for
any reallocation pursuant to clause (iv) below);
(iii) prepay any portion of any Tranche A Term Borrowing or
Tranche A Reimbursement Borrowing and apply all or any portion of such
prepayment to increase or issue any Tranche A Letter of Credit; or
(iv) in connection with any transaction referred to in (iii)
above, apply a portion of any Interest Component or Foreign Currency
Component held in reserve pursuant to clause (ii) above to increase any
Tranche A Letter of Credit increased as part of such transaction;
PROVIDED, HOWEVER, that (A) after giving effect to any such reallocation, (x)
each Tranche A Letter of Credit shall have an unused stated amount not less than
the sum of the principal amount (or the Dollar Equivalent thereof, as
applicable) of the portion of the Local Facility supported by such Tranche A
Letter of Credit and the Interest Component or Foreign Currency Component, as
applicable, in respect of such principal amount (or the Dollar Equivalent
thereof, as applicable) and (y) the Tranche A Exposure shall not exceed the
Total Tranche A Reimbursement Commitment; (B) the Administrative Agent shall not
have advised the Borrower that, in its reasonable judgment, the amount of any
affected Local Facility after giving effect to any such reallocation would
exceed the debt capacity of the applicable Credit Party; and (C) the portion of
the
51
Tranche A L/C Exposure allocated to any Local Facility or Facilities extended to
the Borrower's Mexican subsidiaries shall not exceed $50,000,000 in the
aggregate outstanding at any time. In the event of any prepayment of a Tranche A
Term Borrowing under clause (iii) above, the aggregate Tranche A Reimbursement
Commitments shall be increased on a dollar for dollar basis by the aggregate
amount of such prepayment and the Tranche A Reimbursement Commitment of each
Tranche A Lender shall be increased by its Applicable Percentage thereof. No
issuance or increase of a Tranche A Letter of Credit or making of a Tranche A
Reimbursement Loan pursuant to this paragraph (b) shall constitute a "Credit
Event" for any purpose hereunder.
(c) Except as set forth in paragraph (b) above or in paragraph
(d) below, each prepayment of principal of the Term Borrowings and reduction of
the Tranche A Exposure pursuant to Section 2.12 shall be applied to (i) the
Tranche A Term Borrowings and the Tranche A Exposure and (ii) the Tranche B Term
Borrowings ratably in accordance with the respective 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 applied to the Tranche A Term Borrowings and the Tranche
A Exposure under this Section 2.11 shall be allocated as among Tranche A Term
Loans, Tranche A Reimbursement Loans, Tranche A L/C Disbursements and individual
Tranche A Letters of Credit as specified to the Administrative Agent by the
Borrower not less than three Business Days prior to the applicable Installment
Date or other date of prepayment or reduction by written or telecopy notice (or
telephone notice promptly confirmed by written or telecopy notice). To the
extent not previously paid or reduced, (i) all Tranche A Term Borrowings and all
Tranche A Reimbursement Borrowings shall be due and payable and the Tranche A
Exposure shall be reduced to zero on the Tranche A Maturity Date, and (ii) all
Tranche B Term Borrowings shall be due and payable on the Tranche B 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.
(d) Notwithstanding the provisions of paragraph (c) above, the
first $15,000,000 in aggregate optional or mandatory prepayments after the
Effective Date that would otherwise be made pursuant to Section 2.12(a) or (e)
to Lenders holding Tranche B Term Loans shall be applied, until the Tranche A
Term Borrowings shall have been paid in full and the Tranche A Exposure reduced
to zero, to prepay Tranche A Term Borrowings and to reduce the Tranche A
Exposure and shall reduce scheduled payments and reductions in respect of such
Borrowings and the Tranche A Exposure under Section 2.11(a) after the date of
any such prepayment or reduction in the scheduled order of maturity; PROVIDED
that reductions to the Tranche A Exposure in respect of prepayments made under a
Local Facility pursuant to the first proviso of Section 2.12(d) shall reduce the
amount subject to this paragraph (d) on a dollar for dollar basis by the amount
of each such reduction that would otherwise have been applied to prepayment of
Tranche B Term Loans.
(e) Each reference in this Section 2.11 to the reduction of
the Tranche A Exposure shall refer (and be limited) to any combination of (i)
the prepayment of Tranche A Reimbursement Loans,
52
(ii) the repayment of Tranche A L/C Disbursements, (iii) the prepayment of
Indebtedness under any Local Facility and the causing of the related Tranche A
Letter of Credit to be reduced by the amount that will result in the stated
amount thereof equaling the sum of the principal amount of the Local Facility
and the Interest Component or Foreign Currency Component, as applicable, in
respect thereof and (iv) the reduction of the Foreign Currency Component, if
any, held in reserve pursuant to Section 2.11(b)(ii).
SECTION 2.12. PREPAYMENT. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing and to reduce
the Tranche A Exposure, 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, and, in the case of a
reduction in the Tranche A Exposure, the applicable Fronting Banks, before 11:00
a.m., New York City time; PROVIDED, HOWEVER, that (i) each partial prepayment or
reduction (other than of a Swingline Loan) 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 Tranche or Local Facility),
(ii) each prepayment of Term Borrowings or reduction of the Tranche A Exposure
shall be applied as set forth in paragraphs (c) and (d) of Section 2.11 and
(iii) if the Borrower shall prepay any Tranche B Term Borrowing hereunder prior
to January 1, 2000, it shall pay to the Administrative Agent, for the account of
the Lenders of the applicable Class, a premium equal to 1% of the amount so
prepaid.
(b) In the event of any termination of the Revolving Credit
Commitments, the Credit Parties shall on the date of such termination repay or
prepay all its outstanding Swingline Loans and Revolving Credit Borrowings,
reduce the Revolving L/C Exposure to zero and cause all Revolving Letters of
Credit to be canceled and returned to the Fronting Banks. In the event of any
partial reduction of the Revolving Credit Commitments, then (i) at or prior to
the effective date of such reduction, the Administrative Agent shall notify the
Borrower, the Swingline Lender and the Revolving Credit Lenders of the Aggregate
Revolving Credit Exposure and (ii) if the Aggregate Revolving Credit Exposure
would exceed the Total Revolving Credit Commitment after giving effect to such
reduction, then the Credit Parties shall, on the date of such reduction, repay
or prepay Swingline Loans and Revolving Credit Borrowings, or reduce the
Revolving L/C Exposure, in an aggregate amount sufficient to eliminate such
excess. Notwithstanding the foregoing, on the date of any termination or
reduction of the Revolving Credit Commitments pursuant to Section 2.09, the
Borrower shall pay or prepay so much of, FIRST, the Swingline Loans and, SECOND,
the Revolving Credit Borrowings as shall be necessary in order that the
Aggregate Revolving Credit Exposure will not exceed the Total Revolving Credit
Commitment after giving effect to such termination or reduction.
(c) In the event of any termination of the Tranche A
Reimbursement Commitments, the Borrower shall on the date of such termination
repay or prepay all its outstanding Tranche A Reimbursement Borrowings, reduce
the remaining Tranche A Exposure to zero and cause all Tranche A Letters of
Credit to be canceled and returned to the Fronting Banks. In the event of any
partial
53
reduction of the Tranche A Reimbursement Commitments, then (i) at or prior to
the effective date of such reduction, the Administrative Agent shall notify the
Borrower and the Tranche A Lenders of the Tranche A Exposure and (ii) if the
Tranche A Exposure would exceed the Total Tranche A Reimbursement Commitment
after giving effect to such reduction, then the Borrower shall, on the date of
such reduction, repay or prepay Tranche A Reimbursement Borrowings or otherwise
reduce the Tranche A Exposure in an aggregate amount sufficient to eliminate
such excess.
(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 under the Tranche C Facility Credit Agreement and (ii) the amount of such
Net Proceeds multiplied by a fraction the numerator of which is the aggregate
principal amount of loans outstanding under the Tranche C Facility 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 and (B) outstanding loans under the Tranche C Facility
Credit Agreement) promptly upon receipt thereof by UCAR, the Borrower or any
Subsidiary to prepay Term Borrowings and to reduce the Tranche A Exposure (and,
after the Term Loans and the loans under the Tranche C Facility Credit Agreement
have been paid in full and the Tranche A Exposure has been reduced to zero, to
reduce the Revolving Credit Exposure), PROVIDED that the requirements of this
Section 2.12(d) may instead, at the option of the Borrower, be satisfied in
respect of Net Proceeds realized in connection with the disposition of any
property of any Subsidiary that is a borrower under a Local Facility Credit
Agreement (or any of its subsidiaries) by prepaying Indebtedness under such
Local Facility and reducing the stated amount of the applicable Tranche A Letter
of Credit by the amount that will result in the stated amount thereof equaling
the sum of the principal amount of the Local Facility and the Interest Component
or Foreign Currency Component, as applicable, in respect thereof; PROVIDED,
FURTHER that the aggregate prepayments on and after the Effective Date that
would have been made under this paragraph (d) to Lenders holding Tranche B Term
Loans but for the immediately preceding proviso shall not exceed $7,500,000.
(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 Term 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 under the Tranche C Facility Credit Agreement and (ii) such Excess Cash
Flow Prepayment Amount multiplied by a fraction the numerator of which is the
aggregate principal amount of the loans outstanding under the Tranche C Facility
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 and (y) loans outstanding under the Tranche C
Facility
54
Credit Agreement to prepay Term Borrowings and to reduce the Tranche A Exposure
(and, after the Term Loans and the loans under the Tranche C Facility Credit
Agreement have been paid in full and the Tranche A Exposure has been reduced to
zero, to reduce the Revolving Credit Exposure). 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 loans pursuant to
Section 2.12 of the Tranche C Facility Credit Agreement, the Borrower shall
prepay the Term Loans and/or reduce the Tranche A Exposure in an aggregate
amount bearing the same proportion to the aggregate amount of Term Loans
(excluding Tranche A Reimbursement Loans) and Tranche A Exposure outstanding
hereunder as the amount of loans prepaid pursuant to Section 2.12 of the Tranche
C Facility Credit Agreement bears to the aggregate amount of loans outstanding
under the Tranche C Facility Credit Agreement.
(g) Each reference in this Section 2.12 to the reduction of
the Tranche A Exposure shall refer (and be limited) to any combination of (i)
the prepayment of Tranche A Reimbursement Loans, (ii) the repayment of Tranche A
L/C Disbursements, (iii) the prepayment of Indebtedness under any Local Facility
and the causing of the related Tranche A Letter of Credit to be reduced by the
amount that will result in the stated amount thereof equaling the sum of the
principal amount of the Local Facility and the Interest Component or the Foreign
Currency Component, as applicable, in respect thereof and (iv) the reduction of
the Foreign Currency Component, if any, held in reserve pursuant to Section
2.11(b)(ii). Each notice of prepayment or reduction pursuant to this Section
2.12 shall specify the prepayment date and the principal amount of each
Borrowing (or portion thereof) to be prepaid and the portion of the Tranche A
Exposure to be reduced, shall be irrevocable and shall commit the applicable
Credit Party to 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 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 the ABR Loans
outstanding under the Tranches 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
55
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.
(i) Notwithstanding anything to the contrary contained herein,
the borrower under the Local Facility Credit Agreement in Canada shall not be
required to prepay more than 25% of the principal amount of the Indebtedness
thereunder prior to the fifth anniversary of the Original Closing Date, although
such borrower may, at its election, prepay any amounts thereunder.
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 or any
Fronting Bank in respect of any Letter of Credit or 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 or such Fronting Bank by the jurisdiction in
which such Lender or such Fronting Bank has its principal office or by any
political subdivision or taxing 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 or, in the case of the Letters of Credit,
participated in by such Lender (except any such reserve requirement which is
reflected in the Adjusted LIBO Rate) or such Fronting Bank or shall impose on
such Lender or such Fronting Bank or the interbank eurodollar market any other
condition affecting this Agreement, any Letter of Credit (or any participation
with respect thereto), the Letter of Credit Exposure, the Letter of Credit
Commitment or any Eurodollar Loans of such Lender or such Fronting Bank, and the
result of any of the foregoing shall be to increase the cost to such Lender or
such Fronting Bank of making or maintaining its Letter of Credit Exposure, its
Letter of Credit Commitment or any Eurodollar Loan (or, in the case of such
Fronting Bank, of making any payment under any Letter of Credit) or to reduce
the amount of any sum
56
received or receivable by such Lender or such Fronting Bank hereunder (whether
of principal, interest or otherwise) by an amount deemed by such Lender or such
Fronting Bank to be material, then from time to time the Borrower or the
applicable Credit Party will pay to such Lender or such Fronting Bank upon
demand such additional amount or amounts as will compensate such Lender or such
Fronting Bank for such additional costs incurred or reduction suffered.
(b) If any Lender or Fronting Bank 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 Fronting Bank or any Lender's or Fronting
Bank'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 or such Fronting Bank's
capital or on the capital of such Lender's or such Fronting Bank'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 Fronting Bank or such
Lender's or such Fronting Bank's holding company would have achieved but for
such adoption, change or compliance (taking into consideration such Lender's or
such Fronting Bank's policies and the policies of such Lender's or such Fronting
Bank's holding company with respect to capital adequacy) by an amount deemed by
such Lender or such Fronting Bank to be material, then from time to time the
Borrower or the applicable Credit Party shall pay to such Lender or such
Fronting Bank upon demand such additional amount or amounts as will compensate
such Lender or such Fronting Bank or such Lender's or such Fronting Bank's
holding company for any such reduction suffered.
(c) A certificate of each Lender or Fronting Bank setting
forth such amount or amounts as shall be necessary to compensate such Lender or
such Fronting Bank 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 or Fronting Bank 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 or Fronting Bank 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 or such Fronting Bank to assign, at par plus
accrued interest and fees, without recourse (in accordance with Section 9.04)
all its interests, rights and obligations hereunder (including, in the case of a
Lender, all of its Commitments and the Loans at the time owing to it and
participations in Letters of Credit and Swingline Loans held by it and its
obligations to acquire such participations) to a financial institution specified
by the Borrower; PROVIDED that
57
(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),
the Swingline Lender and each applicable Fronting Bank, as applicable, to such
assignment, (iii) the Borrower or the applicable Credit Party shall have paid to
the assigning Lender or Fronting Bank all monies accrued and owing hereunder to
it (including pursuant to this Section 2.13) and (iv) in the case of a required
assignment by a Fronting Bank, all outstanding Letters of Credit issued by such
Fronting Bank shall be canceled and returned to such Fronting Bank.
(e) Promptly after any Lender or Fronting Bank has determined,
in its sole judgment, that it will make a request for increased compensation
pursuant to this Section 2.13, such Lender or such Fronting Bank will notify the
Borrower thereof. Failure on the part of any Lender or Fronting Bank 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 or
such Fronting Bank'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 or Fronting Bank
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 or such Fronting Bank 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 and Fronting Bank 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
58
(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 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
59
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 reimbursement of L/C Disbursements, each payment of the Commitment Fees or
L/C Participation Fees, each reduction of the Tranche A Letters of Credit, each
reduction of the Term Commitments, the Tranche A Reimbursement Commitments or
the Revolving Credit 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 (except in the case of Swingline Loans) 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 or
participations in L/C Disbursements, as applicable). Each Lender agrees that in
computing such Lender's portion of any Borrowing or L/C Disbursement, the
Administrative Agent may, in its discretion, round each Lender's percentage of
such Borrowing or L/C Disbursement, 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 that if
it shall, through the exercise of a right of banker's lien, setoff or
counterclaim against the Borrower or another Credit Party, or pursuant to a
secured claim under Section 506 of Title 11 of the United States Code or other
security or interest arising from, or in lieu of, such secured claim, received
by such Lender under any applicable bankruptcy, insolvency or other similar law
or otherwise, or by any other means (including from any realization of
collateral pledged under any Local Facility Loan Document as a result of the
subrogation provisions contained in any Local Facility Credit Agreement), obtain
payment (voluntary or involuntary) in respect of any Loan or Letter of Credit
Exposure as a result of which the unpaid principal or stated portion of its
Loans or Letter of Credit Exposure made or acquired pursuant to any Commitment
(or, after acceleration of the Loans pursuant to Article VII, applicable to any
Loan or Letter of Credit Exposure made or acquired pursuant to all the
Commitments) shall be proportionately less than the unpaid principal portion of
the Loans or Letter of Credit Exposure of any other Lender made or acquired
pursuant to such Commitments (or, after acceleration of the Loans pursuant to
Article VII, applicable to any Loan or Letter of Credit Exposure made or
acquired pursuant to all the Commitments), it shall be deemed simultaneously to
have purchased from such other Lender at face value, and shall promptly pay to
such other Lender the purchase price for, an interest in the Loans or Letter of
Credit Exposure of such other Lender, so that the aggregate unpaid principal
amount of the Loans or Letter of Credit Exposure and interests in Loans or
Letter of Credit Exposure held by each such Lender under such Commitment or
Commitments shall be in the same proportion to the aggregate unpaid principal
amount of all Loans or Letter of Credit Exposure then outstanding under such
Commitment or Commitments as the principal amount of its Loans or Letter of
Credit Exposure under such Commitment or Commitments prior to such exercise of
banker's lien, setoff or counterclaim or other event was to the principal amount
of all such Loans or Letter of
60
Credit Exposure outstanding under such Commitment or Commitments prior to such
exercise of banker's lien, setoff or counterclaim or other event; PROVIDED,
HOWEVER, that, if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.17 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. Each of the Borrower and the other Credit
Parties expressly consents to the foregoing arrangements and agrees that any
Lender holding an interest in a Loan or Letter of Credit Exposure deemed to have
been so purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrower or such
Credit Party to such Lender by reason thereof as fully as if such Lender had
made a Loan directly to, or had Letter of Credit Exposure directly for the
benefit of, the Borrower or such Credit Party in the amount of such interest.
Solely for purposes of this Section 2.17, all references to Loans shall include
the loans under the Tranche C Facility Credit Agreement and all holders of such
loans shall be third party beneficiaries of this Section 2.17.
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 L/C Disbursement 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 Agent
Bank Services, in immediately available funds, for credit to The Chase Manhattan
Bank, ABA Number ▇▇▇▇▇▇▇▇, Account Number ▇▇▇-▇-▇▇▇▇▇. The Administrative Agent
shall distribute such payments to the Lenders and the Fronting Banks promptly
upon receipt in like funds as received.
(b) Whenever any payment (including principal of or interest
on any Borrowing or L/C Disbursement 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, the Fronting Banks 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 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, each Fronting Bank
and the Administrative Agent, taxes that would not be imposed but for a
connection between such Lender, such Fronting Bank
61
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, such Fronting Bank 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, each Fronting Bank 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, such
Fronting Bank 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, any Fronting Bank
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 or
a Fronting Bank 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,
any Fronting Bank 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, such
Fronting Bank 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, any Fronting Bank 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, such Fronting Bank
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 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
62
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, each Fronting Bank 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, such Fronting Bank 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, a Fronting Bank 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, Fronting Bank 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, any Fronting Bank or the Administrative
Agent, as the case may be, makes written demand therefor. If a Lender, a
Fronting Bank 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, any Fronting Bank or the
Administrative Agent receives a refund in respect of any Taxes or Other Taxes
for which such Lender, such Fronting Bank 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, such
Fronting Bank or the Administrative Agent, agrees to return such refund (plus
any penalties, interest or other charges required to be paid) to such Lender,
such Fronting Bank or the Administrative Agent in the event such Lender, such
Fronting Bank 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, any Fronting Bank 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.
(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
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and interest hereunder, the expiration of the Letters of Credit and
the termination of the Commitments.
(f) In the case of any Borrowing by, or L/C Disbursement for
the benefit of, the Borrower or a Subsidiary Borrower organized under the laws
of the United States (a "DOMESTIC SUBSIDIARY BORROWER"), this paragraph (f)
shall apply. Each Lender, each Fronting Bank 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 Fronting Bank or 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 Fronting Bank, 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 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
64
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 or the Letters of Credit to or for
any Fronting Bank or 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 or a
Domestic Subsidiary Borrower is required to pay additional amounts pursuant to
this Section 2.19, this paragraph (g) shall apply. Each Lender, each Fronting
Bank 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 Fronting Bank, 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, such Fronting
Bank or the Administrative Agent, such form or document shall not be otherwise
disadvantageous to such Lender, such Fronting Bank or the Administrative Agent.
(h) Any Fronting Bank and 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 Fronting Bank or such Lender, be
otherwise disadvantageous to such Fronting Bank or such Lender.
(i) Nothing contained in this Section 2.19 shall require any
Lender or Fronting Bank or the Administrative Agent to make available any of its
tax returns (or any other information that it deems to be confidential or
proprietary).
SECTION 2.20. LETTERS OF CREDIT. (a) TRANCHE A LETTERS
OF CREDIT. (i) GENERAL. Subject to the terms and conditions and
relying upon the representations and warranties of UCAR and the
Borrower set forth herein and in the Effectiveness Agreement, each
65
Fronting Bank having a Tranche A L/C Commitment on the Second Closing Date
issued the Tranche A Letters of Credit set forth opposite its name on Schedule
2.20, appropriately completed, in each case for the account of the applicable
Credit Party specified on Schedule 2.20. The Borrower may thereafter request the
issuance of Tranche A Letters of Credit from any Fronting Bank having a Tranche
A L/C Commitment, appropriately completed, for the account of the Borrower or
another specified Credit Party, at any time and from time to time while the
Tranche A Reimbursement Commitments remain in effect, but only to give effect to
any reallocation of the Tranche A Exposure permitted under Section 2.11(b) or
any reduction of the stated amount of any Tranche A Letter of Credit pursuant to
this Agreement or in connection with any permitted amendment, renewal or
extension of an existing Tranche A Letter of Credit, including in connection
with the conversion of Dollar borrowings under any Local Facility to borrowings
in another currency. This Section 2.20(a) shall not be construed to impose an
obligation upon any Fronting Bank to issue any Tranche A Letter of Credit that
is inconsistent with the terms and conditions of this Agreement or that would
result in such Fronting Bank having Tranche A Letters of Credit in an aggregate
amount at any time outstanding in excess of such Fronting Bank's Tranche A L/C
Commitment. Each Tranche A Letter of Credit shall be in substantially the form
of Exhibit I with such changes therefrom as shall in the reasonable judgment of
the Administrative Agent and the applicable Fronting Bank be necessary or
advisable.
(ii) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION;
CERTAIN CONDITIONS. In order to request the issuance of a Tranche A Letter of
Credit after the Effective Date (or to request that a Fronting Bank amend, renew
or extend an existing Tranche A Letter of Credit), the Borrower shall hand
deliver or telecopy to the applicable Fronting Bank and the Administrative Agent
(reasonably in advance of the requested date of issuance, amendment, renewal or
extension) a notice requesting the issuance of such Tranche A Letter of Credit,
or identifying any Tranche A Letter of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment, renewal or extension,
the date on which such Tranche A Letter of Credit is to expire (which shall
comply with paragraph (iii) below), the amount of such Tranche A Letter of
Credit, the name and address of the account party (which shall be the Borrower
or another Credit Party and shall, in the case of any Letter of Credit issued
for the benefit of a Subsidiary, unless resulting in increased costs, be such
Subsidiary) and the beneficiary thereof and such other information as shall be
necessary to prepare such Tranche A Letter of Credit or grant such issuance,
amendment, renewal or extension. Following receipt of such notice and prior to
the issuance, amendment, renewal or extension of any Tranche A Letter of Credit,
the Administrative Agent shall notify the Borrower and the applicable Fronting
Bank of the amount of the Tranche A Exposure after giving effect to (A) the
issuance, amendment, renewal or extension of such Tranche A Letter of Credit,
(B) the issuance or expiration of any other Tranche A Letter of Credit that is
to be issued or will expire prior to the requested date of issuance, amendment,
renewal or extension of such Tranche A Letter of Credit and (C) the borrowing or
repayment of any Tranche A Reimbursement Borrowings that (based upon notices
delivered to the Administrative Agent by the Borrower) are to be borrowed or
repaid
66
on or prior to the requested date of issuance of such Tranche A Letter of
Credit. Each Tranche A Letter of Credit shall be issued, amended, renewed or
extended only if, and upon issuance, amendment, renewal or extension of each
Tranche A Letter of Credit the Borrower shall be deemed to represent and warrant
that, after giving effect to such issuance, amendment, renewal or extension the
Tranche A Exposure shall not have been increased (except as contemplated by
Section 2.11(b)(iii)) and each applicable condition set forth in Section 2.11(b)
shall have been satisfied.
(iii) EXPIRATION DATE. Each Tranche A Letter of Credit shall
expire at the close of business on a date no later than the Business Day
immediately preceding the Tranche A Maturity Date. No Tranche A Letter of Credit
shall be issued (nor shall any Tranche A Letter of Credit be amended, renewed or
extended) if (except as contemplated by Section 2.11(b)(iii)) it would result in
the Tranche A Exposure exceeding the Total Tranche A Reimbursement Commitment in
effect at such time.
(iv) PARTICIPATIONS. By the issuance of a Tranche A Letter of
Credit and without any further action on the part of the Fronting Bank issuing
such Letter of Credit or the Lenders, such Fronting Bank will grant to each
Tranche A Lender, and each such Lender will acquire from such Fronting Bank, a
participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit, effective upon the issuance of such Letter of Credit. In consideration
and in furtherance of the foregoing, each Tranche A Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
such Fronting Bank, such Lender's Applicable Percentage of each Tranche A L/C
Disbursement made by such Fronting Bank under such Letter of Credit and not
reimbursed by the Borrower or the relevant Credit Party (or, if applicable,
another party pursuant to its obligations under any other Loan Document) on or
before the next Business Day as provided in paragraph (v) below. Each Tranche A
Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Tranche A Letters of Credit is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or an Event of Default,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(v) REIMBURSEMENT. If a Fronting Bank shall make any Tranche A
L/C Disbursement in respect of a Tranche A Letter of Credit, the Borrower or the
Credit Party that is account party under such Letter of Credit shall pay
(including by the borrowing of Tranche A Reimbursement Loans) to the
Administrative Agent, on or before the Business Day immediately following the
date of such Tranche A L/C Disbursement, an amount equal to such Tranche A L/C
Disbursement. If the Borrower or such Credit Party shall fail to pay any amount
required to be paid under this paragraph on or before such Business Day (or to
cause payment thereof when due pursuant to a Tranche A Reimbursement Borrowing),
then (A) such unpaid amount shall bear interest, for each day from and including
the day of such Tranche A L/C Disbursement to but excluding the date of payment,
at a rate per annum equal to the interest rate applicable to overdue ABR Loans
that are Tranche A Reimbursement Loans pursuant to
67
Section 2.07 (PROVIDED that the 2.00% margin applicable to overdue Loans shall
not be applicable until the first Business Day after the Borrower receives
notice from the Administrative Agent that such L/C Disbursement has been or will
be made), (B) the Administrative Agent shall notify such Fronting Bank and the
Tranche A Lenders thereof, (C) each Tranche A Lender shall comply with its
obligation under paragraph (iv) above by wire transfer of immediately available
funds, in the same manner as provided in Section 2.02(c) with respect to Loans
made by such Lender (and Section 2.02(d) shall apply, MUTATIS MUTANDIS, to the
payment obligations of the Tranche A Lenders) and (D) the Administrative Agent
shall promptly pay to such Fronting Bank amounts so received by it from the
Tranche A Lenders. The Administrative Agent shall promptly pay to each
applicable Fronting Bank on a pro rata basis with respect to outstanding Tranche
A L/C Disbursements any amounts received by it from the Borrower or any other
Credit Party pursuant to this paragraph prior to the time that any Tranche A
Lender makes any payment pursuant to paragraph (iv) above; any such amounts
received by the Administrative Agent thereafter shall be promptly remitted by
the Administrative Agent to the Tranche A Lenders that shall have made such
payments and to such Fronting Bank, as their interests may appear.
(b) REVOLVING LETTERS OF CREDIT. (i) GENERAL. The Borrower may
request the issuance of a Revolving Letter of Credit, in a form reasonably
acceptable to the Administrative Agent and the relevant Fronting Bank,
appropriately completed, for the account of the Borrower or, at the Borrower's
option, another specified Credit Party, at any time and from time to time while
the Revolving Credit Commitments remain in effect. This Section 2.20(b) shall
not be construed to impose an obligation upon any Fronting Bank to issue any
Revolving Letter of Credit that is inconsistent with the terms and conditions of
this Agreement or that would result in (A) its having Revolving Letters of
Credit in an aggregate stated amount at any time outstanding in excess of such
Fronting Bank's Revolving L/C Commitment set forth opposite its name on Schedule
2.20 or (B) there existing Revolving Letters of Credit in an aggregate stated
amount at any time in excess of $200,000,000.
(ii) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION;
CERTAIN CONDITIONS. In order to request the issuance of a Revolving Letter of
Credit (or to request that a Fronting Bank amend, renew or extend an existing
Revolving Letter of Credit), the Borrower shall hand deliver or telecopy to the
applicable Fronting Bank and the Administrative Agent (reasonably in advance of
the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of such Revolving Letter of Credit, or identifying any
Revolving Letter of Credit to be amended, renewed or extended, and specifying
the date of issuance, amendment, renewal or extension, the date on which such
Revolving Letter of Credit is to expire (which shall comply with paragraph (iii)
below), the amount of such Revolving Letter of Credit to be issued, amended,
renewed or extended, the name and address of the account party (which shall be
the Borrower or another Credit Party, as selected by the Borrower) and the
beneficiary thereof and such other information as shall be necessary to prepare
such Revolving Letter of Credit or grant such issuance, amendment, renewal or
extension. Following receipt of such notice and prior to the issuance,
amendment, renewal or
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extension of any Revolving Letter of Credit, the Administrative Agent shall
notify the Borrower and the applicable Fronting Bank of the amount of the
Aggregate Revolving Credit Exposure and Revolving L/C Exposure after giving
effect to (A) the issuance, amendment, renewal or extension of such Revolving
Letter of Credit, (B) the issuance or expiration of any other Revolving Letter
of Credit that is to be issued or will expire prior to the requested date of
issuance of such Revolving Letter of Credit and (C) the borrowing or repayment
of any Revolving Loans and Swingline Loans that (based upon notices delivered to
the Administrative Agent by the Borrower) are to be borrowed or repaid prior to
the requested date of issuance of such Revolving Letters of Credit. Each
Revolving Letter of Credit shall be issued, amended, renewed or extended subject
to the terms and conditions and relying on the representations and warranties of
UCAR and the Borrower set forth herein, and in any case only if, and upon
issuance, amendment, renewal or extension of each Revolving Letter of Credit the
Borrower shall be deemed to represent and warrant that, after giving effect to
such issuance, amendment, renewal or extension the Aggregate Revolving Credit
Exposure shall not exceed the Total Revolving Credit Commitment in effect at
such time.
(iii) EXPIRATION DATE. Each Revolving Letter of Credit shall
expire at the close of business on the earlier of the date one year after the
date of the issuance of such Revolving Letter of Credit and the date that is
three Business Days prior to the Revolving Credit Maturity Date, unless such
Revolving Letter of Credit expires by its terms on an earlier date; PROVIDED
that a Revolving Letter of Credit shall not be issued (nor shall a Revolving
Letter of Credit be amended, renewed or extended) that would result in the
Aggregate Revolving Credit Exposure exceeding the Total Revolving Credit
Commitment in effect at such time. Compliance with the foregoing proviso shall
be determined based upon the assumption that (A) each Revolving Letter of Credit
remains outstanding and undrawn in accordance with its terms until its
expiration date (taking into account any rights of renewal or extension that do
not require written notice by or consent of any Fronting Bank, in its sole
discretion, in order to effect such renewal or extension) and (B) the Revolving
Credit Commitments will not be reduced pursuant to Section 2.09.
(iv) PARTICIPATIONS. By the issuance of a Revolving Letter of
Credit and without any further action on the part of the Fronting Bank issuing
such Letter of Credit or the Revolving Credit Lenders, such Fronting Bank will
grant to each Revolving Credit Lender, and each such Lender will acquire from
such Fronting Bank, a participation in such Revolving Letter of Credit equal to
such Revolving Credit Lender's Applicable Percentage of the aggregate amount
available to be drawn under such Letter of Credit, effective upon the issuance
of such Revolving Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Credit Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of such Fronting
Bank, such Revolving Credit Lender's Applicable Percentage of each Revolving L/C
Disbursement made by such Fronting Bank under such Letter of Credit and not
reimbursed by the Borrower (or, if applicable, another party pursuant to its
obligations under any other Loan Document) on or before the next Business Day as
provided
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in paragraph (v) below. Each Revolving Credit Lender acknowledges and agrees
that its obligation to acquire participations pursuant to this paragraph in
respect of Revolving Letters of Credit is absolute and unconditional and shall
not be affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or an Event of Default, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.
(v) REIMBURSEMENT. If a Fronting Bank shall make any Revolving
L/C Disbursement in respect of a Revolving Letter of Credit, the Borrower or the
Credit Party that is account party under such Letter of Credit shall pay to the
Administrative Agent, on or before the Business Day immediately following the
date of such Revolving L/C Disbursement, an amount equal to such Revolving L/C
Disbursement. If the Borrower or such Credit Party shall fail to pay any amount
required to be paid under this paragraph on or before such Business Day (or to
cause payment thereof when due pursuant to a Revolving Credit Borrowing), then
(A) such unpaid amount shall bear interest, for each day from and including the
day of such Revolving L/C Disbursement to but excluding the date of payment, at
a rate per annum equal to the interest rate applicable to overdue ABR Loans that
are Revolving Credit Loans pursuant to Section 2.07 (PROVIDED that the 2.00%
margin applicable to overdue Loans shall not be applicable until the first
Business Day after the Borrower receives notice from the Administrative Agent
that such L/C Disbursement has been or will be made), (B) the Administrative
Agent shall notify such Fronting Bank and the Revolving Credit Lenders thereof,
(C) each Revolving Credit Lender shall comply with its obligation under
paragraph (iv) above by wire transfer of immediately available funds, in the
same manner as provided in Section 2.02(c) with respect to Loans made by such
Revolving Credit Lender (and Section 2.02(d) shall apply, MUTATIS MUTANDIS, to
the payment obligations of the Revolving Credit Lenders) and (D) the
Administrative Agent shall promptly pay to such Fronting Bank amounts so
received by it from the Revolving Credit Lenders. The Administrative Agent shall
promptly pay to each applicable Fronting Bank on a pro rata basis with respect
to outstanding Revolving L/C Disbursements any amounts received by it from the
Borrower or any other Credit Party pursuant to this paragraph prior to the time
that any Revolving Credit Lender makes any payment pursuant to paragraph (iv)
above; any such amounts received by the Administrative Agent thereafter shall be
promptly remitted by the Administrative Agent to the Revolving Credit Lenders
that shall have made such payments and to such Fronting Bank, as their interests
may appear.
(c) OBLIGATIONS ABSOLUTE. The Borrower's and the other Credit
Parties' obligations to reimburse L/C Disbursements as provided in paragraphs
(a) and (b) above shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement, under any and
all circumstances whatsoever, and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
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(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, setoff, defense or other
right that the Borrower, any other Credit Party, any other party
guaranteeing, or otherwise obligated with, the Borrower, any other
Credit Party, any Subsidiary or other Affiliate thereof or any other
person may at any time have against the beneficiary under any Letter of
Credit, any Fronting Bank, the Administrative Agent or any Lender
(other than the defense of payment in accordance with the terms of this
Agreement or a defense based on the gross negligence or wilful
misconduct of the applicable Fronting Bank) or any other person,
whether in connection with this Agreement, any other Loan Document or
any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect; PROVIDED that payment by the applicable Fronting Bank shall
not have constituted gross negligence or wilful misconduct of such
Fronting Bank;
(v) payment by any Fronting Bank under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit; PROVIDED that payment by the
applicable Fronting Bank shall not have constituted gross negligence or
wilful misconduct of such Fronting Bank;
(vi) nonpayment by any other Fronting Bank for any reason; and
(vii) any other act or omission to act or delay of any kind of
any Fronting Bank, the Lenders, the Administrative Agent or any other
person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section 2.20(c), constitute a legal or equitable discharge of the
Borrower's or any other Credit Party's obligations hereunder; PROVIDED
that such act or omission shall not have constituted gross negligence
or wilful misconduct of such Fronting Bank.
(d) DISBURSEMENT PROCEDURES. Each Fronting Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. Such Fronting Bank
shall as promptly as possible give telephonic notification, confirmed by
telecopy, to the Administrative Agent and the Borrower of such demand for
payment and whether such Fronting Bank has made or will make an L/C Disbursement
thereunder; PROVIDED that any failure to give or delay in giving such notice
shall not relieve the Borrower or any other Credit Party of its obligation to
reimburse such Fronting Bank and the Lenders with respect to any such L/C
Disbursement. The Administrative Agent shall promptly give each Tranche A Lender
or Revolving Credit Lender, as applicable, notice thereof.
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(e) INTERIM INTEREST. If any Fronting Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the Borrower or the
Credit Party that is account party under such Letter of Credit shall reimburse
such L/C Disbursement in full on such date, the unpaid amount thereof shall bear
interest for the account of such Fronting Bank, for each day from and including
the date of such L/C Disbursement, to but excluding the earlier of the date of
payment or the date on which interest shall commence to accrue thereon as
provided in subparagraph (a)(v) or (b)(v) above, at the rate per annum that
would apply to such amount if such amount were an ABR Loan.
(f) LIABILITY OF THE FRONTING BANKS. Without limiting the
generality of paragraph (c) above, it is expressly understood and agreed that
the absolute and unconditional obligation of the Borrower and the other Credit
Parties hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of any Fronting Bank, except as otherwise
expressly provided in said paragraph (c). However, nothing in this Agreement
shall be construed to excuse any Fronting Bank from liability to the Borrower or
any other Credit Party to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Borrower and the other Credit Parties to the extent permitted by applicable law)
suffered by the Borrower or any other Credit Party that are caused by such
Fronting Bank's gross negligence or wilful misconduct in determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof. It is understood that each Fronting Bank may accept documents
that appear on their face to be in order, without responsibility for further
investigation in making any payment under any Letter of Credit and, except as
otherwise expressly provided in said paragraph (c), (i) such Fronting Bank's
exclusive reliance on the documents presented to it under such Letter of Credit
as to any and all matters set forth therein, including reliance on the amount of
any draft presented under such Letter of Credit, whether or not the amount due
to the beneficiary thereunder equals the amount of such draft and whether or not
any document presented pursuant to such Letter of Credit proves to be
insufficient in any respect, if such document on its face appears to be in
order, and whether or not any other statement or any other document presented
pursuant to such Letter of Credit proves to be forged or invalid or any
statement therein proves to be inaccurate or untrue in any respect whatsoever
and (ii) any noncompliance in any immaterial respect of the documents presented
under such Letter of Credit with the terms thereof shall, in each case, be
deemed not to constitute wilful misconduct or gross negligence of such Fronting
Bank.
(g) RESIGNATION OR REMOVAL OF A FRONTING BANK. Any Fronting
Bank may resign at any time by giving 180 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower, and may be removed at any
time by the Borrower by notice to such Fronting Bank, the Administrative Agent
and the Lenders, subject in each case to the appointment by the Borrower of a
replacement Fronting Bank reasonably satisfactory to the Administrative Agent,
PROVIDED that (i) any such replacement Fronting Bank must have credit ratings of
at least A from S&P and A2 from ▇▇▇▇▇'▇, (ii) The Chase Manhattan Bank shall not
resign as Fronting Bank hereunder for any reason other than compliance with
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applicable legal and regulatory requirements and (iii) no Fronting Bank may
resign as to any Letter of Credit previously issued by it. Subject to the next
succeeding sentences of this paragraph (g), upon the acceptance of any
appointment as the Fronting Bank hereunder by a successor Fronting Bank, such
successor shall succeed to and become vested with all the interests, rights and
obligations of the retiring Fronting Bank and the retiring Fronting Bank shall
be discharged from its obligations to issue additional Letters of Credit
hereunder to the extent of the commitment of the successor Fronting Bank to
provide Letters of Credit. At the time such removal or resignation shall become
effective, the Borrower or each Credit Party that is account party under any
Letter of Credit of such Fronting Bank shall pay all accrued and unpaid fees of
such Fronting Bank pursuant to Section 2.05(b)(ii). The acceptance of any
appointment as Fronting Bank hereunder by a successor Fronting Bank shall be
evidenced by an agreement entered into by such successor, in a form satisfactory
to the Borrower and the Administrative Agent, and, from and after the effective
date of such agreement, (i) such successor Fronting Bank shall have all the
rights and obligations of its predecessor Fronting Bank under this Agreement and
the other Loan Documents and (ii) references herein and in the other Loan
Documents to the term "FRONTING BANK" shall be deemed to refer to such successor
or to such predecessor Fronting Bank, or to such successor and all predecessor
and current Fronting Banks, as the context shall require. After the resignation
or removal of a Fronting Bank hereunder, such retiring Fronting Bank shall
remain a party hereto and shall continue to have all the rights and obligations
of a Fronting Bank under this Agreement and the other Loan Documents with
respect to Letters of Credit issued by it prior to such resignation or removal,
but shall not be required to issue additional Letters of Credit.
(h) CASH COLLATERALIZATION. If any Event of Default shall
occur and be continuing, the Borrower and the other Credit Parties shall, on the
Business Day the Borrower receives notice from the Administrative Agent or the
Required Lenders (or, if the maturity of the Loans has been accelerated, Tranche
A Lenders or Revolving Credit Lenders, as applicable, holding participations in
outstanding Letters of Credit representing a majority of the aggregate undrawn
amount of all outstanding Tranche A Letters of Credit or Revolving Letters of
Credit, as applicable) thereof and of the amount to be deposited, deposit in an
account with the Collateral Agent, for the benefit of the Tranche A Lenders or
Revolving Credit Lenders, as applicable, an aggregate amount in cash equal to
the Tranche A L/C Exposure or Revolving L/C Exposure, as applicable, as of such
date; PROVIDED, that no Credit Party that is a foreign Subsidiary shall deposit
any amount in excess of the portion of the Tranche A L/C Exposure or Revolving
L/C Exposure in respect of which foreign Credit Parties are the account parties
and such deposited amount shall serve to secure only the obligations of foreign
Credit Parties in respect of such portion. If requested by the Borrower, the
Administrative Agent will create separate collateral accounts for each Credit
Party or take any other action, at the sole cost of the Borrower, that is
reasonably requested to avoid taxes. Such deposit shall be held by the
Collateral Agent as collateral for the payment and performance of the
Obligations. The Collateral Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account.
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Other than any interest earned on the investment of such deposits in Permitted
Investments, which investments shall be made at the option and sole discretion
of the Collateral Agent (PROVIDED that the Collateral Agent shall use reasonable
efforts to make such investments), such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall (a) automatically be applied by the
Administrative Agent to reimburse the Fronting Banks on a pro rata basis for
Tranche A L/C Disbursements or Revolving L/C Disbursements, as applicable, which
have not been reimbursed, (b) be held for the satisfaction of the reimbursement
obligations of the Borrower and the other Credit Parties for the Tranche A L/C
Exposure or Revolving L/C Exposure, as applicable, and (c) if the maturity of
the Loans has been accelerated (but subject to the consent of Tranche A Lenders
or Revolving Credit Lenders, as applicable, holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Tranche A Letters of Credit or Revolving
Letters of Credit, as applicable), be applied to satisfy the Obligations. If the
Borrower and the other Credit Parties are required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to the
Borrower and the other Credit Parties within three Business Days after all
Events of Default have been cured or waived.
(i) ADDITIONAL FRONTING BANKS. From time to time, the Borrower
may by notice to the Administrative Agent designate additional Fronting Banks
reasonably satisfactory to the Administrative Agent; PROVIDED that such
additional Fronting Banks must have credit ratings of at least A from S&P and A2
from ▇▇▇▇▇'▇. Such additional Fronting Banks shall execute a counterpart of this
Agreement upon approval of the Administrative Agent (which shall not be
unreasonably withheld) and shall thereafter be Fronting Banks hereunder for all
purposes and shall have the Tranche A L/C Commitment or Revolving L/C Commitment
noted under their signature and, if applicable, the Tranche A L/C Commitment or
Revolving L/C Commitment of any other Fronting Bank shall be reduced by the
amount or amounts specified to the Administrative Agent and each affected
Fronting Bank and delivered concurrently with any notice of designation of an
additional Fronting Bank.
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
74
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 and otherwise obtain credit 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 and other extensions of credit 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 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
75
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 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.
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(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 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
77
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 or Letter of Credit
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.
SECTION 3.13. USE OF PROCEEDS. The Credit Parties have used,
and will use, the proceeds of the Loans and have requested, and will request,
the issuance of Letters of Credit 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,
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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 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
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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 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.
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(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
Tranche C Facility 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.
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 Tranche C Facility Credit
Agreement.
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(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 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 Tranche C Facility 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 Tranche C Facility 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
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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.
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
or the Letters of Credit 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
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be calculated on a gross dollar basis for purposes of determining
the accuracy of this representation.
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. This amendment and
restatement 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 the Required Lenders 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, the Lenders and the Fronting Banks 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
N-1, (ii) the General Counsel of UCAR and the Borrower, substantially
to the effect set forth in the form of Exhibit N-2, and (iii) local
counsel in each jurisdiction listed on Schedule 4.01, substantially to
the effect set forth in the forms of such opinions set forth in Exhibit
N-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 Borrower and the other Credit Parties, the borrowings and
issuances of Letters of Credit under this Agreement and the borrowings
under the Local Facility Credit Agreements, 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, the Fronting Banks, 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 (i) all Fees accrued under this Agreement immediately prior
to the Effective Date and (ii) to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses 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 Tranche C Facility Credit Agreement and the other Loan
Documents on terms reasonably satisfactory in form and substance to the
Administrative Agent.
(k) This 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 the Tranche C Facility.
(l) The Tranche C Facility 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 this Agreement, no Default
shall have occurred and be continuing under this 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, this amendment and restatement 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.
SECTION 4.02. EACH CREDIT EVENT. On the date of each Borrowing
and on the date of each issuance, renewal or extension of a Letter of Credit
hereunder (other than (a) a Borrowing in which a Revolving Loan is continued or
converted as contemplated by Section 2.10 without any increase in the aggregate
principal amount of Revolving Loans outstanding, (b) a Tranche A Letter of
Credit or
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Tranche A Reimbursement Loan issued, increased or made pursuant to Section
2.11(b) (including for purposes of Section 2.20(a)(v)) and (c) an extension or
renewal of any Letter of Credit made without any increase in the stated amount
of such Letter of Credit), the following conditions must be satisfied (or waived
pursuant to Section 9.08) (each a "CREDIT EVENT"):
(a) The Administrative Agent shall have received a notice of
such Borrowing as required by Section 2.03 or, in the case of the
issuance of a Letter of Credit, the Fronting Bank and the
Administrative Agent shall have received a notice requesting the
issuance of such Letter of Credit as required by Section 2.20(a) or
2.20(b), as applicable.
(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 Credit Event 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 Credit Event, no
Event of Default or Default shall have occurred and be continuing.
(d) At the time of and immediately after such Credit Event,
the Administrative Agent shall have received a certificate of the
Borrower signed by a Financial Officer of the Borrower (i) in the case
of a Credit Event with respect to the Revolving Credit Commitments,
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 or the obligations of the Borrower in respect of
the Letter of Credit to be issued or renewed 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 Credit Event (except those specified in the parenthetical contained in the
introductory paragraph of this Article IV) shall be deemed to constitute a
representation and warranty by UCAR and the Borrower on the date of such
Borrowing or issuance, as the case may be, as to the matters specified in
paragraphs (b) and (c) of this Section 4.02. In no event shall the existence of
a Tranche A L/C Disbursement or a default or event of default under any Local
Facility Loan Document in itself cause a failure to meet the lending conditions
set forth above.
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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 and all Letters of Credit have been cancelled or have
expired and all amounts drawn thereunder have been reimbursed 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 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
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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 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
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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, the Fronting Banks 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 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, the Fronting Banks 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, the
Fronting Banks 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.
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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
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 Financial 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
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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 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;
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(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
(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
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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 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 and request the issuance of Letters of Credit 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 Tranche C Facility 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 Collateral Agent shall reasonably
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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 Tranche C Facility 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
Term Borrowings, Tranche A Reimbursement Borrowings and Indebtedness under the
Local Facilities 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 and all Letters of Credit have been cancelled or have expired
and all amounts drawn thereunder have been reimbursed in full, unless the
Required Lenders shall otherwise consent in writing, neither UCAR
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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 Tranche C
Facility 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
Tranche C Facility Credit Agreement, (i) the principal amount of such
Indebtedness shall not exceed $210,000,000, (ii) no Guarantor shall
Guarantee the Obligations under the Tranche C Facility Credit Agreement
unless it shall also Guarantee on a PARI PASSU basis the Obligations
under this Agreement and (iii) 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 in payment of interest thereon pursuant to the terms thereof (less
the principal amount of any Senior Subordinated Notes
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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 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
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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;
(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.
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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 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
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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 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
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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 Indebtedness 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;
(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;
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(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 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:
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(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 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
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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 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 Tranche C Facility 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
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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 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
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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 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
105
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 Tranche C Facility 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");
(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;
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(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 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 plans approved
107
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
Tranche C Facility 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, (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
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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 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.
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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 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
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(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, any principal of any Indebtedness under any Local Facility or
the reimbursement with respect to any L/C Disbursement when and as the
same shall become due and payable, whether at the due date thereof or
at a date fixed for prepay ment thereof or by acceleration thereof or
otherwise;
(c) default shall be made in the payment of any premium or
interest on any Loan or on any L/C Disbursement 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 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 Tranche C Facility 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
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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 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
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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 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 the Borrower
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, (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part and (iii) demand cash collateral pursuant to Section
2.20(h), 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),
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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
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding; and in any event with respect to the Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate, 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 and the Administrative Agent shall be deemed to have made
a demand for cash collateral to the full extent permitted under Section 2.20(h),
without present ment, 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 and the Fronting Banks (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 or such Fronting Bank 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 such
actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders and the Fronting Banks,
without hereby limiting any implied authority, (a) to receive on behalf of the
Lenders and the Fronting Banks all payments of principal of and interest on the
Loans, all payments in respect of L/C Disbursements and all other amounts due to
the Lenders and the Fronting Banks hereunder, and promptly to distribute to each
Lender or Fronting Bank 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,
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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 or any Fronting Bank of any
of its obligations hereunder or to any Lender or any Fronting Bank on account of
the failure of or delay in performance or breach by any other Lender or Fronting
Bank 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 hereunder by or
through agents or employees and shall be entitled to 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
115
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 or
participations in L/C Disbursements, as applicable)) 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 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.
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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;
(b) 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. (▇▇▇) ▇▇▇-▇▇▇▇);
(c) if to a Fronting Bank or to any Credit Party (other than
the Borrower), to it at its address (or telecopy number) set forth in
Schedule 9.01; 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 Borrower, the
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other Credit Parties and the Guarantors 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 the Fronting Banks and
shall survive the making by the Lenders of the Loans, the execution and delivery
to the Lenders of the Loan Documents and the issuance of the Letters of Credit,
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 L/C Disbursement or any Fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid or any Letter of Credit is outstanding 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 hereunder, the
expiration of the Letters of Credit 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, the Borrower, the other Credit Parties, each Fronting Bank, 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
other Credit Parties, the Administrative Agent, the Fronting Banks 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, the Loans and L/C
Disbursements at the time owing to it and participations in Letters of Credit
and Swingline Loans held by it, it being understood that Lenders shall not be
required to assign pro rata amounts of their Loans, L/C Disbursements, Revolving
Credit Commitments, Term Commitments and Tranche A Reimbursement Commitments,
except that Tranche A Exposures, Tranche A Reimbursement Commitments and Tranche
A Term Loans may only be assigned in pro rata amounts); 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, (A) 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, (B) in the case of participations
in Letters of Credit, Tranche A Reimbursement
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Commitments or Revolving Credit Commitments, each applicable Fronting Bank must
give its prior written consent to such assignment (which consent shall not in
any case be unreasonably withheld or delayed) and (C) in the case of
participations in Swingline Loans or Revolving Credit Commitments, the Swingline
Lender must give its prior consent to such assignment (which consent in any case
shall not be unreasonably withheld), (ii) except in the case of an assignment to
another Lender, an Affiliate of such Lender or a Related Fund of any Lender, the
amount of the Loans, L/C Disbursements, Commitments or participations in Letters
of Credit or Swingline Loans 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, L/C Disbursements, Commitments or participations
in Letters of Credit or Swingline Loans held by such assigning Lender, (iii)
unless the assignor ceases to be a Lender, the aggregate amount of the Loans and
L/C Disbursements 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 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
its Term Commitments, Tranche A Reimbursement Commitment and Revolving Credit
Commitment, and the outstanding balances of its Loans and L/C Disbursements and
its participations in Letters of Credit and Swingline Loans, 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
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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, any Fronting Bank, 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 and L/C Disbursements
owing to, each Lender from time to time. The Administrative Agent shall also
record the Letter of Credit Exposure of each Lender in the Register. The entries
in the Register shall be conclusive, in the absence of manifest error, and the
Borrower, the other Credit Parties, the Administrative Agent, the Fronting Banks
and the Lenders shall treat each person whose name is recorded in the Register
as the owner of Commitments and the Loans and Letter of Credit Exposures
recorded therein for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower, the other Credit Parties, the Fronting
Banks, 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,
the applicable Fronting Banks, the Swingline Lender and the
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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, any
other Credit Party, any Fronting Bank, the Swingline Lender 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, the Loans owing to it, its
Letter of Credit Exposure and the participations in Letters of Credit and
Swingline Loans held by 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 other Credit Parties, the Administrative Agent, the Fronting Banks, the
Swingline Lender 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, Letter of Credit Exposure and participations in
Letters of Credit and Swingline 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 or L/C Disbursements, extending any final maturity date or
increasing any Commitment, in 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
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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) In the event that S&P or ▇▇▇▇▇'▇ shall, after the date
that any Lender becomes a Lender, downgrade the long-term certificate of deposit
ratings or long-term senior unsecured debt ratings of such Lender (or the parent
company thereof), and the resulting ratings shall be BBB+ or Baa1 or lower, then
each applicable Fronting Bank shall have the right, but not the obligation, at
its own expense, upon notice to such Lender and the Administrative Agent, to
replace (or to request the Borrower, at the sole expense of such Fronting Bank,
to use its reasonable efforts to replace) such Lender with respect to such
Lender's Tranche A Reimbursement Commitment or Revolving Credit Commitment, as
applicable, with an assignee (in accordance with and subject to the restrictions
contained in paragraph (b) above), and such Lender hereby agrees to transfer and
assign without recourse (in accordance with and subject to the restrictions
contained in paragraph (b) above) all its interests, rights and obligations in
respect of its Tranche A Reimbursement Commitment or Revolving Credit
Commitment, as applicable, to such assignee; PROVIDED, HOWEVER, that (i) no such
assignment shall conflict with any law, rule and regulation or order of any
Governmental Authority and (ii) such assignee shall pay to such Lender in
immediately available funds on the date of such assignment the principal of and
interest accrued to the date of payment on the Loans and L/C Disbursements of
such Lender hereunder and all other amounts accrued for such Lender's account or
owed to it hereunder.
(j) 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.
(k) Except as provided in Section 2.13(d), no Fronting Bank
shall assign or delegate any of its interests, rights or obligations as a
Fronting Bank under this Agreement without the
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prior written consent of the Borrower, each applicable Credit Party, the
Administrative Agent and the Required Lenders.
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 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 or the Letters of Credit issued
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, any Fronting Bank 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 Fronting Bank, 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
the use of any Letter of Credit 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, any Fronting Bank 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,
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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 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,
any Fronting Bank 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
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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 and each Fronting Bank is hereby
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 or such Fronting Bank to or for the credit or the
account of the Borrower or any other Credit Party against any of and all the
obligations of the Borrower or any Credit Party now or hereafter existing under
this Agreement or any other Loan Document held by such Lender or Fronting Bank,
irrespective of whether or not such Lender or such Fronting Bank 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 and Fronting Bank under
this Section 9.06 are in addition to other rights and remedies (including other
rights of setoff) which such Lender or such Fronting Bank may have.
SECTION 9.07. APPLICABLE LAW. THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS (OTHER THAN LETTERS OF CREDIT 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. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF
COMMERCE, PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT
GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. WAIVERS; AMENDMENT. (a) No failure or delay of
the Administrative Agent, any Fronting Bank or any Lender in exercising any
right or power hereunder or under any 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, the
Fronting Banks 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.
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(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 other Credit Parties 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 or any L/C
Disbursement, 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 or any L/C Disbursement
is due, without the prior written consent of (A) in the case of Term Loans or
the Tranche A Exposure, the Required Lenders and Lenders holding Term Loans or
having Tranche A Exposures representing at least 80% of the aggregate principal
amount of each Tranche affected by such action or (B) in the case of Loans under
the Revolving Credit Commitments and Revolving L/C Disbursements, Lenders with
Revolving Credit Commitments representing at least 80% of the aggregate
Revolving Credit Commitments then in effect, (iii) advance any Installment Date
without the prior written consent of Lenders holding Term Loans or having
Tranche A Exposures representing (A) at least 80% of the aggregate principal
amount of the then outstanding Tranche A Term Loans and the Tranche A Exposure
and (B) at least 80% of the aggregate principal amount of the then outstanding
Tranche B Term Loans, (iv) increase or extend the Commitment of any Lender or
decrease the Commitment Fees or L/C Participation 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 Tranche
differently from those of Lenders participating in the other Tranche, without
the consent of a majority in interest of the Lenders participating in the
adversely affected Tranche, or change the relative rights in respect of payments
or collateral of the Lenders participating in different Tranches without the
consent of a majority in interest of Lenders participating in each affected
Tranche, (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(c) 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, the Collateral Agent or any
Fronting Bank hereunder or under any other Loan Document without the prior
written consent of the Administrative Agent, the
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Collateral Agent or such Fronting Bank 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. Notwithstanding
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 or Fronting Bank, 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 or such Fronting Bank, shall be limited to the
Maximum Rate; PROVIDED that such excess amount shall be paid to such Lender or
such Fronting Bank 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.
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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 other Credit Parties hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or 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 or Fronting
Bank may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against UCAR, the Borrower, any other
Credit Party or any Guarantor or their properties in the courts of any
jurisdiction.
(b) Each of UCAR, the Borrower and the other Credit Parties
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
128
Business Day immediately preceding the day on which final judgment is given.
(b) The obligations of UCAR, the Borrower and the other Credit
Parties in respect of any sum due to the Administrative Agent, any Lender or any
Fronting Bank 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, such Lender or such Fronting Bank may in
accordance with normal banking procedures purchase Dollars in the amount
originally due to the Administrative Agent, such Lender or such Fronting Bank
with the judgment currency. If the amount of Dollars so purchased is less than
the sum originally due to the Administrative Agent, such Lender or such Fronting
Bank, the Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Administrative Agent, such Lender or such Fronting
Bank against the resulting loss.
SECTION 9.17. CONFIDENTIALITY. Each of the Lenders, the
Fronting Banks 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, such Fronting Bank or the Administrative
Agent without violating this Section 9.17 or (c) was available to such Lender,
such Fronting Bank 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,
129
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 all Letters of Credit and Commitments
are terminated. Any representation, warranty or covenant contained in any Loan
Document relating to any such 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.
SECTION 9.19. SUBSIDIARY BORROWERS. On or after the Effective
Date, the Borrower may designate any Wholly Owned Subsidiary as a Subsidiary
Borrower by delivery to the Administrative Agent of a Subsidiary Borrower
Agreement executed by such Subsidiary and the Borrower, and upon (a) such
delivery, (b) approval by the Administrative Agent and (c) if required, approval
by the applicable Fronting Bank, such Subsidiary shall for all purposes of this
Agreement be a Subsidiary Borrower and a party to this Agreement until the
Borrower shall have executed and delivered to the Administrative Agent a
Subsidiary Borrower Termination with respect to such Subsidiary, whereupon such
Subsidiary shall cease to be a Subsidiary Borrower and a party to this
Agreement. The Borrower shall be required to promptly deliver a Subsidiary
Borrower Termination with respect to any Subsidiary that ceases to be a Wholly
Owned Subsidiary. Notwithstanding the foregoing, no Subsidiary Borrower
Termination will become effective as to any Subsidiary Borrower at a time when
any principal of or interest on any Loan to such Subsidiary Borrower shall be
outstanding hereunder or such Subsidiary Borrower shall be an account party
under an outstanding Letter of Credit or there shall be any unreimbursed L/C
Disbursements in respect of any Letter of Credit under which such Subsidiary
Borrower was the account party; PROVIDED that such Subsidiary Borrower
Termination shall be effective to terminate such Subsidiary Borrower's right to
make further Borrowings or request Letters of Credit under this Agreement. As
soon as practicable upon receipt of a Subsidiary Borrower Agreement, the
Administrative Agent shall send a copy thereof to each Lender.
130
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
UCAR GLOBAL ENTERPRISES INC.,
by
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:Controller
UCAR HOLDINGS S.A.,
by
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:Controller
UCAR S.p.A.,
by
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:Attorney-in-Fact
UCAR ELECTRODOS, S.L.,
by
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:Attorney-in-Fact
UCAR INC.,
by
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:Attorney-in-Fact
131
UCAR MEXICANA S.A. de C.V.,
by
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:Attorney-in-Fact
THE CHASE MANHATTAN BANK,
individually and as Fronting Bank,
Administrative Agent and
Collateral Agent,
by
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Vice President
ABN AMRO BANK, N.V.,
by
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:Senior Vice President
by
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇ ▇▇▇▇▇
Title:Vice President
AMSOUTH BANK OF ALABAMA,
by
/S/ R. ▇▇▇▇ ▇▇▇▇
---------------------------------------
Name:R. ▇▇▇▇ ▇▇▇▇
Title:Senior Vice President
by
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Senior Vice President
BANCA COMMERCIALE ITALIANA, NEW
YORK BRANCH,
by
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:Vice President
by
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:Vice President
132
BANKBOSTON N.A.,
by
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Managing Director
BANK OF AMERICA NT&SA,
by
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:Managing Director
THE BANK OF NEW YORK,
by
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------------------
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title:Vice President
THE BANK OF NOVA SCOTIA,
by
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:Sr. Relationship Manager
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
by
/S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:Vice President
BANQUE NATIONALE DE PARIS,
by
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:Senior Vice President
by
/S/ SOPHIE REVILLARD ▇▇▇▇▇▇▇
---------------------------------------
Name:Sophie Revillard ▇▇▇▇▇▇▇
Title:Vice President
133
BHF-BANK AKTIENGESELLSCHAFT,
by
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇ ▇▇▇▇▇
Title:Assistant Treasurer
by
/S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇▇▇ ▇▇▇▇
Title:Assistant Treasurer
CERES FINANCE LTD.,
by
/S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:Director
CIBC INC.,
by
/S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:Executive Director
CREDIT AGRICOLE INDOSUEZ,
by
/S/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇ ▇▇▇▇▇
Title:First Vice President
by
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:Vice President, TL
CREDIT LYONNAIS NEW YORK BRANCH,
by
/S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:First Vice President-
Manager
THE DAI-ICHI KANGYO BANK, LIMITED,
by
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:Vice President &
Group Leader
134
FIRST AMERICAN NATIONAL BANK,
by
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Senior Vice President
FIRST UNION NATIONAL BANK,
SUCCESSOR BY MERGER TO CORESTATES
BANK, N.A.,
by
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Vice President
FLEET NATIONAL BANK,
by
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Senior Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION,
by
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Duly Authorized Signatory
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH,
by
/S/ TAKUYA HONJO
---------------------------------------
Name:Takuya Honjo
Title:Senior Vice President
135
ISTITUTO BANCARIO SAN PAOLO DI
TORINO S.P.A.,
by
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:Vice President
by
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:Vice President
KBC BANK, N.V.,
by
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------------
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title:Vice President
by
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:First Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH,
by
/S/ KOJI SASAYAMA
---------------------------------------
Name:Koji Sasayama
Title:Deputy General Manager
MELLON BANK, N.A.,
by
/S/ ▇▇▇▇▇ ▇. ▇▇▇
---------------------------------------
Name:▇▇▇▇▇ ▇. ▇▇▇
Title:Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO,
BY ▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSET MANAGEMENT,
L.P., AS INVESTMENT ADVISOR,
by
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:CFA, Authorized Signatory
136
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE
FUND, INC.,
by
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:CFA, Authorized Signatory
NATEXIS BANQUE BFCE,
by
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Vice President,
Group Manager
by
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇ ▇▇▇▇▇▇
Title:Assistant Treasurer
OCTAGON LOAN TRUST
By: Octagan Credit Investors As
Manager,
by
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:Managing Director
PARIBAS,
by
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
---------------------------------------
Name:▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
Title:Vice President
by
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:Director
PNC BANK, NATIONAL ASSOCIATION,
by
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:Vice President
137
THE ROYAL BANK OF SCOTLAND PLC,
by
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇ ▇▇▇▇▇▇
Title:Vice President
THE SAKURA BANK, LIMITED,
by
/S/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:Vice President
THE SANWA BANK, LIMITED,
by
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor,
by
/S/ PAYSON ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name:Payson ▇. ▇▇▇▇▇▇▇▇▇
Title:Vice President
SENIOR HIGH INCOME PORTFOLIO, INC.,
by
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:CFA, Authorized Signatory
SOCIETE GENERALE,
by
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇ ▇▇▇▇▇▇
Title:Director
THE SUMITOMO BANK, LIMITED,
by
/S/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name:J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:Senior Vice President
▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇
BRANCH,
by
/S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:Assistant General Manager
THE TRAVELERS INDEMNITY COMPANY,
by
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Second Vice President
THE TRAVELERS INSURANCE COMPANY,
by
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Second Vice President
THE TRAVELERS LIFE AND ANNUITY
COMPANY,
by
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Second Vice President
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME
RATE INCOME TRUST,
by
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:Senior Vice President &
Director
STRATA FUNDING LTD.,
by
/S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name:▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:Director
SCHEDULE A
LIBOR MARGIN
TRANCHE A
REIMBURSEMENT ABR MARGIN PERMITTED
LOANS AND TRANCHE A OTHER
REVOLVING REMBURSEMENT LIBOR ACQUISITIONS
LOANS/L/C LOANS AND MARGIN ABR MARGIN EXCESS CASH AND SPECIFIED
LEVERAGE PARTICIPATION REVOLVING TRANCHE B TRANCHE B FLOW SWEEP PERMITTED
RATIO FEE LOANS TERM LOANS TERM LOANS PERCENTAGE TRANSACTIONS
greater than 2.75% 1.75% 3.25% 2.25% 75% $75,000,000
or equal to
2.75:1.0
greater than 2.75% 1.75% 3.25% 2.25% 50% $75,000,000
or equal to
2.5:1.0
and less
than
2.75:1.0
greater than 2.50% 1.50% 3.25% 2.25% 50% $100,000,000
or equal to
2.0:1.0
and less
than 2.5:1.0
less than 2.25% 1.25% 3.25% 2.25% 50% $125,000,000
2.0:1.0
The LIBOR Margin, the ABR Margin, the L/C Participation Fee, 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 (i) in
the case of the applicable LIBOR Margin, to Eurodollar Loans made on and after
such delivery date (including pursuant to any conversion or continuation
pursuant to Section 2.10), (ii) in the case of the applicable ABR Margin, to ABR
Loans made on or after such delivery date (including pursuant to any conversion
or continuation pursuant to Section 2.10) and (iii) in the case of the L/C
Participation Fee, the applicable percentage of Excess Cash Flow referred to in
Section 2.12(e) and Permitted Other Acquisitions and Specified Permitted
Transactions, 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(a)
LENDERS, COMMITMENTS AND OUTSTANDINGS ON DATE HEREOF
INSTITUTION OUTSTANDING TRANCHE A OUTSTANDING REVOLVING CREDIT
TRANCHE A TERM REIMBURSEMENT TRANCHE B TERM COMMITMENTS AS
LOANS AS OF DATE COMMITMENTS AS LOANS AS OF DATE OF DATE HEREOF
HEREOF OF DATE HEREOF HEREOF
THE CHASE MANHATTAN BANK $1,023,392.13 $10,976,607.86 $17,853,142.86 $12,499,999.94
ABN AMRO BANK, N.V. 669,141.03 7,177,012.82 0 8,173,076.92
AMSOUTH BANK OF ALABAMA 551,057.32 5,910,481.14 0 6,730,769.24
BANCA COMMERCIALE ITALIANA, NEW
YORK BRANCH 551,057.32 5,910,481.14 0 6,730,769.24
BANKBOSTON, N.A. 393,612.36 4,221,772.24 0 4,807,692.32
BANK OF AMERICA NT&SA 551,057.32 5,910,481.14 0 6,730,769.24
THE BANK OF NEW YORK 669,141.03 7,177,012.82 0 8,173,076.92
THE BANK OF NOVA SCOTIA 669,141.03 7,177,012.82 0 8,173,076.92
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY 669,141.03 7,177,012.82 0 8,173,076.92
BANQUE NATIONALE DE PARIS 551,057.32 5,910,481.14 0 6,730,769.24
BHF-BANK AKTIENGESELLSCHAFT 669,141.03 7,177,012.82 0 8,173,076.92
CERES FINANCE LTD. 0 0 12,281,142.87 0
CIBC INC. 669,141.03 7,177,012.82 0 8,173,076.92
CORESTATES BANK, N.A. 0 0 0 0
CREDIT AGRICOLE INDOSUEZ 472,334.84 5,066,126.70 0 5,769,230.76
CREDIT LYONNAIS NEW YORK BRANCH 826,585.98 8,865,721.71 0 10,096,153.84
THE DAI-ICHI KANGYO BANK, LIMITED 551,057.32 5,910,481.14 0 6,730,769.24
FIRST AMERICAN NATIONAL BANK 393,612.37 4,221,772.25 0 4,807,692.30
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA 669,141.03 7,177,012.82 0 0
FIRST UNION NATIONAL BANK,
SUCCESSOR BY MERGER TO CORESTATES
BANK, N.A. 551,057.32 5,910,481.14 0 14,903,846.16
FLEET NATIONAL BANK 669,141.03 7,177,012.82 0 8,173,076.92
GENERAL ELECTRIC CAPITAL
CORPORATION 551,057.32 5,910,481.14 0 6,730,769.24
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH 669,141.03 7,177,012.82 0 8,173,076.92
ISTITUTO BANCARIO SAN PAOLO DI
TORINO S.P.A. 393,612.37 4,221,772.25 0 4,807,692.30
KBC BANK, N.V., FORMERLY
KREDIETBANK, N.V., NEW YORK BRANCH 472,334.84 5,066,126.70 0 5,769,230.76
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH 669,141.03 7,177,012.82 0 8,173,076.92
MELLON BANK, N.A. 551,057.32 5,910,481.14 0 6,730,769.24
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO,
BY: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSET MANAGEMENT,
L.P., AS INVESTMENT ADVISOR 0 0 14,328,000.00 0
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE
FUND, INC. 0 0 10,120,571.44 0
NATEXIS BANQUE BFCE 551,057.32 5,910,481.14 0 6,730,769.24
OCTAGON CREDIT INVESTOR LOAN
PORTFOLIO 0 0 16,914,999.99 0
PARIBAS 669,141.03 7,177,012.82 0 8,173,076.92
PNC BANK, NATIONAL ASSOCIATION 551,057.32 5,910,481.14 0 6,730,769.24
THE ROYAL BANK OF SCOTLAND PLC 551,057.32 5,910,481.14 0 6,730,769.24
THE SAKURA BANK, LIMITED 551,057.32 5,910,481.14 0 6,730,769.24
THE SANWA BANK, LIMITED 551,057.32 5,910,481.14 0 6,730,769.24
SENIOR DEBT PORTFOLIO BY: BOSTON
MANAGEMENT AND RESEARCH AS
INVESTMENT ADVISOR 0 0 7,959,999.99 0
SENIOR HIGH INCOME PORTFOLIO, INC. 0 0 3,411,428.57 0
SOCIETE GENERALE 551,057.32 5,910,481.14 0 6,730,769.24
STRATA FUNDING LTD. 0 0 1,705,714.29 0
THE SUMITOMO BANK, LIMITED 551,057.32 5,910,481.14 0 6,730,769.24
THE TOKAI BANK,LIMITED - NEW YORK
BRANCH 472,334.84 5,066,126.70 0 5,769,230.76
THE TRAVELERS INDEMNITY COMPANY 78,722.47 844,354.45 1,989,999.99 961,538.46
THE TRAVELERS INSURANCE COMPANY 283,400.90 3,039,676.02 7,959,999.99 3,461,538.46
THE TRAVELERS LIFE AND ANNUITY
COMPANY 31,488.99 337,741.78 0 384,615.38
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME
RATE INCOME TRUST 0 0 24,875,000.01 0
$20,467,843.22 $219,532,156.78 $119,400,000.00 $250,000,000.00
TOTAL:
Schedule 2.01(b)
LENDERS, COMMITMENTS AND OUTSTANDINGS ON EFFECTIVE DATE
(GIVING PRO FORMA EFFECT TO PREFUNDING AND PREPAYMENT OF 12/31/98 REQUIRED AMORTIZATION)
INSTITUTION OUTSTANDING TRANCHE A OUTSTANDING REVOLVING CREDIT
TRANCHE A TERM REIMBURSEMENT TRANCHE B TERM COMMITMENTS AS
LOANS AS OF COMMITMENTS AS LOANS AS OF OF DATE HEREOF
EFFECTIVE DATE OF DATE HEREOF EFFECTIVE DATE
THE CHASE MANHATTAN BANK $23,392.16 $10,976,607.86 $17,793,333.35 $12,499,999.94
ABN AMRO BANK, N.V. 15,294.87 7,177,012.82 0 8,173,076.92
AMSOUTH BANK OF ALABAMA 12,595.78 5,910,481.14 0 6,730,769.24
BANCA COMMERCIALE ITALIANA, NEW
YORK BRANCH 12,595.78 5,910,481.14 0 6,730,769.24
BANKBOSTON, N.A. 8,996.98 4,221,772.24 0 4,807,692.32
BANK OF AMERICA NT&SA 12,595.78 5,910,481.14 0 6,730,769.24
THE BANK OF NEW YORK 15,294.87 7,177,012.82 0 8,173,076.92
THE BANK OF NOVA SCOTIA 15,294.87 7,177,012.82 0 8,173,076.92
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY 15,294.87 7,177,012.82 0 8,173,076.92
BANQUE NATIONALE DE PARIS 12,595.78 5,910,481.14 0 6,730,769.24
BHF-BANK AKTIENGESELLSCHAFT 15,294.87 7,177,012.82 0 8,173,076.92
CERES FINANCE LTD. 0 0 12,240,000.01 0
CIBC INC. 15,294.87 7,177,012.82 0 8,173,076.92
CORESTATES BANK, N.A. 0 0 0 0
CREDIT AGRICOLE INDOSUEZ 10,796.38 5,066,126.70 0 5,769,230.76
CREDIT LYONNAIS NEW YORK BRANCH 18,893.67 8,865,721.71 0 10,096,153.84
THE DAI-ICHI KANGYO BANK, LIMITED 12,595.78 5,910,481.14 0 6,730,769.24
FIRST AMERICAN NATIONAL BANK 8,996.99 4,221,772.25 0 4,807,692.30
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA 15,294.87 0 0 0
FIRST UNION NATIONAL BANK,
SUCCESSOR BY MERGER TO CORESTATES
BANK, N.A. 12,595.78 13,087,493.96 0 14,903,846.16
FLEET NATIONAL BANK 15,294.87 7,177,012.82 0 8,173,076.92
GENERAL ELECTRIC CAPITAL
CORPORATION 12,595.78 5,910,481.14 0 6,730,769.24
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH 15,294.87 7,177,012.82 0 8,173,076.92
ISTITUTO BANCARIO SAN PAOLO DI
TORINO S.P.A. 8,996.99 4,221,772.25 0 4,807,692.30
KBC BANK, N.V., FORMERLY
KREDIETBANK, N.V., NEW YORK BRANCH 10,796.38 5,066,126.70 0 5,769,230.76
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH 15,294.87 7,177,012.82 0 8,173,076.92
MELLON BANK, N.A. 12,595.78 5,910,481.14 0 6,730,769.24
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO,
BY: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSET MANAGEMENT,
L.P., AS INVESTMENT ADVISOR 0 0 14,280,000.00 0
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE
FUND, INC. 0 0 10,086,666.68 0
NATEXIS BANQUE BFCE 12,595.78 5,910,481.14 0 6,730,769.24
OCTAGON CREDIT INVESTOR LOAN
PORTFOLIO 0 0 16,858,333.32 0
PARIBAS 15,294.87 7,177,012.82 0 8,173,076.92
PNC BANK, NATIONAL ASSOCIATION 12,595.78 5,910,481.14 0 6,730,769.24
THE ROYAL BANK OF SCOTLAND PLC 12,595.78 5,910,481.14 0 6,730,769.24
THE SAKURA BANK, LIMITED 12,595.78 5,910,481.14 0 6,730,769.24
THE SANWA BANK, LIMITED 12,595.78 5,910,481.14 0 6,730,769.24
SENIOR DEBT PORTFOLIO BY: BOSTON
MANAGEMENT AND RESEARCH AS
INVESTMENT ADVISOR 0 0 7,933,333.32 0
SENIOR HIGH INCOME PORTFOLIO, INC. 0 0 3,400,000.00 0
SOCIETE GENERALE 12,595.78 5,910,481.14 0 6,730,769.24
STRATA FUNDING LTD. 0 0 1,700,000.00 0
THE SUMITOMO BANK, LIMITED 12,595.78 5,910,481.14 0 6,730,769.24
THE TOKAI BANK, LIMITED - NEW YORK
BRANCH 10,796.38 5,066,126.70 0 5,769,230.76
THE TRAVELERS INDEMNITY COMPANY 1,799.40 844,354.45 1,983,333.32 961,538.46
THE TRAVELERS INSURANCE COMPANY 6,477.83 3,039,676.02 7,933,333.32 3,461,538.46
THE TRAVELERS LIFE AND ANNUITY
COMPANY 719.76 337,741.78 0 384,615.38
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME
RATE INCOME TRUST 0 0 24,791,666.68 0
$467,843.22 $219,532,156.78 $119,000,000.00 $250,000,000.00
TOTAL:
SCHEDULE 2.20
LETTERS OF CREDIT
TRANCHE A L/C COMMITMENTS
PERCENTAGE
FRONTING BANKS COMMITMENTS OF FACILITY
The Chase Manhattan Bank $219,532,156.78 100.00%
TRANCHE A LETTERS OF CREDIT
PERCENTAGE
Credit Party STATED AMOUNT OF FACILITY
UCAR Holdings S.A. $134,953,333.33 61.4731506
UCAR S.p.A. 32,240,000.00 14.6857756
UCAR Electrodos S.L. 28,209,090.00 12.8496392
UCAR Inc. 20,563,333.35 9.3668890
Foreign Currency Reserve
Component 3,566,400.10 1.62454565
REVOLVING L/C COMMITMENTS
PERCENTAGE
FRONTING BANKS COMMITMENTS OF FACILITY
The Chase Manhattan Bank $200,000,000 100.00%
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.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
33. UCAR Carbon S.A. Brazil 2.33%
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
JURISDICTION OF
NAME OF SUBSIDIARY INCORPORATION OWNERSHIP BY UCAR S.A.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
34. UCAR Holding GmbH Austria 100%
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(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.
Schedule 9.01
Fronting Banks and Credit Parties (other than the Borrower)
CREDIT PARTIES
1. UCAR HOLDINGS S.A.
▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇-▇▇▇▇
SILIC 214
F-94518 Rungis, Cedex France
Attn: Chairman
Telecopy 33-1-46-87-4008
2. UCAR S.p.A.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chairman
Telecopy ▇▇-▇-▇▇▇-▇▇▇▇
3. UCAR ELECTRODOS, S.L.
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇\▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇
Telecopy ▇▇-▇▇▇-▇▇▇-▇▇▇
4. UCAR INC.
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Telecopy ▇▇▇-▇▇▇-▇▇▇▇
5. UCAR MEXICANA S.A. de C.V.
Carretera ▇▇▇▇▇▇ ▇▇▇▇▇▇
Km.20 #600, OTE.
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Telecopy 5283861303
FRONTING BANK
1. The Chase Manhattan Bank
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: