Exhibit 10.13
EXECUTION COPY
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of February 15, 2002, by UCAR SA a Swiss corporation
(the "Pledgor"), in favor of UCAR FINANCE INC., a Delaware corporation with
registered office at Brandywine ▇▇▇▇ ▇▇▇▇▇▇▇▇,▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Pledgee"); each other capitalized term used but not
defined herein having the meaning given it in Article I of the Credit Agreement
dated as of February 22, 2000, among UCAR INTERNATIONAL INC., a Delaware
corporation ("UCAR"), UCAR GLOBAL ENTERPRISES INC., a Delaware corporation
("GLOBAL") UCAR FINANCE INC., a Delaware corporation (the "Borrower"), the LC
Subsidiaries from time to time party thereto, the Lenders from time to time
party thereto and JPMORGAN CHASE BANK, as Administrative Agent, Collateral Agent
and Issuing Bank (as the same has been or may be amended, supplemented or
otherwise modified from time to time, (the "Credit Agreement")).
W I T N E S S E T H :
WHEREAS, on February 22, 2000, the Pledgor entered into an Intercompany
Borrower Agreement, which is attached as Annex I (the "Intercompany Borrower
Agreement"), with the Pledgee pursuant to which the Pledgee has made certain
Intercompany Loans to the Pledgor; and
WHEREAS, on February 22, 2000, the Pledgor has granted a guarantee,
which is attached as Annex II (the "Guarantee") to guarantee the obligations of
the Foreign Subsidiaries as defined in the Guarantee for the benefit of the
Pledgee; and
WHEREAS, pursuant to the Credit Agreement, it is a condition to the
obligations of the Lenders to make the Loans which are prerequisite for making
the Intercompany Loans and of the Issuing Bank to issue the Letters of Credit
that the Pledgor shall have executed and delivered this Pledge Agreement.
NOW, THEREFORE, in consideration of the premises and to continue to
satisfy the conditions required by the Credit Agreement, the Pledgor hereby
agrees with the Pledgee as follows:
1. DEFINED TERMS. (a) Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings assigned to them in the
Credit Agreement.
(b) The following terms shall have the following meanings:
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"Additional Collateral" shall mean all rights of the Pledgor under
any guarantees, security agreements or other instruments or documents
guaranteeing or securing the Pledged Stock.
"Collateral" shall mean the Pledged Stock, the Additional
Collateral and all Proceeds thereof.
"Collateral Account" any account established to hold money
Proceeds, maintained under the sole dominion and control of and on terms and
conditions reasonably satisfactory to the Pledgee, subject to withdrawal by the
Pledgee or any person appointed by it for the account of the Pledgee and the
Pledgor, as provided in Section 8(a) and Section 14.
"Foreign Subsidiaries" shall have the meaning assigned to it in
the Guarantee.
"Issuer" shall mean any issuer of Pledged Stock hereunder.
"Obligations" shall mean (a) the due and punctual payment of (i)
the principal of and premium, if any, and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Intercompany Loans, when and as due, whether at maturity, by acceleration,
upon one or more dates set for prepayment or otherwise and (ii) the due and
punctual performance of all covenants, agreements, obligations and liabilities
of the Pledgor under the Guarantee (including, without limitation, all monetary
obligations of the Foreign Subsidiaries under the Intercompany Notes and
Intercompany Borrower Agreements, but only for so long as the Intercompany Notes
and the rights of the Borrower under the Intercompany Borrower Agreements are
pledged to the Collateral Agent).
"Pledged Stock" shall mean all shares of Capital Stock listed on
SCHEDULE I hereto, together with all certificates or bank statements
demonstrating the existence and quantity of book-entry shares from time to time
evidencing such Capital Stock.
"Proceeds" shall mean all proceeds of any Pledged Stock and, in
any event, shall include all payments, dividends or other distributions or other
income on the Pledged Stock .
"Securities Act" shall mean the Securities Act of 1933, as
amended.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section references are to
this Agreement unless otherwise specified. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
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2. PLEDGE; GRANT OF SECURITY INTEREST; ASSIGNMENT OF SECURITY INTERESTS;
LIMITATION OF OBLIGATIONS.
The Pledgor hereby pledges, charges and delivers to the Pledgee and
hereby grants to the Pledgee, a first priority security interest in,
all the Pledged Stock now or at any time hereafter owned by such
Pledgor as collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration,
upon one or more dates of prepayment or otherwise) of the Obligations.
In relation to obligations of a Foreign Subsidiary (other than the
Pledgor or any of its subsidiaries), Pledgor shall (a) only be liable
to the Pledgee to the extent and in the maximum amount of the profits
available for the distribution of dividends (being the balance sheet
profits, such part of the general reserve which exceeds 50% of the
share capital and any reserves made for the purpose of future
distribution, all in accordance with art. 675(2) of the Swiss code of
Obligations) at any given time; (b)(i) deduct from any such payments
Swiss Anticipatory Tax (withholding tax) at the rate of 35 percent (or
such other rate as in force from time to time) and subject to any
applicable double taxation treaty; (ii) pay such deduction to the
Swiss Federal Tax Administration; and (iii) give evidence to the
Pledgee of such deduction in accordance with Section 2.16 of the
Credit Agreement; and (c) gross-up pursuant to Section 2.16 of the
Credit Agreement but only up to the maximum amount defined under (a)
of this section. Any and all indemnities and guarantees contained in
this Pledge Agreement and in the Loan Documents shall be construed in
a manner consistent with this paragraph.
The Pledgor will cause any shares of Capital Stock required to be
pledged hereunder to be evidenced by duly executed certificates that
are pledged and delivered to the Pledgee pursuant to the terms hereof.
3. STOCK POWERS AND INSTRUMENTS OF TRANSFER. Concurrently with the delivery
to the Pledgee of each certificate representing one or more shares of Pledged
Stock, the Pledgor shall deliver an undated stock power or instrument of
transfer covering such certificate, duly executed in blank by the Pledgor with,
if the Pledgee so requests, signature guaranteed.
4. REPRESENTATIONS AND WARRANTIES. The Pledgor represents and warrants, as
to itself and the Pledged Stock pledged by it hereunder, that:
(a) The shares of Pledged Stock listed on SCHEDULE 1 constitute the
portion of the issued and outstanding shares of all classes of the Capital Stock
of the applicable Issuer set forth on Schedule I.
(b) All the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable.
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(c) Subject to Section 20(b), the Pledgor is the legal, record and
beneficial owner of the Pledged Stocks, free of any and all Liens (other than
Liens permitted by Section 7.02 of the Credit Agreement) or options in favor of,
or claims of, any other person, except the security interest created by this
Agreement.
(d) This Agreement is effective to create in favor of the Pledgee, a
legal, valid and enforceable security interest in the Pledged Stock and, when
and to the extent the Pledged Stock are delivered to the Pledgee (or, as
applicable in the case of Capital Stock of foreign Subsidiaries, the requisite
filings or registrations are made), this Agreement will constitute a duly
perfected first priority Lien on, and security interest in, all right, title and
interest of the Pledgor thereunder in such Pledged Stock, in each case prior and
superior in rights to any other person, subject to the agreements listed in
Schedule 4.08 of the Credit Agreement.
5. COVENANTS. The Pledgor, as to itself and the Pledged Stock pledged by it
hereunder, covenants and agrees with the Pledgee that, from and after the date
of this Agreement until this Agreement is terminated and the security interest
created hereby is released, subject to Section 20(b):
(a) Any sums paid upon or in respect of the Pledged Stock upon the
liquidation or dissolution (other than any liquidation or dissolution permitted
by Section 6.01(a) of the Credit Agreement) of any Issuer shall, upon and during
the continuance of an Event of Default, upon the written request of the Pledgee,
be paid over to the Pledgee to be held and applied by it hereunder as provided
in Section 8(a) and Section 14, and in case any distribution of capital shall be
made on or in respect of the Pledged Stock or any property shall be distributed
upon or with respect to the Pledged Stock, pursuant to the recapitalization or
reclassification of capital of any Issuer or pursuant to the reorganization
thereof, the property so distributed shall, upon and during continuance of an
Event of Default, upon the written request of the Pledgee, be delivered to the
Pledgee to be held and applied by it hereunder as provided in Section 8(a) and
Section 14. If any sums of money or property so paid or distributed in respect
of the Pledged Stock shall be received by the Pledgor, the Pledgor shall, upon
and during the continuance of an Event of Default, upon the written request of
the Pledgee, until such money or property is paid or delivered to the Pledgee,
hold such money or property in trust for the Pledgee, segregated from other
funds of the Pledgor, for application in accordance with Section 8(a) and
Section 14.
(b) Without the prior written consent of the Pledgee, the Pledgor will
not (i) vote to enable, or take any other action to permit, any Issuer to issue
any stock or other equity securities of any nature or to issue any other
securities convertible into or granting the right to purchase or exchange for
any stock or other equity securities of any nature of any Issuer, except to the
extent the same are permitted to be issued under the Credit Agreement, (ii)
sell, assign, transfer, exchange, or otherwise dispose of, or grant any option
with respect to, the Pledged Stock owned by it, except as not prohibited under
the terms of the Credit Agreement, (iii) create, incur or permit to exist any
Lien or option in favor of, or any claim of any person with respect to, any of
such Pledged Stock, or any interest therein, except as not prohibited under the
terms of the Credit Agreement and for the security interest created by this
Agreement or (iv) enter into
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any agreement or undertaking restricting the right or ability of the Pledgor or
the Pledgee to sell, assign or transfer any of such Pledged Stock, except as not
prohibited under the terms of the Credit Agreement.
(c) The Pledgor shall maintain the security interest created by it
under this Agreement as a first priority, perfected security interest and shall
defend such security interest against claims and demands of all persons
whomsoever. At any time and from time to time, upon the written request of the
Pledgee, and at the sole expense of the Pledgor, the Pledgor shall promptly and
duly execute and deliver such further instruments and documents and take such
further actions as the Pledgee may reasonably request for the purposes of
obtaining or preserving the full benefits of this Agreement and of the rights
and powers herein granted. If any amount payable under or in connection with any
of the Pledged Stock owned by the Pledgor shall be or become evidenced by any
promissory note, other instrument or chattel paper, such note, instrument or
chattel paper shall, if so requested by the Pledgee, be immediately delivered to
the Pledgee duly endorsed in a manner reasonably satisfactory to the Pledgee, to
be held as Pledged Stock pursuant to this Agreement, provided that the use of
the Proceeds of such Collateral shall nonetheless be governed by Sections 6 and
7.
6. CASH DIVIDENDS; VOTING RIGHTS; PROCEEDS. (a) Unless an Event of Default
shall have occurred and be continuing and the Pledgee shall have given notice to
the Pledgor of the Pledgee's intent to exercise its corresponding rights
pursuant to Section 7 below, the Pledgor shall be permitted to receive, retain
and use all cash dividends paid in accordance with the terms and conditions of
the Credit Agreement in respect of the Pledged Stock to exercise all voting and
corporate rights with respect to the Pledged Stock PROVIDED, HOWEVER, that no
vote shall be cast or corporate right exercised or other action taken
(regardless of whether an Event of Default has occurred and is continuing) which
would materially and adversely affect the rights of the Pledgee or its ability
to exercise same or result in any violation of any provision of the Credit
Agreement, this Agreement or any other Loan Document.
(b) Unless an Event of Default shall have occurred and be continuing
and the Pledgee shall have given notice to the Pledgor of the Pledgee's intent
to exercise its corresponding rights pursuant to Section 7 below, the Pledgor
shall be permitted to receive, retain and use all other Proceeds (in addition to
cash dividends as provided under Section 6(a) above) from the Pledged Stock.
7. RIGHTS OF THE PLEDGEE. If an Event of Default shall occur and be
continuing and the Pledgee shall give notice of its intent to exercise such
rights to the Pledgor, (i) the Pledgee shall have the right to receive any and
all Proceeds paid in respect of the Pledged Stock or Additional Collateral and
any and all Proceeds of Proceeds and make application thereof to the Obligations
in the manner provided in Section 8(a) and Section 14 and (ii) all shares of the
Pledged Stock the Pledgee or its nominee may thereafter exercise (1) all voting,
corporate and other rights pertaining to such shares of the Pledged Stock at any
meeting of shareholders of any Issuer or otherwise and (2) any and all rights
of, conversion, exchange, subscription and any other rights, privileges or
options pertaining to such shares of the Pledged Stock as if it were the
absolute owner thereof (including the right to exchange at its discretion any
and all the Pledged Stock upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate structure of any
Issuer, or upon the exercise by the Pledgor or the Pledgee of any right,
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privilege or option pertaining to such shares of the Pledged Stock, and in
connection therewith, the right to deposit and deliver any and all the Pledged
Stock with any committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as the Pledgee may reasonably
determine), all without liability except to account for property actually
received by it, but the Pledgee shall have no duty to the Pledgor to exercise
any such right, privilege or option and shall not be responsible for any failure
to do so or delay in so doing. All Proceeds that are received by the Pledgor
contrary to the provisions of this Section 7 shall be received in trust for the
benefit of the Pledgee, shall be segregated from other property or funds of the
Pledgor and shall be forthwith delivered to the Pledgee in the same form as so
received (with any necessary endorsement). Any and all money and other property
paid over to or received by the Pledgee pursuant to the provisions of this
Section 7 shall be retained by the Pledgee in a Collateral Account to be
established by the Pledgee upon receipt of such money or other property and
shall be applied in accordance with the provisions of Section 8(a) and Section
14. After all Events of Default under the Credit Agreement have been cured or
waived, the Pledgee shall, within five Business Days after all such Events of
Default have been cured or waived, repay to the Pledgor all cash dividends,
interest or principal that the Pledgor would otherwise be permitted to retain
pursuant to the terms of Section 6 above, but only to the extent such Proceeds
remain in such Collateral Account.
8. REMEDIES. (a) If an Event of Default shall have occurred and be
continuing the Pledgee shall apply all or any part of the Proceeds held in any
Collateral Account in accordance with Section 14.
(b) If an Event of Default shall have occurred and be continuing, the
Pledgee may exercise, in addition to all other rights and remedies granted in
this Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations, all rights and remedies of a secured party under
the governing law of this Agreement or any other applicable law. Without
limiting the generality of the foregoing, the Pledgee, without demand of
performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice, required by law referred to below) to or upon the
Pledgor or any other person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Pledged Stock, or
any part thereof, and/or may forthwith sell, assign, give option or options to
purchase or otherwise dispose of and deliver the Pledged Stock or any part
thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, in the over-the-counter market, at any
exchange, broker's board or office of the Pledgee or elsewhere upon such terms
and conditions as it may reasonably deem advisable and at such prices as it may
reasonably deem best, for cash or on credit or for future delivery without
assumption of any risk (subject in every case to the case to the provisions of
the Issuer's memorandum or association, its articles of association and, in the
case of EMSA (Pty) Ltd., the Companies Act, 61 of 1973 (as amended), or any
other applicable law). The Pledgee shall have the right upon any such public
sale or sales, and, to the extent permitted by law, upon any such private sale
or sales, to purchase the whole or any part of the Pledged Stock so sold, free
of (to the extent permitted by law) any right or equity of redemption in a
Pledgor which right or equity is, to the extent permitted by law, hereby waived
or released. The Pledgee shall apply any Proceeds from time to time held by it
and the net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, after deducting all reasonable costs and expenses incurred
in respect thereof or incidental to the care or safekeeping of any of
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the Pledged Stock or reasonably relating to the Pledged Stock or the any or the
rights of the Pledgee hereunder, including reasonable attorney's fees and
disbursements of counsel to the Pledgee, to the payment in whole or in part of
the Obligations, in the order set forth in Section 14. If any notice of a
proposed sale or other disposition of Pledged Stock shall be required by law,
such notice shall be in writing and deemed reasonable and proper if given at
least 10 days before such sale or other disposition. The Pledgor shall remain
liable for any deficiency if the proceeds of any sale or other disposition of
Pledged Stock are insufficient to pay the Obligations and the reasonable fees
and disbursements of any attorneys employed by the Pledgee to collect such
deficiency in its Obligations.
9. REGISTRATION RIGHTS; PRIVATE SALES. (a) If the Pledgee shall determine
to exercise its right to sell any or all of the Pledged Stock pursuant to
Section 8 hereof, and if in the opinion of the Pledgee it is necessary or
advisable to have the Pledged Stock, or that portion thereof to be sold,
registered under the provisions of the Securities Act, the Pledgor who owns such
Pledged Stock will cause the Issuer thereof to (i) execute and deliver, and
cause the directors and officers of such Issuer to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts as may
be, in the reasonable opinion of the Pledgee, necessary or advisable to register
the Pledged Stock, or that portion thereof to be sold, under the provisions of
the Securities Act, (ii) use its best efforts to cause the registration
statement relating thereto to become effective and to remain effective for a
period expiring on the earlier of (A) one year from the date of the first public
offering of the Pledged Stock and (B) such time that all of the Pledged Stock,
or that portion thereof to be sold, is sold and (iii) to make all amendments
thereto and/or to the related prospectus which, in the reasonable opinion of the
Pledgee, are necessary or advisable, all in conformity with the requirements of
the Securities Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto. The Pledgor who owns such Pledged Stock agrees to
cause such Issuer to comply with the provisions of the securities or <> laws of any and all jurisdictions which the Pledgee shall reasonably
designate and to make available to its security holders, as soon as practicable,
an earnings statement (which need not be audited) which will satisfy the
provisions of Section 11(a) of the Securities Act. The Pledgor agrees to (x)
indemnify, defend and hold harmless Pledgee and the other Indemnities from and
against all losses, liabilities, expenses, costs (including the reasonable fees
and expenses of legal counsel to the Pledgee) and claims (including the costs of
investigation) that they may incur insofar as any such loss, liability, expense,
cost or claim arises out of or is based upon any alleged untrue statement of a
material fact contained in any prospectus, offering circular or similar document
(or any amendment or supplement thereto), or arises out of or is based upon any
alleged omission to state a material fact required to be stated therein or
necessary to make the statements in any writing thereof not misleading, except
insofar as the same may have been caused by any untrue statement or omission
based upon information furnished in writing to any Pledgor or the Issuer of such
Pledged Stock by the Pledgee expressly for use therein, and (y) enter into an
indemnification agreement with any underwriter of or placement agent for any
Pledged Stock, on its standard form, to substantially the same effect. The
Pledgor will bear all costs and expenses of carrying out its obligations under
this Section 9. With respect to EMSA (Pty) Ltd., the provisions of this clause
shall be subject to the provisions of the Companies Act, 61 of 1973 (as
amended).
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(b) The Pledgor recognizes that the Pledgee may be unable to effect a
public sale of any or all the Pledged Stock, by reason of certain prohibitions
contained in the Securities Act and applicable state securities laws or
otherwise, and may be compelled to resort to one or more private sales thereof
to a restricted group of purchasers which will be obliged to agree, among other
things, to acquire such securities for their own account for investment and not
with a view to the distribution or resale thereof. The Pledgor acknowledges and
agrees that any such private sale may result in prices and other terms less
favorable than if such sale were a public sale and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner. The Pledgee shall be under no
obligation to delay a sale of any of the Pledged Stock for the period of time
necessary to permit the Issuer thereof to register such securities for public
sale under the Securities Act, or under applicable state securities laws, even
if such Issuer would agree do so.
(c) The Pledgor further agrees to use its best efforts to do or cause
to be done all such other acts as may be reasonably necessary to make such sale
or sales of all or any portion of the Pledged Stock owned by it pursuant to this
Section valid and binding and in compliance with any and all other applicable
requirements of the laws of any jurisdiction. The Pledgor further agrees that a
breach of any of the covenants contained in this Section will cause irreparable
injury to the Pledgee, that the Pledgee had no adequate remedy at law in respect
of such breach and, as a consequence, that each and every covenant contained in
the Section shall be specifically enforceable against the Pledgor.
10. IRREVOCABLE AUTHORIZATION AND INSTRUCTION TO ISSUER. The Pledgor hereby
authorizes and instructs each Issuer that has issued Pledged Stock pledged by
such Pledgor pursuant to Section 2 hereof to comply with any instruction
received by it from the Pledgee in writing that (a) states that an Event of
Default has occurred and (b) is otherwise in accordance with the terms of this
Agreement, without any other or further instructions from the Pledgor, and
agrees that each such Issuer shall be fully protected in so complying.
11. PLEDGEE'S APPOINTMENT AS ATTORNEY-IN-FACT. (a) The Pledgor hereby
irrevocably constitutes, and appoints the Pledgee and any officer or agent of
the Pledgee, with full irrevocable power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of the Pledgor and in the name of the Pledgor or in the Pledgee's own
name, from time to time in the Pledgee's discretion upon and during the
continuance of an Event of Default, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, including without limitation, any financing
statements, endorsements, assignments or other instruments of transfer.
(b) The Pledgor hereby ratifies all that said attorneys shall lawfully
do or cause to be done pursuant to the power of attorney granted in Section
11(a). All powers, authorizations and agencies contained in this Agreement are
coupled with an interest and are irrevocable until this Agreement is terminated
and the security interests created hereby are released.
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12. DUTY OF PLEDGEE. The Pledgee's sole duty with respect to the custody,
safekeeping and physical preservation of the Pledged Stock in its possession,
shall be to deal with it in the same manner as the Pledgee deals with similar
securities and property for its own account, PROVIDED that investments shall be
made at the option and sole discretion of the Pledgee and PROVIDED FURTHER that
the Pledgee shall use reasonable efforts to make such investments. Neither the
Pledgee nor any of its respective directors, officers, employees or agents shall
be liable for failure to demand, collect or realize upon any of the Pledged
Stock or for any delay in doing so or shall be under any obligation to sell or
otherwise dispose of any Pledged Stock upon the request of the Pledgor or any
other person or to take any other action whatsoever with regard to the Pledged
Stock or any part thereof.
13. AUTHORITY OF PLEDGEE. The Pledgor acknowledges that the rights and
responsibilities of the Pledgee under this Agreement with respect to any action
taken by the Pledgee or the exercise or non-exercise by the Pledgee of any
option, voting right, request, judgment or other right or remedy provided for
herein or resulting or arising out this Agreement shall, as between the Pledgee,
be governed by the Credit Agreement and by such other agreements with respect
thereto as may exist from time to time among them, but, as between the Pledgee
and the Pledgor, the Pledgee shall be conclusively presumed to be acting as
agent for the Secured Parties with full and valid authority so to act or refrain
from acting.
14. APPLICATION OF PROCEEDS. The proceeds of any sale of the Pledged Stock
pursuant to Section 8(b), as well as any collateral consisting of cash under
Section 8(a), shall be applied by the Pledgee as follows:
FIRST, to the payment of the reasonable costs and expenses of the
Pledgee as set forth in Section 8(b);
SECOND, to the payment of all amounts of the Obligations owed to the
Pledgee in respect of Intercompany Loans made by it and outstanding;
THIRD, to the payment and discharge in full of the Obligations (other
than those referred to above); and
FOURTH, after payment in full of all Obligations, to the applicable
Pledgor, or the successors or assigns thereof, or to whomsoever may be lawfully
entitled to receive the same or as a court of competent jurisdiction may direct,
any Collateral then remaining.
The Pledgee shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Pledged Stock by the Pledgee (including pursuant
to a power of sale granted by statute or under a judicial proceeding), the
receipt of the Pledgee or of the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Pledged Stock so sold and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the purchase money paid over to the Pledgee or such officer or be
answerable in any way for the misapplication thereof.
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15. SECURITY INTEREST ABSOLUTE. All rights of the Pledgee hereunder, the
security interests granted hereunder and all obligations of the Pledgor
hereunder shall be absolute and unconditional.
16. SURVIVAL OF AGREEMENT. All covenants, agreements, representations and
warranties made by the Pledgor herein and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this
Agreement or any other Loan Document shall be considered to have been relied
upon by the Secured Parties 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 by the Issuing Bank of the Letters of Credit, regardless of any
investigation made by the Secured Parties, 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 or in respect of this Agreement or any other Loan Document is outstanding
and unpaid and so long as the Commitments have not been terminated.
17. PLEDGEE'S LIABILITIES AND EXPENSES; INDEMNIFICATION. (a)
Notwithstanding anything to the contrary provided herein, the Pledgee assumes no
liabilities with respect to any claims regarding the Pledgor's ownership (or
purported ownership) of, or rights or obligations (or purported rights or
obligations) arising from, the Pledged Stock or any use (or actual or alleged
misuse) whether arising out of any past, current or future event, circumstance,
act or omission or otherwise, or any claim, suit, loss, damage, expense or
liability of any kind or nature arising out of or in connection with the Pledged
Stock. All of such liabilities shall, as between the Pledgee and the Pledgor, be
borne exclusively by the Pledgor.
(b) The Pledgor hereby agrees to pay all reasonable expenses of the
Pledgee and to indemnify the Pledgee with respect to any and all losses, claims,
damages, liabilities and related expenses in respect of this Agreement or the
Pledged Stock in each case to the extent the Borrower is required to do so
pursuant to Section 10.03 of the Credit Agreement.
(c) Any amounts payable by a Pledgor as provided hereunder shall be
additional Obligations of it secured hereby and by its other Security Documents.
Without prejudice to the survival of any other agreements contained herein, all
indemnification and reimbursement obligations contained herein shall survive the
payment in full of the principal and interest under the Credit Agreement, the
expiration of the Letters of Credit and the termination of the Commitments or
this Agreement.
18. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
Pledge Agreement
11
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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 19.
19. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) The Pledgor hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the southern
District of New York, 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
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 and to the extent
permitted by the laws of the other jurisdiction. Nothing in this Agreement shall
affect any right that the Pledgee may otherwise have to bring any action or
proceeding relating to this Agreement against the Pledgor or its properties in
the courts of Switzerland or any other competent jurisdiction.
(b) The Pledgor and the Pledgee hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the other
Loan Documents in a Swiss 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.
20. TERMINATION AND RELEASE. (a) This Agreement and the security interest
created hereunder shall terminate when all the Obligations have been fully and
indefeasibly paid and when the Secured Parties have no further Commitments and
no Letters of Credit are outstanding, at which time the Pledgee shall reassign
or re-cede and deliver to the Pledgor, or to such person or persons as the
Pledgor shall reasonably designate, against receipt, such of the Pledged Stock
owned by the Pledgor as shall have not been sold or otherwise applied by the
Pledgee pursuant to the terms hereof and shall still be held by it hereunder,
together with appropriate instructions of reassignment or re-cession and
release. Any such reassignment or re-cession shall be without recourse to or any
warranty by the Pledgee and at the expense of the Pledgor.
(b) All Pledged Stock sold, transferred or otherwise disposed of, in
accordance with the terms of the Credit Agreement (including pursuant to a
waiver or amendment of the terms thereof), shall be sold, transferred or
otherwise disposed of free and clear of the Lien and the security interest
created hereunder. In connection with the foregoing, (i) the Pledgee shall
execute and deliver to the Pledgor with respect to the Pledged Stock owned by
the Pledgor, or to such person or persons as the Pledgor shall reasonably
designate, against receipt, such Pledged Stock sold, transferred or otherwise
disposed together with appropriate instructions of reassignment or re-cession
and release, (ii) any representation, warranty or covenant contained herein
relating to the Pledged Stock shall no longer be deemed to be made with respect
Pledge Agreement
12
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to such sold, transferred or otherwise disposed Pledged Stock and (iii) all
schedules hereto shall be amended to delete the name of the Issuer. Any such
reassignment or re-cession shall be without recourse or to any warranty by the
Pledgee and at the expense of the Pledgor.
21. NOTICES. All notices, requests and demands to or upon the Pledgee or
the Pledgor under this Agreement shall be given or made in accordance with
Section 10.01 of the Credit Agreement and addressed as follows:
(a) if to Pledgee, at the following address: Brandywine ▇▇▇▇
▇▇▇▇▇▇▇▇,▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇;
(b) if to UCAR SA at the following address: UCAR SA, ▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇.
22. SEVERABILITY. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition of enforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. 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.
23. AMENDMENTS IN WRITING; NO WAIVER; CUMULATIVE REMEDIES. (a) None of the
terms or provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the Pledgor and
the Pledgee, PROVIDED that any provision of this Agreement may be waived by the
Required Secured Parties pursuant to a letter or agreement executed by the
Pledgee or by telecopy transmission from the Pledgee.
(b) The Pledgee shall not by any act (except by a written instrument
pursuant in Section 23(a) hereof) or delay be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of Default or in
any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of the Pledgee, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise of any other right, power or privilege. A waiver by the Pledgee
of any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Pledgee would otherwise have on any future
occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
Pledge Agreement
13
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24. SECTION HEADINGS. The section headings used in this Agreement are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
25. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
successors and assigns of the Pledgor and shall inure to the benefit of the
Pledgor, the Pledgee and their successors and assigns, PROVIDED that this
Agreement may not be assigned by the Pledgor without the prior written consent
of the Pledgee.
26. COUNTERPARTS. This Agreement may be executed in two or more original
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract.
27. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed and delivered as of the date first above written.
UCAR SA
------------------------------------
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-in-Fact
UCAR FINANCE INC.
------------------------------------
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Treasurer
Pledge Agreement
14
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ANNEX I to
Pledge Agreement
Intercompany Borrower Agreement
Pledge Agreement
15
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ANNEX II to
Pledge Agreement
Guarantee
Pledge Agreement
16
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SCHEDULE I to
PLEDGE AGREEMENT
________________________________________________________________________________
PLEDGED STOCK:
---------------------------------------- -------------------------------------------- --------------------------------
Name of Subsidiary Share Certificate(s) Percentage Ownership
Represented by Share
Certificate(s)
---------------------------------------- -------------------------------------------- --------------------------------
---------------------------------------- -------------------------------------------- --------------------------------
UCAR Carbon Mexicana S.A. de C.V. To be inserted on February 19, 2002 To be inserted on February 19,
(Mexico) 2002
---------------------------------------- -------------------------------------------- --------------------------------
UCAR S.p.A. (Italy) Share Certificate n.1 for 5,000 Shares 0.1%
Share Certificate n.5 for 3,250,000 Shares 65%
Share Certificate n.6 for 1,745,000 Shares 34.9%
---------------------------------------- -------------------------------------------- --------------------------------
UCAR Carbon S.A. (Brazil) Uncertificated [97%]
---------------------------------------- -------------------------------------------- --------------------------------
EMSA (Pty) Ltd. (South Africa) 2, 3 100%
---------------------------------------- -------------------------------------------- --------------------------------
