EXHIBIT A
TO THE EFFECTIVENESS AGREEMENT
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CREDIT AGREEMENT
Dated as of October 19, 1995,
As Amended and Restated as of March 19, 1997
Among
UCAR INTERNATIONAL INC.,
UCAR GLOBAL ENTERPRISES INC.,
THE CREDIT PARTIES REFERRED TO HEREIN,
THE LENDERS NAMED HEREIN,
THE FRONTING BANKS NAMED HEREIN,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
and Collateral Agent
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CHASE SECURITIES INC.,
as Arranger
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[CS&M Ref. No. 6700-278]
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms............................................... 1
SECTION 1.02. Terms Generally............................................. 26
ARTICLE II
The Credits
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SECTION 2.01. Commitments................................................. 26
SECTION 2.02. Loans....................................................... 29
SECTION 2.03. Borrowing Procedure......................................... 30
SECTION 2.04. Evidence of Debt; Repayment of Loans........................ 31
SECTION 2.05. Fees........................................................ 32
SECTION 2.06. Interest on Loans........................................... 33
SECTION 2.07. Default Interest............................................ 33
SECTION 2.08. Alternate Rate of Interest.................................. 33
SECTION 2.09. Termination and Reduction of Commitments... ................ 34
SECTION 2.10. Conversion and Continuation of Term Borrowings and
Tranche A Reimbursement Borrowings........... .............. 35
SECTION 2.11. Repayment of Term Borrowings and Reduction of the
Tranche A Exposure; Reallocation of the Tranche A
Exposure.............................. ..................... 36
SECTION 2.12. Prepayment.................................................. 38
SECTION 2.13. Reserve Requirements; Change in Circumstances............... 41
SECTION 2.14. Change in Legality.......................................... 42
SECTION 2.15. Indemnity................................................... 43
SECTION 2.16. Pro Rata Treatment.......................................... 43
SECTION 2.17. Sharing of Setoffs........... .............................. 44
SECTION 2.18. Payments.................................................... 44
SECTION 2.19. Taxes....................................................... 45
SECTION 2.20. Letters of Credit........................................... 48
ARTICLE III
Representations and Warranties
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SECTION 3.01. Organization; Powers........................................ 55
SECTION 3.02. Authorization............................................... 55
SECTION 3.03. Enforceability.............................................. 56
SECTION 3.04. Governmental Approvals...................................... 56
SECTION 3.05. Financial Statements........................................ 56
SECTION 3.06. No Material Adverse Change.................................. 56
SECTION 3.07. Title to Properties; Possession Under Leases................ 57
SECTION 3.08. Subsidiaries................................................ 57
SECTION 3.09. Litigation; Compliance with Laws............................ 57
SECTION 3.10. Agreements.................................................. 58
SECTION 3.11. Federal Reserve Regulations................................. 58
SECTION 3.12. Investment Company Act; Public Utility Holding
Company Act................................................. 58
SECTION 3.13. Use of Proceeds............................................. 58
SECTION 3.14. Tax Returns................................................. 58
SECTION 3.15. No Material Misstatements................................... 59
SECTION 3.16. Employee Benefit Plans...................................... 59
SECTION 3.17. Environmental Matters....................................... 60
SECTION 3.18. Capitalization of UCAR and Borrower......................... 61
SECTION 3.19. Security Documents.......................................... 61
SECTION 3.20. Labor Matters............................................... 61
SECTION 3.21. No Foreign Assets Control Regulation Violation.............. 61
SECTION 3.22. Insurance................................................... 62
ARTICLE IV
Conditions of Lending
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SECTION 4.01. All Credit Events........................................... 62
ARTICLE V
Affirmative Covenants
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SECTION 5.01. Existence; Businesses and Properties........................ 63
SECTION 5.02. Insurance................................................... 63
SECTION 5.03. Taxes....................................................... 64
SECTION 5.04. Financial Statements, Reports, etc.......................... 64
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SECTION 5.05. Litigation and Other Notices................................ 66
SECTION 5.06. Employee Benefits........................................... 66
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections................................................. 67
SECTION 5.08. Use of Proceeds............................................. 67
SECTION 5.09. Compliance with Environmental Laws.......................... 67
SECTION 5.10. Preparation of Environmental Reports........................ 67
SECTION 5.11. Further Assurances.......................................... 67
SECTION 5.12. Significant Subsidiaries.................................... 68
SECTION 5.13. Fiscal Year; Accounting..................................... 68
SECTION 5.14. Dividends................................................... 68
SECTION 5.15. Interest/Exchange Rate Protection Agreements................ 68
SECTION 5.16. Corporate Separateness...................................... 68
ARTICLE VI
Negative Covenants
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SECTION 6.01. Indebtedness................................................ 69
SECTION 6.02. Liens....................................................... 72
SECTION 6.03. Sale and Lease-Back Transactions............................ 75
SECTION 6.04. Investments, Loans and Advances............................. 75
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions................................................ 77
SECTION 6.06. Dividends and Distributions................................. 78
SECTION 6.07. Transactions with Affiliates................................ 79
SECTION 6.08. Business of UCAR, the Borrower and the Subsidiaries......... 80
SECTION 6.09. Subordinated Indebtedness and Other Material
Agreements.................................................. 80
SECTION 6.10. South Africa................................................ 81
SECTION 6.11. Capital Expenditures........................................ 82
SECTION 6.12. Interest Coverage Ratio..................................... 82
SECTION 6.13. Leverage Ratio.............................................. 82
SECTION 6.14. Capital Stock of the Subsidiaries........................... 83
ARTICLE VII
Events of Default
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Events of Default........................................................... 83
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ARTICLE VIII
The Administrative Agent and the Collateral Agent
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The Administrative Agent and the Collateral Agent........................... 86
ARTICLE IX
Miscellaneous
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SECTION 9.01. Notices..................................................... 88
SECTION 9.02. Survival of Agreement....................................... 89
SECTION 9.03. Binding Effect.............................................. 89
SECTION 9.04. Successors and Assigns...................................... 89
SECTION 9.05. Expenses; Indemnity......................................... 93
SECTION 9.06. Right of Setoff............................................. 95
SECTION 9.07. Applicable Law.............................................. 95
SECTION 9.08. Waivers; Amendment.......................................... 95
SECTION 9.09. Interest Rate Limitation.................................... 96
SECTION 9.10. Entire Agreement............................................ 96
SECTION 9.11. Waiver of Jury Trial........................................ 97
SECTION 9.12. Severability................................................ 97
SECTION 9.13. Counterparts................................................ 97
SECTION 9.14. Headings.................................................... 97
SECTION 9.15. Jurisdiction; Consent to Service of Process................. 97
SECTION 9.16. Conversion of Currencies.................................... 98
SECTION 9.17. Confidentiality ............................................ 98
SECTION 9.18. Release of Liens and Guarantees............................. 99
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 Pledge Agreement
Exhibit H Form of Subsidiary Guarantee Agreement
Exhibit I Form of Tranche A Letter of Credit
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Schedule A Adjustments
Schedule 2.01 Commitments
Schedule 2.20 Letters of Credit
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.14 Taxes
Schedule 3.17 Environmental Matters
Schedule 3.18 Capitalization
Schedule 3.20 Labor Matters
Schedule 6.01 Indebtedness
Schedule 6.02 Liens
Schedule 6.04 Investments
Schedule 6.07 Transactions with Affiliates
Schedule 6.09 Limitations on Dividends
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CREDIT AGREEMENT dated as of October 19,
1995, as amended and restated as of March 19, 1997,
among UCAR INTERNATIONAL INC., a Delaware corporation
("UCAR"), UCAR GLOBAL ENTERPRISES INC., a Delaware
corporation (the "Borrower"), the other Credit
Parties referred to herein, the financial
institutions listed on Schedule 2.01 (the "Lenders"),
the fronting banks listed on Schedule 2.20 (the
"Fronting Banks"), and THE CHASE MANHATTAN BANK, a
New York banking corporation, as agent (in such
capacity, the "Administrative Agent") and as
collateral agent (in such capacity, the "Collateral
Agent") for the Lenders.
The Borrower has requested the Lenders to extend credit in the
form of (a) Tranche A Term Loans on the Effectiveness Date, in an aggregate
principal amount not in excess of $45,300,000, (b) Tranche A Letters of Credit
supporting Local Facilities to be issued on the Effectiveness Date, in an
aggregate stated amount not in excess of $224,700,000, (c) Tranche A Letters of
Credit issued pursuant to Section 2.11(b) and Tranche A Reimbursement Loans at
any time and from time to time prior to the Tranche A Maturity Date, in an
aggregate stated amount and principal amount at any time outstanding that will
not result in the Tranche A Exposure exceeding the Total Tranche A Reimbursement
Commitment at such time, (d) Tranche B Term Loans on the Effectiveness Date, in
an aggregate principal amount not in excess of $120,000,000, (e) Revolving Loans
and Swingline Loans at any time and from time to time prior to the Revolving
Credit Maturity Date, in an aggregate principal amount at any time outstanding
not in excess of the difference between $250,000,000 and the Revolving L/C
Exposure at such time and (f) Revolving Letters of Credit at any time and from
time to time prior to the Revolving Credit Maturity Date, in an aggregate stated
amount at any time outstanding not in excess of $200,000,000.
The proceeds of the Term Loans and the Local Facilities will
be used to provide funding for the refinancing of all the outstanding Term Loans
and Local Facilities on the Effectiveness Date and the payment of related fees,
expenses and other transaction costs (collectively, the "Refinancing"). The
Tranche A Letters of Credit will be used to support Indebtedness under the Local
Facilities. The proceeds of Tranche A Reimbursement Loans will be used to
reimburse Tranche A L/C Disbursements or to repay or prepay Indebtedness under
the Local Facilities. The Revolving Letters of Credit and the proceeds of
Revolving Loans and Swingline Loans will be used for general corporate purposes.
The Lenders are willing to extend such credit to the Borrower
and the Fronting Banks are willing to issue letters of credit for the account of
the Borrower and the other 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
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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.
"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 Consolidated Net Income" 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,
any special charges and any extraordinary or non-recurring losses and minus, to
the extent added in computing such consolidated net income, extraordinary or
non-recurring gains.
"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.
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"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 Letters" shall mean the letter agreements dated
February 13, 1997, among the Borrower, Chase Securities Inc. 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, 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 group of Loans of a single Type under
a single Tranche or consisting solely of Revolving Loans or Swingline Loans and
made on a single date and, in the case of Eurodollar Loans, as to which a single
Interest Period is in effect.
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"Borrowing Request" shall mean a request by the Borrower 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 Brazil corporation and
the direct or indirect owner of 100% 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 incurred 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 (a) expenditures using funds drawn from the
Rationalization Project Cash Collateral Account made in respect of the
Rationalization Project or made following completion (as evidenced by a
certificate executed by a Responsible Officer of the Borrower) of the
Rationalization Project, (b) expenditures made to make any Permitted SA/B
Acquisition, any acquisition constituting a Specified Permitted Foreign
Transaction or Permitted Other Acquisition, (c) expenditures to the extent they
are made 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 with funds that if not so spent would constitute Net
Proceeds under clause (a) of the definition of "Net Proceeds", (d) expenditures
of proceeds of insurance settlements, condemnation awards and other settlements
in respect of lost, destroyed, damaged or condemned assets, equipment or other
property to the extent such expenditures are made to replace or repair such
lost, destroyed, damaged or condemned assets, equipment or other property or
otherwise to acquire assets or properties useful in the business of the Borrower
and the Subsidiaries within 12 months of receipt of such proceeds, (e)
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) or (f) 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
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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.
"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, participation 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 or on or prior to the
Effectiveness Date in connection with the Transactions and (c) the amortization
of debt discounts, if any, or fees in respect of Interest/Exchange Rate
Protection Agreements.
"CERCLA" shall have the meaning given such term in the
definition of "Environmental Law".
A "Change in Control" shall be deemed to have occurred if (a)
UCAR should fail to own directly, beneficially and of record, free and clear of
any and all Liens (other than Liens in favor of the Collateral Agent pursuant to
the 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 date hereof), other than the
Fund, Fund Affiliates and members of management of UCAR or the Borrower holding
voting stock of UCAR or options to acquire such stock on March 19, 1997
(collectively, the "Designated Persons") or any combination of 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 or any
combination of Designated Persons shall 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
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at any time after March 19, 1997 have been 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 or the Fund or any Fund
Affiliate 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.
"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.
"Commitments" shall mean, with respect to any Lender, such
Lender's Revolving Credit Commitment, Tranche A Reimbursement Commitment, Term
Commitments 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
Article IV.
"Credit Parties" shall mean the Borrower and each Subsidiary
that is or becomes a party to this Agreement and is designated as an account
party under any Letter of Credit.
"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.
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"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 of any costs or expenses
related to severance or termination of employees prior to the date hereof.
"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.
"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.
"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) income tax expense and 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 or the Refinancing)
and any extraordinary or non-recurring losses, (e) monitoring and management
fees paid to the Fund and/or any of its Affiliates, (f) other noncash items
reducing consolidated net income and (g) 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 19, 1997, among UCAR, the Borrower, the Lenders, the
Departing Lenders (as defined therein), the Fronting Banks, the Administrative
Agent and the Collateral Agent.
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"Effectiveness Date" shall have the meaning given such term in
the Effectiveness Agreement.
"Enterprise Value" shall mean, with respect to UCAR, the
Borrower and the Subsidiaries as of the Original Closing Date, the sum of
$1,350,000,000 and Total Debt after giving effect to the refinancing effected on
the Original Closing Date.
"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. Sections 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. Sections
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. Sections 6901, et seq., the Federal Water
Pollution Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C.
Sections 1251 et seq., the Clean Air Act of 1970, as amended 42 U.S.C. Sections
7401 et seq., the Toxic Substances Control Act of 1976, 15 U.S.C. Sections 2601
et seq., the Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. Sections 11001 et seq., the National Environmental Policy Act of 1975, 42
U.S.C. Sections 4321 et seq., the Safe Drinking Water Act of 1974, as amended,
42 U.S.C. Sections 300(f) et seq., and any similar or implementing state or
foreign law, and all amendments or regulations promulgated thereunder.
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"Environmental Permit" shall mean any permit, approval,
authorization, certificate, license, variance, filing or permission required by
or from any Governmental Authority pursuant to any Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated) that, together with the Borrower, is treated as a single
employer under Section 414 of the Code.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loan" shall mean any 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.
"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.
"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 (other than in connection with any transaction that is
part of the Recapitalization), (d) an amount equal to
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any increase in Working Capital of UCAR, the Borrower and the Subsidiaries for
such fiscal year, (e) monitoring and management fees paid to the Fund and/or any
of its Affiliates during such fiscal year, (f) Permitted SA/B Acquisitions,
Permitted Other Acquisitions and acquisitions constituting Specified Permitted
Foreign Transactions during such fiscal year to the extent paid in cash, (g)
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, (h) permitted dividends or
repurchases 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, (i) prior to becoming Wholly
Owned Subsidiaries, any amounts described in this definition for such fiscal
year attributable to South Africa (other than an amount equal to dividends
actually paid by South Africa to the Borrower or any Subsidiary, net of any
amounts transferred to South Africa by the Borrower or any Subsidiary and not
otherwise subsequently transferred to the Borrower or any Subsidiary), (j)
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, (k) special
charges or any extraordinary or non-recurring loss paid in cash during such
fiscal year, (l) 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), (m) cash Restricted Debt Payments made
pursuant to the first proviso contained in Section 6.09(b)(i) and (n) 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 SA/B
Acquisition, Permitted Other Acquisition, acquisition constituting a Specified
Permitted Foreign Transaction or Capital Expenditure (other than Indebtedness
under this Agreement to the extent there is no corresponding deduction to Excess
Cash Flow above in respect of the use of such Borrowings) 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 (f) 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)),
(vi) to the extent deducted in the computation of EBITDA,
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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.
"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) a
fraction, the numerator of which is such portion and the denominator of which is
1.05, 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 Bank Fees" shall have the meaning given to such term
in Section 2.05(b).
"Fund" shall mean Blackstone Capital Partners II Merchant
Banking Fund L.P., a Delaware limited partnership.
"Fund Affiliates" shall mean each Affiliate of the Fund that
is not an operating company or Controlled by an operating company and each
general partner of the Fund or any Fund Affiliate who is a partner or employee
of The Blackstone Group L.P.
"GAAP" shall mean generally accepted accounting principles in
effect from time to time in the United States or, when reference is made to
another jurisdiction, generally accepted accounting principles 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
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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
(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 Effectiveness Date or entered
into in connection with any acquisition or disposition of assets permitted under
this Agreement.
"Guarantee Agreements" shall mean the Parent Guarantee
Agreement and the Subsidiary Guarantee Agreement.
"Guarantors" shall mean UCAR, the Borrower and the Subsidiary
Guarantors.
"Hazardous Material" shall mean any material meeting the
definition of a "hazardous substance" in CERCLA 42 U.S.C. Sections 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
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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, substantially in the form
of Exhibit D, among the Borrower, the Subsidiary Guarantors and the Collateral
Agent.
"Information Memorandum" shall have the meaning given such
term in Section 3.15.
"Installment Date" shall have the meaning given such term in
Section 2.11.
"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) a fraction, the numerator of
which is such portion and the denominator of which is 1.010333333333, and (b)
the principal amount of any Local Facility or any Tranche A Reimbursement Loan
or Tranche A Term Loan, an amount equal to 1.03333333333% of such principal
amount.
"Interest Coverage Ratio" shall have the meaning given such
term in Section 6.12.
"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
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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 Borrower may elect, and the date any
Eurodollar Borrowing is converted to an ABR Borrowing in accordance with Section
2.10 or repaid or prepaid in accordance with Section 2.11 or 2.12; PROVIDED,
however, that if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"Interest/Exchange Rate Protection Agreement" shall mean any
interest rate or currency hedging agreement or arrangement approved by the
Administrative Agent (such approval not to be unreasonably withheld) entered
into by the Borrower or a Subsidiary and designed to protect against
fluctuations in interest rates or currency exchange rates.
"Investors" shall mean the Fund and certain other investors
designated by the Fund (and consisting principally of Fund Affiliates) and
certain members of management of UCAR or the Borrower.
"L/C Disbursements" shall mean Tranche A L/C Disbursements and
Revolving L/C Disbursements.
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"L/C Participation Fee" shall have the meaning given such term
in Section 2.05(b).
"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 6.13.
"LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing, the rate (rounded upwards, if necessary, to the next 1/16 of 1%) at
which dollar deposits approximately equal in principal amount to the
Administrative Agent's portion of such Eurodollar Borrowing and for a maturity
comparable to such Interest Period are offered to the principal London office of
the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Effectiveness
Agreement, each document required to be delivered under Section 7 of the
Effectiveness Agreement, the Local Facility Loan Documents, the Letters of
Credit, the Guarantee Agreements, the Security Documents and the Indemnity,
Subrogation and Contribution Agreement.
"Loan Parties" shall mean the Borrower, the Credit Parties and
the Guarantors.
"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
Subsidiary and the existence and terms of which (including the
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existence and terms of any such Guarantee, pledge or security interest) have
been 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
judgment of the Administrative Agent be necessary or advisable under applicable
law.
"Local Facility Lenders" shall mean each lender under a Local
Facility.
"Local Facility Loan Documents" shall mean each agreement or
instrument evidencing or securing any obligation of a borrower under, guarantor
of, or grantor of collateral to secure, any Local Facility that does not also
evidence, guarantee or secure any 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 to
consummate the Recapitalization or the Refinancing 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).
"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), other customary expenses and
brokerage, consultant and other customary fees actually
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incurred in connection therewith and (ii) taxes paid or payable as a result
thereof (including withholding taxes incurred in connection with cross-border
transactions, if applicable, and including taxes estimated by the Borrower to be
payable as a result thereof or as a result of such 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 mortgage or
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)(i) and 6.05(h) or any other financing subject to
clause (ii) of the definition of "Excess Cash Flow"), PROVIDED that if the
Borrower shall deliver a certificate of a Responsible Officer 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, 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
Effectiveness 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 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, except
for financial advisory fees customary in type and amount paid to Affiliates of
The Blackstone Group L.P.
"Notes" shall mean any promissory note of the Borrower or any
Credit Party issued pursuant to this Agreement.
"Obligations" shall mean all obligations defined as
"Obligations" in the Guarantee Agreements and the Security Documents.
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"Original Closing Date" shall mean October 19, 1995.
"Parent Guarantee Agreement" shall mean the Parent Guarantee
Agreement, 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.
"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 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 and (d)(i) UCAR shall be in compliance, on a
pro forma basis after giving effect to such acquisition or formation, with the
covenants contained in Sections 6.12 and 6.13 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 an officers'
certificate to such effect, together with all relevant financial information for
such subsidiary or assets, and (ii) 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 any Specified
Permitted Foreign Transaction or the transfer by means of Indebtedness,
investment or otherwise (PROVIDED that each transfer of cash (other than a
transfer pursuant to clause (c) below) shall be made by means of intercompany
Indebtedness (which shall be pledged to the extent required under the Pledge
Agreement 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 Capital Stock of
which is owned by the Borrower or a Wholly Owned Subsidiary or, so long as no
Default or Event of Default has occurred and is continuing, to any subsidiary
included in South Africa which is not a Subsidiary, of (a) inventory and
equipment in the ordinary course of business consistent with past
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practice; (b) cash to fund (i) working capital needs and capital expenditures,
in each case in the ordinary course of business consistent with past practice,
and (ii) debt service on Indebtedness permitted under this Agreement paid in the
ordinary course of business, and, in the case of any transaction under clause
(i) or clause (ii), 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 to such effect; and (c)
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 (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 ▇▇▇▇▇'▇ Investors
Service, Inc., or A-1 (or higher) according to Standard & Poor's Ratings Group;
(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 Standard & Poor's Ratings Group or A
by ▇▇▇▇▇'▇ Investors Service, Inc.; (f) in the case of any Subsidiary organized
in a jurisdiction outside the United States: (i) direct obligations of the
sovereign nation (or any agency thereof) in which such Subsidiary is organized
and is conducting business or in obligations fully and unconditionally
guaranteed by such sovereign nation (or any agency thereof), (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
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the parents of such obligors) are not rated as provided in such clauses or in
clause (ii) above but which are, in the reasonable judgment of the Borrower,
comparable in investment quality to such investments and obligors (or the
parents of such obligors); PROVIDED that the aggregate face amount outstanding
at any time of such investments of all foreign Subsidiaries made pursuant to
clause (iii) does not exceed $50,000,000; (g) mutual funds whose investment
guidelines restrict such funds' investments to those satisfying the provisions
of clauses (a) through (e) above; and (h) time deposit accounts, certificates of
deposit and money market deposits in an aggregate face amount not in excess of
1/2 of 1% of total assets of the Borrower and the Subsidiaries, on a
consolidated basis, 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 an officer's certificate designating such
acquisition as a Permitted Other Acquisition for purposes of this Agreement, and
(d) either the acquisition shall constitute a Permitted Business Acquisition or
the acquired asset shall constitute or be held in an Unrestricted Subsidiary or,
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, shall be
real property, improvements thereto or equipment.
"Permitted SA/B Acquisition" shall mean the acquisition (or
redemption or repurchase) of all or substantially all the Capital Stock not
already owned by the Borrower or any Subsidiary in each subsidiary included in
South Africa or the acquisition of additional (or repurchase or redemption of)
Capital Stock of any subsidiary included in Brazil if in the case of each such
acquisition immediately after giving effect thereto (i) no Default or Event of
Default shall have occurred and be continuing, (ii) all transactions related
thereto shall be consummated in accordance with applicable laws and (iii) all
actions, if any, required to be taken with respect to such acquired Capital
Stock under Section 5.11 shall have been taken.
"person" shall mean any natural person, corporation, 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.
-20-
"Pledge Agreement" shall mean, collectively, the Pledge
Agreement, substantially in the form of Exhibit G, among UCAR, the Borrower,
certain Subsidiaries and the Collateral Agent for the benefit of the Secured
Parties and each other document delivered on or after the Original Closing Date
pursuant to which UCAR, the Borrower or any domestic Subsidiary pledged Capital
Stock of any subsidiary to secure the Obligations.
"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.
"Rationalization Project" shall mean the closing of the
graphite electrode manufacturing facility located in Columbia, Tennessee, at an
aggregate cash cost of approximately $6,000,000, the shifting of production from
such facility to other graphite electrode manufacturing facilities and the
expansion of such facilities at an aggregate cost of approximately $25,000,000.
"Rationalization Project Cash Collateral Account" shall have
the meaning given such term in the Rationalization Project Cash Collateral
Agreement.
"Rationalization Project Cash Collateral Agreement" shall mean
the Rationalization Project Cash Collateral Agreement dated as of October 19,
1995, by the Borrower in favor of the Collateral Agent for the benefit of the
Secured Parties.
"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" shall have the meaning given such term in the
preamble to this Agreement.
"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 Senior Subordinated Notes.
"Register" shall have the meaning given such term in Section
9.04(d).
"Regulation G" shall mean Regulation G of the Board as from
time to time in effect and all official rulings and interpretations thereunder
or thereof.
-21-
"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.
"Release" shall have the meaning given such term in CERCLA, 42
U.S.C. Sections 9601(22).
"Remedial Action" shall mean (a) "remedial action" as such
term is defined in CERCLA, 42 U.S.C. Sections 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.
"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).
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"Restricted Equity Payments" shall have the meaning given such
term in Section 6.06.
"Restricted Junior Payment Amount" shall mean, at any date of
determination, an amount equal to the sum, for all the fiscal quarters in the
period commencing on January 1, 1997, and ending at the end of the most recent
fiscal quarter ending prior to such date of determination as to which the
relevant financial information is available, of (a) the Restricted Junior
Payment Percentage (determined as set forth on Schedule A hereto), as in effect
from time to time, of (b) Adjusted Consolidated Net Income accrued during each
such quarter. In the event of any change in the Restricted Junior Payment
Percentage, the revised percentage shall apply to Adjusted Consolidated Net
Income accruing on or after the first day of the fiscal quarter in respect of
which such change has occurred and prior to the first day of the next fiscal
quarter in respect of which a change in such Restricted Junior Payment
Percentage occurs.
"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 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 Credit Borrowing" shall mean a Borrowing comprised
of Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each
Lender, the commitment of such Lender to make Revolving Loans hereunder as set
forth in Section 2.01(b) or in the Assignment and Acceptance pursuant to which
such Lender assumed its Revolving Credit Commitment, as applicable, as the same
may be reduced from time to time pursuant to Section 2.09 and pursuant to
assignments by such Lender pursuant to Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any
Lender at any time, the aggregate principal amount at such time of all
outstanding Revolving Credit 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.
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"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 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 Borrower pursuant to Section 2.01(b). Each Revolving Loan shall
be a Eurodollar Revolving Loan or an ABR Revolving Loan.
"Sale and Lease-Back Transaction" shall have the meaning given
such term in Section 6.03.
"Secured Parties" shall have the meaning given such term in
the Pledge Agreement.
"Security Documents" shall mean the Pledge Agreement and each
of the security 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, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of New York, as
Trustee, as amended from time to time in accordance with Section 6.09.
-24-
"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 and any other
subsidiary of UCAR that at the date of any determination (a) accounts for 2.5%
or more of the consolidated assets of UCAR, (b) has accounted for 2.5% or more
of EBITDA for each of the two consecutive periods of four fiscal quarters
immediately preceding the date of determination or (c) has been designated by
the Borrower in writing to the Administrative Agent as a Significant Subsidiary
and such designation has not subsequently been withdrawn.
"South Africa" shall mean each of EMSA (Pty.) Ltd., a South
Africa corporation, and Carbographite Limited, a South Africa corporation, which
together directly or indirectly own 100% of the business of the Borrower and the
Subsidiaries in South Africa.
"Specified Permitted Foreign 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
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 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 (or redemption or repurchase) of
additional Capital Stock of, UCAR Elektroden GmbH, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, UCAR Grafit
OAO or any other Subsidiary acquired in a Specified Permitted Foreign
Transaction by the Borrower or any Subsidiary, unless such transaction shall
constitute a Permitted Business Acquisition, and (c) 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 Foreign Transaction at any time prior to such person becoming a Wholly
Owned Subsidiary. For purposes of determining compliance with Section 6.04(l),
the aggregate outstanding amount of Specified Permitted Foreign 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 (c) 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 (c) of the immediately preceding sentence and consideration paid in
respect of acquisitions (or redemptions or repurchases) of Capital Stock made
under clause (a) or clause (b) of the immediately preceding sentence; PROVIDED
that the aggregate amount of Specified
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Permitted Foreign Transactions in respect of any person (A) made under clause
(a) or (b) 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(l)) and (B) made under clause (c) 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 other
than the Unrestricted Subsidiaries, except that solely for purposes of
determining compliance with Section 2.12(e) and Sections 6.12 and 6.13, the
debt, interest expense and net income of each subsidiary included in South
Africa shall until the fiscal period in which such subsidiary becomes a
Subsidiary be included in the consolidated financial statements of UCAR, the
Borrower and the Subsidiaries on a pro rata basis based on the Borrower's
aggregate direct or indirect percentage ownership of the Capital Stock of such
subsidiary.
"Subsidiary Guarantee Agreement" shall mean the Subsidiary
Guarantee Agreement, substantially in the form of Exhibit H, made by the
Subsidiary Guarantors in favor of the Collateral Agent for the benefit of the
Secured Parties.
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"Subsidiary Guarantor" shall mean each domestic Subsidiary.
"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 to be
dated January 26, 1995, between the Borrower and UCAR, and (b) any other tax
allocation agreement between the Borrower or any of its Subsidiaries with the
Borrower or UCAR with respect to consolidated or combined tax returns including
the Borrower or any of its Subsidiaries but only to the extent that amounts
payable from time to time by the Borrower or any such Subsidiary under any such
agreement do not exceed the corresponding tax payments that the Borrower or such
Subsidiary would have been required to make to any relevant taxing authority had
the Borrower or such Subsidiary not joined in such consolidated or combined
return, but instead had filed returns including only the Borrower or its
Subsidiaries (PROVIDED that any such agreement may provide that, if the Borrower
or any such Subsidiary ceases to be a member of the affiliated group of
corporations of which UCAR is the common parent for purposes of filing a
consolidated federal income tax return (such cessation, a "Deconsolidation
Event"), then the Borrower or such Subsidiary will indemnify UCAR with respect
to any Federal, state or local income, franchise or other tax liability
(including any related interest, additions or penalties) imposed on UCAR as the
result of an audit or other adjustment with respect to any period prior to such
Deconsolidation Event that is attributable to the Borrower, such Subsidiary or
any predecessor business thereof (computed as if the Borrower, such Subsidiary
or such predecessor business, as the case may be, were a stand-alone entity that
filed separate tax returns as an independent corporation), but only to the
extent that any such tax liability exceeds any liability for taxes recorded on
the books of the Borrower or such Subsidiary with respect to any such period).
"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.
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"Term Loans" shall mean the term loans made by the Lenders to
the Borrower pursuant to Section 2.01(a). Each Term Loan shall be a Eurodollar
Term Loan or an ABR Term Loan.
"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.
"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.
"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.
"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 or a Tranche A Term Loan Commitment.
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"Tranche A Letter of Credit" shall mean any letter of credit
issued pursuant to 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 of such Lender to make Tranche A Reimbursement
Loans hereunder as set forth in Section 2.01(a)(i)(B), or in the Assignment and
Acceptance pursuant to which such Lender assumed its Tranche A Reimbursement
Commitment, as applicable, as the same may be reduced from time to time pursuant
to Section 2.09 and pursuant to assignments by such Lender pursuant to Section
9.04 or increased pursuant to Section 2.11(b).
"Tranche A Reimbursement Loans" shall mean the loans made by
the Lenders to the Borrower pursuant to Section 2.01(a)(i)(B). 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 of such Lender to make Tranche A Term Loans
hereunder as set forth in Section 2.01(a)(i)(A).
"Tranche A Term Loans" shall mean the term loans made by the
Lenders to the Borrower pursuant to Section 2.01(a)(i)(A).
"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 of such Lender to make Tranche B Term Loans
hereunder as set forth in Section 2.01(a)(ii).
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"Tranche B Term Loans" shall mean the term loans made by the
Lenders to the Borrower pursuant to Section 2.01(a)(ii).
"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) each subsidiary
included in South Africa until such time as the Borrower shall own, directly or
indirectly, at least 90% of the Capital Stock of such subsidiary and (b) any
subsidiary of UCAR (other than the Borrower) or any other direct or indirect
investment by UCAR or any such subsidiary in the Capital Stock of any other
person (other than the Borrower) so long as (i) none of the Capital Stock or
other ownership interests of such subsidiary or other person is owned by the
Borrower or any of the Subsidiaries, (ii) UCAR shall have notified the
Administrative Agent of its acquisition or creation of such subsidiary or such
other investment and its ownership interest therein concurrently with such
acquisition, creation or investment and the intended purposes of such subsidiary
or investment, (iii) any such subsidiary (unless it is a foreign subsidiary)
shall have entered into the Tax Sharing Agreement existing at the time of such
acquisition or creation (or another tax sharing agreement containing terms
which, in the reasonable judgment of the Administrative Agent, are customary in
similar circumstances to provide an appropriate allocation of tax liabilities
and benefits), (iv) except in the case of UCAR as permitted in the proviso
below, none of UCAR, the Borrower and the Subsidiaries shall have any contingent
liability in respect of such subsidiary or investment and (v) any such
subsidiary or investment shall be capitalized solely from the following sources:
(A) any investment by any person other than UCAR, the Borrower and the
Subsidiaries; (B) Indebtedness issued by such subsidiary or any of its
subsidiaries that is nonrecourse to UCAR, the Borrower and the Subsidiaries
(except in the case of UCAR as otherwise permitted by the proviso below), or
proceeds thereof; (C) Capital Stock of such subsidiary or any other Unrestricted
Subsidiary, or proceeds thereof; (D) proceeds of Capital Stock of UCAR issued by
UCAR after the Original Closing Date remaining after making the prepayment of
Obligations required under Section 2.12(d) (to the extent not previously used to
prepay Indebtedness (other than Revolving Loans or Swingline Loans), 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
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investment in such subsidiary or investment in such amount for purposes of
calculating compliance with Section 6.04; and (c) 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
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 date of this Agreement and applied on a
basis consistent with the application used in the financial statements referred
to in Section 3.05, except that all the Subsidiaries shall be consolidated for
such purposes as contemplated by the definition of "Subsidiary"; 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)
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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,
6.10 and 6.11 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.
ARTICLE II
THE CREDITS
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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 and in the Effectiveness Agreement, each Lender agrees, severally
and not jointly:
(i) (A) to make a Tranche A Term Loan to the Borrower on the
Effectiveness Date in a principal amount equal to the Tranche A Term
Loan Commitment set forth opposite its name on Schedule 2.01;
(B) to make Tranche A Reimbursement Loans to the Borrower,
solely as contemplated by Section 2.11(b)(ii) or Section 2.20(a)(v), at
any time and from time to time on or after the date hereof, 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 Applicable Percentage
of the Tranche A Exposure at such time exceeding the Tranche A
Reimbursement Commitment set forth opposite its name on Schedule 2.01,
as the same may be reduced from time to time pursuant to Section 2.09
or increased from time to time pursuant to Section 2.11(b); and
(ii) to make a Tranche B Term Loan to the Borrower on the
Effectiveness Date in a principal amount equal to the Tranche B Term
Loan Commitment set forth opposite its name on Schedule 2.01.
(b) Subject to the terms and conditions and relying upon the
representations and warranties of UCAR and the Borrower herein set forth, each
Lender agrees, severally and not jointly, to make Revolving Loans to the
Borrower,
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at any time and from time to time on or after the Original Closing Date, and
until the earlier of the Revolving Credit Maturity Date and the termination of
the Revolving Credit 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 Revolving Credit Exposure at such time exceeding the
Revolving Credit Commitment set forth opposite its name on Schedule 2.01, as the
same may be reduced from time to time pursuant to Section 2.09.
(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 period from
the Original Closing Date through and excluding the earlier of Revolving Credit
Maturity Date and the termination of the Revolving Credit Commitments 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 and 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 aggregate Revolving
Credit Commitments 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
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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 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 proviso
contained in the first sentence of the preceding paragraph and 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
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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.
(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 4.01 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 Borrower may borrow, pay or prepay and reborrow Revolving Loans and
Swingline Loans on or after the Original Closing Date and prior to the Revolving
Credit Maturity Date, subject to the terms, conditions and limitations set forth
herein. 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.
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SECTION 2.02. LOANS. (a) Each Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their applicable Commitments; 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 Commitments or (iii) in the case of any Tranche A Reimbursement
Borrowing made pursuant to Section 2.11(b)(ii), an 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 Borrower 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 Borrower 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. Borrowings of
more than one Type may be outstanding at the same time; PROVIDED, HOWEVER, that
the Borrower 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 paragraph (f) below, 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 the Borrower, credit the amounts so received to
an account designated by the Borrower 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.
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(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 Borrower 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 Borrower 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 Borrower until the date such amount is repaid to the Administrative Agent,
at (i) in the case of the Borrower, the interest rate applicable at the time to
the Loans comprising such Borrowing and (ii) in the case of such Lender, a rate
determined by the Administrative Agent to represent its cost of overnight or
short-term funds (which determination shall be conclusive absent manifest
error). If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Lender's Loan as part of
such Borrowing for purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the
Borrower 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.
(f) The Borrower may refinance all or any part of a Revolving
Credit Borrowing with another Revolving Credit Borrowing. Any Revolving Credit
Borrowing or part thereof so refinanced shall be deemed to be repaid or prepaid
in accordance with the applicable provisions of this Agreement with the proceeds
of the new Revolving Credit Borrowing and the proceeds of such new Borrowing, to
the extent they do not exceed the principal amount of the Borrowing being
refinanced, shall not be paid by the Lenders to the Administrative Agent or by
the Administrative Agent to the Borrower pursuant to paragraph (c) above.
SECTION 2.03. BORROWING PROCEDURE. In order to request a
Borrowing, the Borrower 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 Borrowings to be made on the Effectiveness Date may, at the
discretion of the Administrative Agent, be delivered later than the times
specified above and Borrowing
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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 Borrower
and shall specify the following information: (i) 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
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; (ii) the date of such Borrowing (which shall be a Business Day),
(iii) in the case of a Borrowing the proceeds of which are to be received by the
Borrower, the number and location of the account to which funds are to be
disbursed (which shall be an account that complies with the requirements of
Section 2.02(c)); (iv) the amount of such Borrowing; and (v) 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 Borrower 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.
If the Borrower shall not have delivered a Borrowing Request
in accordance with this Section 2.03 prior to the end of the Interest Period
then in effect for any Revolving Credit Borrowing requesting that such Borrowing
be refinanced, then the Borrower shall (unless the Borrower has notified the
Administrative Agent, not less than three Business Days prior to the end of such
Interest Period, that such Borrowing is to be repaid at the end of such Interest
Period) be deemed to have delivered a Borrowing Request requesting that such
Borrowing be refinanced with a new Borrowing of equivalent amount, and such new
Borrowing shall be an ABR Borrowing.
SECTION 2.04. EVIDENCE OF DEBT; REPAYMENT OF LOANS. (a) The
outstanding principal balance of each Loan shall be payable (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. Each Loan shall bear interest from the date of the first Borrowing
hereunder on the outstanding principal balance thereof as set forth in Section
2.06.
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(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 Type of each Loan
made and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder from the Borrower 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
the Borrower 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 per annum effective for each day in
such period as set forth on Schedule A. 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.
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(b) The Borrower or the relevant Credit Party, as the case may
be, from time to time 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 be terminated as provided herein, 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 hereof 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 Letters 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, in the case of Tranche B Term Loans, 0.50%.
(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, in the
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case of (i) Tranche A Loans or Revolving Loans, the LIBOR Margin effective for
such date as set forth on Schedule A or (ii) Tranche B Term Loans, 1.50%.
(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 the Borrower 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, the Borrower 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 under such Tranche or to ABR Revolving Loans, as
applicable, 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.
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SECTION 2.09. TERMINATION AND REDUCTION OF COMMITMENTS. (a)
The Term Commitments shall be automatically and permanently terminated at 5:00
p.m., New York City time, on the Effectiveness Date. 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.
(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
applicable Commitments), (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 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) or (e) 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) or (e) 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 the Commitments hereunder shall be made
ratably among the Lenders in accordance with their respective applicable
Commitments. 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.
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SECTION 2.10. CONVERSION AND CONTINUATION OF TERM BORROWINGS
AND TRANCHE A REIMBURSEMENT BORROWINGS. The Borrower 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 or Reimbursement Borrowing into an ABR Term or
Reimbursement 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
or Reimbursement Borrowing into a Eurodollar Term or Reimbursement Borrowing or
to continue any Eurodollar Term or Reimbursement Borrowing as a Eurodollar Term
or Reimbursement 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 or Reimbursement
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 or Tranche A Reimbursement Borrowing, as applicable;
(ii) if less than all the outstanding principal amount of any
Term Borrowing or Tranche A Reimbursement Borrowing shall be converted
or continued, then each resulting Term Borrowing or Tranche A
Reimbursement 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 or Tranche A
Reimbursement Loan, as applicable, of such Lender resulting from such
conversion and reducing the Term Loan or Tranche A Reimbursement Loan,
as applicable, (or portion thereof) of such Lender being converted by
an equivalent principal amount; accrued interest on a Term Loan or
Tranche A Reimbursement Loan, as applicable, (or portion thereof) being
converted shall be paid by the Borrower at the time of conversion;
(iv) if any Eurodollar Term or Reimbursement Borrowing is
converted at a time other than the end of the Interest Period
applicable thereto, the Borrower shall pay, upon demand, any amounts
due to the Lenders pursuant to Section 2.15;
(v) any portion of a Term Borrowing or Tranche A Reimbursement
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 or Reimbursement Borrowing;
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(vi) any portion of a Eurodollar Term or Reimbursement
Borrowing which cannot be converted into or continued as a Eurodollar
Term or Reimbursement 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 or Reimbursement
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 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 or Tranche A Reimbursement Borrowing that the Borrower requests
be converted or continued, (ii) whether such Term Borrowing or Tranche A
Reimbursement 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 or Tranche A Reimbursement 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 Borrower 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 or Tranche A Reimbursement Borrowing. If the Borrower shall not
have given notice in accordance with this Section 2.10 to continue any Term
Borrowing or Tranche A Reimbursement 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 or Tranche A Reimbursement Borrowing), such Term
Borrowing or Tranche A Reimbursement Borrowing shall, at the end of the Interest
Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be 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
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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:
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, 2002 85,000,000 1,000,000
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
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(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 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
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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
Effectiveness 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, (ii) the repayment of Tranche A
L/C Disbursements and (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 equalling the sum of
the principal amount of the Local Facility and the Interest Component or Foreign
Currency Component, as applicable, in respect thereof.
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) and
(ii) each prepayment of Term Borrowings or reduction of the Tranche A Exposure
shall be applied as set forth in paragraphs (c), (d) and (e) of Section 2.11.
(b) In the event of any termination of the Revolving Credit
Commitments, the Borrower 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
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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 Borrower 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 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 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 have
been paid in full and the Tranche A Exposure has been reduced to zero, to prepay
Revolving Credit Borrowings), PROVIDED that, to the extent that doing so would
not reduce the amount required to be applied under the proviso of Section
2.11(d) to zero, 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 equalling 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 Effectiveness 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.
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(e) Not later than 90 days after the end of each fiscal year
of the Borrower, commencing with the fiscal year ending December 31, 1997, 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 less (ii) 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) to prepay
Term Borrowings and to reduce the Tranche A Exposure (and, after the Term Loans
have been paid in full and the Tranche A Exposure has been reduced to zero, to
prepay Revolving Credit Borrowings); PROVIDED that, with respect to the period
ended on December 31, 1996, Excess Cash Flow shall, notwithstanding anything to
the contrary herein, be determined with respect to the period beginning on the
Original Closing Date and ending on December 31, 1996. 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 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) [Intentionally omitted]
(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 and (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 equalling the sum of
the principal amount of the Local Facility and the Interest Component or the
Foreign Currency Component, as applicable, in respect thereof. 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 Borrower 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 2.15 but otherwise 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
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collateral account maintained (pursuant to documentation reasonably satisfactory
to the Administrative Agent) by and in the sole dominion and control of the
Collateral Agent. Any amounts so deposited shall be held by the Collateral Agent
as collateral for the Obligations and applied to the prepayment of the
applicable Eurodollar Loans at the end of the current Interest Periods
applicable thereto. On any Business Day on which (i) collected amounts remain on
deposit in or to the credit of such cash collateral account after giving effect
to the payments made on such day pursuant to this Section 2.12(h) and (ii) the
Borrower shall have delivered to the Collateral Agent a written request or a
telephonic request (which shall be promptly confirmed in writing) that such
remaining collected amounts be invested in the Permitted Investments specified
in such request, the Collateral Agent shall use its reasonable efforts to invest
such remaining collected amounts in such Permitted Investments; PROVIDED,
HOWEVER, that the Collateral Agent shall have continuous dominion and full
control over any such investments (and over any interest that accrues thereon)
to the same extent that it has dominion and control over such cash collateral
account and no Permitted Investment shall mature after the end of the Interest
Period for which it is to be applied. The Borrower shall not have the right to
withdraw any amount from such cash collateral account until the applicable
Eurodollar Loans and accrued interest thereon are paid in full or if a Default
or Event of Default then exists or would result.
(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
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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 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 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 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
shall pay each Lender or Fronting Bank the amount shown as due on any such
certificate delivered by it within 10 days after its receipt of the same.
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(d) In the event any Lender or Fronting Bank delivers a notice
pursuant to paragraph (e) below, the Borrower may require, at the Borrower'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 held by it and its
obligations to acquire such participations) to a financial institution specified
by the Borrower; PROVIDED that (i) such assignment shall not conflict with or
violate any law, rule or regulation or order of any court or other Governmental
Authority, (ii) the Borrower shall have received the written consent of the
Administrative Agent (which consent shall not be unreasonably withheld) and each
applicable Fronting Bank to such assignment, (iii) the Borrower 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 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
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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 the Borrower 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
(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 the Borrower to fulfill
on the date of any Borrowing or proposed Borrowing hereunder the applicable
conditions set forth in Article IV, (b) any failure by the Borrower 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
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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 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, obtain payment (voluntary or involuntary)
in respect of any Loan or L/C Disbursement as a result of which the unpaid
principal portion of its Loans or L/C Disbursements made pursuant to any
Commitment (or, after acceleration of the Loans pursuant to Article VII,
applicable to any Loan or L/C Disbursement) shall be proportionately less than
the unpaid principal portion of the Loans or L/C Disbursements of any other
Lender made pursuant to such Commitments (or, after
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acceleration of the Loans pursuant to Article VII, applicable to any Loan or L/C
Disbursement), 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 L/C Disbursements of such other
Lender, so that the aggregate unpaid principal amount of the Loans or L/C
Disbursements and interests in Loans or L/C Disbursements held by each such
Lender shall be in the same proportion to the aggregate unpaid principal amount
of all Loans or L/C Disbursements then outstanding under such Commitments as the
principal amount of its Loans or L/C Disbursements under such 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 L/C Disbursements outstanding 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 L/C Disbursement 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 L/C Disbursement directly for the benefit of, the
Borrower or such Credit Party in the amount of such interest.
SECTION 2.18. PAYMENTS. (a) The Borrower and each other Credit
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 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 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.
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SECTION 2.19 TAXES. (a) Any and all payments by the Borrower
or any other Credit Party to the Administrative Agent, the Fronting Banks or the
Lenders hereunder or under the other Loan Documents shall be made, in accordance
with Section 2.18, 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 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 to any Lender, any Fronting
Bank or the Administrative Agent, (i) the sum payable by the Borrower or any
other Credit 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 Credit Party, as the case may be, shall make such deductions and (iii)
the Borrower or such Credit 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 Credit 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 Credit Party, not organized under the laws of such Credit
Party's jurisdiction) if such Lender, such
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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 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
(hereinafter referred to as "Other Taxes").
(c) The Borrower 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 (or Transferee), a Fronting
Bank or the Administrative Agent, absent manifest error, shall be final,
conclusive and binding for all purposes; PROVIDED, that if the Borrower
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 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 of the
availability of such refund and shall, within 30 days after receipt of a request
by the Borrower, pursue or timely claim such refund at the Borrower'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 hereunder, it
shall promptly repay such refund (plus any interest received) to the Borrower
(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, 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 Credit Party, as the case may
be, in respect of any payment to any Lender, any Fronting Bank or the
Administrative
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Agent, the Borrower or such Credit 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 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, 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 in each case 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; (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 complete 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
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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 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
this Agreement, 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
Administrative Agent shall withhold such taxes from such payments at the
applicable statutory rate.
(g) In the event any Credit Party other than the 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
Credit Party and that is claiming such additional amounts agrees that within a
reasonable period of time following the request of such Credit 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 Credit Party, deliver to such
Credit 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.
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(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 Fronting Bank having a Tranche A L/C
Commitment shall issue on the Effectiveness Date 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 Effectiveness 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,
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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 Loans that (based upon notices
delivered to the Administrative Agent by the Borrower) are to be borrowed or
repaid 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.
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(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
such Business Day 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 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.
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(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 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 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 Credit 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
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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 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 such
Business Day 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
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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;
(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
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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.
(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
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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) The Chase Manhattan Bank shall not resign as Fronting Bank
hereunder for any reason other than compliance with applicable legal and
regulatory requirements and (ii) 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
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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. 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,
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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. 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
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
Borrower, to borrow and otherwise obtain credit hereunder.
SECTION 3.02. AUTHORIZATION. The execution, delivery and
performance by UCAR, the Borrower and the Subsidiaries of each of the Loan
Documents and the borrowings hereunder, the Refinancing and the other
transactions contemplated hereby and thereby (collectively, the "Transactions")
(a) have been duly
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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 Loan 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) the filing of Uniform Commercial Code financing statements and equivalent
filings in foreign jurisdictions under the Local Facility Credit Agreements, (b)
such as have been made or obtained and are in full force and effect and (c) such
actions, consents and approvals the failure to obtain or make which could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.05. FINANCIAL STATEMENTS. UCAR has heretofore
furnished to the Lenders its consolidated balance sheets and consolidated
statements of operations, cash flows and stockholders' equity as of and for the
fiscal year ended December 31, 1996, audited by and accompanied by the opinion
of KPMG Peat Marwick LLP, independent public accountants. Such financial
statements present
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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 Effectiveness 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, business, properties, financial condition
or results of operations of UCAR, the Borrower and the Subsidiaries, taken as a
whole, since December 31, 1996.
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.
(c) Each of UCAR, the Borrower and the Subsidiaries owns or
possesses, or could obtain ownership or possession of, on terms not materially
adverse to it, all patents, trademarks, service marks, trade names, copyrights,
licenses 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.
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SECTION 3.08. SUBSIDIARIES. (a) Schedule 3.08 sets forth as of
the Effectiveness 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 Effectiveness Date, there are no outstanding
subscriptions, options, warrants, calls, rights or other agreements or
commitments (other than stock options granted to employees, consultants or
directors and directors' qualifying shares) of any nature relating to any
Capital Stock of 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 Effectiveness
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.
SECTION 3.10. AGREEMENTS. (a) None of UCAR, the Borrower and
the Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(b) None of UCAR, the Borrower and the Subsidiaries is in
default in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, in either case where such default could reasonably
be expected to result in a Material Adverse Effect. Immediately after giving
effect to the Refinancing, 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
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activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, (i)
to purchase or carry Margin Stock or to extend credit to others for the purpose
of purchasing or carrying Margin Stock or to refund indebtedness originally
incurred for such purpose, or (ii) for any purpose which entails a violation of,
or which is inconsistent with, the provisions of the Regulations of the Board,
including Regulation G, 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 Borrower will use the
proceeds of the Loans 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. For the period prior to February
25, 1991, all Federal and certain other material income tax returns which were
required to be filed with respect to UCAR and its subsidiaries or their
respective predecessors were filed by Union Carbide Corporation or its
subsidiaries (other than UCAR and its subsidiaries, or their respective
predecessors) on a consolidated, combined or unitary basis. Except as stated in
the preceding sentence, 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 the Borrower 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 Effectiveness 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 Effectiveness 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
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written notification of intention to examine has been received from, the
Internal Revenue Service or, with respect to any material potential tax
liability, any other taxing authority and (d) no currently pending issues have
been raised in writing by the Internal Revenue Service or, with respect to any
material potential tax liability, any other taxing authority. For purposes
hereof, "taxes" shall mean any present or future tax, levy, impost, duty,
charge, assessment or fee of any nature (including interest, penalties and
additions thereto) that is imposed by any Governmental Authority.
SECTION 3.15. NO MATERIAL MISSTATEMENTS. (a) The written
information, reports, financial statements, exhibits and schedules furnished by
or on behalf of UCAR, the Borrower or any of the Subsidiaries to the
Administrative Agent or any Lender in connection with the negotiation of any
Loan Document or included therein or delivered pursuant thereto (including the
Confidential Information Memorandum (the "Information Memorandum") dated
February 1997 relating to UCAR), 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 Effectiveness 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 Effectiveness 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 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 Effectiveness 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
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of the assets of such Plan, and the present value of all benefit liabilities of
all underfunded Plans (based on the actual assumptions used by such Plan under
Section 412 of the Code) did not, as of the last annual valuation dates
applicable thereto for which valuations are available, exceed by more than
$15,000,000 the value of the assets of all such underfunded Plans. None of UCAR,
the Borrower and the ERISA Affiliates has incurred or could reasonably be
expected to incur any Withdrawal Liability that could reasonably be expected to
result in a Material Adverse Effect. None of UCAR, the Borrower and the ERISA
Affiliates has received any written notification that any Multiemployer Plan is
in reorganization or has been terminated within the meaning of Title IV of
ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization
or to be terminated, where such reorganization or termination has resulted or
could reasonably be expected to result, through increases in the contributions
required to be made to such Plan or otherwise, in a Material Adverse Effect.
SECTION 3.17. ENVIRONMENTAL MATTERS. Except as set forth in
Schedule 3.17:
(a) There has not been a Release or threatened Release of
Hazardous Materials at, on, under or around the properties currently owned or
currently or formerly operated by UCAR, the Borrower and the Subsidiaries (the
"Properties") in amounts or concentrations which (i) constitute or constituted a
violation of 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;
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(d) Hazardous Materials have not been transported from the
Properties, nor have Hazardous Materials been generated, treated, stored or
disposed of at, on, under or around any of the Properties in a manner that could
reasonably be expected to give rise to liability of UCAR, the Borrower or any
Subsidiary under any Environmental Law, nor have any of UCAR, the Borrower and
the Subsidiaries retained or assumed any liability, contractually, by operation
of law or otherwise, with respect to the generation, treatment, storage or
disposal of Hazardous Materials, which, in each case, individually or in the
aggregate, is reasonably likely to result in a Material Adverse Effect;
(e) No Lien in favor of any Governmental Authority for (i) any
liability under any Environmental Law or (ii) damages arising from or costs
incurred by such Governmental Authority in response to a Release or threatened
Release of Hazardous Materials into the environment has been recorded with
respect to the Properties except for Liens permitted by Section 6.02; and
(f) During the period from the date of the environmental
assessment report prepared by ENVIRON Corporation in connection with the
Recapitalization to the Effectiveness 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 is set forth on Schedule 3.18 as of the Effectiveness Date (except for
changes in outstanding common stock of UCAR due to exercises of employee stock
options in the ordinary course after February 28, 1997). 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. The Pledge Agreement is
effective to create in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and, when the Pledged Stock (as
defined in the Pledge Agreement) is delivered to the Collateral Agent (or, as
applicable in the case of Capital Stock of foreign Subsidiaries, the requisite
filings or registrations are made), the Pledge Agreement will constitute a fully
perfected first priority Lien on, and security interest in, all right, title and
interest of the pledgors thereunder in such Pledged Stock, in each case prior
and superior in right to any other person, subject to the agreements listed in
Schedule 3.08.
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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 on October 1995 and the consummation of the Refinancing has
given or will give rise to a right of termination or right of renegotiation on
the part of any union under any collective bargaining agreement to which UCAR,
the Borrower or any Subsidiary (or any predecessor) is a party or by which UCAR,
the Borrower or any Subsidiary (or any predecessor) is bound, other than
collective bargaining agreements which, individually or in the aggregate, are
not material to UCAR, the Borrower and the Subsidiaries taken as a whole.
SECTION 3.21. NO FOREIGN ASSETS CONTROL REGULATION VIOLATION.
None of the Transactions will result in a violation of any of the foreign assets
control regulations of the United States Treasury Department, 31 C.F.R.,
Subtitle B, Chapter V, as amended (including the Foreign Assets Control
Regulations, the Transaction Control Regulations, the Cuban Assets Control
Regulations, the Foreign Funds Control Regulations, the Iranian Assets Control
Regulations, the Nicaraguan Trade Control Regulations, the South African
Transactions Regulations, the Libyan Sanctions Regulations, the Soviet Gold Coin
Regulations, the Panamanian Transactions Regulations, the Kuwaiti Assets Control
Regulations and the Iraqi Sanctions Regulations contained in said Chapter V), or
any ruling issued thereunder or any enabling legislation or Presidential
Executive Order granting authority therefor, nor will the proceeds of the Loans
be used by the Borrower 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.
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ARTICLE IV
CONDITIONS OF LENDING
---------------------
The obligations of the Lenders to make Loans and of the
Fronting Banks to issue Letters of Credit hereunder (each, a "Credit Event") are
subject to the satisfaction of the following conditions:
SECTION 4.01. ALL CREDIT EVENTS. On the date of each Borrowing
and on the date of each issuance or renewal of a Letter of Credit (other than a
Borrowing in which Revolving Loans are refinanced with new Revolving Loans as
contemplated by Section 2.02(f) without any increase in the aggregate principal
amount of Revolving Loans outstanding, a Tranche A Letter of Credit or Tranche A
Reimbursement Loan issued, increased or made pursuant to Section 2.11(b) or
Section 2.20(a)(v) and any extension or renewal of any Letter of Credit without
any increase in the stated amount of such Letter of Credit):
(a) The Administrative Agent shall have received a notice of
such Borrowing as required by Section 2.03 (or such notice shall have
been deemed given in accordance with the last paragraph of 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 Borrowing with the same effect as though made on
and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date.
(c) At the time of and immediately after such Borrowing or
issuance of such Letter of Credit, as the case may be, no Event of
Default or Default shall have occurred and be continuing.
(d) At the time of and immediately after such Borrowing or
issuance of such Letter of Credit, if as a result thereof the Aggregate
Revolving Credit Exposure would exceed $100,000,000, the Administrative
Agent shall have received a certificate of a Financial Officer of the
Borrower (i) certifying that each condition required to be met in
connection with the incurrence of additional Indebtedness under Section
4.03(b) 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
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Subordinated Indenture and each applicable Refinancing Note Indenture
and (iii) setting forth in reasonable detail the calculations necessary
to certify as to such compliance.
Each Borrowing and each issuance of a Letter of Credit (except those specified
in the parenthetical contained in the introductory paragraph of this Section
4.01) shall be deemed to constitute a representation and warranty by 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 4.01. 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.
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
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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) 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 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
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(a) the validity or amount thereof shall be contested in good faith by
appropriate proceedings and UCAR, the Borrower or the affected Subsidiary, as
applicable, shall have set aside on its books adequate reserves with respect
thereto, (b) such tax, assessment, charge, levy or claim is in respect of
property taxes for property that UCAR, the Borrower or one of the Subsidiaries
has determined to abandon and the sole recourse for such tax, assessment,
charge, levy or claim is to such property or (c) the amount of such taxes,
assessments, charges, levies and claims and interest and penalties thereon does
not exceed $1,000,000 in the aggregate.
SECTION 5.04. FINANCIAL STATEMENTS, REPORTS, ETC. In the case
of the Borrower, furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, a
consolidated balance sheet and related statements of operations, cash
flows and stockholders' equity showing the financial condition of UCAR,
the Borrower and the Subsidiaries as of the close of such fiscal year
and the consolidated results of their operations during such year, all
audited by KPMG Peat Marwick 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 reasonable detail satisfactory to the
Administrative Agent
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demonstrating compliance with the covenants contained in Sections 6.10,
6.11, 6.12 and 6.13 (it being understood that the information required
by this clause (ii) may be provided in a certificate of a Financial
Officer on behalf of the Borrower instead of from such accounting
firm);
(d) promptly after the same become publicly available, copies
of all periodic and other publicly available reports, proxy statements
and, to the extent requested by the Administrative Agent, other
materials filed by UCAR, the Borrower or any Subsidiary with the
Securities and Exchange Commission, or any governmental authority
succeeding to any of or all the functions of said Commission, or with
any national securities exchange, or distributed to its shareholders
generally, as the case may be;
(e) if, as a result of any change in accounting principles and
policies from those as in effect on the date of this Agreement, the
consolidated financial statements of UCAR, the Borrower and the
Subsidiaries delivered pursuant to paragraph (a) or (b) above will
differ in any material respect from the consolidated financial
statements that would have been delivered pursuant to such clauses had
no such change in 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 from a Responsible Officer, 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
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results of operations of any Unrestricted Subsidiary, as in each case
the Administrative Agent or any Lender, acting through the
Administrative Agent, may reasonably request.
SECTION 5.05. LITIGATION AND OTHER NOTICES. Furnish to the
Administrative Agent and each Lender written notice of the following promptly
after any Responsible Officer of the Borrower obtains actual knowledge thereof:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) proposed to be taken
with respect thereto;
(b) the filing or commencement of, or any written threat or
notice of intention of any person to file or commence, any action, suit
or proceeding, whether at law or in equity or by or before any
Governmental Authority, against UCAR, the Borrower or any Subsidiary
thereof in respect of which there is a reasonable possibility of an
adverse determination and which, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect; and
(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 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 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
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thereof and in any event within 30 days after receipt thereof by UCAR, the
Borrower or any ERISA Affiliate from the sponsor of a Multiemployer Plan, a copy
of each notice received by UCAR, the Borrower or any ERISA Affiliate concerning
(A) the imposition of Withdrawal Liability or (B) a determination that a
Multiemployer Plan is, or is expected to be, terminated or in reorganization, in
each case within the meaning of Title IV of ERISA; PROVIDED that in the case of
each of clauses (i) through (iv) above, notice to the Administrative Agent shall
only be required if such event or condition, together with all other events or
conditions referred to in clauses (i) through (iv) above, could reasonably be
expected to result in liability of UCAR, the Borrower or any Subsidiary in an
aggregate amount exceeding $7,500,000.
SECTION 5.07. MAINTAINING RECORDS; ACCESS TO PROPERTIES AND
INSPECTIONS. Maintain all financial records in accordance with GAAP and permit
any persons designated by the Administrative Agent or any Lender to visit and
inspect the financial records and the properties of UCAR, the Borrower or any
Subsidiary at reasonable times, upon reasonable prior notice to UCAR or the
Borrower, and as often as reasonably requested and to make extracts from and
copies of such financial records, and permit any persons designated by the
Administrative Agent or any Lender upon reasonable prior notice to UCAR or the
Borrower to discuss the affairs, finances and condition of the Borrower or any
Subsidiary with the officers thereof and 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
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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, in order to effectuate the transactions
contemplated by the Loan Documents (other than the Local Facility Loan
Documents) and in order to grant, preserve, protect and perfect the validity and
first priority (subject to Liens permitted by Section 6.02) of the security
interests created or intended to be created by the Security Documents. In
addition, from time to time, UCAR, the Borrower and the Subsidiaries will, at
their cost and expense, on or promptly (but in any event within 10 Business
Days) following the date of acquisition by the Borrower or any Subsidiary of any
new subsidiary (subject to the receipt of required consents from Governmental
Authorities and, in the case of Unrestricted Subsidiaries or acquisitions
constituting Specified Permitted Foreign Transactions, consents of other third
parties), promptly secure the Obligations by causing the following to occur: (i)
promptly upon creating or acquiring any additional subsidiary, the Capital Stock
of such subsidiary will (unless such subsidiary is a subsidiary of an
Unrestricted Subsidiary or a subsidiary of a foreign Subsidiary) be pledged
pursuant to the Pledge Agreement; PROVIDED that no more than 65% of the Capital
Stock of any foreign subsidiary shall be required to be pledged pursuant to this
Section 5.11, and (ii) such subsidiary will (unless such subsidiary is an
Unrestricted Subsidiary or a foreign subsidiary) become a party to the Pledge
Agreement (if such subsidiary owns Capital Stock of any subsidiary), the
Subsidiary Guarantee Agreement and the Indemnity, Subrogation and Contribution
Agreement as contemplated under each such agreement. 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 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.
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SECTION 5.13. FISCAL YEAR; ACCOUNTING. 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 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 Effectiveness 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
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shall otherwise consent in writing, neither UCAR nor the Borrower will, and
neither will cause or permit any of the Subsidiaries to:
SECTION 6.01. INDEBTEDNESS. Incur, create, assume or permit to
exist any Indebtedness, except:
(a) Indebtedness existing on the date hereof 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 date of this Agreement 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 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;
(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 Effectiveness Date
in payment of interest thereon pursuant to the terms thereof (less the
principal amount of any Senior Subordinated Notes that is repaid after
the Effectiveness 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;
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(d) in the case of the Guarantors, the Guarantees under the
Guarantee Agreements;
(e) 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 (PROVIDED that such
transactions shall be entered into for business purposes and not for
the purpose of speculation);
(f) 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;
(g) in the case of the Credit Parties, Indebtedness in respect
of Letters of Credit issued hereunder and Indebtedness under the Local
Facility Loan Documents, subject to the proviso set forth in paragraph
(b) above;
(h) (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; 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
Agreement to the extent applicable to such Indebtedness;
(i) 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;
(j) 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
to the extent that the amount of
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refinancing Indebtedness is not greater than the amount of Indebtedness
being refinanced;
(k) 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;
(l) Indebtedness of a Subsidiary acquired after the date
hereof, Indebtedness of a corporation merged or consolidated with or
into the Borrower or a Subsidiary after the date hereof and
Indebtedness permitted under Section 6.10(b) at the time of incurrence
of such Indebtedness of any subsidiary included in South Africa at the
time such subsidiary becomes a Subsidiary, 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 (l) shall not exceed
$25,000,000 for the Borrower and all Subsidiaries other than those
included in South Africa;
(m) Indebtedness of South Africa or any direct or indirect
parent company of South Africa incurred on an unsecured basis in
connection with the acquisition of all or substantially all the equity
interests not already owned by the Borrower or any Subsidiary in each
subsidiary included in South Africa in an aggregate principal amount
not in excess of $80,000,000 outstanding at any time;
(n) 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 6.11 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;
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(o) 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;
(p) Indebtedness of the Borrower or any Subsidiary supported
by a Revolving Letter of Credit, in a principal amount not in excess of
the stated amount of such Revolving Letter of Credit and in an
aggregate principal amount for all such Indebtedness at any time
outstanding not in excess of $200,000,000; PROVIDED that the aggregate
outstanding principal amount of Indebtedness of foreign Subsidiaries
issued under this paragraph (p) or that is issued under Section 6.01(q)
and guaranteed by the Borrower or any domestic Subsidiary shall not at
any time exceed $200,000,000;
(q) other Indebtedness of the Borrower and the Subsidiaries in
an aggregate principal amount at any time outstanding not in excess of
the amount determined as set forth on Schedule A in effect at such time
(it being agreed that any such Indebtedness permitted when incurred
shall not cease to be permitted as a result of a subsequent change in
the Leverage Ratio) incurred on an unsecured basis; PROVIDED that up to
$20,000,000 of such amount may be incurred on a secured basis; and
PROVIDED FURTHER that the aggregate outstanding principal amount of
Indebtedness of foreign Subsidiaries under Section 6.01(p) or that is
issued under this paragraph (q) and guaranteed by the Borrower or any
domestic Subsidiary shall not at any time exceed $200,000,000;
(r) 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
(s) 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 (r)
above.
Notwithstanding anything to the contrary in this Agreement or any other Loan
Document, no Refinancing Notes shall be issued (and no Indebtedness shall be
incurred under the Refinancing Note Indenture) unless: (a) concurrently with the
issuance of any Refinancing Notes, Senior Subordinated Notes in a principal
amount equal to the principal amount of such Refinancing Notes (less any amount
issued pursuant to clause (iii)(B) or (iii)(C) of paragraph (c) above) shall
have been redeemed (or 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 and not paid in cash and plus any premium in
respect of such redemption), (b) the
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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 date hereof and set forth in Schedule
6.02; PROVIDED that such Liens shall secure only those obligations
which they secure on the date hereof (and extensions, renewals and
refinancings of such obligations permitted by Section 6.01(a)) and
shall not subsequently apply to any other property or assets of UCAR,
the Borrower or any Subsidiary;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset of the Borrower
or any Subsidiary prior to the acquisition thereof by the Borrower or
any Subsidiary; PROVIDED that (i) such Lien is not created in
contemplation of or in connection with such acquisition and (ii) such
Lien does not apply to any other property or asset of the Borrower or
any Subsidiary;
(d) any Lien on any property or asset of a Subsidiary securing
Indebtedness permitted by Section 6.01(l); 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 or, in the case of any subsidiary included in
South Africa, on the date such subsidiary becomes a Subsidiary (other
than after acquired property subjected to a Lien securing Indebtedness
incurred prior to such date
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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 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
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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 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 6.14;
(t) the sale of accounts receivable in connection with
collection in the ordinary course of business; 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 6.11
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
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permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) investments (i) existing on the date hereof in the capital
stock of the Subsidiaries and South Africa; (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 Foreign
Transactions to the limitations set forth in paragraph (l) 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 Agreement 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 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(e);
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(h) investments, other than investments listed in paragraphs
(a) through (g) of this Section, existing on the Effectiveness 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 SA/B Acquisitions;
(k) investments constituting Permitted Business Acquisitions
made either as Capital Expenditures pursuant to Section 6.11 or made
with funds that if not so spent would constitute Net Proceeds under
clause (a) of the definition of "Net Proceeds";
(l) investments constituting Permitted Other Acquisitions or
Specified Permitted Foreign Transactions; PROVIDED that (i) the sum of
the aggregate amount of Specified Permitted Foreign Transaction and the
aggregate amount of the consideration (whether cash or property, as
valued at the time each such investment is made) for all Permitted
Other Acquisitions acquired after the Effectiveness Date shall not
exceed (net of any return representing return of capital of (but not
return on) any such investment) at any time the amount set forth on
Schedule A for the Level 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 Level subsequently changing)
and (ii) the aggregate amount of Specified Permitted Foreign
Transactions immediately after giving effect to the making of any
Specified Permitted Foreign Transaction shall not exceed 10% of total
assets of UCAR and its subsidiaries, determined on a consolidated basis
in accordance with GAAP; and
(m) 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));
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 (m) above) after the date hereof shall not exceed
(net of return of capital of (but not return on) any such investment)
$100,000,000 at any time, PROVIDED FURTHER,
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HOWEVER, that no more than $50,000,000 of such amount at any time may be
invested in Unrestricted Subsidiaries not engaged primarily in Related
Businesses.
SECTION 6.05. MERGERS, CONSOLIDATIONS, SALES OF ASSETS AND
ACQUISITIONS. Merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
any substantial part of its assets (whether now owned or hereafter acquired),
other than assets of UCAR constituting an Unrestricted Subsidiary, or any
Capital Stock of any Subsidiary, or purchase, lease or otherwise acquire (in one
transaction or a series of transactions) all or any substantial part of the
assets of any other person, except that this Section shall not prohibit:
(a) the purchase and sale of inventory in the ordinary course
of business by the Borrower or any Subsidiary or the acquisition of any
asset of any person in the ordinary course of business;
(b) if at the time thereof and immediately after giving effect
thereto no Event of Default or Default shall have 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;
(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), the
Net Proceeds thereof shall be applied in accordance with Section
2.12(d);
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(g) sales, leases or other dispositions of inventory of the
Borrower and the Subsidiaries determined by the Board of Directors or
senior management of the Borrower to be no longer useful or necessary
in the operation of the business of the Borrower and the Subsidiaries;
PROVIDED that the Net Proceeds thereof shall be applied in accordance
with Section 2.12(d);
(h) sales or other dispositions of accounts receivable of
foreign Subsidiaries in connection with factoring arrangements so long
as the aggregate face amount at any time outstanding of receivables
subject to such arrangements does not exceed $50,000,000; and
(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 (taken together with any
consideration received in respect of transactions permitted pursuant to
paragraph (f) above) not exceeding 25% of the Enterprise Value of UCAR,
the Borrower and the Subsidiaries as of the Original Closing Date;
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; 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., UCAR Holdings II Inc. or UCAR Holdings III 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 a Responsible
Officer to the Administrative Agent setting forth the amount of the Net
Proceeds received in respect thereof and whether it shall apply such
Net Proceeds to prepay Obligations in accordance with Section 2.12(d)
or will use such Net Proceeds to purchase assets useful in the
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business of the Borrower and the Subsidiaries within 12 months of such
receipt.
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 directly or indirectly
redeem, purchase, retire or otherwise acquire for value (or permit any
Subsidiary to purchase or acquire) any shares of any class of its Capital Stock
or set aside any amount for any such purpose (collectively, the "Restricted
Equity Payments"); PROVIDED, HOWEVER, that:
(a) any Subsidiary may declare and pay dividends to,
repurchase its Capital Stock from or make other distributions to the
Borrower or to any Wholly Owned Subsidiary (or, in the case of
non-Wholly Owned Subsidiaries, to the Borrower or any Subsidiary and to
each other owner of Capital Stock of such Subsidiary on a pro rata
basis (or more favorable basis from the perspective of the Borrower or
such Subsidiary) based on their relative ownership interests);
(b) the Borrower may declare and pay dividends or make other
distributions to UCAR in respect of overhead, tax liabilities, legal,
accounting and other professional fees and expenses and any fees and
expenses associated with registration statements filed with the
Securities and Exchange Commission and subsequent ongoing public
reporting requirements, in each case to the extent actually incurred by
UCAR in connection with the business of its ownership of the Capital
Stock of the Borrower and the Unrestricted Subsidiaries;
(c) (i) 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, at least one of the following two
conditions shall be satisfied: (x) the aggregate amount of Restricted
Junior Payments made after the Effectiveness Date shall not exceed the
Restricted Junior Payment Amount or (y) the aggregate amount of
Restricted Junior Payments made during the twelve-month period ending
on the date of such Restricted Equity Payment shall not exceed
$15,000,000; PROVIDED, HOWEVER, that if at any time the Leverage Ratio
reflected in the certificate most recently delivered under Section
5.04(c) is greater than 2.0, the aggregate amount of Restricted Junior
Payments made in the fiscal year in which such certificate is delivered
shall not exceed $65,000,000 (it being understood that it shall not
constitute a violation of this provision if Restricted Junior Payments
in excess of
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$65,000,000 are made in any fiscal year at any time that such Leverage
Ratio is less than or equal to 2.0 and the Leverage Ratio reflected in
a certificate subsequently delivered under Section 5.04(c) during such
fiscal year is greater than 2.0), except that the aggregate amount of
Restricted Junior Payments permitted to have been made during the
period extending from October 19, 1995, through December 31, 1996, but
not actually made during such period (which amount shall not exceed
$45,000,000) may be made during fiscal year 1997 in addition to the
aggregate amount of Restricted Junior Payments otherwise allowable
hereunder, and (ii) dividends may be paid within 60 days after the date
of declaration thereof if, had such dividend been paid on such date of
declaration, such dividend would have complied with clause (i) above;
and
(d) the Borrower may purchase or redeem, or 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 options
or warrants in respect of such shares) of UCAR (including related stock
appreciation rights or similar securities) held by present or former
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.
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 (A) the payment to the Fund or any
of its Affiliates of the monitoring and management fees referred to in paragraph
(c) below or fees payable on the Effectiveness Date or (B) 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
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payments, awards or grants in cash, securities or otherwise pursuant to, or the
funding of, employment arrangements, stock options and stock ownership plans
approved by the Board of Directors of UCAR, (ii) loans or advances to employees
of UCAR, the Borrower or any Subsidiary in accordance with Section 6.04(e),
(iii) transactions among UCAR, the Borrower and Wholly Owned Subsidiaries and
transactions among Wholly Owned Subsidiaries otherwise permitted by this
Agreement, (iv) the payment of fees and indemnities to directors, officers and
employees of the Borrower and the Subsidiaries in the ordinary course of
business, (v) transactions pursuant to permitted agreements in existence on the
Effectiveness Date and set forth on Schedule 6.07, (vi) payments pursuant to the
Tax Sharing Agreement, (vii) any employment agreements entered into by the
Borrower or any of the Subsidiaries in the ordinary course of business, (viii)
dividends and repurchases permitted under Section 6.06, and (ix) any purchase by
UCAR of Capital Stock of the Borrower or any contribution by UCAR to the equity
capital of the Borrower.
(c) Make any payment of or on account of monitoring or
management fees payable to the Fund or its Affiliates if a Default or Event of
Default shall have occurred and be continuing or would result therefrom,
PROVIDED that the aggregate amount of monitoring and management fees paid or
payable to the Fund and its Affiliates in any fiscal year shall not exceed
$1,102,500 for 1997 and for any subsequent year an amount equal to 105% of the
maximum allowable aggregate monitoring and management fee for the immediately
preceding year; PROVIDED that in the event that the maximum amount allowable for
such monitoring and management fee is not paid in any such year (the "Fee
Shortfall") the maximum amount allowable for such monitoring and management fee
shall be an amount equal to 105% of the maximum allowable aggregate monitoring
and management fee for the immediately preceding year plus the Fee Shortfall.
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(r) and (iv) actions required by law to
maintain its status as a corporation and as a public company.
SECTION 6.09. SUBORDINATED 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.
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(b) (i) Directly or indirectly, make any payment, retirement,
repurchase or redemption on account of the principal of the Senior Subordinated
Notes or the Refinancing Notes 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)), 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, at least one of the following two conditions shall
be satisfied: (A) the aggregate amount of Restricted Junior Payments made after
the Effectiveness Date shall not exceed the Restricted Junior Payment Amount or
(B) the aggregate amount of Restricted Junior Payments made during the
twelve-month period ending on the date of such Restricted Debt Payment shall not
exceed $15,000,000; PROVIDED, HOWEVER, that if at any time the Leverage Ratio
reflected in the certificate most recently delivered under Section 5.04(c) is
greater than 2.0, the aggregate amount of Restricted Junior Payments made in the
fiscal year in which such certificate is delivered shall not exceed $65,000,000
(it being understood that it shall not constitute a violation of this provision
if Restricted Junior Payments in excess of $65,000,000 are made in any fiscal
year at any time that such Leverage Ratio is less than or equal to 2.0 and the
Leverage Ratio reflected in a certificate subsequently delivered under Section
5.04(c) during such fiscal year is greater than 2.0), except that the aggregate
amount of Restricted Junior Payments permitted to have been made during the
period extending from October 19, 1995, through December 31, 1996, but not
actually made during such period (which amount shall not exceed $45,000,000) may
be made during fiscal year 1997 in addition to the aggregate amount of
Restricted Junior Payments otherwise allowable hereunder, (ii) make any payment
or prepayment of any such Indebtedness that would violate the terms of this
Agreement or of such Indebtedness, any agreement or document evidencing, related
to or securing the payment or performance of such Indebtedness or any
subordination agreement or provision applicable to such Indebtedness or (iii)
pay in cash any amount in respect of such Indebtedness that may at the
Borrower's option be paid in kind thereunder; PROVIDED, HOWEVER, that the
proceeds of the Refinancing Notes may be applied to repay or prepay Senior
Subordinated Notes.
(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 bylaws in
any material respect 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
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parent of such Subsidiary other than those in effect on the Effectiveness Date
and set forth on Schedule 6.09 (or replacements of such agreements on terms no
less favorable to the Lenders), those entered into by South Africa at the time
it is an Unrestricted Subsidiary in accordance with Section 6.10 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. SOUTH AFRICA. At any time that any subsidiary
included in South Africa shall be an Unrestricted Subsidiary, (a) permit such
subsidiary or any of its subsidiaries 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 other Subsidiary unless such
agreement or instrument shall at all times permit the affected subsidiary to pay
dividends or make cash advances to the Borrower and the Subsidiaries in an
amount at least equal to the product of (A) 50%, (B) EBIT of such subsidiary on
a consolidated basis and (C) the Tax Multiplier applicable to such subsidiary;
or (b) permit such subsidiary to incur Indebtedness, unless at the time such
Indebtedness is incurred, the ratio for such subsidiary on a consolidated basis,
computed on a pro forma basis as of the last day of the most recently ended
fiscal quarter of such subsidiary, as certified in an officer's certificate to
such effect delivered to the Administrative Agent, together with all relevant
information, of (i) all Indebtedness (other than Indebtedness permitted pursuant
to Section 6.01(m)) of such subsidiary for borrowed money to (ii) EBIT for such
subsidiary plus, to the extent deducted in calculating net income of such
subsidiary, depreciation and amortization expense and plus or minus, the amounts
referred to in clauses (d) and (ii) of the definition of "EBITDA" (with respect
to South Africa), for the four quarter period ending as of such day, shall be
less than 3.000. For purposes of this Section 6.10, (x) "EBIT" shall mean, for
any person, the net income of such person plus, to the extent deducted in
calculating net income, interest and income tax expense and (y) the "Tax
Multiplier" for any person at any time shall mean one minus the effective income
tax rate applicable to such person at such time.
SECTION 6.11. CAPITAL EXPENDITURES. Permit UCAR to make any
Capital Expenditure or permit the aggregate amount of Capital Expenditures made
by the Borrower and the Subsidiaries in any fiscal year to exceed $90,000,000;
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 6.11 by an amount up to
$10,000,000 by reducing the amount of Capital Expenditures permitted to be made
pursuant to this Section 6.11 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 Capital Expenditures made in any fiscal year were
less than $90,000,000 less any reduction made for such year pursuant to clause
(a), such unused amount may be carried forward to
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succeeding fiscal years; PROVIDED FURTHER, HOWEVER, that aggregate Capital
Expenditures in any fiscal year shall not exceed $110,000,000.
SECTION 6.12. 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:
January 1, 1997 June 30, 1997 2.100
July 1, 1997 December 31, 1997 2.200
January 1, 1998 June 30, 1998 2.300
July 1, 1998 December 31, 1998 2.400
January 1, 1999 June 30, 1999 2.500
July 1, 1999 December 31, 1999 2.600
January 1, 2000 June 30, 2000 2.700
July 1, 2000 December 31, 2000 2.800
January 1, 2001 June 30, 2001 2.900
July 1, 2001 December 31, 2002 3.000
SECTION 6.13. LEVERAGE RATIO. Permit the ratio (the "Leverage
Ratio") of (a) Total Debt 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:
January 1, 1997 June 30, 1997 4.250
July 1, 1997 December 31, 1997 4.000
January 1, 1998 June 30, 1998 3.850
July 1, 1998 December 31, 1998 3.750
January 1, 1999 June 30, 1999 3.500
July 1, 1999 December 31, 1999 3.250
January 1, 2000 June 30, 2000 3.000
July 1, 2000 December 31, 2000 2.750
January 1, 2001 June 30, 2001 2.500
July 1, 2001 December 31, 2002 2.250
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SECTION 6.14. 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) in connection with transactions of the type described in
Section 6.07(b)(i) and (c) directors' qualifying shares.
ARTICLE VII
EVENTS OF DEFAULT
-----------------
In case of the happening of any of the following events
("Events of Default"):
(a) any representation or warranty made or deemed made by
UCAR, the Borrower or any Loan Party in any Loan Document (other than a
Local Facility Loan Document), or any representation, warranty,
statement or information contained in any report, certificate,
financial statement or other instrument furnished in connection with or
pursuant to any Loan Document (other than a Local Facility Loan
Document), shall prove to have been false or misleading in any material
respect when so made, deemed made or furnished by UCAR, the Borrower or
any other Loan Party;
(b) default shall be made in the payment of any principal of
any Loan, 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 prepayment thereof or by acceleration thereof or
otherwise;
(c) default shall be made in the payment of any 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;
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(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) 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;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of UCAR, the Borrower or any
Subsidiary, or of a substantial part of the property or assets of UCAR,
the Borrower or a Subsidiary, under Title 11 of the United States Code,
as now constituted or hereafter amended, or any other Federal, state or
foreign bankruptcy, insolvency, receivership or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for UCAR, the Borrower or any
Subsidiary or for a substantial part of the property or assets of UCAR,
the Borrower or a Subsidiary or (iii) the winding-up or liquidation of
UCAR, the Borrower or any Subsidiary; and such proceeding or petition
shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;
(h) UCAR, the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title
11 of the United States Code, as now constituted or hereafter amended,
or any other Federal, state or foreign bankruptcy, insolvency,
receivership or similar law, (ii) consent to the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or
the filing of any petition described in (g) above, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for UCAR, the Borrower or
any Subsidiary or for a substantial part of the property or assets of
the Borrower or any Subsidiary, (iv) file an answer admitting the
material allegations of a
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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 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
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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 Agreement or to file UCC continuation 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 thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document
(other than any Local Facility Loan Document), shall become forthwith due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the 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 thereon and any unpaid accrued Fees
and all other liabilities of the Borrower 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 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. As soon as
practicable following any acceleration hereunder the Administrative Agent shall
advise the Local Facility Lenders thereof.
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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, 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
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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 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.
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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 Commitments 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.
No Co-Agent shall have any liability hereunder by virtue of
its execution of this Agreement as a Co-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.
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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 Chief
Financial Officer (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. (▇▇▇) ▇▇▇-▇▇▇▇);
(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 2.20; 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 other
Credit Parties and the Guarantors herein, in the other Loan Documents and in the
certificates or other
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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
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 or an Affiliate of such 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) and (B) in the case of participations in
Letters of Credit, Tranche A Reimbursement Commitments or
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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), (ii) except in the case of an assignment to
another Lender or an Affiliate of such Lender, the amount of the Loans, L/C
Disbursements, Commitments or participations in Letters of Credit 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
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 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, in each case without giving effect to
assignments thereof which have not become effective, are as set forth in such
Assignment and Acceptance; (ii) except as set forth in clause (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other
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instrument or document furnished pursuant hereto or thereto, or the financial
condition of the Borrower, any other Credit Party or any Guarantor or the
performance or observance by the Borrower, any other Credit Party or any
Guarantor 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 and the Administrative Agent to such assignment,
the Administrative Agent shall (i) accept
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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
Credit Party, any Fronting Bank 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 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 9.06 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 Credit Parties, the Administrative Agent, the Fronting Banks 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 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,
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disclose to the assignee or participant or proposed assignee or participant any
information relating to the Borrower, any other Credit Party or any Guarantor
furnished to such Lender by or on behalf of the Borrower, any Credit Party or
any Guarantor; 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; PROVIDED 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, 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 Standard & Poor's Ratings Group or
▇▇▇▇▇'▇ Investors Service, Inc. shall, after the date that any Lender becomes a
Lender, downgrade the long-term certificate 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 prior written consent of the
Borrower, each applicable Credit Party, the Administrative Agent and the
Required Lenders.
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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
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disbursements, incurred by or asserted against any Indemnitee (and arising out
of, or in any way connected with or as a result of, any of the events described
in clause (i), (ii) or (iii) of the preceding sentence) arising out of, in any
way connected with, or as a result of (A) any Environmental Claim related in any
way to UCAR, the Borrower or any Subsidiary, (B) any violation of any
Environmental Law, (C) any act, omission, event or circumstance (including the
actual, proposed or threatened, Release, removal, presence, disposition,
discharge or transportation, storage, holding, existence, generation,
processing, abatement, handling or presence on, into, from or under any present,
past or future property of UCAR, the Borrower or any Subsidiary of any Hazardous
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
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withheld or delayed unless such settlement is unreasonable in light of such
claims or actions against, and defenses available to, such Indemnitee.
(d) Notwithstanding anything to the contrary in this Section
9.05, this Section 9.05 shall not apply to taxes, it being understood that the
Borrower's only obligations with respect to taxes shall arise under Sections
2.13 and 2.19.
SECTION 9.06. RIGHT OF SETOFF. If an Event of Default shall
have occurred and be continuing, each Lender 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
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this Agreement or any other Loan Document or consent to any departure by UCAR,
the Borrower, any other Credit Party or any Guarantor 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,
any other Credit Party or any Guarantor in any case shall entitle the Borrower
to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by UCAR, the Borrower, the 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, or (vi) 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
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a transaction permitted by this Agreement or as provided in Section 9.18,
without the prior written consent of each Lender adversely affected thereby;
PROVIDED FURTHER that no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent or any Fronting Bank hereunder
without the prior written consent of the Administrative 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
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HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 9.11.
SECTION 9.12. SEVERABILITY. In the event any one or more of
the provisions contained in this Agreement or in any other Loan Document should
be held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.13. COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract, and shall become
effective as provided in Section 9.03.
SECTION 9.14. HEADINGS. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
SECTION 9.15. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a)
Each of UCAR, the Borrower and the 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
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venue of any suit, action or proceeding arising out of or relating to this
Agreement or the other Loan Documents in any New York State or Federal court.
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.16. CONVERSION OF CURRENCIES. (a) If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum due
hereunder or under any other Loan Document in Dollars into another currency, the
parties hereto agree, to the fullest extent that they may legally and
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase Dollars with such other currency in New York, New York, on the Business
Day immediately preceding the day on which final judgment is given.
(b) The obligations of UCAR, the Borrower and the 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
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the same other than (i) to its directors, trustees, officers, employees and
advisors with a need to know (so long as each such person shall have been
instructed to keep the same confidential in accordance with this Section 9.17)
and (ii) as contemplated by Section 9.04(g), except: (A) to the extent necessary
to comply with law or any legal process or the requirements of any Governmental
Authority or of any securities exchange on which securities of the disclosing
party or any Affiliate of the disclosing party are listed or traded, (B) as part
of normal reporting or review procedures to Governmental Authorities, (C) to its
parent companies, Affiliates or auditors (so long as each such person shall have
been instructed to keep the same confidential in accordance with this Section
9.17) and (D) in order to enforce its rights under any Loan Document in a legal
proceeding.
SECTION 9.18. RELEASE OF LIENS AND GUARANTEES. In the event
that UCAR, the Borrower or any Subsidiary conveys, sells, leases, assigns,
transfers or otherwise disposes of all or any portion of any of the Capital
Stock, assets or property of UCAR, the Borrower or any of the Subsidiaries in a
transaction not prohibited by Section 6.05, the Administrative Agent and the
Collateral Agent shall promptly (and the Lenders hereby authorize the
Administrative Agent and the Collateral Agent to) take such action and execute
any such documents as may be reasonably requested by the Borrower and at the
Borrower's expense to release any Liens created by any Loan Document in respect
of such Capital Stock, assets or property, and, in the case of a disposition of
all or substantially all the Capital Stock or assets of any Subsidiary
Guarantor, terminate such Subsidiary Guarantor's obligations under the
Subsidiary Guarantee Agreement. 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.
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.
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UCAR INTERNATIONAL INC.
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Chief
Financial Officer and Treasurer
UCAR GLOBAL ENTERPRISES INC.
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Chief
Financial Officer and Treasurer
UCAR HOLDINGS S.A.
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
UCAR S.p.A.,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
UCAR ELECTRODOS, S.L.,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
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UCAR INC.,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
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
(OTHER BANKS)
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ABN AMRO BANK, N.V., NEW YORK
BRANCH, individually and as Co-Agent,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Group Vice President
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
AMSOUTH BANK OF ALABAMA,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Commercial Banking Officer
BANCA COMMERCIALE ITALIANA,
NEW YORK BRANCH,
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
by
/s/ T. Gallonetto
--------------------------------------
Name: T. Gallonetto
Title: Assistant Vice President
BANK OF AMERICA ILLINOIS,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
BANK OF NEW YORK, individually and as
Co-Agent,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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THE BANK OF NOVA SCOTIA, individually
and as Co-Agent,
by
/s/ J. R. Trimble
--------------------------------------
Name: J. R. Trimble
Title: Senior Relationship Manager
THE BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, individually and as Co-Agent,
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR,
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
BANQUE PARIBAS, individually and as
Co-Agent,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
Title: Vice President
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Group Vice President
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BHF-BANK AKTIENGESELLSCHAFT,
by
/s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Assistant Vice President
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
CANADIAN IMPERIAL BANK OF
COMMERCE, individually and as Co-Agent,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
CORESTATES BANK, N.A.
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
CREDIT AGRICOLE,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: First Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
individually and as Co-Agent,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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THE DAI-ICHI KANGYO BANK, LTD.,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President & Group Leader
FIRST AMERICAN NATIONAL BANK,
by
/s/ ▇▇▇▇▇▇▇ ▇. Brothers
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Brothers
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Director
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, individually and as Co-Agent,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
FLEET NATIONAL BANK, individually and as
Co-Agent,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
-131-
GENERAL ELECTRIC CAPITAL
CORPORATION,
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
individually and as Co-Agent,
by
/s/ Takuya Honjo
--------------------------------------
Name: Takuya Honjo
Title: Senior Vice President
KREDIETBANK N.V., NEW YORK BRANCH,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇
Title: Assistant Treasurer
INSTITUTO BANCARIO SAN PAOLO DI TORINO
SPA,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: First Vice President
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇
Title: First Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH, individually
and as Co-Agent,
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Deputy General Manager
-132-
MELLON BANK, N.A.,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND,
INC.
By
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
SENIOR HIGH INCOME PORTFOLIO, INC.
By
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (a unit of The Chase Manhattan
Bank),
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
PNC BANK, National Association,
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ROYAL BANK OF SCOTLAND,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Deputy Manager
-133-
THE SAKURA BANK, LTD.,
by
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
THE SANWA BANK, LIMITED -
NEW YORK BRANCH,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
SOCIETE GENERALE,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
by
--------------------------------------
Name:
Title:
THE SUMITOMO BANK, LTD.,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Joint General Manager
THE TOKAI BANK, LIMITED - NEW YORK
BRANCH,
by
/s/ ▇▇▇▇▇ ▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Assistant General Manager
-134-
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: Vice President
-135-
SCHEDULE A
ADJUSTMENTS
LIBOR
Margin
and Excess
L/C Permitted Cash Restricted
Partici- Indebtedness Flow Junior Permitted
Leverage Commitment pation Under Sweep Payment Other
Level Ratio Fee Fee X6.01(q) Percentage Percentage Acquisitions
----- ----- --- --- -------- ---------- ---------- ------------
I greater than
2.5 0.3000% 1.0000% $125,000,000 50% 50% $125,000,000
II less than or
equal to 2.5
but greater
than 2.0 0.2500% 0.750% $125,000,000 50% 50% $150,000,000
III less than or
equal to 2.0
but greater
than 1.75 0.1875% 0.625% $150,000,000 50% 50% $150,000,000
IV less than or
equal to 1.75
but greater
than 1.5 0.1500% 0.500% $175,000,000 25% 60% $175,000,000
V less than or
equal to 1.5 0.1250% 0.350% $175,000,000 25% 65% $175,000,000
The "LIBOR Margin", the L/C Participation Fee, the aggregate principal amount of
Indebtedness permitted under Section 6.01(q), the applicable percentage of
Excess Cash Flow referred to in Section 2.12(e), the Restricted Junior Payment
Percentage and the aggregate amount of Permitted Other Acquisitions 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
aggregate amount of Permitted Other Acquisitions 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 6.13 for which such last day is the measuring
date (and computed as provided in Section 6.13 with respect to each such
Measured Period), and any change shall become effective upon the delivery to the
Administrative Agent of a certificate of 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 officers' certificate of any Event of Default
or Default and shall apply
136
(i) in the case of the LIBOR Margin, to Eurodollar Loans made on and after such
delivery date (including pursuant to any conversion or continuation pursuant to
Section 2.10) and (ii) in the case of the L/C Participation Fee, the aggregate
principal amount of Indebtedness permitted under Section 6.01(q), the applicable
percentage of Excess Cash Flow referred to in Section 2.12(e), the Restricted
Junior Payment Percentage and Permitted Other Acquisitions, 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
prior to the time the first certificate is required to be delivered under
Section 5.04(c) and 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 2.5,
until such time as Borrower shall deliver such Compliance Certificate.
137
SCHEDULE 2.01
BANK COMMITMENTS
================================================================================
Institution Tranche A Tranche A Tranche B Term Revolving
Term Reimbursement Commitments Credit
Commitments Commitments Commitments
--------------------------------------------------------------------------------
THE CHASE MANHATTAN
BANK 2,090,769.26 10,370,769.26 59,400,000.00 11,538,461.48
--------------------------------------------------------------------------------
ABN AMRO BANK N.V.,
NEW YORK BRANCH 1,480,961.54 7,345,961.54 0 8,173,076.92
--------------------------------------------------------------------------------
AMSOUTH BANK OF
ALABAMA 1,219,615.38 6,049,615.38 0 6,730,769.24
--------------------------------------------------------------------------------
BANCA COMMERCIALE
ITALIANA, NEW YORK
BRANCH 1,219,615.38 6,049.615.38 0 6,730,769.24
--------------------------------------------------------------------------------
BANK OF AMERICA
ILLINOIS 1,219,615.38 6,049.615.38 0 6,730,769.24
--------------------------------------------------------------------------------
BANK OF NEW YORK 1,480,961.54 7,345,961.54 0 8,173,076.92
--------------------------------------------------------------------------------
THE BANK OF NOVA
SCOTIA 1,480,961.54 7,345,961.54 0 8,173,076.92
--------------------------------------------------------------------------------
THE BANK OF TOKYO-
MITSUBISHI, LTD.,
NEW YORK BRANCH 1,480,961.54 7,345,961.54 0 8,173,076.92
--------------------------------------------------------------------------------
BANQUE FRANCAISE DU
COMMERCE EXTERIEUR 1,219,615.38 6,049.615.38 0 6,730,769.24
--------------------------------------------------------------------------------
BANQUE NATIONALE DE
PARIS 1,219,615.38 6,049.615.38 0 6,730,769.24
-------------------------------------------------------------------------------
BANQUE PARIBAS 1,480,961.54 7,345,961.54 0 8,173,076.92
--------------------------------------------------------------------------------
BHF-BANK
AKTIENGESELLSCHAFT 1,480,961.54 7,345,961.54 0 8,173,076.92
--------------------------------------------------------------------------------
-138-
================================================================================
Institution Tranche A Tranche A Tranche B Term Revolving
Term Reimbursement Commitments Credit
Commitments Commitments Commitments
--------------------------------------------------------------------------------
CANADIAN IMPERIAL
BANK OF COMMERCE 1,480,961.54 7,345,961.54 0 8,173,076.92
-------------------------------------------------------------------------------
CORESTATES BANK,
N.A. 1,219,615.38 6,049,615.38 0 6,730,769.24
--------------------------------------------------------------------------------
CREDIT AGRICOLE 1,045,384.62 5,185,384.62 0 5,769,230.76
--------------------------------------------------------------------------------
CREDIT LYONNAIS NEW
YORK BRANCH 1,480,961.54 7,345,961.54 0 8,173,076.92
--------------------------------------------------------------------------------
THE DAI-ICHI KANGYO
BANK, LTD., 1,219,615.38 6,049,615.38 0 6,730,769.24
--------------------------------------------------------------------------------
FIRST AMERICAN
NATIONAL BANK 1,045,384.62 5,185,384.62 0 5,769,230.76
--------------------------------------------------------------------------------
THE FIRST NATIONAL
BANK OF BOSTON 1,219,615.38 6,049,615.38 0 6,730,769.24
--------------------------------------------------------------------------------
`FIRST UNION NATIONAL
BANK OF NORTH
CAROLINA 1,480,961.54 7,345,961.54 0 8,173,076.92
--------------------------------------------------------------------------------
FLEET NATIONAL BANK 1,480,961.54 7,345,961.54 0 8,173,076.92
--------------------------------------------------------------------------------
GENERAL ELECTRIC
CAPITAL CORPORATION 1,219,615.38 6,049,615,38 0 6,730,769.24
--------------------------------------------------------------------------------
THE INDUSTRIAL BANK
OF JAPAN, LIMITED 1,480,961.54 7,345,961.54 0 8,173,076.92
--------------------------------------------------------------------------------
KREDIETBANK N.V., NEW
YORK BRANCH 1,045,384.62 5,185,384.62 0 5,769,230.76
--------------------------------------------------------------------------------
INSTITUTO BANCARIO
SAN PAOLO DI TORINO
SPA 871,153.85 4,321,153.85 0 4,807,692.30
--------------------------------------------------------------------------------
-139-
================================================================================
Institution Tranche A Tranche A Tranche B Term Revolving
Term Reimbursement Commitments Credit
Commitments Commitments Commitments
--------------------------------------------------------------------------------
THE LONG-TERM CREDIT
BANK OF JAPAN,
LIMITED, NEW YORK
BRANCH 1,480,961.54 7,345,961.54 0 8,173.076.92
--------------------------------------------------------------------------------
MELLON BANK, N.A. 1,219,615.38 6,049,615.38 0 6,730,769.24
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR
FLOATING RATE FUND,
INC. 0 0 10,171,428.58 0
--------------------------------------------------------------------------------
SENIOR HIGH INCOME
PORTFOLIO 0 0 3,428,571.42 0
--------------------------------------------------------------------------------
OCTAGON CREDIT
INVESTOR LOAN
PORTFOLIO 0 0 12,000,000.00 0
--------------------------------------------------------------------------------
THE PNC BANK 1,219,615.38 6,049,615.38 0 6,730,769.24
--------------------------------------------------------------------------------
ROYAL BANK OF
SCOTLAND 1,219,615.38 6,049,615.38 0 6,730,769.24
--------------------------------------------------------------------------------
THE SAKURA BANK, LTD. 1,219,615.38 6,049,615.38 0 6,730,769.24
--------------------------------------------------------------------------------
THE SANWA BANK
LIMITED NEW YORK
BRANCH 1,219,615.38 6,049,615.38 0 6,730,769.24
--------------------------------------------------------------------------------
SOCIETE GENERALE 1,219,615.38 6,049,615.38 0 6,730,769.24
--------------------------------------------------------------------------------
THE SUMITOMO BANK,
LTD. 1,219,615.38 6,049,615.38 0 6,730,769.24
--------------------------------------------------------------------------------
THE TOKAI BANK,
LIMITED - NEW YORK
BRANCH 1,045,384.62 5,185,384.62 0 5,769,230.76
--------------------------------------------------------------------------------
-140-
================================================================================
Institution Tranche A Tranche A Tranche B Term Revolving
Term Reimbursement Commitments Credit
Commitments Commitments Commitments
--------------------------------------------------------------------------------
THE TRAVELERS
INDEMNITY COMPANY 174,230.77 864,230.77 2,000,000.00 961,538.46
--------------------------------------------------------------------------------
THE TRAVELERS
INSURANCE COMPANY 627,230.77 3,111,230.77 8,000,000.00 3,461.538.46
--------------------------------------------------------------------------------
THE TRAVELERS LIFE
AND ANNUITY COMPANY 69,692.31 345,692.31 0 384,615.38
--------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇ AMERICAN
CAPITAL PRIME RATE
INCOME TRUST 0 0 25,000,000.00 0
================================================================================
-141-
SCHEDULE 2.20
LETTERS OF CREDIT
Tranche A L/C Commitments
-------------------------
Percentage
Fronting Banks Commitments of Facility
-------------- ----------- -----------
The Chase Manhattan Bank $224,700,000 100.00%
Tranche A Letters of Credit
---------------------------
Percentage
Credit Party Stated Amount of Facility
------------ ------------- -----------
UCAR Holdings S.A. $134,953,333.25 60.05933834
UCAR S.p.A. 32,239,999.99 14.34801977
UCAR Electrodos S.L. 33,376,933.34 14.85399793
UCAR Inc. 20,563,333.34 9.15146121
Foreign Currency Reserve
Component 3,566,400.08 1.58718295
Revolving L/C Commitments
-------------------------
Percentage
Fronting Banks Commitments of Facility
-------------- ----------- -----------
The Chase Manhattan Bank $200,000,000 100.00%
-142-
SCHEDULE 3.08 TO CREDIT AGREEMENT
---------------------------------
SUBSIDIARIES
------------
COMPANY (Each company owned 100% by parent unless
otherwise indicated.) JURISDICTION
------------
UCAR International Inc. Delaware
UCAR Global Enterprises Inc. Delaware
UCAR Carbon Company Inc. Delaware
UCAR Carbon Technology Corporation Delaware
UCAR Carbon Foreign Sales Corporation Virgin Islands
UCAR Composites Inc. California
Union Carbide Grafito, Inc. New York
UCAR International Trading Inc. Delaware
UCAR Limited UK
UCAR Carbon (Malaysia) Sdn. Bhd. Malaysia
EMSA (Pty) Ltd. (50% OWNED) So. Africa
Carbographite Limited (50% OWNED) So. Africa
Unicarbon Comercial Ltda. Brazil
UCAR Holdings Inc. Delaware
UCAR S.p.A(1) Italy
UCAR Energia S.r.l. Italy
UCAR Specialties S.r.l. Italy
UCAR Mexicana S.A. de C.V.(2) Mexico
UCAR Carbon Mexicana S.A. de C.V.(1) Mexico
Servicios Administratoes Carmex S.A. de C.V. Mexico
Servicios DYC S.A. de C.V. Mexico
UCAR Holdings II Inc. Delaware
UCAR Holding GmbH Austria
UCAR Grafit OAO (89.67% OWNED) Russia
UCAR Holdings S.A.(3) France
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (70% OWNED) France
UCAR SNC(4) France
UCAR Inc. Canada
UCAR Electrodos S.L.(2) Spain
UCAR Elektroden GmbH (70% OWNED) Germany
UCAR Holdings III Inc. Delaware
UCAR Carbon S.A. (94.04% OWNED)(5) Brazil
UCAR Produtos de Carbono S.A. Brazil
Itapira Brasil Investimentos E Participacoes Ltda. Brazil
-143-
--------------------------------------------------------------------------------
(1).1% owned by UCAR Carbon Company Inc.
(2) 1 share owned by UCAR Carbon Company Inc.
(3) 1 share owned each by UCAR International Inc., UCAR Global Enterprises Inc.,
UCAR Carbon Company Inc. & 3 nominees.
(4) 1 share owned by UCAR Holdings III Inc.
(5) 2.33% owned by Unicarbon Comercial Ltda.
AGREEMENTS RELATING TO ANY CAPITAL STOCK
----------------------------------------
1.) With respect to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, the Shareholders' Agreement between
Pechiney S.A., UCAR International Inc. and UCAR Holdings S.A., dated
December 23, 1996, includes a right of first refusal in the event that
either shareholder desires to transfer part or all of its shares to an
independent third party. In addition, the Shareholders' Agreement
provides for tag along rights in the event that a shareholder wishes to
transfer all of its shares to a non-affiliate or UCAR wishes to
transfer part of its shares and such transfer would result in UCAR
owning less than 50.01% of the shares, the other shareholder has the
right to require the selling shareholder to include the transfer of all
of its shares in the proposed transaction at the same price per share.
2.) The Articles of Association of UCAR Elektroden GmbH (Article 12)
provide for a right of first refusal as between the shareholders UCAR
Holdings II Inc. and ▇▇▇▇▇-Incon GmbH & Co. KG in the event either
shareholder wishes to transfer its shares to a third party not
affiliated with it.
-144-
SCHEDULE 3.09 TO
CREDIT AGREEMENT
Litigation
----------
NONE
-145-
SCHEDULE 3.14 TO
CREDIT AGREEMENT
Taxes
-----
1. UCAR International Inc.
UCAR is currently under Federal Income Tax Audit for the years 1993 and
1994. No adjustment has been proposed by the IRS as of 03/05/96.
UCAR Carbon has reserved $15.3 million on general taxes and interest
relating to potential exposures with respect to various filing
positions taken in the years 1993 to 1996.
2. UCAR S.p.A.
UCAR S.p.A. has appeals still outstanding for the years 1972 and 1975.
In addition to this, the results of a tax inspection covering the years
1986 and 1987, completed on April 20, 1989, are still pending. The
initial taxable income adjustment was reduced in the year 1992 to ITL
133 million by the Tax Commission.
In addition, UCAR S.p.A. has appeals still outstanding for the years
1982 and 1989, that are expected to close without any payment.
The amount of ITL 2,400 million was accrued to cover the tax liability
which could eventually derive from the final settlement of all these
pending litigations, plus ITL 1,607 million accrued to cover the
generic risk of the settlement of future litigations.
-146-
SCHEDULE 3.17 TO
CREDIT AGREEMENT
Environmental Matters
---------------------
NONE
-147-
SCHEDULE 3.18 TO
CREDIT AGREEMENT
Capitalization
--------------
1. UCAR International Inc.
(i) Authorized Capital Stock: 100,000,000 shares of Common Stock
(ii) Par Value: $.01 per share
(iii) Authorized Capital Stock Issued and Outstanding as of
February 28, 1997: 46,797,777
2. UCAR Global Enterprises Inc.
(i) Authorized Capital Stock: 1,500 shares of Common Stock
(ii) Par Value: $.01 per share
(iii) Authorized Capital Stock Issued and Outstanding as of
February 28, 1997: 100
-148-
SCHEDULE 3.20 TO
CREDIT AGREEMENT
Labor Matters
-------------
NONE
-149-
SCHEDULE 6.01 - INDEBTEDNESS MARCH 1997 CREDIT AGREEMENT AMENDMENT
LENDER TYPE US$ OR EQUIV.
UCAR CARBON S.A CCF EXCHANGE CONTRACT $ 2,032,340.00 @MAR 7, 1997
UCAR CARBON S.A BANCO REAL EXCHANGE CONTRACT $ 5,605,520.56 @MAR 7, 1997
UCAR CARBON S.A TOKIO IMPORT FINANCE $ 67,652.39 @MAR 7, 1997
UCAR CARBON S.A ITAU IMPORT FINANCE $ 3,612,960.86 @MAR 7, 1997
UCAR CARBON S.A BFB IMPORT FINANCE $ 3,301,421.23 @MAR 7, 1997
UCAR CARBON S.A BANK OF BOSTON IMPORT FINANCE $ 1,823,948.96 @MAR 7, 1997
UCAR CARBON S.A BANK OF BOSTON EXCHANGE CONTRACT $ 3,281,790.72 @MAR 7, 1997
UCAR CARBON S.A ITAU EXCHANGE CONTRACT $ 501,836.87 @MAR 7, 1997
UCAR CARBON S.A UNIBANCO EXCHANGE CONTRACT $ 3,436,046.39 @MAR 7, 1997
UCAR CARBON S.A BFB EXCHANGE CONTRACT $ 1,105,156.25 @MAR 7, 1997
UCAR CARBON S.A BANK OF BOSTON EXCH CONTRACT II $ 9,748,060.61 @MAR 7, 1997
UCAR CARBON S.A BANCO REAL EXCH CONTRACT II $ 3,182,681.60 @MAR 7, 1997
UCAR CARBON S.A ITAU EXCH CONTRACT II $ 3,985,722.45 @MAR 7, 1997
UCAR CARBON S.A UNIBANCO EXCH CONTRACT II $ 3,653,247.59 @MAR 7, 1997
UCAR SPA INSTITUTO MOBILIERE ITALIANO IND DEV FINANCE $ 2,450,000.00 @MAR 7, 1997
CARBON ▇▇▇▇▇▇ ▇▇ COMMERCIALE DE FRANCE OVERDRAFT LINE $ 2,563,000.00 @MAR 7, 1997
AOOT GRAFIT CHASE UK FAC CREDIT AGREEMENT $ 18,500,000.00 @MAR 7, 1997
UCAR ELEKTRODEN BHF FAC CREDIT AGREEMENT $ 12,280,701.75 @MAR 12, 1997
UCAR GLOBAL ENTERPRISES INSTITUTO SAN PAOLO DI TOR MONEY MARKET LOAN $ 5,000,000.00 @MAR 12,1997
UCAR GLOBAL ENTERPRISES UCAR INC. INTERCO LOAN $ 600,000.00 @MAR 7, 1997
UCAR GLOBAL ENTERPRISES UCAR MEXICANA INTERCO LOAN $ 28,500,000.00 @MAR 7, 1997
UCAR GLOBAL ENTERPRISES UCAR HOLDINGS SA INTERCO LOAN $ 10,000,000.00 @MAR 7, 1997
UCAR GLOBAL ENTERPRISES UCAR ITALIA INTERCO LOAN $ 8,015,000.00 @MAR 7, 1997
UCAR GLOBAL ENTERPRISES UCAR LTD INTERCO LOAN $ 23,657,000.00 @MAR 7, 1997
UCAR INTERNATIONAL UCAR GLOBAL ENTERPRISES INTERCO LOAN $135,373,885.64 @FEB 28, 1997
UCAR CARBON COMPANY UCAR INTERNATIONAL INTERCO LOAN $278,446,674.00 @FEB 28, 1997
UCAR GLOBAL ENTERPRISES UCAR CARBON INTERCO LOAN $ 90,666,185.00 @FEB 28, 1997
-150-
SCHEDULE 6.02
EXISTING LIENS
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BRAZIL
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December 17, 1995 Labor Litigation Diesel Truck, Ford RS$ 60,000
Blue, 1995 US$ 56,969
March 15, 1996 Labor Litigation Diesel Truck, Ford RS$ 40,000
White, 1995 US$ 37,979
October 16, 1996 Tax Litigation Hyster, Forklift RS$ 45,000
State of Bahia Truck US$ 42,727
October 16, 1996 Tax Litigation Hyster, Forklift RS$ 95,000
State of Bahia Truck US$ 90,201
CANADA
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May 15, 1996 Canadian Imperial Bank Accounts, Other
0947 1825 4178 of Commerce
File #821913219
May 2, 1996 Municipal Savings & Equipment
1610 8053 5127 Loan Corporation
File #821614131
October 17, 1995 Chemical Bank of Inventory,
1910 1529 1305 Canada Equipment,
File #817447752 Accounts, Other,
Motor Vehicle
January 26, 1995 Chemical Bank of Inventory,
2158 1529 1430 Canada Equipment,
File #811926999 Accounts, Other,
Motor Vehicle
January 20, 1995 Chemical Bank of Inventory,
2200 1529 7050 Canada Equipment,
File #811825965 Accounts, Other,
Motor Vehicle
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SCHEDULE 6.04 - INVESTMENTS
MARCH 1997 CREDIT AGREEMENT AMENDMENT
INVESTMENT U.S. $ EQUIVALENT
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UCAR GRAFIT OAO $ 28,491,595
CARBON ▇▇▇▇▇▇ $ 34,076,923
UCAR ELEKTRODEN $ 2,029,412
-152-
SCHEDULE 6.07
CREDIT AGREEMENT
Permitted Agreements
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None
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SCHEDULE 6.09 - LIMIT ON DIVIDENDS
MARCH 1997 CREDIT AGREEMENT AMENDMENT
SENIOR SUBORDINATED NOTES INDENTURE