EXHIBIT 10.3
SUBSIDIARY GUARANTEE AGREEMENT
SUBSIDIARY GUARANTEE AGREEMENT, dated as of October 19, 1995,
as amended and restated as of November 10, 1998 made by each U.S.
Subsidiary (collectively referred to as the "GUARANTORS"), in favor
of THE CHASE MANHATTAN BANK, a New York banking corporation 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 Agreements). Reference is made
to (i) 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, the "EXISTING CREDIT AGREEMENT"), among UCAR, the Borrower,
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 and (ii) the Credit
Agreement dated as of November 10, 1998 among UCAR, the Borrower,
UCAR S.A., 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 (as the same may be amended,
supplemented or otherwise modified from time to time, the "TRANCHE C
FACILITY CREDIT AGREEMENT", and together with the Existing Credit
Agreement, the "CREDIT AGREEMENTS").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreements, the Lenders have
severally agreed to make Loans and the Fronting Banks have agreed to issue
Letters of Credit, upon the terms and subject to the conditions set forth
therein;
WHEREAS, the Borrower owns directly or indirectly all of the issued
and outstanding stock of each Guarantor;
WHEREAS, the proceeds of the Loans and the availability of the
Letters of Credit will be used in part to enable the Borrower to make valuable
transfers to some of the Guarantors in connection with the operation of their
respective businesses;
WHEREAS, the Borrower and the Guarantors are engaged in related
businesses, and each Guarantor will derive substantial direct and indirect
benefit from the making of the Loans and the availability of the Letters of
Credit; and
WHEREAS, it is a condition precedent to the obligations of the
Lenders to make the Loans and the Fronting Banks to issue the Letters of Credit
that the Guarantors shall have executed and
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delivered this Guarantee to the Collateral Agent for the ratable benefit of the
Secured Parties.
NOW, THEREFORE, in consideration of the premises and to induce the
Secured Parties to enter into the Credit Agreements and to induce the Lenders to
make their respective Loans and the Fronting Banks and to issue their respective
Letters of Credit, each of the Guarantors hereby agrees with the Collateral
Agent, for the ratable benefit of the Secured Parties, as follows:
1. DEFINED TERMS. (a) Unless otherwise defined herein, terms defined in the
Credit Agreements and used herein shall have the meanings given in the Credit
Agreements.
(b) "GUARANTEE": this Subsidiary Guarantee Agreement, as the same may
be amended, supplemented or otherwise modified from time to time.
(c) "OBLIGATIONS": (i) the unpaid principal of and premium, if any,
and interest (including interest accruing at the then applicable rate provided
in the Existing Credit Agreement after the maturity of the Loans thereunder and
interest accruing at the then applicable rate provided in the Existing Credit
Agreement after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to any Credit Party
thereunder whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) on the Loans made under the Existing Credit
Agreement, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) the unpaid principal of and
premium, if any, and interest (including interest accruing at the then
applicable rate provided in the Tranche C Facility Credit Agreement after the
maturity of the Loans thereunder and interest accruing at the applicable rate
provided in the Tranche C Facility Credit Agreement after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to any Credit Party thereunder whether or not a claim
for post-filing or post-petition interest is allowed in such proceeding) on the
Loans made under the Tranche C Facility Credit Agreement, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (iii) each payment required to be made by any Credit Party under
the Existing Credit Agreement, when and as due, including payments in respect of
reimbursements of L/C Disbursements, interest thereon and obligations to provide
cash collateral, (iv) each payment required to be made by any Credit Party under
the Tranche C Facility Credit Agreement, when and as due, and (v) all other
obligations and liabilities of every nature of the Credit Parties under the
Credit Agreements from time to time owed to the Secured Parties or any of them,
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred (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),
which may arise under, out of, or in connection with, the Existing Credit
Agreement, the
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Tranche C Facility Credit Agreement, any Guarantee Agreement, any Security
Document or any other Loan Document and any obligation of the Borrower or any
Credit Party under either of the Credit Agreements to a Lender under either of
the Credit Agreements pursuant to an Interest/Exchange Rate Protection Agreement
or under any other document made, delivered or given in connection with any of
the foregoing, in each case whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including all fees and disbursements of counsel to the Collateral Agent or to
the Secured Parties that are required to be paid by the Borrower or any Credit
Party pursuant to the terms of the Existing Credit Agreement, the Tranche C
Facility Credit Agreement, any Guarantee Agreement, any Security Document, any
other Loan Document or any Interest/Exchange Rate Protection Agreement with a
Lender (all of the foregoing obligations collectively, the "OBLIGATIONS").
(d) "U.S. SUBSIDIARY": any Subsidiary incorporated or otherwise
organized in the United States of America.
(e) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Guarantee shall refer to this Guarantee as a whole and
not to any particular provision of this Guarantee, and section references are to
this Guarantee unless otherwise specified. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase, "without limitation".
(f) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. GUARANTEE. (a) Subject to the provisions of Section 2(b), each
Guarantor hereby, jointly and severally, unconditionally and irrevocably, as a
primary obligor and not merely as a surety, guarantees to the Collateral Agent,
for the ratable benefit of the Secured Parties and their respective successors,
endorsees, transferees and assigns, the due, punctual and complete payment and
performance by the Credit Parties when and as due, whether at the stated
maturity, by acceleration, upon one or more dates set for prepayment, or
otherwise of the Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount which can be guaranteed
by such Guarantor under applicable Federal and state laws relating to the
insolvency of debtors (giving effect to the right of contribution set forth in
Section 3 and in the Indemnity, Subrogation and Contribution Agreement).
(c) Each Guarantor further agrees to pay any and all reasonable
expenses (including all reasonable fees and disbursements of counsel) which may
be paid or incurred by any Secured Party in enforcing, or obtaining advice of
counsel in respect of, any rights with respect to, or collecting, any or all of
the Obligations and/or enforcing any rights with respect to, or
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collecting against, such Guarantor under this Guarantee. This Guarantee shall
remain in full force and effect until the Obligations are paid in full, no
Letters of Credit are outstanding and the Commitments are terminated,
notwithstanding that from time to time prior thereto while the Commitments are
in effect any Credit Party may be free from any Obligations.
(d) Each Guarantor agrees that the Obligations may at any time and
from time to time exceed the maximum amount of the liability of such Guarantor
hereunder without impairing this Guarantee or affecting the rights and remedies
of the Collateral Agent or any Secured Party hereunder.
(e) Each Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to the Collateral Agent for the benefit of any
Secured Party on account of its liability hereunder, it will notify the
Collateral Agent in writing that such payment is made under this Guarantee for
such purpose, provided that the failure of such Guarantor to provide such notice
shall not preclude the application of such payment to the complete or partial
satisfaction of such Guarantor's obligations hereunder following such
Guarantor's notice to the Collateral Agent of such payment.
3. RIGHT OF CONTRIBUTION. Each Guarantor hereby agrees that to the
extent that any Guarantor shall have paid more than its proportionate share of
any payment made hereunder, such Guarantor shall have the rights with respect to
such amounts set forth in the Indemnity, Subrogation and Contribution Agreement.
Each Guarantor's right of contribution shall be subject to the terms and
conditions of Section 4 hereof. The provisions of this Section shall in no
respect limit the obligations and liabilities of any Guarantor to the Secured
Parties, and each Guarantor shall (subject to Section 2(b)) remain liable to the
Secured Parties for the full amount guaranteed by such Guarantor hereunder.
4. NO SUBROGATION. Notwithstanding any payment or payments made by any
of the Guarantors hereunder or any setoff or application of funds of any of the
Guarantors by any Secured Party, no Guarantor shall be entitled to be subrogated
to any of the rights of any Secured Party against any Credit Party or any other
Guarantor or any collateral security or guarantee or right of offset held by any
Secured Party for the payment of the Obligations, nor shall any Guarantor seek
or be entitled to seek any contribution or reimbursement from any Credit Party
or any other Guarantor in respect of payments made by such Guarantor hereunder,
until all amounts owing to the Secured Parties by any Credit Party on account of
the Obligations are paid in full, no Letters of Credit are outstanding and the
Commitments are terminated. If any amount shall be paid to any Guarantor on
account of such subrogation rights at any time when all of the Obligations shall
not have been paid in full, Letters of Credit are outstanding and the
Commitments shall not have been terminated, such amount shall be held by such
Guarantor in trust for the Secured Parties, segregated from other funds of such
Guarantor, and shall forthwith upon receipt by such Guarantor be turned over to
the Collateral Agent in the exact form received by such Guarantor (duly endorsed
by such Guarantor to the Collateral
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Agent, if required), to be applied against the Obligations, whether matured or
unmatured, at such time and in such order as the Collateral Agent may determine.
5. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS; WAIVER OF RIGHTS.
Each Guarantor shall remain obligated hereunder notwithstanding that, without
any reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Obligations made
by any Secured Party may be rescinded by such party and any of the Obligations
continued, and the Obligations, or the liability of any other party upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by any Secured Party, and the Credit Agreements, any
other Loan Document, any Interest/Exchange Rate Protection Agreement and any
other documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Collateral
Agent (or the Required Secured Parties, as the case may be) or the relevant
Secured Party (in the case of any such Interest/Exchange Rate Protection
Agreement) may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by any Secured Party for the
payment of the Obligations may be sold, exchanged, waived, surrendered or
released. No Secured Party shall have any obligation to protect, secure, perfect
or insure any Lien at any time held by it as security for the Obligations or for
this Guarantee or any property subject thereto. When making any demand hereunder
against any of the Guarantors, any Secured Party may, but shall be under no
obligation to, make a similar demand on any Credit Party or any other Guarantor
or guarantor, and any failure by any Secured Party to make any such demand or to
collect any payments from any Credit Party or any such other Guarantor or
guarantor or any release of any Credit Party or such other Guarantor or
guarantor shall not relieve any of the Guarantors in respect of which a demand
or collection is not made or any of the Guarantors not so released of their
several obligations or liabilities hereunder, and shall not impair or affect the
rights and remedies, express or implied, or as a matter of law, of any Secured
Party against any of the Guarantors.
6. SECURITY. Each of the Guarantors authorizes each of the other
Secured Parties, in accordance with the terms and subject to the conditions set
forth in the Security Documents to which such Guarantor is a party, to (a) take
and hold security for the payment of this guarantee or the Obligations and
exchange, enforce, waive and release any such security, (b) apply such security
and direct the order or manner of sale thereof as they in their sole discretion
determine and (c) release or substitute any one or more endorsees, other
guarantors or other obligors.
7. GUARANTEE ABSOLUTE AND UNCONDITIONAL. Each Guarantor waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by any Secured Party upon this
Guarantee or acceptance of this Guarantee; the Obligations, and any of them,
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shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guarantee; and all
dealings between any Credit Party and any of the Guarantors, on the one hand,
and any of the Secured Parties, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon this
Guarantee. Each Guarantor waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon any Credit Party or any
of the Guarantors with respect to the Obligations. Each Guarantor understands
and agrees that this Guarantee shall be construed as a continuing, absolute and
unconditional guarantee of payment, and not of collection, and without regard to
(a) the validity, regularity or enforceability of the Credit Agreements, any
other Loan Document, any Interest/Exchange Rate Protection Agreement, any of the
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by any Secured
Party, (b) any defense, set-off or counterclaim (other than a defense of payment
or performance) which may at any time be available to or be asserted by any
Credit Party against any Secured Party, or (c) any other circumstance whatsoever
(with or without notice to or knowledge of any Secured Party, any Credit Party
or such Guarantor) which may or might in any manner or to any extent vary the
risk of the Guarantor or otherwise constitutes, or might be construed to
constitute, an equitable or legal discharge of any Credit Party for the
Obligations, or of such Guarantor under this Guarantee, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against any
Guarantor, any Secured Party may, but shall be under no obligation to, pursue
such rights and remedies as it may have against any Credit Party or any other
person (including any other Guarantor) or against any collateral security or
guarantee for the Obligations or any right of offset with respect thereto, and
any failure by any Secured Party to pursue such other rights or remedies or to
collect any payments from any Credit Party or any such other person (including
any other Guarantor) or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release of any Credit
Party or any such other person (including any other Guarantor) or any such
collateral security, guarantee or right of offset, shall not relieve such
Guarantor of any liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of any
Secured Party against such Guarantor. This Guarantee shall remain in full force
and effect and be binding in accordance with and to the extent of its terms upon
each Guarantor and the successors and assigns thereof, and shall inure to the
benefit of each Secured Party, and its successors, indorsees, transferees and
assigns, until all the Obligations and the obligations of the Guarantor under
this Guarantee shall have been satisfied by payment in full, no Letters of
Credit shall be outstanding and the Commitments shall have been terminated,
notwithstanding that from time to time while the Commitments are in effect
during the term of the Credit Agreements any Credit Party may be free from any
Obligations.
8. REINSTATEMENT. This Guarantee shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is
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rescinded or must otherwise be restored or returned by any Secured Party for any
reason whatsoever, including, without limitation, upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of any Credit Party or
any Guarantor, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, any Credit
Party or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
9. PAYMENTS. Each Guarantor hereby guarantees that payments hereunder
will be paid to the Collateral Agent without setoff or counterclaim in Dollars
at the office of the Collateral Agent located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
10. INFORMATION. Each of the Guarantors assumes all responsibility for
being and keeping itself informed of the Credit Parties' financial condition and
assets and of all other circumstances bearing upon the risk of nonpayment of the
Obligations and the nature, scope and extent of the risks that such Guarantor
assumes and incurs hereunder, and agrees that none of the Secured Parties will
have any duty to advise any of the Guarantors of information known to it or any
of them regarding such circumstances or risks.
11. REPRESENTATIONS AND WARRANTIES. Each Guarantor represents and
warrants to and with each Secured Party that all representations and warranties
in the Loan Documents that relate to such Guarantor are true and correct in all
material respects.
12. AUTHORITY OF COLLATERAL AGENT. Each Guarantor acknowledges that
the rights and responsibilities of the Collateral Agent under this Guarantee
with respect to any action taken by the Collateral Agent or the exercise or
non-exercise by the Collateral Agent of any option, right, request, judgment or
other right or remedy provided for herein or resulting or arising out of this
Guarantee shall, as between the Collateral Agent and the other Secured Parties,
be governed by the Credit Agreements and by such other agreements with respect
thereto as may exist from time to time among them, but, as between the
Collateral Agent and each Guarantor, the Collateral Agent shall be conclusively
presumed to be acting as agent for the other Secured Parties with full and valid
authority so to act or refrain from acting.
13. NOTICES. All notices, requests and demands to or upon any Secured
Party or any Guarantor under this Guarantee shall be given or made in accordance
with Section 9.01 of the Credit Agreements and addressed as follows:
(a) if to any Secured Party, UCAR or any Credit Party, at its
address or transmission number for notices provided in Section 9.01 of the
Credit Agreements; and
(b) if to any Guarantor that is not a Credit Party, at its address
or transmission number for notices set forth under its signature below.
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The Collateral Agent, each Secured Party and each Guarantor may change
its address and transmission numbers for notices by notice in the manner
provided in this Section.
14. RELEASE. Each Guarantor shall be released from its guarantee
hereunder in the event that all of the capital stock of such Guarantor shall be
sold, transferred or otherwise disposed of, in accordance with the terms of the
Credit Agreements, by the Borrower or UCAR or any other person that shall own
such stock, to a person that is not UCAR, the Borrower or a Subsidiary.
15. COUNTERPARTS. This Guarantee may be executed by one or more of the
Guarantors in any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the counterparts of this Guarantee signed by all the Guarantors shall be
lodged with the Collateral Agent.
16. SEVERABILITY. Any provision of this Guarantee or any other Loan
Document which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability 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 prohibited or unenforceable
provisions with valid provisions, the economic effect of which comes as close as
possible to that of the prohibited or unenforceable provisions.
17. RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing under the Credit Agreements, each Secured Party is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Secured Party to or for the credit or the account of any Guarantor
against any of and all the obligations of such Guarantor now or hereafter
existing under this Guarantee irrespective of whether or not such Secured Party
shall have made any demand under this Guarantee and although such obligations
may be unmatured. The rights of each Secured Party under this Section 17 are in
addition to other rights and remedies (including other rights of setoff) and
such Secured Party may have.
18. INTEGRATION. This Guarantee represents the agreement of each
Guarantor with respect to the subject matter hereof and there are no promises or
representations by any Guarantor or any Secured Party relative to the subject
matter hereof not reflected herein.
19. AMENDMENTS IN WRITING; NO WAIVER, CUMULATIVE REMEDIES. (a) None of
the terms or provisions of this Guarantee may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by each Guarantor
and the Collateral Agent, PROVIDED that any provision of this Guarantee may be
waived by the Required Secured Parties pursuant to a letter
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or agreement executed by the Collateral Agent or by telecopy transmission from
the Collateral Agent.
(b) No Secured Party shall by any act (except by a written instrument
pursuant to Section 19(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 thereof or the 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.
20. SECTION HEADINGS. The section headings used in this Guarantee are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
21. SUCCESSORS AND ASSIGNS. This Guarantee shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of each
Guarantor and each Secured Party and their successors and assigns; PROVIDED that
this Guarantee may not be assigned by any Guarantor without the prior written
consent of the Collateral Agent.
22. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
23. SUBMISSION TO JURISDICTION; WAIVERS. Each Guarantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Guarantee and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgement
in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
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(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such
Guarantor at its address set forth in Section 13 or at such other address
of which the Collateral Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential
damages.
24. ADDITIONAL GUARANTORS. Pursuant to Section 5.11 of the Credit
Agreements, each U.S. Subsidiary that was not in existence or not a U.S.
Subsidiary on the date thereof is required to enter into this Agreement as a
Guarantor upon becoming a U.S. Subsidiary. Upon execution and delivery, after
the date hereof, by the Collateral Agent and such U.S. Subsidiary of an
instrument in the form of Annex 1, such U.S. Subsidiary shall become a Guarantor
hereunder with the same force and effect as if originally named as a Guarantor
hereunder. The execution and delivery of any such instrument shall not require
the consent of any Guarantor hereunder. The rights and obligations of each
Guarantor hereunder shall remain in full force and effect notwithstanding the
addition of any new Guarantor as a party to this Guarantee.
25. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN 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 25.
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IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee to be duly executed and delivered by its duly authorized officer as of
the day and year first above written.
EACH OF THE GUARANTORS LISTED ON
SCHEDULE I HERETO
by: /s/ Xxxxxxx X. XxXxxxxxxx
---------------------------------------
Name: Xxxxxxx X. XxXxxxxxxx
Title: Attorney-in-Fact
SCHEDULE I
TO SUBSIDIARY GUARANTEE AGREEMENT
GUARANTORS
UCAR Carbon Company Inc.
UCAR Carbon Technology Corporation
UCAR Holdings Inc.
UCAR Holdings II Inc.
UCAR Holdings III Inc.
UCAR International Trading Inc.
Union Carbide Grafito, Inc.
UCAR Composites Inc.
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EXHIBIT A-1 TO
SUBSIDIARY GUARANTEE
AGREEMENT
SUPPLEMENT NO. dated as of [ ],
to the Subsidiary Guarantee Agreement dated as of October
19, 1995, as amended and restated as of November 10, 1998
(the "SUBSIDIARY GUARANTEE AGREEMENT"), each of the
Guarantors (such term and each other capitalized term used
but not defined having the meaning given it in the
Subsidiary Guarantee Agreement, and if not defined therein,
having the meaning given it in Article I of the Credit
Agreements) party thereto (together with the Borrower, the
"GUARANTORS") and THE CHASE MANHATTAN BANK, a New York
banking corporation, as collateral agent (the "COLLATERAL
AGENT") for the Secured Parties.
A. Reference is made to 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, the
"EXISTING CREDIT AGREEMENT"), among UCAR INTERNATIONAL INC., a Delaware
corporation ("UCAR"), the Borrower, the Subsidiary Borrowers party thereto, the
Lenders party thereto, the Fronting Banks party thereto, and The Chase Manhattan
Bank, as administrative agent and as collateral agent and (ii) the Credit
Agreement dated as of November 10, 1998, among UCAR, the Borrower, UCAR S.A.,
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 (as the same may be
amended, supplemented or otherwise modified from time to time, the "TRANCHE C
FACILITY CREDIT AGREEMENT", and together with the Existing Credit Agreement, the
"CREDIT AGREEMENTS").
B. The U.S. Subsidiaries have entered into the Subsidiary Guarantee
Agreement in order to induce the Lenders to make Loans and induce the Fronting
Banks to issue Letters of Credit pursuant to, and upon the terms and subject to
the conditions specified in, the Credit Agreements. Pursuant to Section 5.11 of
the Credit Agreements, each U.S. Subsidiary that was not in existence or not a
U.S. Subsidiary on the date thereof is required to enter into the Subsidiary
Guarantee Agreement as a Guarantor upon becoming a U.S. Subsidiary. Section 24
of the Subsidiary Guarantee Agreement provides that additional U.S. Subsidiaries
may become Guarantors under the Subsidiary Guarantee Agreement by execution and
delivery of an instrument in the form of this Supplement. The undersigned (the
"NEW GUARANTOR") is a U.S. Subsidiary and is executing this Supplement in
accordance with the requirements of the Credit Agreements to become a Guarantor
under the Subsidiary Guarantee Agreement in order to induce the Lenders to make
additional Loans and the Fronting Banks to issue additional Letters of Credit
and as consideration for Loans previously made and Letters of Credit previously
issued.
2
Accordingly, the Collateral Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 24 of the Subsidiary Guarantee
Agreement, the New Guarantor by its signature below becomes a Guarantor under
the Subsidiary Guarantee Agreement with the same force and effect as if
originally named therein as a Guarantor and the New Guarantor hereby agrees to
all the terms and provisions of the Subsidiary Guarantee Agreement applicable to
it as a Guarantor thereunder. Each reference to a "GUARANTOR" in the Subsidiary
Guarantee Agreement shall be deemed to include the New Guarantor. The Subsidiary
Guarantee Agreement is hereby incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the Secured
Parties that this Supplement has been duly authorized, executed and delivered by
it and constitutes its legal, valid and binding obligation, enforceable against
it in accordance with its terms, subject to the effects of applicable
bankruptcy, insolvency or similar laws effecting creditors' rights generally and
equitable principles of general applicability.
SECTION 3. This Supplement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument. This Supplement shall
become effective when the Collateral Agent shall have received counterparts of
this Supplement that, when taken together, bear the signatures of the New
Guarantor and the Collateral Agent.
SECTION 4. Except as expressly supplemented hereby, the Subsidiary
Guarantee Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Subsidiary Guarantee Agreement shall not in any way be
affected or impaired. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the eco nomic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in
writing and given as provided in the Credit Agreements. All communications and
notices hereunder to the New Guarantor shall be given to it at the address set
forth under its signature, with a copy to the Borrower.
3
IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have
duly executed this Supplement to the Subsidiary Guarantee Agreement as of the
day and year first above written.
[NAME OF NEW GUARANTOR],
by
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Name:
Title:
THE CHASE MANHATTAN BANK, as
Collateral Agent,
by
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Name:
Title:
