CONFORMED COPY
DOMESTIC PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of February 22, 2000, by
UCAR INTERNATIONAL INC., a Delaware corporation
("UCAR"), UCAR GLOBAL ENTERPRISES INC., a Delaware
corporation ("GLOBAL"), UCAR FINANCE INC., a Delaware
corporation (the "BORROWER"), the direct and indirect
subsidiaries of UCAR that are signatories hereto
(together with UCAR, Global and the Borrower, the
"PLEDGORS"), in favor of XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as collateral agent for the Secured Parties
(as defined in Section 1 of this Pledge Agreement; 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,
Global, the Borrower, the LC Subsidiaries from time to
time party thereto, the Lenders from time to time party
thereto and Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent, Collateral Agent and Issuing
Bank (as the same 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, pursuant to the Credit Agreement, the Lenders have
severally agreed to make Loans and the Issuing Bank has agreed to issue
Letters of Credit, upon the terms and subject to the conditions set forth
therein; and
WHEREAS, it is a condition precedent to the obligations of the
Lenders to make the Loans and of the Issuing Bank to issue the Letters of
Credit that the Pledgors shall have executed and delivered this Pledge
Agreement.
NOW, THEREFORE, in consideration of the premises and to induce
the Secured Parties to enter into the Credit Agreement and to induce the
Lenders to make their respective Loans and the Issuing Bank to issue
Letters of Credit, each of the Pledgors hereby agrees with the Collateral
Agent, for the ratable benefit of the Secured Parties, as follows:
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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:
"ADDITIONAL COLLATERAL" shall mean all rights of any
Pledgor under any Guarantees, security agreements or other
instruments or documents guaranteeing or securing any Intercompany
Notes or other Collateral.
"CODE" shall mean the Uniform Commercial Code from time
to time in effect in the State of New York.
"COLLATERAL" shall mean the Pledged Securities, 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
Collateral Agent, subject to withdrawal by the Collateral Agent for
the account of the Secured Parties and the Pledgors, as provided in
Section 8(a) and Section 15.
"ISSUERS" shall mean the companies identified on
SCHEDULE I attached hereto as the issuers of the Pledged Securities
and each issuer of any securities included in the Additional
Collateral.
"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 Loans, when
and as due, whether at maturity, by acceleration, upon one or more
dates set for prepayment or otherwise, (ii) each payment required to
be made by the Borrower or any Subsidiary under the Credit Agreement
in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement of disbursements, interest
thereon and obligations to provide cash collateral and (iii) all
other monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the
pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in
such proceeding), of UCAR, Global, the Borrower and the Subsidiaries
under the Credit Agreement and the other Loan Documents (including,
without limitation, all monetary obligations of the Intercompany
Borrowers under the Intercompany Notes and Intercompany Borrower
Agreements, but only for so long as the Intercompany Notes and the
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rights of the Borrower under the Intercompany Borrower Agreements
are pledged to the Collateral Agent under this Agreement as security
for the Obligations), (b) the due and punctual performance of all
covenants, agreements, obligations and liabilities of UCAR, Global,
the Borrower and the Subsidiaries under or pursuant to the Credit
Agreement and the other Loan Documents, (c) unless otherwise agreed
upon in writing by the applicable Lender party thereto, the due and
punctual payment and performance of all obligations of the UCAR,
Global, the Borrower and the Subsidiaries, monetary or otherwise,
under each Interest/Exchange Rate Protection Agreement entered into
with any counterparty that (i) was a Lender (or an Affiliate
thereof) at the time such Interest/Exchange Rate Protection
Agreement was entered into or (ii) (A) was a "Lender" (or an
Affiliate thereof) as defined in the Existing Credit Agreements at
the time such Interest/Exchange Rate Protection Agreement was
entered into and (B) was one of the initial Lenders under the Credit
Agreement (or an Affiliate thereof) and (d) all obligations of the
UCAR, Global, the Borrower and the Subsidiaries under the Guarantee
Agreements;
"PLEDGED NOTES" shall mean (a) the Intercompany Notes
and other notes listed on SCHEDULE I hereto and (b) all Intercompany
Notes and other instruments evidencing Indebtedness of UCAR, Global,
the Borrower, any Subsidiary or any other person that shall be owned
at any time or from time to time by any Pledgor.
"PLEDGED STOCK" shall mean all shares of Capital Stock
listed on SCHEDULE I hereto or hereafter acquired by any Pledgor,
together with all certificates from time to time evidencing such
Capital Stock.
"PLEDGED SECURITIES" shall mean the Pledged Notes and
the Pledged Stock.
"PROCEEDS" shall mean all "proceeds" (as such term is
defined in Section 9-306(1) of the Uniform Commercial Code in effect
in the State of New York on the date hereof) of any Collateral and,
in any event, shall include all interest, payments, prepayments,
collections, dividends or other distributions or other income on the
Pledged Stock or the Pledged Notes.
"SECURED PARTIES" shall mean the Agents, each Lender,
the Issuing Bank and each other person to which any of the
Obligations is owed. In the case of Obligations owed to the Borrower
by Foreign Subsidiaries, the term "Secured Parties" includes the
Borrower and all references herein to the "ratable benefit of the
Secured Parties" includes the Borrower to the extent necessary to
effect the Foreign Subsidiary Pledgors' pledges of Collateral to the
Borrower and the Borrower's assignment of such pledges contained in
Section 2(b).
"SECURITIES ACT": the Securities Act of 1933, as
amended.
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(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.
2. PLEDGE; GRANT OF SECURITY INTEREST; ASSIGNMENT OF SECURITY
INTERESTS. (a) Each Pledgor hereby pledges, charges and delivers to the
Collateral Agent, for the ratable benefit of the Secured Parties, and
hereby grants to the Collateral Agent, for the ratable benefit of the
Secured Parties, a first priority security interest in, all the Collateral
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 (i) in the case of each Pledgor that is not a Foreign
Subsidiary, all of the Obligations, and (ii) in the case of each Pledgor
that is a Foreign Subsidiary, its own obligations (A) under the
Intercompany Notes and the Intercompany Borrower Agreements, (B) in
respect of Letters of Credit and (C) as a Guarantor of the obligations of
other Foreign Subsidiaries under the Guarantee Agreements. Each Pledgor
will (i) cause any shares of Capital Stock of the Borrower, Global or any
Subsidiary required to be pledged hereunder to be evidenced by duly
executed certificates that are pledged and delivered to the Collateral
Agent pursuant to the terms hereof and (ii) cause any Pledged Notes to be
delivered to the Collateral Agent pursuant to the terms hereof.
(b) Without limiting the grant set forth in paragraph (a)
above, the Borrower hereby assigns, pledges, and transfers to the
Collateral Agent for the ratable benefit of the Secured Parties, as
security for the Obligations, all the Intercompany Notes and all its
rights thereunder and under the related Intercompany Borrower Agreements
and any Guarantee Agreements guaranteeing or Security Documents securing
the Intercompany Notes or any of them. The Borrower agrees that, until the
Commitments under the Credit Agreement have been terminated and the
principal of and interest on each Loan, all fees referred to in the Credit
Agreement and all other expenses or amounts payable under any Loan
Document have been paid in full and all Letters of Credit have been
canceled or have expired and all amounts drawn thereunder have been
reimbursed in full, the Collateral Agent will have the right, to the
exclusion of the Borrower, to exercise all rights of the Borrower, and to
make all demands (except that the Borrower shall be entitled to make a
demand for payment to effect any prepayment that it is entitled to make
under Section 3.03(b)(ii) of the Credit Agreement) and give all notices to
be made or given by the Borrower, under the Intercompany Notes, the
Intercompany Borrower Agreements and such Guarantee Agreements and
Security Documents (and the Borrower agrees that any such demand or notice
made or given by the Borrower in violation of the provisions of this
paragraph shall be of no force or effect). Without limiting the foregoing,
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the Borrower agrees that at any time after the occurrence and during the
continuance of an Event of Default, the Collateral Agent may demand
payment of the principal of and interest accrued on each Intercompany
Note.
3. STOCK POWERS AND INSTRUMENTS OF TRANSFER. Concurrently with
the delivery to the Collateral Agent of each certificate representing one
or more shares of Pledged Stock and each Pledged Note, the applicable
Pledgor shall deliver an undated stock power or instrument of transfer
covering such certificate or such Pledged Note, duly executed in blank by
such Pledgor with, if the Collateral Agent so requests, signature
guaranteed.
4. REPRESENTATIONS AND WARRANTIES. Each Pledgor
represents and warrants, as to itself and the Collateral 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 and the Pledged Notes evidence the obligations of the
applicable Issuer to the applicable Pledgor in aggregate principal
amounts as 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.
(c) Subject to Section 21(b), each Pledgor is the legal,
record and beneficial owner of the Pledged Securities and of the
Additional Collateral, 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) All Capital Stock or other ownership interests in the
Domestic Subsidiaries will at all times constitute certificated
securities for purposes of Articles 8 and 9 of the Uniform
Commercial Code as in effect in the State of New York or its
equivalent in other jurisdictions.
(e) This 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
and, when the Pledged Stock, Pledged Notes or Additional Collateral
shall be delivered to the Collateral Agent (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 Pledgors thereunder in such Pledged
Stock, Pledged Notes or Additional Collateral, 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.
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5. COVENANTS. Each Pledgor, as to itself and the Collateral
pledged by it hereunder, covenants and agrees with the Secured Parties
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 21(b):
(a) Any sums paid upon or in respect of the Pledged Stock,
Pledged Notes or Additional Collateral 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 Collateral Agent, be paid over to the Collateral
Agent to be held and applied by it hereunder as provided in Section
8(a) and Section 15, and in case any distribution of capital shall
be made on or in respect of the Pledged Stock or Additional
Collateral or any property shall be distributed upon or with respect
to the Pledged Stock, Pledged Notes or Additional Collateral
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 Collateral Agent, be
delivered to the Collateral Agent to be held and applied by it
hereunder as provided in Section 8(a) and Section 15. If any sums of
money or property so paid or distributed in respect of the Pledged
Stock, Pledged Notes or Additional Collateral shall be received by
such Pledgor, such Pledgor shall, upon and during the continuance of
an Event of Default, upon the written request of the Collateral
Agent, until such money or property is paid or delivered to the
Collateral Agent, hold such money or property in trust for the
Secured Parties, segregated from other funds of such Pledgor, for
application in accordance with Section 8(a) and Section 15.
(b) Without the prior written consent of the Collateral Agent,
such 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 Collateral 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 Collateral, 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 any agreement or undertaking
restricting the right or ability of such Pledgor or the Collateral
Agent to sell, assign or transfer any of such Collateral, except as
not prohibited under the terms of the Credit Agreement.
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(c) Such 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 Collateral Agent, and at the
sole expense of such Pledgor, such Pledgor shall promptly and duly
execute and deliver such further instruments and documents and take
such further actions as the Collateral Agent 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 Collateral
owned by such 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 Collateral Agent, be
immediately delivered to the Collateral Agent duly endorsed in a
manner reasonably satisfactory to the Collateral Agent, to be held
as Collateral 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 Collateral
Agent shall have given notice to the Pledgors of the Collateral Agent's
intent to exercise its corresponding rights pursuant to Section 7 below,
the Pledgors 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 and, if applicable, Additional
Collateral and to exercise all voting and corporate rights with respect to
the Pledged Stock and, if applicable, Additional Collateral, 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 Collateral Agent or the Secured Parties or their 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 Collateral Agent shall have given notice to the
Pledgors of the Collateral Agent's intent to exercise its corresponding
rights pursuant to Section 7 below, the Pledgors 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 Collateral.
7. RIGHTS OF THE SECURED PARTIES AND THE COLLATERAL Agent. If
an Event of Default shall occur and be continuing and the Collateral Agent
shall give notice of its intent to exercise such rights to the Pledgors,
(i) the Collateral Agent shall have the right to receive any and all
Proceeds paid in respect of the Pledged Securities 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 15 and (ii) all shares of the Pledged Stock and, if applicable,
Additional Collateral shall be registered in the name of the Collateral
Agent or its nominee, and the Collateral Agent or its nominee may
thereafter exercise (1) all voting, corporate and other rights pertaining
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to such shares of the Pledged Stock and to such Additional Collateral 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 and
to such Additional Collateral as if it were the absolute owner thereof
(including the right to exchange at its discretion any and all the Pledged
Stock and, if applicable, Additional Collateral upon the merger,
consolidation, reorganization, recapitalization or other fundamental
change in the corporate structure of any Issuer, or upon the exercise by a
Pledgor or the Collateral Agent of any right, privilege or option
pertaining to such shares of the Pledged Stock and to such Additional
Collateral, and in connection therewith, the right to deposit and deliver
any and all the Pledged Stock and, if applicable, Additional Collateral
with any committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as the Collateral Agent
may reasonably determine), all without liability except to account for
property actually received by it, but the Collateral Agent shall have no
duty to any 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 any Pledgor contrary to the provisions
of this Section 7 shall be received in trust for the benefit of the
Collateral Agent, shall be segregated from other property or funds of such
Pledgor and shall be forthwith delivered to the Collateral Agent 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 Collateral Agent
pursuant to the provisions of this Section 7 shall be retained by the
Collateral Agent in a Collateral Account to be established by the
Collateral Agent upon receipt of such money or other property and shall be
applied in accordance with the provisions of Section 8(a) and Section 15.
After all Events of Default under the Credit Agreement have been cured or
waived, the Collateral Agent shall, within five Business Days after all
such Events of Default have been cured or waived, repay to each Pledgor
all cash dividends, interest or principal that such 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 Collateral Agent shall apply all or any
part of the Proceeds held in any Collateral Account in accordance with
Section 15.
(b) If an Event of Default shall have occurred and be
continuing, the Collateral Agent, on behalf of the Secured Parties, 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 Code. Without limiting the generality of the foregoing, the
Collateral Agent, 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 Pledgors 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 Collateral, or any part thereof,
and/or may forthwith sell, assign, give option or options to purchase or
otherwise dispose of and deliver the Collateral or any part thereof (or
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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 Collateral Agent or any Secured Party 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. The
Collateral Agent or any Secured Party 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 Collateral
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 Collateral Agent 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 the Collateral or
reasonably relating to the Collateral or the any or the rights of the
Collateral Agent and the Secured Parties hereunder, including reasonable
attorney's fees and disbursements of counsel to the Collateral Agent, to
the payment in whole or in part of the Obligations, in the order set forth
in Section 15. If any notice of a proposed sale or other disposition of
Collateral 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. UCAR and the other Pledgors shall remain liable for any
deficiency if the proceeds of any sale or other disposition of Collateral
are insufficient to pay (i) in the case of each Pledgor other than UCAR,
its Obligations and the reasonable fees and disbursements of any attorneys
employed by the Collateral Agent or any Secured Party to collect such
deficiency in its Obligations and (ii) in the case of UCAR, its and the
Borrower's Obligations and pro rata shares of such fees and disbursements.
9. REGISTRATION RIGHTS; PRIVATE SALES. (a) If the Collateral
Agent 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
Collateral Agent 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 Collateral Agent, 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 Collateral Agent, 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 "Blue
Sky" laws of any and all jurisdictions which the Collateral Agent shall
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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.
Each Pledgor jointly and severally agrees to (x) indemnify, defend and
hold harmless Collateral Agent and the other Indemnitees from and against
all losses, liabilities, expenses, costs (including the reasonable fees
and expenses of legal counsel to the Collateral Agent) 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 Collateral Agent or any other Secured
Party 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
Pledgors will jointly and severally bear all costs and expenses of
carrying out their obligations under this Section 9.
(b) The Pledgors recognize that the Collateral Agent 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. Each 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 Collateral Agent 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) Each 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 or
Additional Collateral 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. Each Pledgor further agrees that a breach
of any of the covenants contained in this Section will cause irreparable
injury to the Collateral Agent and the Secured Parties, that the
Collateral Agent and the Secured Parties have 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 such
Pledgor.
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10. IRREVOCABLE AUTHORIZATION AND INSTRUCTION TO ISSUER. Each
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 Collateral Agent 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 such Pledgor, and agrees that each such
Issuer shall be fully protected in so complying.
11. COLLATERAL AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT. (a)
Each Pledgor hereby irrevocably constitutes, and appoints the Collateral
Agent and any officer or agent of the Collateral Agent, 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 such
Pledgor and in the name of such Pledgor or in the Collateral Agent's own
name, from time to time in the Collateral Agent'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) Each 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.
12. DUTY OF COLLATERAL AGENT. The Collateral Agent's sole duty
with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Code or
otherwise, shall be to deal with it in the same manner as the Collateral
Agent deals with similar securities and property for its own account,
PROVIDED that investments shall be made at the option and sole discretion
of the Collateral Agent and PROVIDED FURTHER that the Collateral Agent
shall use reasonable efforts to make such investments. Neither the
Collateral Agent, any Secured Party nor any of their respective directors,
officers, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so
or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of the Pledgors or any other person or to take
any other action whatsoever with regard to the Collateral or any part
thereof.
13. EXECUTION OF FINANCING STATEMENTS. Pursuant to Section
9-402 of the Code, each Pledgor authorizes the Collateral Agent to file
financing statements with respect to the Collateral owned by it without
the signature of such Pledgor in such form and in such filing offices as
the Collateral Agent reasonably determines appropriate to perfect the
security interests of the Collateral Agent under this Agreement. A carbon,
12
photographic or other reproduction of this Agreement shall be sufficient
as a financing statement for filing in any jurisdiction.
14. AUTHORITY OF COLLATERAL AGENT. Each Pledgor acknowledges
that the rights and responsibilities of the Collateral Agent under this
Agreement with respect to any action taken by the Collateral Agent or the
exercise or non-exercise by the Collateral Agent 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 Collateral
Agent and the Secured Parties, 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 Collateral Agent and such Pledgor, the
Collateral Agent 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.
15. APPLICATION OF PROCEEDS. The proceeds of any sale of
Collateral pursuant to Section 8(b), as well as any Collateral
consisting of cash under Section 8(a), shall be applied by the
Collateral Agent as follows:
FIRST, to the payment of the reasonable costs and expenses
of the Collateral Agent as set forth in Section 8(b);
SECOND, to the payment of all amounts of the Obligations owed
to the Secured Parties in respect of Loans made by them and
outstanding and amounts owing in respect of any LC Disbursement or
Letter of Credit or under any Interest/Exchange Rate Protection
Agreements, pro rata as among the Secured Parties in accordance with
the amount of such Obligations owed them;
THIRD, to the payment and discharge in full of the Obligations
(other than those referred to above), pro rata as among the Secured
Parties in accordance with the amount of such Obligations owed to
them; 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 Collateral Agent 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 Collateral by the Collateral
Agent (including pursuant to a power of sale granted by statute or under a
judicial proceeding), the receipt of the Collateral Agent or of the
officer making the sale shall be a sufficient discharge to the purchaser
or purchasers of the Collateral 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 Collateral Agent or such officer or be
answerable in any way for the misapplication thereof.
13
16. SECURITY INTEREST ABSOLUTE. All rights of the
Collateral Agent hereunder, the security interests granted hereunder
and all obligations of the Pledgors hereunder shall be absolute and
unconditional.
17. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by any 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.
18. COLLATERAL AGENT'S LIABILITIES AND EXPENSES;
INDEMNIFICATION. (a) Notwithstanding anything to the contrary provided
herein, the Collateral Agent assumes no liabilities with respect to any
claims regarding each Pledgor's ownership (or purported ownership) of, or
rights or obligations (or purported rights or obligations) arising from,
the Collateral 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 Collateral. All of
such liabilities shall, as between the Collateral Agent and the Pledgors,
be borne exclusively by the Pledgors.
(b) Each Pledgor hereby agrees to pay all reasonable expenses
of the Collateral Agent and to indemnify the Collateral Agent with respect
to any and all losses, claims, damages, liabilities and related expenses
in respect of this Agreement or the Collateral 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.
19. 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
14
LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 19.
20. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each
Pledgor 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 Loan Party
or any Secured Party may otherwise have to bring any action or proceeding
relating to this Agreement or the other Loan Documents against any Pledgor
or any Secured Party or its properties in the courts of any jurisdiction.
(b) Each Pledgor and each Secured Party 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 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 22
hereof. Nothing in this Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
21. 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 Collateral Agent shall reassign and deliver
to each Pledgor, or to such person or persons as each Pledgor shall
reasonably designate, against receipt, such of the Collateral owned by
15
such Pledgor as shall have not been sold or otherwise applied by the
Collateral Agent pursuant to the terms hereof and shall still be held by
it hereunder, together with appropriate instructions of reassignment and
release. Any such reassignment shall be without recourse to or any
warranty by the Collateral Agent and at the expense of such Pledgor.
(b) All Collateral 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
Collateral Agent shall execute and deliver to each Pledgor with respect to
the Collateral owned by such Pledgor, or to such person or persons as such
Pledgor shall reasonably designate, against receipt, such Collateral sold,
transferred or otherwise disposed together with appropriate instructions
of reassignment and release, (ii) any representation, warranty or covenant
contained herein relating to the Collateral shall no longer be deemed to
be made with respect to such sold, transferred or otherwise disposed
Collateral and (iii) all schedules hereto shall be amended to delete the
name of the Issuer. Any such reassignment shall be without recourse or to
any warranty by the Collateral Agent and at the expense of such Pledgor.
22. NOTICES. All notices, requests and demands to or upon
the Secured Parties or the Pledgors 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 any Secured Party, UCAR Global or the Borrower,
at its address for notices provided in Section 10.01 of the
Credit Agreement;
(b) if to any Subsidiary, at its address set forth on
Schedule II hereof.
23. 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.
24. 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 Pledgors and the Collateral Agent, PROVIDED that any provision of
this Agreement may be waived by the Required Secured Parties pursuant to a
letter or agreement executed by the Collateral Agent or by telecopy
transmission from the Collateral Agent.
15
(b) Neither the Collateral Agent nor any Secured Party shall
by any act (except by a written instrument pursuant in Section 24(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 any Secured Party, 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 any Secured Party of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which such
Secured Party 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.
25. 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.
26. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the successors and assigns of the Pledgors and shall inure to the
benefit of the Pledgors, the Collateral Agent and the Secured Parties and
their successors and assigns, PROVIDED that this Agreement may not be
assigned by the Pledgors without the prior written consent of the
Collateral Agent and the Secured Parties.
27. 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.
28. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK.
17
IN WITNESS WHEREOF, the undersigned has caused this Agreement
to be duly executed and delivered as of the date first above written.
UCAR INTERNATIONAL INC.
by /S/ XXXXX X. FALLS
-------------------------------------
Name: Xxxxx X. Falls
Title: Treasurer
UCAR GLOBAL ENTERPRISES INC.
by /S/ XXXXX X. FALLS
---------------------------------------
Name: Xxxxx X. Falls
Title: Treasurer
UCAR FINANCE INC.
by /S/ XXXXX X. FALLS
---------------------------------------
Name: Xxxxx X. Falls
Title: Treasurer
EACH OF THE PLEDGOR SUBSIDIARIES LISTED
ON SCHEDULE II HERETO
by /S/ XXXXX X. FALLS
---------------------------------------
Name: Xxxxx X. Falls
Title: Treasurer
XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Collateral Agent,
by /S/ XXXXXXX XXXXXXXX
---------------------------------------
Name: Xxxxxxx XxXxxxxx
Title: Vice President
WITNESSES:
1. /S/ XXXXXXXX XXXXXX 2. /S/ XXXXXX XXX
-------------------------- ------------------------
Name:Xxxxxxxx Xxxxxx Name: Xxxxxx Xxx
Drivers License No.: ___________ Drivers License No.: __________
Social Security No.: ____________ Social Security No.: __________
00
Xxxxx xx Xxx Xxxx )
) ss.: New York
County of New York )
On this the day of February, 2000, before me, __________________________,
the undersigned officer, personally appeared
______________________________ and _______________________, known to me to
be the persons whose names are subscribed to the within instrument and
each acknowledged that he(she) executed the same for the purposes therein
contained.
IN WITNESS WHEREOF I hereunto set my hand.
----------------------------
Notary Public
My Commission expires ____________________.
SCHEDULE I TO
PLEDGE AGREEMENT
============================================================================================
PLEDGED STOCK
-------------
PERCENTAGE
PLEDGOR* ISSUER* PLEDGED STOCK PLEDGED
------- ------ ------------- ----------
--------------------------------------------------------------------------------------------
UCAR International Inc. UCAR Global Enterprises 100 Shares 100%
Inc. (Certificate No. U0001)
--------------------------------------------------------------------------------------------
UCAR International Inc. UCAR Finance Inc. 100 Shares 100%
(Certificate No. 1)
--------------------------------------------------------------------------------------------
UCAR Global Enterprises Inc. UCAR Carbon S.A.(Brazil) No Certificates 65%
--------------------------------------------------------------------------------------------
UCAR Global Enterprises Inc. UCAR Carbon Company Inc. 500 Shares 100%
(Certificate No. 2)
--------------------------------------------------------------------------------------------
UCAR Global Enterprises Inc. UCAR Holdings II Inc. 100 Shares 100%
(Certificate No. 2)
--------------------------------------------------------------------------------------------
UCAR Global Enterprises Inc. UCAR S.A. (Switzerland) 113,750 Shares 65%
(Certificate No. 5)
--------------------------------------------------------------------------------------------
UCAR Global Enterprises Inc. UCAR Holding GmbH (Austria) No Certificates 65%
--------------------------------------------------------------------------------------------
UCAR Carbon Company Inc. Unicarbon Comercial Ltda. No Certificates 65%
(Brazil)
--------------------------------------------------------------------------------------------
UCAR Carbon Company Inc. UCAR Limited (UK) 5,249,999 Shares 65%
(Certificate No. 9)
--------------------------------------------------------------------------------------------
UCAR Carbon Company Inc. Union Carbide Grafito, Inc. 25,000 preferred Shares 100%
(Certificate No. 26)
200 common Shares
(Certificate No. 2)
--------------------------------------------------------------------------------------------
UCAR Carbon Company Inc. UCAR Carbon Foreign Sales 1 Share 65%
Corporation (Certificate No. 2)
--------------------------------------------------------------------------------------------
UCAR Carbon Company Inc. UCAR Composites Inc. 800 Shares 100%
(Certificate No. A3)
--------------------------------------------------------------------------------------------
UCAR Carbon Company Inc. UCAR International Trading 100 Shares 100%
Inc. (Certificate No. 1)
--------------------------------------------------------------------------------------------
UCAR Carbon Company Inc. EMSA (Pty.) Ltd. (South 4,062,500 Shares 65%
Africa) (Certificate No. 36)
--------------------------------------------------------------------------------------------
UCAR Carbon Company Inc. Carbographite Limited 2,600 Shares 65%
(South Africa) (Certificate No. 42)
--------------------------------------------------------------------------------------------
UCAR Carbon Company Inc. UCAR Mexicana S.A. de C.V. 269,828,025 Shares 65%
(Mexico) (Certificate Nos. 1 and 5)
--------------------------------------------------------------------------------------------
UCAR Carbon Company Inc. UCAR S.p.A. (Italy) No Certificates 65%
--------------------------------------------------------------------------------------------
UCAR Carbon Company Inc. UCAR Electrodos S.L. 1 Share .1%
(Spain)
--------------------------------------------------------------------------------------------
UCAR Carbon Company Inc. UCAR Carbon Mexicana, S.A. 27,231 Shares .1%
de C.V. (Mexico) (Certificate Nos. 1,3,4
--------------------------------------------------------------------------------------------
UCAR Holdings II Inc. UCAR Inc. (Canada) 650 Shares 65%
(Certificate No. 3)
--------------------------------------------------------------------------------------------
UCAR Holdings II Inc. UCAR Electrodos S.L. No Certificates 65%
(Spain)
--------------------------------------------------------------------------------------------
UCAR Holdings II Inc. UCAR Holdings S.A. (France) No Certificates 65%
--------------------------------------------------------------------------------------------
UCAR Holdings II Inc. UCAR Holdings III Inc. 100 Shares 100%
(Certificate No. 2)
--------------------------------------------------------------------------------------------
UCAR Holdings II Inc. UCAR SNC (France) 1 Share .1%
No Certificates
--------------------------------------------------------------------------------------------
UCAR S.A. (Switzerland) UCAR Holding GmbH (Austria) No Certificates 33.33%
--------------------------------------------------------------------------------------------
UCAR Carbon S.A. (Brazil) UCAR Pordutos de Carbono No Certificates 99.97%
S.A. (Brazil)
--------------------------------------------------------------------------------------------
2
================================================================================================
PLEDGED STOCK
-------------
PERCENTAGE
PLEDGOR* ISSUER* PLEDGED STOCK PLEDGED
------- ------ ------------- ----------
-------------------------------------------------------------------------------------------------
UCAR Carbon S.A.(Brazil) Unicarbon Comercial Ltda. No Certificates 2.33%
(Brazil)
-------------------------------------------------------------------------------------------------
UCAR Mexicana, S.A. de C.V. UCAR Carbon Mexicana, S.A. 5,944,099 Shares 99.84%
(Mexico) de C.V. (Mexico) (Certificates 27, 28
and 29) -- certificates
to be provided or reissued
--------------------------------------------------------------------------------------------------
UCAR S.p.A. (Italy) UCAR Energia S.r.l. (Italy) No Certificates 100%
--------------------------------------------------------------------------------------------------
UCAR Holdings S.A. (France) UCAR SNC (France) No Certificates 100%
PLEDGED NOTES
-------------
================================================================================
INTERCOMPANY NOTES
------------------
--------------------------------------------------------------------------------
PLEDGOR* ISSUER* PRINCIPAL AMOUNT
-------- ------ ----------------
--------------------------------------------------------------------------------
UCAR Finance Inc. UCAR Carbon Company Inc. $700,000,000
--------------------------------------------------------------------------------
UCAR Finance Inc. UCAR S.A. $84,650,000
--------------------------------------------------------------------------------
UCAR Finance Inc. UCAR Electrodos, S.L. 17,110,000
--------------------------------------------------------------------------------
UCAR Finance Inc. UCAR S.p.A. 16,750,000
--------------------------------------------------------------------------------
UCAR Finance Inc. UCAR Holdings S.A. 126,900,000
--------------------------------------------------------------------------------
================================================================================
OTHER NOTES
-----------
--------------------------------------------------------------------------------
PLEDGOR* ISSUER* PRINCIPAL AMOUNT
------- ------ ----------------
--------------------------------------------------------------------------------
UCAR International Inc. UCAR Carbon Company Inc. $325,000,000
--------------------------------------------------------------------------------
UCAR Global Enterprises Inc. UCAR International Inc. $511,600,000
--------------------------------------------------------------------------------
UCAR Global Enterprises Inc. UCAR Inc. (Canada) $ 60,000,000
--------------------------------------------------------------------------------
UCAR Carbon Company Inc. UCAR Global Enterprises Inc. $600,000,000
--------------------------------------------------------------------------------
UCAR Carbon Mexicana, S.A. UCAR Global Enterprises Inc. $ 30,000,000
de C.V. (Mexico)
--------------------------------------------------------------------------------
UCAR Holdings, S.A. (France) UCAR Carbon Company Inc. $100,000,000
--------------------------------------------------------------------------------
UCAR S.p.A. (Italy) UCAR Carbon Company Inc. $40,000,000,000
Italian Lire
--------------------------------------------------------------------------------
UCAR Electrodos S.L. (Spain) UCAR Carbon Company Inc. 7,000,000,000
Spanish Pesetas
--------------------------------------------------------------------------------
UCAR Limited (U.K.) UCAR Carbon Company Inc. 30,000,000
British Pounds
--------------------------------------------------------------------------------
EMSA (Pty.) Ltd. UCAR Carbon Company Inc. 300,000,000
(South Africa) South African Rand
--------------------------------------------------------------------------------
UCAR S.A. (Switzerland) UCAR Global Enterprises Inc. $300,000,000
--------------------------------------------------------------------------------
UCAR Carbon Mexicana X.X. xx XXXX Global Enterprises Inc. $ 50,000,000
C.V.
--------------------------------------------------------------------------------
* Jurisdictions of incorporation of non-United States entities are
identified in parentheses following the names of such entities.
SCHEDULE II
PLEDGOR SUBSIDIARIES*
UCAR Carbon Company Inc.
UCAR Holdings II Inc.
UCAR S.A. (Switzerland)
UCAR Carbon S.A. (Brazil)
UCAR Mexicana, S.A. de C.V. (Mexico)
UCAR S.p.A. (Italy)
UCAR Holdings S.A. (France)
UCAR Inc. (Canada)
UCAR SNC (France)
UCAR Electrodos S.L. (Spain)
UCAR Limited (UK)
EMSA (Pty.) Ltd. (South Africa)
* Jurisdictions of incorporation of non-United States entities
are identified in parentheses following the names of such
entities.
2
ACKNOWLEDGMENT AND CONSENT
Each of the undersigned hereby acknowledges receipt of a copy
of the Pledge Agreement dated as of February 22, 2000 (the "PLEDGE
AGREEMENT"), by UCAR INTERNATIONAL INC., a Delaware corporation ("UCAR"),
UCAR GLOBAL ENTERPRISES INC., a Delaware corporation ("Global"), the
subsidiaries of UCAR that are signatories thereto (together with UCAR
GLOBAL and the Borrower, the "PLEDGORS"), in favor of XXXXXX GUARANTY
TRUST COMPANY OF NEW YORK, as collateral agent for the Secured Parties
(such term and 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, Global, the Borrower, the LC
Subsidiaries from time to time party thereto, the Lenders from time to
time party thereto and Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent, Collateral Agent and Issuing Bank (as the same may
be amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT").
1. Each of the undersigned will be bound by the terms of the
Pledge Agreement and will comply with such terms insofar as such terms are
applicable to the undersigned.
2. Each of the undersigned will notify the Collateral Agent
promptly in writing of the occurrence of any of the events described in
subsection 5(a) of the Pledge Agreement.
3. The terms of subsection 9(c) of the Pledge Agreement shall
apply to it, MUTATIS MUTANDIS, with respect to all actions that may be
required of it under or pursuant to or arising out of Section 9 of the
Pledge Agreement.
EACH OF THE ISSUERS OF PLEDGED
SECURITIES LISTED ON SCHEDULE I TO
THE PLEDGE AGREEMENT (OTHER THAN
UCAR S.A. (SWITZERLAND))
By /S/ XXXXXXXX X. XXXXX
--------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Attorney-In-Fact
EXHIBIT B TO
PLEDGE AGREEMENT
ACKNOWLEDGMENT AND CONSENT
BY UCAR S.A. TO DOMESTIC PLEDGE AGREEMENT
UCAR S.A. of Xxxxx Xxxxxxxx 00, XX-0000 Xxxx, Xxxxxxxxxxx
("UCAR S.A."), hereby acknowledges receipt of a copy of the Domestic
Pledge Agreement dated as of February 22, 2000 (the "PLEDGE Agreement"),
by UCAR INTERNATIONAL INC., a Delaware corporation ("UCAR"), UCAR GLOBAL
ENTERPRISES INC., a Delaware corporation ("Global"), the subsidiaries of
UCAR that are signatories thereto (together with UCAR GLOBAL and the
Borrower, the "PLEDGORS"), in favor of XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as collateral agent for the Secured Parties (such term and 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, Global, the Borrower, the LC Subsidiaries from time to
time party thereto, the Lenders from time to time party thereto and Xxxxxx
Guaranty Trust Company of New York, as Administrative Agent, Collateral
Agent and Issuing Bank (as the same may be amended, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT").
1. Subject to section 4 below, UCAR S.A. will be bound by
the terms of the Pledge Agreement and will comply with such terms
insofar as such terms are applicable to the undersigned.
2. UCAR S.A. will notify the Collateral Agent promptly in
writing of the occurrence of any of the events described in subsection
5(a) of the Pledge Agreement.
3. The terms of subsection 9(c) of the Pledge Agreement shall
apply to it, MUTATIS MUTANDIS, with respect to all actions that may be
required of it under or pursuant to or arising out of Section 9 of the
Pledge Agreement.
4. In relation to obligations of a Foreign Subsidiary (other
than UCAR S.A. or any of its subsidiaries), UCAR S.A. shall (a) only be
liable to the Collateral Agent and the Secured Parties to the extent and
in the maximum amount of the profits available for the distribution of
dividends (being the balance sheet profits and any reserves made for this
purpose, 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 respective Secured Party of
such deduction in accordance with Section 2.16 of the Credit Agreement;
and (c) not gross-up pursuant to Section 2.16 of the Credit Agreement. Any
2
and all indemnities and guarantees contained in the Loan Documents shall
be construed in a manner consistent with this paragraph.
UCAR S.A.
By /S/ XXXXX X. FALLS
--------------------------------
Name: Xxxxx X. Falls
Title: Treasurer
Date: February 21, 2000
ACKNOWLEDGED AND AGREED BY:
THE COLLATERAL AGENT
Xxxxxx Guaranty Trust Company of New York
By /S/ XXXXXXX XXXXXXXX
--------------------
Name: Xxxxxxx XxXxxxxx
Title: Vice President
Date: February 18, 2000
