EXHIBIT 10.10(a)
EXECUTION COPY
Spanish Facility
AMENDMENT dated as of November 10, 1998 (this
"AMENDMENT"), among UCAR ELECTRODOS S.L., a Spanish
corporation (the "BORROWER"), the financial institutions party
hereto (the "LENDERS"), and THE CHASE MANHATTAN BANK, C.M.B.,
S.A., as agent (in such capacity, the "ADMINISTRATIVE AGENT")
for the Lenders.
A. Reference is made to the Local Facility Credit Agreement dated as
of March 19, 1997 (the "CREDIT AGREEMENT") among the Borrower, the Lenders party
thereto and the Administrative Agent. Capitalized terms used but not otherwise
defined herein have the meanings assigned to them in the Credit Agreement.
B. The Borrower has requested that the Lenders amend certain
provisions of the Credit Agreement. The Lenders are willing to do so, subject to
the terms and conditions of this Amendment.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1.01. AMENDMENTS TO SECTION 1.01. (a) The definition of "INTEREST
COMPONENT" in Section 1.01 of the Credit Agreement is hereby amended by
replacing the reference to "1.03333333333%" contained therein with a reference
to "1.03%".
(b) The definition of "LETTER OF CREDIT" in Section 1.01 of the Credit
Agreement is hereby amended by replacing the reference to "U.S. Credit
Agreement" with a reference to "Existing U.S. Credit Agreement".
(c) The definition of "LOAN DOCUMENTS" in Section 1.01 of the Credit
Agreement is hereby amended by replacing the reference to "Letter" contained
therein with a reference to "Letters".
(d) The definition of "SECURITY DOCUMENTS" in Section 1.01 of the Credit
Agreement is hereby replaced in its entirety with the following: "SECURITY
DOCUMENTS" shall mean the agreements set forth on Schedule 1.01 and each of the
agreements and other instruments and documents executed and delivered pursuant
to the agreements set forth on Schedule 1.01, pursuant to Section 5.03 hereof or
pursuant to Section 5.11 of the U.S. Credit Agreements; PROVIDED that the
agreements and other instruments and documents delivered pursuant to Section
5.11 of the U.S. Credit Agreements shall
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only constitute Security Documents hereunder to the extent that they serve to
guarantee or secure the Obligations of the Borrower hereunder or Obligations of
the Borrower in respect of Tranche A Letters of Credit under the Existing U.S.
Credit Agreement.
(e) The definition of "U.S. CREDIT AGREEMENT" in Section 1.01 of the Credit
Agreement is hereby deleted in its entirety.
(f) The following definitions are hereby added to Section 1.01 of the
Credit Agreement in the appropriate alphabetical order:
"EXISTING U.S. CREDIT AGREEMENT" shall mean the Credit Agreement
dated as of October 19, 1995, as amended and restated as of March 19,
1997 and November 10, 1998 (as the same may be amended, supplemented
or otherwise modified from time to time), among UCAR International
Inc., a Delaware corporation, UCAR Global Enterprises Inc., a Delaware
corporation, the Subsidiary Borrowers party thereto, the Lenders party
thereto, the Fronting Banks party thereto and The Chase Manhattan
Bank, as administrative agent and collateral agent, which is attached
hereto as Exhibit D-1.
"TRANCHE C FACILITY CREDIT AGREEMENT" shall mean the Credit
Agreement dated as of November 10, 1998 (as the same may be amended,
supplemented or otherwise modified from time to time), among UCAR
International Inc., a Delaware corporation, UCAR Global Enterprises
Inc., a Delaware corporation, UCAR S.A., a Swiss corporation, the
Lenders party thereto, The Chase Manhattan Bank, as administrative
agent and collateral agent, Credit Suisse First Boston, as syndication
agent, and Xxxxxx Guaranty Trust Company of New York, as syndication
agent, which is attached hereto as Exhibit D-2.
"U.S. CREDIT AGREEMENTS" shall mean the Existing U.S. Credit
Agreement and the Tranche C Facility Credit Agreement.
SECTION 1.02. MODIFICATION OF CREDIT AGREEMENT. (a) Unless otherwise
specified in paragraph (b) below, all references in the Credit Agreement to
"U.S. Credit Agreement" are hereby replaced with references to "U.S. Credit
Agreements".
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(b) The references to U.S. Credit Agreement in Sections 3.02 and 9.16 of
the Credit Agreement are hereby replaced with references to "Existing U.S.
Credit Agreement".
SECTION 1.03. REPLACEMENT OF SCHEDULES 1.01 AND 2.06 TO CREDIT AGREEMENT.
Schedules 1.01 and 2.06 to the Credit Agreement are hereby replaced in their
entirety with Schedules 1.01 and 2.06 attached hereto.
SECTION 1.04. REPLACEMENT OF EXHIBIT D TO CREDIT AGREEMENT. Exhibit D to
the Credit Agreement is hereby replaced in its entirety with Exhibits D-1 and
D-2 attached hereto.
SECTION 1.05. REPLACEMENT OF SECOND SENTENCE OF SECTION 5.03. The second
sentence in Section 5.03 of the Credit Agreement is hereby replaced in its
entirety with the following:
In addition, from time to time, the Borrower and the Subsidiaries will, at
their cost and expense, on or promptly (but in any event within 10
Business Days) following the date of acquisition by the Borrower or any
Subsidiary or any new subsidiary (subject to the receipt of required
consents from Governmental Authorities and required consents of other
third parties), promptly secure the Obligations of the Borrower and, to
the extent permitted by law, the other foreign Credit Parties under the
U.S. Credit Agreements (the "FOREIGN OBLIGATIONS") by causing the
following to occur: (i) promptly upon creating or acquiring any additional
subsidiary, the Capital Stock of such subsidiary will be pledged pursuant
to a pledge agreement reasonably satisfactory in form and substance to the
Administrative Agent and (ii) such subsidiary will become a guarantor of
the Obligations pursuant to a subsidiary guarantee agreement and provide
security for the Foreign Obligations pursuant to a security agreement, in
each case reasonably satisfactory in form and substance to the
Administrative Agent.
SECTION 1.06 AMENDMENT TO SECTION 9.17. Section 9.17 of the Credit
Agreement is hereby replaced in its entirety with the following:
In the event that any obligation of any Loan Party (a) under this
Agreement or (b) any other Loan Document in respect of the obligations
under this Agreement (a "CLAIM") is paid with the proceeds of a Tranche A
L/C
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Disbursement, the Borrower, the Administrative Agent and the Lenders
hereby agree that Tranche A Lenders under the Existing U.S. Credit
Agreement holding participations in such Tranche A L/C Disbursement shall
be subrogated to the rights of the Administrative Agent and the Lenders
hereunder and under each other Loan Document in respect of such Claim to
the extent of such proceeds; PROVIDED that such right of subrogation shall
not be effective until, and shall be subordinated to, payment in full of
all Claims.
SECTION 1.07. AMENDMENT TO SECTION 9.20. The reference to "Section 2.10(b)"
in Section 9.20 of the Credit Agreement is hereby replaced with a reference to
"Section 2.11(b)".
SECTION 1.08. AMENDMENT TO ARTICLE IX. Article IX of the Credit Agreement
is hereby amended by adding the following Section at the end thereof:
SECTION 9.21. EUROPEAN ECONOMIC AND MONETARY UNION. (a)
DEFINITIONS. In this Section 9.21 and in each other provision of this
Agreement to which reference is made in this Section 9.21 expressly or by
implication, the following terms have the meanings given to them in this
Section 9.21:
"COMMENCEMENT OF THE THIRD STAGE OF EMU" means the date of
commencement of the third stage of EMU (at the date of this Agreement
expected to be January 1, 1999) or the date on which circumstances
arise which (in the opinion of the Administrative Agent) have
substantially the same effect and result in substantially the same
consequences as commencement of the third stage of EMU as contemplated
by the Treaty on European Union;
"EMU" means economic and monetary union as contemplated in the
Treaty on European Union;
"EMU LEGISLATION" means legislative measures of the European
Council for the introduction of, changeover to or operation of a
single or unified European currency (whether known as the euro or
otherwise), being in part the implementation of the third stage of
EMU;
"EURO" means the single currency of participating member states
of the European Union;
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"EURO UNIT" means the currency unit of the euro;
"NATIONAL CURRENCY UNIT" means the unit of currency (other than a
euro unit) of a participating member state;
"PARTICIPATING MEMBER STATE" means each state so described in any
EMU legislation; and
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of March 25,
1957, as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht
Treaty (which was signed at Maastricht on February 7, 1992, and came
into force on November 1, 1993), as amended from time to time.
(b) EFFECTIVENESS OF PROVISIONS. The provisions of paragraphs (c) to
(j) below (inclusive) shall be effective at and from the commencement of
the third stage of EMU, PROVIDED, that if and to the extent that any such
provision relates to any state (or the currency of such state) that is not
a participating member state on the commencement of the third stage of EMU,
such provision shall become effective in relation to such state (and the
currency of such state) at and from the date on which such state becomes a
participating member state.
(c) REDENOMINATION AND FOREIGN CURRENCIES. Each obligation under this
Agreement of a party to this Agreement which has been denominated in the
national currency unit of a participating member state shall be
redenominated into the euro unit in accordance with EMU legislation,
PROVIDED, that if and to the extent that any EMU legislation provides that
following the commencement of the third stage of EMU an amount denominated
either in the euro or in the national currency unit of a participating
member state and payable within that participating member state by
crediting an account of the creditor can be paid by the debtor either in
the euro unit or in that national currency unit, each party to this
Agreement shall be entitled to pay or repay any such amount either in the
euro unit or in such national currency unit.
(d) LOANS. Any Loan in the currency of a participating member state
shall be made in the euro unit.
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(e) BUSINESS DAYS. (i) With respect to any amount denominated or to be
denominated in the euro or a national currency unit, any reference to a
"Business Day" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which banks are generally open for business in
(A) London and New York City and
(B) Frankfurt am Main, Germany (or such principal financial center
or centers in such participating member state or states as the
Administrative Agent may from time to time nominate for this
purpose).
(ii) For purposes of determining the date on which the LIBO Rate or
the MIBOR Rate is determined under this Agreement for any Loan denominated
in the euro (or any national currency unit) for any Interest Period
therefor and for purposes of determining the first and last day of any
Interest Period, references in this Agreement to "Business Days" shall be
deemed to be references to TARGET Operating Days.
(f) PAYMENTS TO THE ADMINISTRATIVE AGENT. Sections 2.17 shall
be construed so that, in relation to the payment of any amount of euro
units or national currency units, such amount shall be made available to
the Administrative Agent in immediately available, freely transferable,
cleared funds to such account with such bank in Frankfurt am Main, Germany
(or such other principal financial center in such participating member
state as the Administrative Agent may from time to time nominate for this
purpose) as the Administrative Agent shall from time to time nominate for
this purpose.
(g) PAYMENTS BY THE ADMINISTRATIVE AGENT TO THE LENDERS. Any
amount payable by the Administrative Agent to the Lenders under this
Agreement in the currency of a participating member state shall be paid in
the euro unit.
(h) PAYMENTS BY THE ADMINISTRATIVE AGENT GENERALLY. With
respect to the payment of any amount denominated in the euro or in a
national currency unit, the Administrative Agent shall not be liable to
the Borrower or any of the Lenders in any way whatsoever for any delay, or
the consequences of any delay, in the crediting to any account of any
amount required by this Agreement to be paid by the Administrative Agent
if the
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Administrative Agent shall have taken all relevant steps to achieve, on
the date required by this Agreement, the payment of such amount in
immediately available, freely transferable, cleared funds (in the euro
unit or, as the case may be, in a national currency unit) to the account
with the bank in the principal financial center in the participating
member state which the Borrower or, as the case may be, any Lender shall
have specified for such purpose. In this paragraph (h), "all relevant
steps" means all such steps as may be prescribed from time to time by the
regulations or operating procedures of such clearing or settlement system
as the Administrative Agent may from time to time determine for the
purpose of clearing or settling payments of the euro.
(i) BASIS OF ACCRUAL. If the basis of accrual of interest or
fees expressed in this Agreement with respect to the currency of any state
that becomes a participating state shall be inconsistent with any
convention or practice in the London Interbank Market or, as the case may
be, the Madrid Interbank Market for the basis of accrual of interest or
fees in respect of the euro, such convention or practice shall replace
such expressed basis effective as of and from the date on which such state
becomes a participating member state; PROVIDED, that if any Loan in the
currency of such state is outstanding immediately prior to such date, such
replacement shall take effect, with respect to such Loan, at the end of
the then current Interest Period.
(j) ROUNDING AND OTHER CONSEQUENTIAL CHANGES. Without
prejudice and in addition to any method of conversion or rounding
prescribed by any EMU legislation and without prejudice to the respective
liabilities for indebtedness of the Borrower to the Lenders and the
Lenders to the Borrower under or pursuant to this Agreement:
(i) each reference in this Agreement to a minimum amount (or
an integral multiple thereof) in a national currency unit to be paid
to or by the Administrative Agent shall be replaced by a reference
to such reasonably comparable and convenient amount (or an integral
multiple thereof) in the euro unit as the Administrative Agent may
from time to time specify; and
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(ii) except as expressly provided in this Section 9.21, each
provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to
time reasonably specify to be necessary or appropriate to reflect
the introduction of or changeover to the euro in participating
member states in accordance with customary practices in the market.
SECTION 2. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective on the date of the satisfaction in full of the following conditions
precedent (the "AMENDMENT EFFECTIVE DATE"):
(a) The Administrative Agent shall have received duly executed
counterparts hereof which, when taken together, bear the authorized
signatures of the Borrower, the Lenders and the Administrative Agent.
(b) The Administrative Agent shall have received favorable written
opinion by Uria & Xxxxxxxx, substantially similar to the opinion given by
such person on March 19, 1997 in connection with execution of the Credit
Agreement, in form and substance satisfactory to the Administrative Agent
and its counsel.
(c) The (i) amendment and restatement of the Existing U.S. Credit
Agreement and the (ii) Tranche C Facility Credit Agreement shall have
become effective in accordance with its respective terms.
SECTION 3. CREDIT AGREEMENT. Except as specifically stated herein, the
Credit Agreement shall continue in full force and effect in accordance with the
provisions thereof. As used therein, the terms "Agreement", "herein",
"hereunder", "hereto", "hereof" and words of similar import shall, unless the
context otherwise requires, refer to the Credit Agreement as modified hereby.
SECTION 4. APPLICABLE LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE KINGDOM OF SPAIN.
SECTION 5. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be an original but all of which, when taken
together, shall constitute but one instrument. Delivery of an executed
counterpart of a signature page of this Amendment by
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telecopy shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 6. EXPENSES. The Borrower agrees to reimburse the Administrative
Agent for its out-of-pocket expenses in connection with this Amendment,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Xxxxx, counsel for the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the date first
above written.
UCAR ELECTRODOS, S.L.,
by /S/ XXXXXXXX XXXXXXXXXX
--------------------------------------
Name:Xxxxxxxx Xxxxxxxxxx
Title:General Manager
by /S/ INAKI SARRIONANDIA
--------------------------------------
Name:Inaki Sarrionandia
Title:Chief Financial Officer
THE CHASE MANHATTAN BANK, C.M.B.,
S.A., individually and as
Administrative Agent,
by: /S/ XXXXXX XXXXXXX
--------------------------------------
Name:Xxxxxx Xxxxxxx
Title:Vice President
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SCHEDULE 1.01
to the Local Facility
Credit Agreement for Spain
SECURITY DOCUMENTS
1. Pledge Agreement by UCAR International Inc., UCAR Global Enterprises Inc.
and certain U.S. Subsidiaries, dated October 19, 1995, as amended and
restated on November 10, 1998.
2. Pledge Agreement (35%) by certain U.S. Subsidiaries, dated November 10,
1998.
3. Parent Guarantee Agreement made by UCAR International Inc. and UCAR Global
Enterprises Inc., dated October 19, 1995, as amended and restated on
November 10, 1998.
4. Subsidiary Guarantee Agreement by each U.S. Subsidiary, dated October 19,
1995, as amended and restated on November 10, 1998.
5. Security Agreement by UCAR International Inc., UCAR Global Enterprises Inc.
and the U.S. Subsidiaries, dated April 22, 1998, as amended and restated on
November 10, 1998.
6. Intellectual Property Security Agreement by UCAR Global Enterprises Inc.
and the U.S. Subsidiaries, dated April 22, 1998, as amended and restated on
November 10, 1998. 7. Subsidiary Guarantee by UCAR S.p.A., dated March 19,
1997, as amended on November 10, 1998.
8. Mexican Subsidiaries Guarantee by Servicios Administrativos Carmex S.A. de
C.V. and Servicios DYC S.A. de C.V., dated November 10, 1998.
9. Mexican Subsidiaries Guarantee by UCAR Carbon Mexicana S.A. de C.V. and
UCAR Mexicana S.A. de C.V., dated November 10, 1998.
10. Pledge by UCAR Holdings Inc., UCAR Mexicana S.A. de C.V. and UCAR Carbon
Mexicana S.A. de C.V. of 35% of the shares of UCAR Mexicana S.A. de C.V.,
99.94% of the shares of UCAR Carbon Mexicana and 100% of the shares of
Servicios Administrativos Carmex S.A. de C.V. and Servicios DYC S.A. de
C.V., respectively, dated November 10, 1998.
11. Mexican Mortgage dated November 10, 1998.
12. Pledge by UCAR Holdings Inc. of 65% of the shares of UCAR S.p.A., dated
November 10, 1998.
13. Pledge by UCAR Holdings Inc. of 65% of the shares of UCAR Mexicana S.A. de
C.V., dated November 10, 1998.
14. Pledge by UCAR Holdings II Inc. of 65% of the shares of UCAR Holdings S.A.,
dated May 7, 1998, as amended on November 10, 1998.
15. Pledge by UCAR Holdings II Inc. of 65% of the shares of UCAR Electrodos,
S.L., dated October 19, 1995, as amended on March 19, 1997 and November 10,
1998.
16. Pledge by UCAR Carbon Company Inc. of 65% of the shares of EMSA (Property)
Ltd. and Carbographite Limited, dated November 10, 1998.
17. Pledge by UCAR Carbon Company Inc. of 65% of the shares of UCAR Limited,
dated November 10, 1998.
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18. Pledge by UCAR Holdings II Inc. of 35% of stock of UCAR Electrodos, S.L.,
dated November 10, 1998.
19. Spanish Mortgage dated November 10, 1998.
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SCHEDULE 2.06
To the Local Facility
Credit Agreement for Spain
PRICING
The following terms shall have the meanings specified below:
"ADJUSTED LIBO RATE" shall mean, with respect to any Eurocurrency Borrowing
denominated in Dollars for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the product of
(a) the LIBO Rate in effect for such Interest Period and (b) Statutory Reserves.
"ADJUSTED MIBOR RATE" shall mean the MIBOR Rate on any day plus the
Adjustment Factor.
"ADJUSTMENT FACTOR" shall mean a fraction (rounded upwards, if necessary,
to the next 1/16 of 1%), the numerator of which is the aggregate amount of all
brokerage fees, commissions or any other expenses, fees and taxes to be paid by
the Administrative Agent on behalf of the Lenders in connection with obtaining
such deposits expressed as a decimal and the denominator of which is the
aggregate amount of such deposits obtained.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate, including the failure of the Federal Reserve Bank of New
York to publish rates or the inability of the Administrative Agent to obtain
quotations in accordance with the terms thereof, the Alternate Base Rate shall
be determined by reference to the most recently available such rate until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Federal Funds Effective Rate shall be
effective on the effective date of such change.
"EURIBOR RATE" shall mean, with respect to any Eurocurrency Borrowing
denominated in Local Currency for any Interest Period, the rate published on the
Reuters screen for such Local Currency at 11.00 a.m.(Standard time) two TARGET
Operating Days before the first day of each Interest Period at which Local
Currency deposits for a maturity comparable to such Interest Period are offered
in the European interbank market.
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted
average of the rates on overnight Federal
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Funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"LIBO RATE" shall mean, with respect to any Eurocurrency Borrowing
denominated in Dollars, the rate (rounded upwards, if necessary, to the next
1/16 of 1%) at which dollar deposits approximately equal in principal amount to,
the Administrative Agent's portion of such Eurocurrency Borrowing denominated in
Dollars and for a maturity comparable to such Interest Period are offered to the
principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"MIBOR RATE" shall mean, with respect to any Eurocurrency Borrowing
denominated in Local Currency for any Interest Period, the rate of interest
quoted in the MBOR page of Reuters at or about 11.00 a.m.(Standard time) two
Business Days before the first day of each Interest Period at which Local
Currency deposits of an amount equal or similar to the principal amount or the
relevant Borrowing and with a maturity equal or similar to such Interest Period
are offered in the Madrid interbank market; PROVIDED, HOWEVER, that from that
date on which the MIBOR Rate ceases to exist, all references to the MIBOR Rate
shall be deemed references to the EURIBOR Rate.
"TARGET OPERATING DAY" means any day that is not (i) a Saturday or Sunday,
(ii) Christmas Day or New Year's Day or (iii) any other day on which the Trans
European Automated Real-time Gross Settlement Express Transfer System ("TARGET")
(or any successor settlement system) is not operating (as determined by the
Administrative Agent).
"STATUTORY RESERVES" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority, domestic or foreign,
to which the Administrative Agent is subject with respect to Eurocurrency
Liabilities (as defined in Regulation D of the Board) or other categories of
liabilities or deposits by reference to which the LIBO Rate is determined. Such
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reserve percentages shall include those imposed pursuant to such Regulation D.
Eurocurrency Loans denominated in Dollars shall be deemed to constitute
Eurocurrency Liabilities and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets which may be available
from time to time to any Lender under such Regulation D. Statutory Reserves
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
