EXHIBIT 10.12(a)
CONFORMED COPY
Canadian Facility
AMENDMENT dated as of November 10, 1998
(this "AMENDMENT"), among UCAR INC., an Ontario
corporation (the "BORROWER"), the financial
institutions party hereto (the "LENDERS"), and THE
CHASE MANHATTAN BANK OF CANADA, 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 and the Security Documents. 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
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pursuant to Section 5.11 of the U.S. Credit Agreements shall only constitute
Security Documents hereunder to the extent that they serve to guarantee or
secure the Obligations of the Borrower hereunder or Obligations of the Borrower
in respect of Tranche A Letters of Credit under the Existing U.S. Credit
Agreement.
(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 9.17
of the Credit Agreement are hereby replaced with references to "Existing U.S.
Credit Agreement".
SECTION 1.03. REPLACEMENT OF SCHEDULE 1.01 TO CREDIT AGREEMENT.
Schedule 1.01 to the Credit Agreement is hereby replaced in its entirety with
Schedule 1.01 attached hereto.
SECTION 1.04. REPLACEMENT OF EXHIBIT D TO CREDIT AGREEMENT. Exhibit D
to the Credit Agreement is hereby replaced in its entirety with Exhibits D-1 and
D-2 attached hereto.
SECTION 1.05. REPLACEMENT OF SECOND SENTENCE OF SECTION 5.03. The
second sentence in Section 5.03 of the Credit Agreement is hereby replaced in
its entirety with the following:
In addition, from time to time, the Borrower and the Subsidiaries will,
at their cost and expense, on or promptly (but in any event within 10
Business Days) following the date of acquisition by the Borrower or any
Subsidiary or any new subsidiary (subject to the receipt of required
consents from Governmental Authorities and required consents of other
third parties), promptly secure the Obligations of the Borrower and, to
the extent permitted by law, the other foreign Credit Parties under the
U.S. Credit Agreements (the "FOREIGN OBLIGATIONS") by causing the
following to occur: (i) promptly upon creating or acquiring any
additional subsidiary, the Capital Stock of such subsidiary will be
pledged pursuant to a pledge agreement reasonably satisfactory in form
and substance to the Administrative Agent and (ii) such subsidiary will
become a guarantor of the Obligations pursuant to a subsidiary
guarantee agreement and provide security for the Foreign Obligations
pursuant to a security agreement, in each case reasonably satisfactory
in form and substance to the Administrative Agent.
SECTION 1.06. AMENDMENT TO SECTION 9.17. Section 9.17 of the Credit
Agreement is hereby replaced in its entirety with the following:
In the event that any obligation of any Loan Party (a) under this
Agreement or (b) any other Loan Document in respect of the obligations
under this Agreement (a "CLAIM") is paid with the proceeds of a Tranche
A L/C Disbursement, the Borrower, the Administrative Agent
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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. AMENDMENTS TO SECURITY DOCUMENTS. Each Security Document
is hereby amended to redefine the "U.S. Credit Agreement" as being the Credit
Agreement, dated as of October 19, 1995, as amended and restated as of March 19,
1997, and as further amended and restated as of November 10, 1998 (as the same
may be amended, restated, supplemented or otherwise modified from time to time,
the "U.S. Credit Agreement"), among UCAR International Inc., a Delaware
corporation ("UCAR"), UCAR Global Enterprises Inc. ("UCAR Global"), the
Subsidiary Borrowers (as defined therein) party thereto, the Lenders (as defined
therein) party thereto, the Fronting Banks (as defined therein), and certain
other parties.
SECTION 1.08. 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 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 Blake, Xxxxxxx & Xxxxxxx, 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(ii) Tranche C
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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 PROVINCE OF ONTARIO.
SECTION 5. COUNTERPARTS. This Amendment may be executed in any number
of counterparts, each of which shall be an original but all of which, when taken
together, shall constitute but one instrument. Delivery of an executed
counterpart of a signature page of this Amendment by telecopy shall be effective
as delivery of a manually executed counterpart of this Amendment.
SECTION 6. EXPENSES. The Borrower agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Xxxxx, counsel for the Administrative Agent and of Blake, Xxxxxxx and
Xxxxxxx, special Canadian counsel for the Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
date first above written.
UCAR INC.,
by
/S/ XXXXXXXX X. XXXXX
---------------------------------
Name:Xxxxxxxx X. Xxxxx
Title:Attorney-in-Fact
by
/S/ XXXXX X. XXXXXXX
----------------------------------
Name:Xxxxx X. Xxxxxxx
Title:Attorney-in-Fact
THE CHASE MANHATTAN BANK OF
CANADA, individually and as
Administrative Agent,
by
/S/ XXXXXXXXX XXXX
---------------------------------
Name:Xxxxxxxxx Xxxx
Title:Vice President
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SCHEDULE 1.01
to the Local Facility
Credit Agreement for Canada
SECURITY DOCUMENTS
1. Pledge Agreement by UCAR International Inc., UCAR Global Enterprises
Inc. and certain U.S. Subsidiaries, dated October 19, 1995, as amended
and restated on November 10, 1998.
2. Pledge Agreement (35%) by certain U.S. Subsidiaries, dated November 10,
1998.
3. Parent Guarantee Agreement made by UCAR International Inc. and UCAR
Global Enterprises Inc., dated October 19, 1995, as amended and
restated on November 10, 1998.
4. Subsidiary Guarantee Agreement by each U.S. Subsidiary, dated October
19, 1995, as amended and restated on November 10, 1998.
5. Security Agreement by UCAR International Inc., UCAR Global Enterprises
Inc. and the U.S. Subsidiaries, dated April 22, 1998, as amended and
restated on November 10, 1998.
6. Intellectual Property Security Agreement by UCAR Global Enterprises
Inc. and the U.S. Subsidiaries, dated April 22, 1998, as amended and
restated on November 10, 1998.
7. Subsidiary Guarantee by UCAR S.p.A., dated March 19, 1997, as amended
on November 10, 1998.
8. Mexican Subsidiaries Guarantee by Servicios Administrativos Carmex S.A.
de C.V. and Servicios DYC S.A. de C.V., dated November 10, 1998.
9. Mexican Subsidiaries Guarantee by UCAR Carbon Mexicana S.A. de C.V. and
UCAR Mexicana S.A. de C.V., dated November 10, 1998.
10. Pledge by UCAR Holdings Inc., UCAR Mexicana S.A. de C.V. and UCAR
Carbon Mexicana S.A. de C.V. of 35% of the shares of UCAR Mexicana S.A.
de C.V., 99.94% of the shares of UCAR Carbon Mexicana and 100% of the
shares of Servicios Administrativos Carmex S.A. de C.V. and Servicios
DYC S.A. de C.V., respectively, dated November 10, 1998.
11. Mexican Mortgage dated November 10, 1998.
12. Pledge by UCAR Holdings Inc. of 65% of the shares of UCAR S.p.A., dated
November 10, 1998.
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13. Pledge by UCAR Holdings Inc. of 65% of the shares of UCAR Mexicana S.A.
de C.V., dated November 10, 1998.
14. Pledge by UCAR Holdings II Inc. of 65% of the shares of UCAR Holdings
S.A., dated May 7, 1998, as amended on November 10, 1998.
15. Pledge by UCAR Holdings II Inc. of 65% of the shares of UCAR
Electrodos, S.L., dated October 19, 1995, as amended on March 19, 1997
and November 10, 1998.
16. Pledge by UCAR Carbon Company Inc. of 65% of the shares of EMSA
(Property) Ltd. and Carbographite Limited, dated November 10, 1998.
17. Pledge by UCAR Carbon Company Inc. of 65% of the shares of UCAR
Limited, dated November 10, 1998.
18. Canadian Security Agreement made by UCAR Inc. dated May 7, 1998.
19. Moveable Hypothec (Province of Quebec) made by UCAR Inc. dated May 7,
1998.
20. Mortgage made by UCAR Inc. dated May 7, 1998 for property in Welland,
Ontario.
21. General Assignment of Accounts Receivable (Province of New Foundland)
made by UCAR Inc. on May 8, 1998.
