EXHIBIT 10.9(a)
CONFORMED COPY
Italian Facility
AMENDMENT dated as of November 10, 1998 (this
"AMENDMENT"), among UCAR S.p.A., an Italian corporation (the
"BORROWER"), the financial institutions party hereto (the
"LENDERS"), and THE CHASE MANHATTAN BANK, MILAN BRANCH, as
agent (in such capacity, the "ADMINISTRATIVE AGENT") for the
Lenders.
A. Reference is made to the Local Facility Credit Agreement dated as
of March 19, 1997 (the "CREDIT AGREEMENT") among the Borrower, the Lenders party
thereto and the Administrative Agent. Capitalized terms used but not otherwise
defined herein have the meanings assigned to them in the Credit Agreement.
B. The Borrower has requested that the Lenders amend certain
provisions of the Credit Agreement. The Lenders are willing to do so, subject to
the terms and conditions of this Amendment.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1.01. AMENDMENTS TO SECTION 1.01. (a) The definition of "INTEREST
COMPONENT" in Section 1.01 of the Credit Agreement is hereby amended by
replacing the reference to "1.03333333333%" contained therein with a reference
to "1.03%".
(b) The definition of "LETTER OF CREDIT" in Section 1.01 of the Credit
Agreement is hereby amended by replacing the reference to "U.S. Credit
Agreement" with a reference to "Existing U.S. Credit Agreement".
(c) The definition of "LOAN DOCUMENTS" in Section 1.01 of the Credit
Agreement is hereby amended by replacing the reference to "Letter" contained
therein with a reference to "Letters".
(d) The definition of "LOCAL CURRENCY" or "LIT" shall mean the lawful
currency of Italy.
(e) The definition of "SECURITY DOCUMENTS" in Section 1.01 of the Credit
Agreement is hereby replaced in its entirety with the following: "SECURITY
DOCUMENTS" shall mean the agreements set forth on Schedule 1.01 and each of the
agreements and other instruments and documents executed and delivered pursuant
to the agreements set forth on
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Schedule 1.01, pursuant to Section 5.03 hereof or pursuant to Section 5.11 of
the U.S. Credit Agreements; PROVIDED that the agreements and other instruments
and documents delivered pursuant to Section 5.11 of the U.S. Credit Agreements
shall only constitute Security Documents hereunder to the extent that they serve
to guarantee or secure the Obligations of the Borrower hereunder or Obligations
of the Borrower in respect of Tranche A Letters of Credit under the Existing
U.S. Credit Agreement.
(f) The definition of "U.S. CREDIT AGREEMENT" in Section 1.01 of the Credit
Agreement is hereby deleted in its entirety.
(g) The following definitions are hereby added to Section 1.01 of the
Credit Agreement in the appropriate alphabetical order:
"EXISTING U.S. CREDIT AGREEMENT" shall mean the Credit Agreement
dated as of October 19, 1995, as amended and restated as of March 19, 1997
and November 10, 1998 (as the same may be amended, supplemented or
otherwise modified from time to time), among UCAR International Inc., a
Delaware corporation, UCAR Global Enterprises Inc., a Delaware
corporation, the Subsidiary Borrowers party thereto, the Lenders party
thereto, the Fronting Banks party thereto and The Chase Manhattan Bank, as
administrative agent and collateral agent, which is attached hereto as
Exhibit D-1.
"TARGET OPERATING DAY" means any day that is not (i) a Saturday or
Sunday, (ii) Christmas Day or New Year's Day or (iii) any other day on
which the Trans European Automated Real-time Gross Settlement Express
Transfer System ("TARGET") (or any successor settlement system) is not
operating (as determined by the Administrative Agent).
"TRANCHE C FACILITY CREDIT AGREEMENT" shall mean the Credit
Agreement dated as of November 10, 1998 (as the same may be amended,
supplemented or otherwise modified from time to time), among UCAR
International Inc., a Delaware corporation, UCAR Global Enterprises Inc.,
a Delaware corporation, UCAR S.A., a Swiss corporation, the Lenders party
thereto, The Chase Manhattan Bank, as administrative agent and collateral
agent, Credit Suisse First Boston, as syndication agent, and ▇▇▇▇▇▇
Guaranty Trust Company of New York, as syndication agent, which is
attached hereto as Exhibit D-2.
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"U.S. CREDIT AGREEMENTS" shall mean the Existing U.S. Credit
Agreement and the Tranche C Facility Credit Agreement.
SECTION 1.02. MODIFICATION OF CREDIT AGREEMENT. (a) Unless otherwise
specified in paragraph (b) below, all references in the Credit Agreement to
"U.S. Credit Agreement" are hereby replaced with references to "U.S. Credit
Agreements".
(b) The references to U.S. Credit Agreement in Sections 3.02 and 9.16 of
the Credit Agreement are hereby replaced with references to "Existing U.S.
Credit Agreement".
SECTION 1.03. REPLACEMENT OF SCHEDULE 1.01 TO CREDIT AGREEMENT. Schedule
1.01 to the Credit Agreement is hereby replaced in its entirety with Schedule
1.01 attached hereto.
SECTION 1.04. REPLACEMENT OF EXHIBIT D TO CREDIT AGREEMENT. Exhibit D to
the Credit Agreement is hereby replaced in its entirety with Exhibits D-1 and
D-2 attached hereto.
SECTION 1.05. REPLACEMENT OF SECOND SENTENCE OF SECTION 5.03. The second
sentence in Section 5.03 of the Credit Agreement is hereby replaced in its
entirety with the following:
In addition, from time to time, 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 or any new subsidiary (subject to the receipt of required
consents from Governmental Authorities and required consents of other
third parties), promptly secure the Obligations of the Borrower and, to
the extent permitted by law, the other foreign Credit Parties under the
U.S. Credit Agreements (the "FOREIGN OBLIGATIONS") by causing the
following to occur: (i) promptly upon creating or acquiring any additional
subsidiary, the Capital Stock of such subsidiary will be pledged pursuant
to a pledge agreement reasonably satisfactory in form and substance to the
Administrative Agent and (ii) such subsidiary will become a guarantor of
the Obligations pursuant to a subsidiary guarantee agreement and provide
security
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for the Foreign Obligations pursuant to a security agreement, in each case
reasonably satisfactory in form and substance to the Administrative Agent.
SECTION 1.06. Amendment to Section 9.17. Section 9.17 of the Credit
Agreement is hereby replaced in its entirety with the following:
In the event that any obligation of any Loan Party (a) under this
Agreement or (b) any other Loan Document in respect of the obligations
under this Agreement (a "CLAIM") is paid with the proceeds of a Tranche A
L/C Disbursement, the Borrower, the Administrative Agent and the Lenders
hereby agree that Tranche A Lenders under the Existing U.S. Credit
Agreement holding participations in such Tranche A L/C Disbursement shall
be subrogated to the rights of the Administrative Agent and the Lenders
hereunder and under each other Loan Document in respect of such Claim to
the extent of such proceeds; PROVIDED that such right of subrogation shall
not be effective until, and shall be subordinated to, payment in full of
all Claims.
SECTION 1.07. AMENDMENT TO SECTION 9.19. The reference to "Section 2.10(b)"
in Section 9.19 of the Credit Agreement is hereby replaced with a reference to
"Section 2.11(b)".
SECTION 1.08. AMENDMENT TO ARTICLE IX. Article IX of the Credit Agreement
is hereby amended by adding the following Section at the end thereof:
SECTION 9.20. EUROPEAN ECONOMIC AND MONETARY UNION. (a)
DEFINITIONS. In this Section 9.20 and in each other provision of this
Agreement to which reference is made in this Section 9.20 expressly or by
implication, the following terms have the meanings given to them in this
Section 9.20:
"COMMENCEMENT OF THE THIRD STAGE OF EMU" means the date of
commencement of the third stage of EMU (at the date of this
Agreement expected to be January 1, 1999) or the date on which
circumstances arise which (in the opinion of the Administrative
Agent) have substantially the same effect and result in
substantially the same consequences as commencement of the third
stage of EMU as contemplated by the Treaty on European Union;
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"EMU" means economic and monetary union as contemplated in the
Treaty on European Union;
"EMU LEGISLATION" means legislative measures of the European
Council for the introduction of, changeover to or operation of a
single or unified European currency (whether known as the euro or
otherwise), being in part the implementation of the third stage of
EMU;
"EURO" means the single currency of participating member
states of the European Union;
"EURO UNIT" means the currency unit of the euro;
"NATIONAL CURRENCY UNIT" means the unit of currency (other
than a euro unit) of a participating member state;
"PARTICIPATING MEMBER STATE" means each state so described i
nany EMU legislation; and
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of March
25, 1957, as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the
Maastricht Treaty (which was signed at Maastricht on February 7,
1992, and came into force on November 1, 1993), as
amended from time to time.
(b) EFFECTIVENESS OF PROVISIONS. The provisions of paragraphs
(c) to (j) below (inclusive) shall be effective at and from the
commencement of the third stage of EMU, PROVIDED, that if and to the
extent that any such provision relates to any state (or the currency of
such state) that is not a participating member state on the commencement
of the third stage of EMU, such provision shall become effective in
relation to such state (and the currency of such state) at and from the
date on which such state becomes a participating member state.
(c) REDENOMINATION AND FOREIGN CURRENCIES. Each obligation
under this Agreement of a party to this Agreement which has been
denominated in the national currency unit of a participating member state
shall be redenominated into the euro unit in accordance with EMU
legislation, PROVIDED, that if and to the extent that any EMU legislation
provides that following the commencement of the third stage of EMU an
amount
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denominated either in the euro or in the national currency unit of a
participating member state and payable within that participating member
state by crediting an account of the creditor can be paid by the debtor
either in the euro unit or in that national currency unit, each party to
this Agreement shall be entitled to pay or repay any such amount either in
the euro unit or in such national currency unit.
(d) LOANS. Any Loan in the currency of a participating member
state shall be made in the euro unit.
(e) BUSINESS DAYS. (i) With respect to any amount denominated
or to be denominated in the euro or a national currency unit, any
reference to a "Business Day" shall be construed as a reference to a day
(other than a Saturday or Sunday) on which banks are generally open for
business in
(A) London and New York City and
(B) Frankfurt am Main, Germany (or such principal financial center
or centers in such participating member state or states as the
Administrative Agent may from time to time nominate for this
purpose).
(ii) For purposes of determining the date on which the LIBO Rate is
determined under this Agreement for any Loan denominated in the euro (or
any national currency unit) for any Interest Period therefor and for
purposes of determining the first and last day of any Interest Period,
references in this Agreement to "Business Days" shall be deemed to be
references to TARGET Operating Days.
(f) PAYMENTS TO THE ADMINISTRATIVE AGENT. Sections 2.17 shall
be construed so that, in relation to the payment of any amount of euro
units or national currency units, such amount shall be made available to
the Administrative Agent in immediately available, freely transferable,
cleared funds to such account with such bank in Frankfurt am Main, Germany
(or such other principal financial center in such participating member
state as the Administrative Agent may from time to time nominate for this
purpose) as the Administrative Agent shall from time to time nominate for
this purpose.
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(g) PAYMENTS BY THE ADMINISTRATIVE AGENT TO THE LENDERS. Any
amount payable by the Administrative Agent to the Lenders under this
Agreement in the currency of a participating member state shall be paid in
the euro unit.
(h) PAYMENTS BY THE ADMINISTRATIVE AGENT GENERALLY. With
respect to the payment of any amount denominated in the euro or in a
national currency unit, the Administrative Agent shall not be liable to
the Borrower or any of the Lenders in any way whatsoever for any delay, or
the consequences of any delay, in the crediting to any account of any
amount required by this Agreement to be paid by the Administrative Agent
if the Administrative Agent shall have taken all relevant steps to
achieve, on the date required by this Agreement, the payment of such
amount in immediately available, freely transferable, cleared funds (in
the euro unit or, as the case may be, in a national currency unit) to the
account with the bank in the principal financial center in the
participating member state which the Borrower or, as the case may be, any
Lender shall have specified for such purpose. In this paragraph (h), "all
relevant steps" means all such steps as may be prescribed from time to
time by the regulations or operating procedures of such clearing or
settlement system as the Administrative Agent may from time to time
determine for the purpose of clearing or settling payments of the euro.
(i) BASIS OF ACCRUAL. If the basis of accrual of interest or
fees expressed in this Agreement with respect to the currency of any state
that becomes a participating state shall be inconsistent with any
convention or practice in the London Interbank Market or, as the case may
be, the Milan Interbank Market for the basis of accrual of interest or
fees in respect of the euro, such convention or practice shall replace
such expressed basis effective as of and from the date on which such state
becomes a participating member state; PROVIDED, that if any Loan in the
currency of such state is outstanding immediately prior to such date, such
replacement shall take effect, with respect to such Loan, at the end of
the then current Interest Period.
(j) ROUNDING AND OTHER CONSEQUENTIAL CHANGES. Without
prejudice and in addition to any method of conversion or rounding
prescribed by any EMU legislation and without prejudice to the respective
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liabilities for indebtedness of the Borrower to the Lenders and the
Lenders to the Borrower under or pursuant to this Agreement:
(i) each reference in this Agreement to a minimum amount (or
an integral multiple thereof) in a national currency unit to be paid
to or by the Administrative Agent shall be replaced by a reference
to such reasonably comparable and convenient amount (or an integral
multiple thereof) in the euro unit as the Administrative Agent may
from time to time specify; and
(ii) except as expressly provided in this Section 9.20, each
provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to
time reasonably specify to be necessary or appropriate to reflect
the introduction of or changeover to the euro in participating
member states in accordance with customary practices in the market.
SECTION 2. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective on the date of the satisfaction in full of the following conditions
precedent (the "AMENDMENT EFFECTIVE DATE"):
(a) The Administrative Agent shall have received duly executed
counterparts hereof which, when taken together, bear the authorized
signatures of the Borrower, the Lenders and the Administrative Agent.
(b) The Administrative Agent shall have received favorable written
opinion by Gianni, Origoni & Partners, substantially similar to the
opinion given by such person on March 19, 1997 in connection with
execution of the Credit Agreement, in form and substance satisfactory to
the Administrative Agent and its counsel.
(c) The amendment and restatement of the Existing U.S. Credit
Agreement and the (ii) Tranche C Facility Credit Agreement shall have
become effective in accordance with its respective terms.
SECTION 3. CREDIT AGREEMENT. Except as specifically stated herein, the
Credit Agreement shall continue in full force and effect in accordance with the
provisions thereof
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and all Security Documents issued or granted in connection thereto shall
continue in full force and effect. As used therein, the terms "Agreement",
"herein", "hereunder", "hereto", "hereof" and words of similar import shall,
unless the context otherwise requires, refer to the Credit Agreement as modified
hereby.
SECTION 4. APPLICABLE LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF ITALY.
SECTION 5. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be an original but all of which, when taken
together, shall constitute but one instrument. Delivery of an executed
counterpart of a signature page of this Amendment by telecopy shall be effective
as delivery of a manually executed counterpart of this Amendment.
SECTION 6. EXPENSES. The Borrower agrees to reimburse the Administrative
Agent for its out-of-pocket expenses in connection with this Amendment,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
▇▇▇▇▇, counsel for the Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the date first
above written.
UCAR S.p.A.,
by
/S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
THE CHASE MANHATTAN BANK, MILAN
BRANCH, individually and as
Administrative Agent,
by
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
BANCA COMMERCIALE ITALIANA
S.P.A., FILIALE DI MILANO,
by
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and
Attorney-in-Fact
by
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President and
Attorney-in-Fact
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SCHEDULE 1.01
to the Local Facility
Credit Agreement for Italy
SECURITY DOCUMENTS
1. Pledge Agreement by UCAR International Inc., UCAR Global Enterprises Inc.
and certain U.S. Subsidiaries, dated October 19, 1995, as amended and
restated on November 10, 1998.
2. Pledge Agreement (35%) by certain U.S. Subsidiaries, dated November 10,
1998.
3. Parent Guarantee Agreement made by UCAR International Inc. and UCAR Global
Enterprises Inc., dated October 19, 1995, as amended and restated on
November 10, 1998.
4. Subsidiary Guarantee Agreement by each U.S. Subsidiary, dated October 19,
1995, as amended and restated on November 10, 1998.
5. Security Agreement by UCAR International Inc., UCAR Global Enterprises Inc.
and the U.S. Subsidiaries, dated April 22, 1998, as amended and restated on
November 10, 1998.
6. Intellectual Property Security Agreement by UCAR Global Enterprises Inc.
and the U.S. Subsidiaries, dated April 22, 1998, as amended and restated on
November 10, 1998.
7. Subsidiary Guarantee by UCAR S.p.A., dated March 19, 1997, as amended on
November 10, 1998.
8. Mexican Subsidiaries Guarantee by Servicios Administrativos Carmex S.A. de
C.V. and Servicios DYC S.A. de C.V., dated November 10, 1998.
9. Mexican Subsidiaries Guarantee by UCAR Carbon Mexicana S.A. de C.V. and
UCAR Mexicana S.A. de C.V., dated November 10, 1998.
10. Pledge by UCAR Holdings Inc., UCAR Mexicana S.A. de C.V. and UCAR Carbon
Mexicana S.A. de C.V. of 35% of the shares of UCAR Mexicana S.A. de C.V.,
99.94% of the shares of UCAR Carbon Mexicana and 100% of the shares of
Servicios Administrativos Carmex S.A. de C.V. and Servicios DYC S.A. de
C.V., respectively, dated November 10, 1998.
11. Mexican Mortgage dated November 10, 1998.
12. Pledge by UCAR Holdings Inc. of 65% of the shares of UCAR S.p.A., dated
November 10, 1998.
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13. Pledge by UCAR Holdings Inc. of 65% of the shares of UCAR Mexicana S.A. de
C.V., dated November 10, 1998.
14. Pledge by UCAR Holdings II Inc. of 65% of the shares of UCAR Holdings S.A.,
dated May 7, 1998, as amended on November 10, 1998.
15. Pledge by UCAR Holdings II Inc. of 65% of the shares of UCAR Electrodos,
S.L., dated October 19, 1995, as amended on March 19, 1997 and November 10,
1998.
16. Pledge by UCAR Carbon Company Inc. of 65% of the shares of EMSA (Property)
Ltd. and Carbographite Limited, dated November 10, 1998.
17. Pledge by UCAR Carbon Company Inc. of 65% of the shares of UCAR Limited,
dated November 10, 1998.
18. Pledge by UCAR S.p.A. of 100% of the shares of UCAR Energia S.r.l. and UCAR
Specialties S.r.l., dated March 19, 1997.
19. Pledge by UCAR Holdings Inc. of 34.9% of the shares of UCAR S.p.A., dated
November 10, 1998.
20. Italian Mortgage (in favor of BCI only), dated November 10, 1998.
21. Italian Security Interest Agreement dated July 29, 1998.