CONFORMED COPY
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT, dated as of February 22, 2000, made
by UCAR INTERNATIONAL INC., a Delaware corporation ("UCAR"),
UCAR GLOBAL ENTERPRISES INC., a Delaware corporation
("GLOBAL"), UCAR FINANCE INC., a Delaware corporation (the
"BORROWER"), and each Domestic Subsidiary (UCAR, Global, the
Borrower and each Domestic Subsidiary collectively referred to
as the "GUARANTORS"), 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")).
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;
WHEREAS, UCAR directly or indirectly owns all of the issued
and outstanding stock of the Borrower, Global and each Domestic
Subsidiary;
WHEREAS, the proceeds of the Loans and the availability of the
Letters of Credit will be used to enable the Borrower to make Intercompany
Loans to some of the other Guarantors in connection with the operation of
their respective businesses;
WHEREAS, the Borrower and the other 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 Issuing Bank to issue the Letters of
Credit that the Guarantors shall have executed and delivered this
Guarantee to the Collateral Agent for the ratable benefit of the Secured
Parties.
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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 and to issue
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 Agreement and used herein shall have the
meanings given in the Credit Agreement.
(b) "GUARANTEE": this Guarantee Agreement, as the same
may be amended, supplemented or otherwise modified from time to time.
(c) "OBLIGATIONS": (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 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 rights of the Borrower under the Intercompany Borrower Agreements are
pledged to the Collateral Agent under one or more Pledge Agreements as
security for the other Obligations), (b) the due and punctual performance
of all covenants, agreements, obligations and liabilities of the Loan
Parties 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 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 Guarantors under the Guarantee Agreements;
(d) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Guarantee shall refer to this Guarantee
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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".
(e) 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 other Loan
Parties and the LC Subsidiaries, 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 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 Loan Party or any LC
Subsidiary 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.
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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 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 Agreement, 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 Lenders, 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
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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, 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
Agreement, 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
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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 Agreement 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 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 c/o
X.X. Xxxxxx Services, Inc., Xxxxxx Xxxxxxxxxx Center, 000 Xxxxxxx
Xxxxxxxxxx Xxxx, Xxxxxx, XX 00000-0000.
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.
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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. COVENANTS. Each of the Guarantors covenants and agrees
with the Secured Parties that, from and after the date of this Guarantee
until the earlier to occur of (i) the date upon which the Obligations are
paid in full, no Letters of Credit are outstanding and the Commitments are
terminated and (ii) the date that such Guarantor is released from its
guarantee hereunder in accordance with Section 15, unless the Required
Lenders shall otherwise consent in writing, it will comply with each
covenant set forth in Articles VI and VII of the Credit Agreement to the
extent that it relates to such Guarantor.
13. 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
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
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.
14. 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 10.01 of the Credit Agreement and
addressed as follows:
(a) if to any Secured Party, UCAR, Global or the Borrower, at
its address or transmission number for notices provided in Section
10.01 of the Credit Agreement; and
(b) if to any other Guarantor, at its address or transmission
number for notices set forth on Schedule I hereto.
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.
15. RELEASE. Each Guarantor (other than UCAR, Global and the
Borrower) 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
Agreement, by Global or any other person that shall own such stock, to a
person that is not UCAR, Global, the Borrower or a Subsidiary.
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16. 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.
17. 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.
18. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing under the Credit Agreement, 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 18 are in
addition to other rights and remedies (including other rights of setoff)
and such Secured Party may have.
19. 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.
20. AMENDMENTS IN WRITING; NO WAIVER, CUMULATIVE Remedies.
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 Lenders pursuant to a letter
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 20(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,
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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.
21. 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.
22. 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.
23. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK.
24. 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
judgment 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;
(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 14 or at such other address of which the Collateral Agent
shall have been notified pursuant thereto;
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(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.
25. ADDITIONAL GUARANTORS. Pursuant to Section 6.11 of the
Credit Agreement, each Domestic Subsidiary that was not in existence or
not a Domestic Subsidiary on the date thereof is required to enter into
this Agreement as a Guarantor upon becoming a Domestic Subsidiary. Upon
execution and delivery, after the date hereof, by the Collateral Agent and
such Domestic Subsidiary of an instrument in the form of Annex 1, such
Domestic 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.
26. 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 26.
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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/ XXXXX X. FALLS
---------------------------------
Name: Xxxxx X. Falls
Title: Treasurer
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
by
/S/ XXXXXXX XXXXXXXX
---------------------------------
Name: Xxxxxxx XxXxxxxx
Title: Vice President
WITNESSES:
1. ____________________________ 2. ___________________________
Name: Name:
Drivers License No.: ___________ Drivers License No.: __________
Social Security No.: ____________ Social Security No.: __________
State of New York )
) 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 GUARANTEE AGREEMENT
GUARANTORS
UCAR International Inc.
UCAR Global Enterprises Inc.
UCAR Finance Inc.
UCAR Carbon Company Inc.
UCAR Holdings II Inc.
UCAR Holdings III Inc.
UCAR International Trading Inc.
UCAR Composites Inc.
[Addresses and telecopy numbers for notices]
SUPPLEMENT NO. dated as of [], to the Guarantee
Agreement dated as of February 2, 2000 (the "GUARANTEE
AGREEMENT"), among each of the Guarantors (such term and
each other capitalized term used but not defined having
the meaning given it in the Guarantee Agreement, and if
not defined therein, having the meaning given it in
Article I of the Credit Agreement) party thereto
(together with the Borrower, the "GUARANTORS") and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as collateral
agent (the "COLLATERAL AGENT") for the Secured Parties.
A. Reference is made to the Credit Agreement dated as of
February 22, 2000 (as the same may be amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among UCAR
International Inc., a Delaware corporation ("UCAR"), UCAR Global
Enterprises Inc., a Delaware corporation ("GLOBAL"), UCAR Finance Inc., a
Delaware corporation (the "BORROWER"), the LC Subsidiaries from time to
time party thereto, the Lenders from time to time party thereto and Xxxxxx
Guaranty Trust Company of New York, as Administrative Agent, Collateral
Agent and Issuing Bank.
B. The Guarantors have entered into the Guarantee Agreement in
order to induce the Lenders to make Loans and induce the Issuing Bank to
issue Letters of Credit pursuant to, and upon the terms and subject to the
conditions specified in, the Credit Agreement. Pursuant to Section 6.11 of
the Credit Agreement, each Domestic Subsidiary that was not in existence
or not a Domestic Subsidiary on the date thereof is required to enter into
the Guarantee Agreement as a Guarantor upon becoming a Domestic
Subsidiary. Section 25 of the Guarantee Agreement provides that additional
Domestic Subsidiaries may become Guarantors under the Guarantee Agreement
by execution and delivery of an instrument in the form of this Supplement.
The undersigned (the "NEW GUARANTOR") is a Domestic Subsidiary and is
executing this Supplement in accordance with the requirements of the
Credit Agreement to become a Guarantor under the Guarantee Agreement in
order to induce the Lenders to make additional Loans and the Issuing Bank
to issue additional Letters of Credit and as consideration for Loans
previously made and Letters of Credit previously issued.
Accordingly, the Collateral Agent and the New Guarantor agree
as follows:
SECTION 1. In accordance with Section 25 of the Subsidiary
Guarantee Agreement, the New Guarantor by its signature below becomes a
Guarantor under the Guarantee Agreement with the same force and effect as
if originally named therein as a Guarantor and the New Guarantor hereby
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agrees to all the terms and provisions of the Guarantee Agreement
applicable to it as a Guarantor thereunder. Each reference to a
"GUARANTOR" and a "DOMESTIC SUBSIDIARY" in the Guarantee Agreement shall
be deemed to include the New Guarantor. The 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 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 economic 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 Agreement. 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.
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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
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, Collateral Agent,
by
Name:
Title:
