EXHIBIT 10.6
CONFORMED COPY
EFFECTIVENESS AGREEMENT dated as of
March 19, 1997 (this "Effectiveness
Agreement"), among UCAR INTERNATIONAL
INC., a Delaware corporation ("UCAR"),
UCAR GLOBAL ENTERPRISES INC., a Delaware
corporation (the "Borrower"), the
lenders listed on Schedule I hereto as
Departing Lenders (the "Departing
Lenders"), Continuing Lenders (the
"Continuing Lenders") and Additional
Lenders (the "Additional Lenders", and
collectively with the Departing Lenders
and the Continuing Lenders, the
"Lenders"), the fronting banks listed on
Schedule I hereto (the "Fronting
Banks"), and THE CHASE MANHATTAN BANK,
as Administrative Agent and Collateral
Agent, in each case under the Credit
Agreement (the "Credit Agreement") dated
as of October 19, 1995, among the
Borrower, the lenders referred to
therein, the Fronting Banks, the
Administrative Agent, and the Collateral
Agent, as in effect on the date hereof.
WHEREAS, UCAR and the Borrower have requested, and the Lenders, the
Fronting Banks, the Administrative Agent and the Collateral Agent have agreed,
upon the terms and subject to the conditions set forth herein, that the Credit
Agreement be amended and restated as provided herein effective upon satisfaction
of the conditions set forth in Section 7 below;
NOW, THEREFORE, UCAR, the Borrower, each of the Lenders, each of the
Fronting Banks, the Administrative Agent and the Collateral Agent hereby agree
as follows:
SECTION 1. DEFINED TERMS. Capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the form of amended and
restated Credit Agreement attached as Exhibit A hereto (the "Restated Credit
Agreement").
SECTION 2. EFFECTIVENESS DATE. (a) The transactions provided for in
Sections 3, 4, 5 and 6 hereof shall
be consummated at a closing (the "Closing") to be held on the Effectiveness Date
(as hereinafter defined) at the offices of Cravath, Swaine & Xxxxx, or at such
other time and place as the parties shall agree.
(b) The "Effectiveness Date" shall be specified by the Borrower, and
shall be a date not later than March 31, 1997, as of which all the conditions
set forth or referred to in Section 7 hereof shall have been satisfied. The
Borrower shall give not less than one Business Day's written notice proposing a
date as the Effectiveness Date to the Administrative Agent, which shall send
copies of such notice to the Lenders. This Effectiveness Agreement shall
terminate at 5:00 p.m., New York City time, on March 31, 1997, if the
Effectiveness Date shall not have occurred at or prior to such time.
SECTION 3. AMENDMENT AND RESTATEMENT OF THE CREDIT AGREEMENT. The
Credit Agreement (including all Exhibits and Schedules thereto) is hereby
amended and restated, effective as of the Effectiveness Date (subject to the
satisfaction of the conditions set forth in Section 7 below), to read in its
entirety as set forth in Exhibit A hereto, and each of the form of Local
Facility Credit Agreement attached as Exhibit E to the Credit Agreement and the
form of Tranche A Letter of Credit attached as Exhibit I to the Credit Agreement
is hereby amended and restated, effective as of the Effectiveness Date (subject
to the
-1-
conditions set forth in Section 7 below), to read in its entirety as set forth
in Exhibit B hereto and in Exhibit C hereto, respectively. Each Exhibit referred
to in the Restated Credit Agreement, other than the forms of Local Facility
Credit Agreement and the form of Tranche A Letter of Credit, shall remain
unchanged. As used in the Credit Agreement, the terms "Agreement", "this
Agreement", "herein", "hereinafter", "hereto", "hereof" and words of similar
import shall, unless the context otherwise requires, mean the Credit Agreement
as amended and restated pursuant to this Effectiveness Agreement. As used in the
Loan Documents, the term "Credit Agreement" shall, unless the context otherwise
requires, mean the Credit Agreement as amended and restated pursuant to this
Effectiveness Agreement.
SECTION 4. DELIVERY OF NOTES. On or prior to the Effectiveness Date,
each Lender holding a Note shall deliver to the Administrative Agent, for
delivery to and cancelation by the Borrower, all Notes then held by such Lender
(collectively, the "Notes"). Each Lender holding a Note that fails so to deliver
any of its Notes hereby agrees to indemnify the Borrower for any loss, cost or
expense resulting from such failure. Upon the effectiveness of the Restated
Credit Agreement, the Administrative Agent shall release and deliver the Notes
to the Borrower for cancelation.
SECTION 5. FEES AND EXPENSES. On the Effectiveness Date, on or before
the effectiveness of the Restated Credit Agreement, the Borrower shall pay to
the Administrative Agent (a) for its own account, all fees and other amounts
owed to it as of the Effectiveness Date, (b) for the account of each Lender (i)
the participation fee due such Lender on the Effectiveness Date, (ii) all unpaid
fees accrued to but excluding the Effectiveness Date for the account of such
Lender under Section 2.05 of the Credit Agreement, (iii) all unpaid interest
accrued to but excluding the Effectiveness Date in respect of the Loans of such
Lender outstanding under the Credit Agreement and (iv) any amount due to such
Lender under Section 2.15 of the Credit Agreement in connection with the
refinancing of its outstanding Loans as a result of the transactions
contemplated by Section 6(b) below, (c) for the account of each Fronting Bank,
all unpaid fees accrued to but excluding the Effectiveness Date for the account
of such Fronting Bank under Section 2.05 of the Credit Agreement and (d) for the
account of each applicable payee, all expenses due and payable under the
Restated Credit Agreement on or before the Effectiveness Date in connection with
the Loan Documents to be delivered on the Effectiveness Date or otherwise,
including, without limitation, the reasonable fees and expenses accrued and
invoiced through the Effectiveness Date of Cravath, Swaine & Xxxxx.
SECTION 6. TERM BORROWINGS; TRANCHE A LETTERS OF CREDIT. (a) On the
Effectiveness Date, upon the effectiveness of the Restated Credit Agreement and
subject to the terms and conditions set forth herein and therein, the Additional
Lenders and Continuing Lenders having Commitments under the Restated Credit
Agreement shall make, and the Borrower shall borrow, (i) Tranche A Term Loans in
the amount of the Tranche A Term Loan Commitments of such Lenders and (ii)
Tranche B Term Loans in the amount of the Tranche B Term Loan Commitments of
such Lenders. All such Loans on the Effectiveness Date shall initially be ABR
Loans.
(b) On the Effectiveness Date, upon the effectiveness of the Restated
Credit Agreement and subject to the conditions set forth herein and therein, the
Borrower shall use the proceeds of the Loans made pursuant to paragraph (a)
above to repay all the Term Loans outstanding on the Effectiveness Date
immediately prior to the effectiveness of the Restated Credit Agreement (the
"Outstanding Loans"). Concurrently with such repayment of Term Loans, the
Departing Lenders shall cease to be parties to the Credit Agreement and shall be
released from all further obligations thereunder and shall have no further
rights to or interest in any of the Collateral; PROVIDED, HOWEVER, that the
Departing Lenders shall continue to be entitled to the benefits of all yield
protection, expense reimbursement and indemnity provisions contained in the
Credit Agreement as in effect immediately prior to the Closing and shall
continue to be bound by Section 9.17 of the Credit Agreement as in effect at
such time.
(c) On the Effectiveness Date, upon the effectiveness of the Restated
Credit Agreement (i) each Additional Lender and each Continuing Lender that is
making Loans pursuant to paragraph (a) above shall pay to the Administrative
Agent by wire transfer of immediately available funds not later than 11:00 a.m.,
New York City time, an amount equal to the amount of the Loans being made by
such Lender pursuant to paragraph (a) and (ii) the Administrative Agent shall
pay to each Departing Lender and to
-2-
each Continuing Lender the amount of such Lender's Outstanding Loans by wire
transfer of immediately available funds to the account designated by such Lender
to the Administrative Agent not later than 5:00 p.m., New York City time. The
Borrower agrees that if any Lender shall default in the payment of any amount
due from it under this Section 6, the Borrower shall promptly pay the defaulted
amount to the Administrative Agent by wire transfer of immediately available
funds, together with interest on such amount at the Alternate Base Rate from the
Effectiveness Date to the date of payment. Upon any such payment by the
Borrower, the Borrower shall have the right, at the defaulting Lender's expense,
upon notice to the defaulting Lender and to the Administrative Agent, to require
such defaulting Lender to transfer and assign without recourse (in accordance
with and subject to the restrictions contained in Section 9.04 of the Restated
Credit Agreement) all its interests, rights and obligations under the Restated
Credit Agreement to another financial institution which shall assume such
interests, rights and obligations; PROVIDED that (A) no such assignment shall
conflict with any law, rule or regulation or order of any Governmental Authority
and (B) the assignee shall pay to the defaulting Lender, in immediately
available funds on the date of such assignment, the outstanding principal of and
interest accrued to the date of payment on the Loans made or deemed made by such
defaulting Lender under the Restated Credit Agreement, if any, and all other
amounts accrued for such defaulting Lender's account or owed to it under the
Restated Credit Agreement.
(d) In the event the Borrower shall specify a date as the
Effectiveness Date and the Effectiveness Date shall not occur on such date, the
Borrower shall indemnify each Lender for any loss or expense incurred by such
Lender as a result of the transactions to have been consummated by such Lender
on such proposed Effectiveness Date, in each case determined as set forth in
Section 2.15 of the Restated Credit Agreement in respect of any failure to
borrow or prepay any Loan.
(e) On the Effectiveness Date, upon the effectiveness of the Restated
Credit Agreement and subject to the conditions set forth herein and therein,
each Fronting Bank having a Tranche A L/C Commitment shall issue (or shall
permit to remain outstanding) the Tranche A Letters of Credit set forth opposite
its name on Schedule 2.20 to the Restated Credit Agreement, appropriately
completed, in each case for the account of the applicable Credit Party specified
on such Schedule 2.20.
SECTION 7. CONDITIONS. The consummation of the transactions set forth
in Sections 3, 4, 5 and 6 of this Effectiveness Agreement shall be subject to
the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received, on behalf of itself,
the Lenders and the Fronting Banks, a favorable written opinion of (i)
Xxxxxx Xxxx & Xxxxxx LLP, counsel for UCAR, and In-House Counsel of UCAR,
collectively, substantially to the effect set forth in Exhibit D-1, and
(ii) each local counsel listed on Schedule II hereto, substantially to the
effect set forth in Exhibit D-2, in each case (A) dated the Effectiveness
Date, (B) addressed to the Fronting Banks, the Administrative Agent, the
Collateral Agent and the Lenders, and (C) covering such other matters
relating to the Loan Documents and the Transactions as the Administrative
Agent shall reasonably request, and each of UCAR and the Borrower hereby
instructs its counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the borrowings and
extensions of credit hereunder and the other Loan Documents shall be
reasonably satisfactory to the Lenders, to the Fronting Banks, to Cravath,
Swaine & Xxxxx, counsel for the Administrative Agent, and, in the case of
each Local Facility, to counsel for the Administrative Agent in the
jurisdiction of such Local Facility.
(c) The Administrative Agent shall have received (i) in the case of
each domestic Loan Party, each of the items referred to in clauses (A), (B)
and (C) below and, in the case of each other Loan Party, as requested by
the Administrative Agent, the equivalent documentation
-3-
in its jurisdiction of organization: (A) a copy of the certificate or articles
of incorporation, including all amendments thereto, of each Loan Party,
certified as of a recent date by the Secretary of State of the state of its
organization, and a certificate as to the good standing of each Loan Party as of
a recent date from such Secretary of State; (B) a certificate of the Secretary
or Assistant Secretary of each Loan Party dated the Effectiveness Date and
certifying (w) that attached thereto is a true and complete copy of the by-laws
of such Loan Party as in effect on the Effectiveness Date and at all times since
a date immediately prior to the date of the resolutions described in clause (x)
below, (x) that attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors of such Loan Party authorizing the execution,
delivery and performance of the Loan Documents to which such person is a party
and, in the case of the Borrower and the other Credit Parties, the borrowings
and issuances of Letters of Credit under the Restated Credit Agreement and the
borrowings under the Local Facility Credit Agreements, and that such resolutions
have not been modified, rescinded or amended and are in full force and effect,
(y) that the certificate or articles of incorporation of such Loan Party have
not been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (A) above, and (z) as
to the incumbency and specimen signature of each officer executing any Loan
Document or any other document delivered in connection herewith on behalf of
such Loan Party; and (C) a certificate of another officer as to the incumbency
and specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (B) above; and (ii) such other documents as the Lenders,
the Fronting Banks, Cravath, Swaine & Xxxxx, counsel for the Administrative
Agent, or, in the case of any Local Facility, counsel for the Administrative
Agent in the jurisdiction of such Local Facility, may reasonably request.
(d) The Administrative Agent shall have received a certificate of the
Borrower, dated the Effectiveness Date and signed by a Financial Officer of
and on behalf of the Borrower, confirming compliance with the conditions
precedent set forth in paragraphs (b) and (c) of Section 4.01 of the
Restated Credit Agreement as of the Effectiveness Date.
(e) The Administrative Agent shall have received from the Borrower or
the other Credit Parties, as applicable, all Fees and other amounts due and
payable on or prior to the Effectiveness Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrower or the other Credit Parties
hereunder or under any other Loan Document.
(f) The Reaffirmation Agreement in the form of Exhibit E hereto shall
have been duly executed by each of UCAR, the Borrower and the Subsidiary
Guarantors, shall have been delivered to the Collateral Agent and shall be
in full force and effect, and each of the Guarantee Agreements and the
Indemnity, Subrogation and Contribution Agreement shall remain in full
force and effect.
(g) The Pledge Agreement shall remain in full force and effect, all
the outstanding Capital Stock of the Borrower and each domestic Subsidiary,
and 65% of the outstanding Capital Stock of each foreign Subsidiary (or, if
less, all such Capital Stock) owned directly by the Borrower or any
domestic Subsidiary, shall have been duly and validly pledged thereunder to
the Collateral Agent for the ratable benefit of the Secured Parties and
certificates representing such shares, accompanied in the case of
certificated shares by instruments of transfer and stock powers endorsed in
blank, shall be in the actual possession of the Collateral Agent.
(h) Each outstanding Local Facility Credit Agreement shall have been
amended and restated in substantially the form of Exhibit B with such
changes therefrom as shall in the
-4-
judgment of the Administrative Agent be necessary or advisable under
applicable law, the Credit Parties under the Local Facilities shall have
made or continued borrowings in the amounts and currencies specified in
Schedule III hereto and the Administrative Agent shall have received
evidence satisfactory to it of all the foregoing.
(i) After giving effect to the transactions contemplated hereby and
under the Restated Credit Agreement to occur on the Effectiveness Date,
UCAR, the Borrower and the Subsidiaries shall have outstanding no
Indebtedness other than Loans hereunder, Indebtedness under the Local
Facilities, the Senior Subordinated Notes and Indebtedness otherwise
permitted under Section 6.01 of the Restated Credit Agreement.
(j) The Lenders shall have received a reasonably satisfactory
consolidated balance sheet of UCAR as of December 31, 1996, together with a
certificate of the Borrower, dated the Effectiveness Date and signed by a
Financial Officer of the Borrower, to the effect that such statement fairly
presents the financial position of UCAR, the Borrower and the Subsidiaries
on a consolidated basis in accordance with GAAP, and the Lenders shall be
reasonably satisfied that such balance sheet and the transactions
contemplated hereby and thereby and the financing arrangements contemplated
hereby are not materially inconsistent with the information or projections
and the financial model delivered to the Lenders prior to the date hereof.
The Credit Parties shall also have provided such other financial
information as the Administrative Agent shall reasonably have requested.
(k) All requisite material Governmental Authorities and all material
third parties shall have approved or consented to the transactions
contemplated hereby to the extent required.
SECTION 8. EFFECTIVENESS; COUNTERPARTS. This Effectiveness Agreement
shall become effective when copies hereof which, when taken together, bear the
signatures of each of the parties hereto shall have been received by the
Administrative Agent. Each of the parties hereto agrees that, notwithstanding
any provision of the Credit Agreement to the contrary, the provisions of this
Effectiveness Agreement and the Restated Credit Agreement shall as among the
parties hereto be effective without regard to whether any Departing Lender shall
have executed this Effectiveness Agreement. This Effectiveness Agreement may not
be amended nor may any provision hereof be waived except pursuant to a writing
signed by the Borrower, the Administrative Agent, the Collateral Agent, the
Fronting Banks and the Lenders. This Effectiveness Agreement 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 contract.
SECTION 9. NOTICES. All notices hereunder shall be given in accordance
with the provisions of Section 9.01 of the Restated Credit Agreement.
SECTION 10. APPLICABLE LAW; WAIVER OF JURY TRIAL. (A) THIS
EFFECTIVENESS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
(B) EACH PARTY HERETO HEREBY AGREES AS SET FORTH IN SECTION 9.11 OF
THE RESTATED CREDIT AGREEMENT AS IF SUCH SECTION WERE SET FORTH IN FULL HEREIN.
SECTION 11. SECURITY INTERESTS. The Collateral Agent shall reasonably
promptly after the Effectiveness Date take such actions as are necessary to
release such Liens as presently exist under any Security Document or Local
Facility Loan Document but will not be required to be in effect thereunder after
the Effectiveness Date. Each Lender hereby authorizes and directs the Collateral
Agent to take such actions and to
-5-
execute any such documents as may be reasonably requested by the Borrower or any
other Credit Party, and at the expense of the Borrower or such Credit Party, in
connection with the termination of such Liens.
SECTION 12. EXPENSES; INDEMNITY. The Borrower hereby agrees as set
forth in Section 9.05 of the Restated Agreement as if such Section were set
forth in full herein.
UCAR INTERNATIONAL INC.,
by
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President, Chief Financial
Officer & Treasurer
UCAR GLOBAL ENTERPRISES INC.,
by
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President, Chief Financial
Officer & Treasurer
UCAR HOLDINGS S.A.,
by
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney-in-Fact
UCAR S.p.A.,
by
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney-in-Fact
UCAR ELECTRODOS, S.L.,
by
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney-in-Fact
UCAR INC.,
by
-6-
/s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Financial Director
UCAR MEXICANA S.A. de C.V.,
by
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney-in-Fact
THE CHASE MANHATTAN BANK, individually
and as Fronting Bank, Administrative Agent
and Collateral Agent,
by
/s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
ABN AMRO BANK, N.V., NEW YORK
BRANCH, individually and as Co-Agent,
by
/s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Group Vice President
by
/s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
AMSOUTH BANK OF ALABAMA,
by
/s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Commercial Banking Officer
BANCA COMMERCIALE ITALIANA,
NEW YORK BRANCH,
by
/s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
-7-
by
/s/ T. Gallonetto
------------------------------------
Name: T. Gallonetto
Title: Assistant Vice President
BANK OF AMERICA ILLINOIS,
by
/s/ Xxxxx XxXxxx
------------------------------------
Name: Xxxxx XxXxxx
Title: Managing Director
BANK OF NEW YORK, individually and as
Co-Agent,
by
/s/ Xxxxx XxXxxx
------------------------------------
Name: Xxxxx XxXxxx
Title: Vice President
THE BANK OF NOVA SCOTIA, individually and
as Co-Agent,
by
/s/ J. R. Trimble
------------------------------------
Name: J. R. Trimble
Title: Senior Relationship Manager
THE BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, individually and as Co-Agent,
by
/s/ Xxxxxxxx X. Xxxxxxxx, Xx.
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx, Xx.
Title: Vice President
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR,
by
/s/ Xxxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
-8-
BANQUE NATIONALE DE PARIS,
by
/s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
by
/s/ Sophie Revillard Xxxxxxx
------------------------------------
Name: Sophie Revillard Xxxxxxx
Title: Vice President
BANQUE PARIBAS, individually and as
Co-Agent,
by
/s/ Xxxx X. XxXxxxxxx, III
------------------------------------
Name: Xxxx X. XxXxxxxxx, III
Title: Vice President
by
/s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Group Vice President
BHF-BANK AKTIENGESELLSCHAFT,
by
/s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Assistant Vice President
by
/s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
CANADIAN IMPERIAL BANK OF
COMMERCE, individually and as Co-Agent,
by
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
-9-
CORESTATES BANK, N.A.
by
/s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
CREDIT AGRICOLE,
by
/s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: First Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
individually and as Co-Agent,
by
/s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD.,
by
/s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President & Group Leader
FIRST AMERICAN NATIONAL BANK,
by
/s/ Xxxxxxx X. Brothers
------------------------------------
Name: Xxxxxxx X. Brothers
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON,
by
/s/ Xxxxxx X. Xxxxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Director
-00-
XXXXX XXXXX XXXXXXXX XXXX XX XXXXX
XXXXXXXX, individually and as Co-Agent,
by
/s/ Xxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
by
/s/ Xxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
FLEET NATIONAL BANK, individually and as
Co-Agent,
by
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION,
by
/s/ Xxxxxxx XxXxxxxxx
------------------------------------
Name: Xxxxxxx XxXxxxxxx
Title: Duly Authorized Signatory
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, individually and as Co-Agent,
by
/s/ Takuya Honjo
------------------------------------
Name: Takuya Honjo
Title: Senior Vice President
KREDIETBANK N.V., NEW YORK BRANCH,
by
/s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
by
/s/ Xxxxxxx Xxx
------------------------------------
Name: Xxxxxxx Xxx
Title: Assistant Treasurer
-11-
INSTITUTO BANCARIO SAN PAOLO DI
TORINO SPA,
by
/s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: First Vice President
by
/s/ Xxxxxxx X. Xx Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xx Xxxxxx
Title: First Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH, individually
and as Co-Agent,
by
/s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Deputy General Manager
MELLON BANK, N.A.,
by
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By
/s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Signatory
SENIOR HIGH INCOME PORTFOLIO, INC.
By
/s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Signatory
-12-
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (a unit of The Chase Manhattan
Bank),
by
/s/ Xxxxx X. XxXxxxx
------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Managing Director
PNC BANK, National Association,
by
/s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
ROYAL BANK OF SCOTLAND,
by
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Deputy Manager
THE SAKURA BANK, LTD.,
by
/s/ Xxxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
THE SANWA BANK, LIMITED -
NEW YORK BRANCH,
by
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SOCIETE GENERALE,
by
/s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
by
-13-
------------------------------------
Name:
Title:
THE SUMITOMO BANK, LTD.,
by
/s/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Joint General Manager
THE TOKAI BANK, LIMITED - NEW YORK
BRANCH,
by
/s/ Xxxxx Xxx
------------------------------------
Name: Xxxxx Xxx
Title: Assistant General Manager
THE TRAVELERS INDEMNITY COMPANY,
by
/s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Second Vice President
THE TRAVELERS INSURANCE COMPANY,
by
/s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Second Vice President
THE TRAVELERS LIFE AND ANNUITY
COMPANY,
by
/s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Second Vice President
-00-
XXX XXXXXX XXXXXXXX CAPITAL PRIME
RATE INCOME TRUST,
by
/s/ Xxxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxxx X. Xxxx
-15-
SCHEDULE I
PARTICIPATING AND DEPARTING BANKS
CONTINUING LENDERS
------------------
THE CHASE MANHATTAN BANK AMSOUTH BANK OF ALABAMA BANCA COMMERCIALE ITALIANA, NEW
YORK BRANCH
BANK OF AMERICA ILLINOIS BANK OF NEW YORK THE BANK OF NOVA SCOTIA
THE BANK OF TOKYO-MITSUBISHI, BANQUE FRANCAISE DU COMMERCE BANQUE PARIBAS
LTD., NEW YORK BRANCH EXTERIEUR
BHF-BANK AKTIENGESELLSCHAFT CANADIAN IMPERIAL BANK OF COMMERCE CREDIT LYONNAIS NEW YORK BRANCH
THE DAI-ICHI KANGYO BANK, LTD., THE FIRST NATIONAL BANK OF BOSTON FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
FLEET NATIONAL BANK GENERAL ELECTRIC CAPITAL CORPORATION KREDIETBANK N.V., NEW YORK BRANCH
THE LONG-TERM CREDIT BANK OF XXXXXXX XXXXX SENIOR FLOATING RATE XXXXXXX XXXXX SENIOR HIGH INCOME
JAPAN, LIMITED, NEW YORK FUND, INC. PORTFOLIO
BRANCH
OCTAGON CREDIT INVESTOR LOAN THE SAKURA BANK, LTD. THE TRAVELERS INDEMNITY COMPANY
PORTFOLIO
THE TRAVELERS INSURANCE THE TRAVELERS LIFE AND ANNUITY XXX XXXXXX AMERICAN CAPITAL PRIME
COMPANY COMPANY RATE INCOME TRUST
NEW LENDERS
-----------
ABN AMRO BANK N.V., NEW YORK BANQUE NATIONALE DE PARIS CORESTATES BANK, N.A.
BRANCH
-16-
CREDIT AGRICOLE FIRST AMERICAN NATIONAL BANK INSTITUTO BANCARIO SAN PAOLO DI
TORINO SPA
MELLON BANK, N.A. THE PNC BANK ROYAL BANK OF SCOTLAND
THE SANWA BANK LIMITED NEW SOCIETE GENERALE THE SUMITOMO BANK, LTD.
YORK BRANCH
THE TOKAI BANK, LIMITED - NEW
YORK BRANCH
DEPARTING LENDERS
-----------------
Each Lender party to the Credit Agreeement and not a Continuing Lender.
-17-
SCHEDULE II
Local Counsel Schedule
----------------------
Canada:
Xxxxxxx Xxxxxxxx
Xxxxx Xxxxxxx & Xxxxxxx
Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X0X0
Fax # 000-000-0000
Tel # 000-000-0000
Italy:
Xxxxxxxxxx Xxxxxxxx
Gianni, Origoni & Partners
000 Xxxxx Xxxxxx
Xxx Xxxx, XX
Fax # 000-000-0000
Tel # 000-000-0000
France:
Xxxxxxxx Xxxxxx-Xxxxxx
Gide Loyrette Nouel
Swiss Bank Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax # 000-000-0000
Tel #000-000-0000
Spain:
Xxxxxxxx Xxxxx de la Xxxx
Xxxx & Xxxxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax # 000-000-0000
Tel # 000-000-0000
-18-
Schedule III
To The Effectiveness Agreement
COMPANY BORROWINGS
===========================================================================
1. UCAR HOLDINGS S.A. $130,600,000.00
---------------------------------------------------------------------------
2. UCAR INC. $19,900,000.00
---------------------------------------------------------------------------
3. UCAR S.P.A. $31,200,000.00
---------------------------------------------------------------------------
4. UCAR ELECTRODOS S.L. $32,300,000.00
===========================================================================
-19-
EXHIBIT B
TO THE EFFECTIVENESS AGREEMENT
LOCAL FACILITY CREDIT AGREEMENT dated as of
[DATE], among [BORROWER], a [DESCRIBE BORROWER] (the
"Borrower"), the financial institutions listed on
Schedule 2.01 (the "Lenders"), and THE CHASE
MANHATTAN BANK, as agent (in such capacity, the
"Administrative Agent") for the Lenders.
The Borrower has requested the Lenders to extend credit in the form of
Loans (such term and each other capitalized term used but not defined herein
having the meaning assigned to it in Article I) in an aggregate principal amount
at any time outstanding not in excess of $[AMOUNT] (or the equivalent of such
amount in Local Currency). The Loans will continue or replace existing loans of
the Lenders to the Borrower.
The Lenders are willing to extend such credit to the Borrower on the
terms and subject to the conditions set forth herein. Accordingly, the parties
hereto agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. Defined Terms. All capitalized terms used but not
defined herein shall have the meanings given such terms in the U.S. Credit
Agreement. As used in this Agreement, the following terms shall have the
meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate determined
by reference to the Alternate Base Rate in accordance with the provisions of
Article II.
"Adjusted LIBO Rate" shall have the meaning given such term in
Schedule 2.06.1
"Adjusted Outstanding Principal Amount" shall mean the sum of (a) the
aggregate outstanding principal amount of all Loans denominated in Dollars plus
the Interest Component in respect of such Loans and (b) the Dollar Equivalent of
the aggregate outstanding principal amount of all Loans denominated in Local
Currency plus the Foreign Currency Component in respect of such Loans.
"Aggregate Available Amount" shall mean at any time the aggregate
undrawn Stated Amounts under the Letters of Credit in effect at such time.
"Alternate Base Rate" shall have the meaning given such term in
Schedule 2.06.1/
-
--------
1 Schedule 2.06 will specify applicable pricing conventions in the
jurisdiction of each Local Facility Credit Agreement.
-20-
"Applicable Percentage" shall mean, in the case of any Lender, a
fraction, expressed as a decimal, of which the numerator is equal to the
principal amount (or, in the case of Loans denominated in Local Currency, the
Dollar Equivalent of the principal amount) of the outstanding Loans of such
Lender and the denominator is equal to the principal amount (or, in the case of
Loans denominated in Local Currency, the Dollar Equivalent of the principal
amount) of all the outstanding Loans.
"Assignment and Acceptance" shall have the meaning given such term in
Section 9.04(b).
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banks in [insert principal financial center in jurisdiction of
Local Currency] are authorized or required by law to close; provided, however,
that when used in connection with a Eurodollar Loan, the term "Business Day"
shall also exclude any day on which banks are not open for dealings in dollar
deposits in the London interbank market.
"Calculation Date" shall mean the last Business Day of each calendar
month, provided that at the request of the Administrative Agent or the Borrower
the Calculation Date may occur more frequently.
"Closing Date" shall mean the date of the first Borrowing hereunder.
"Default" shall mean any event or condition which upon notice, lapse
of time or both would constitute an Event of Default.
"Dollar Equivalent" shall mean, on any date of determination, with
respect to any amount in Local Currency, the equivalent in Dollars of such
amount, determined by the Administrative Agent using the Exchange Rate then in
effect as determined pursuant to Section 1.03.
"Dollars" or "$" shall mean United States dollars.
"Eurocurrency Borrowing" shall mean a Borrowing comprised of
Eurocurrency Loans.
"Eurocurrency Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning given such term in Article
VII.
"Exchange Rate" shall mean, with respect to Local Currency on any
date, the rate at which Dollars may be exchanged into Local Currency, as set
forth on such date on the applicable Reuters currency page. In the event that
such rate does not appear on the applicable Reuters currency page, the Exchange
Rate with respect to Local Currency shall be determined by reference to such
other publicly available service for displaying exchange rates as may be agreed
upon by the Administrative Agent and the Borrower or, in the absence of such
agreement, such Exchange Rate shall instead be the Administrative Agent's spot
rate of exchange in the London interbank market or other market where the
Administrative Agent's foreign currency exchange operations in respect of Local
Currency are then being conducted, at or about 10:00 a.m., local time, on such
date for the purchase of Local Currency with Dollars for delivery two Business
Days later; PROVIDED, HOWEVER, that if at the time of any such
-21-
determination, for any reason, no such spot rate is being quoted, the
Administrative Agent may use any reasonable method it deems appropriate to
determine such rate, and such determination shall be conclusive absent manifest
error.
"Existing Agreement" shall mean [identify existing local facility
credit agreement].
"Exposure" shall mean at any time the sum of (a) the aggregate
outstanding amount of the principal of, and all interest accrued but unpaid on,
the Loans denominated in Dollars, (b) the Dollar Equivalent of the aggregate
outstanding amount of the principal of, and all interest accrued but unpaid on,
the Loans denominated in Local Currency and (c) all other obligations and
liabilities of the Borrower to the Administrative Agent or the Lenders then due
under this Agreement or any other Loan Document, including any and all fees and,
to the extent invoiced, indemnities, costs, expenses or other amounts.
"Foreign Currency Component" shall mean, with respect to the principal
amount of any Loan or Loans denominated in Local Currency, an amount in Dollars
equal to 5.00% of the Dollar Equivalent of such amount.
"Fronting Bank" shall mean The Chase Manhattan Bank or any other
person acting as Fronting Bank in respect of a Letter of Credit.
"Global" shall mean UCAR Global Enterprises Inc., a Delaware
corporation.
"Interest Component" shall mean, with respect to the principal amount
of any Loan or Loans denominated in Dollars, an amount equal to 1.03333333333%
of such principal amount.
"Interest Payment Date" shall mean, (a) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than one month's duration, each day
that would have been an Interest Payment Date had successive Interest Periods of
one month's duration been applicable to such Borrowing, and, in addition, the
date of any refinancing or conversion of such Borrowing with or to a Borrowing
of a different Type and (b) with respect to any ABR Loan, the last Business Day
of each month.
"Interest Period" shall mean as to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3 or 6 months thereafter, as the Borrower may elect and the date such
Borrowing is converted to a Borrowing of a different Type in accordance with
Section 2.10 or repaid or prepaid in accordance with Section 2.11 or 2.12;
provided, however, that if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day. Interest shall accrue from and including the first day
of an Interest Period to but excluding the last day of such Interest Period.
"L/C Disbursement" shall mean a payment or disbursement by a Fronting
Bank pursuant to a Letter of Credit.
-22-
"Letter of Credit" shall mean each letter of credit in substantially
the form of Exhibit A hereto issued by a Fronting Bank under the U.S. Credit
Agreement for the benefit of the Administrative Agent on behalf of the Lenders.
"Loan Documents" shall mean this Agreement, the Letter of Credit, the
Notes and the Security Documents.
"Loan Parties" shall mean the Borrower, Global and each Affiliate of
any of them that is party to any Loan Document.
"Loans" shall mean the loans made by the Lenders to the Borrower
pursuant to Section 2.01. Each Loan shall be a Eurocurrency Loan or an ABR Loan.
"Local Currency" or "[insert symbol for local currency]" shall mean
[identify local currency].
"Local Currency Equivalent" shall mean, on any date of determination,
with respect to any amount in Dollars, the equivalent in Local Currency of such
amount, determined by the Administrative Agent using the Exchange Rate then in
effect as determined pursuant to Section 1.03.
"Maturity Date" shall mean the date that is the sixth Business Day
prior to December 31, 2001.
"Note" shall mean any promissory note of the Borrower issued pursuant
to this Agreement.
"Parent Guarantee Agreement" shall mean the Guarantee Agreement of
Global, substantially in the form of Exhibit B, made by Global in favor of the
Administrative Agent for the benefit of the Lenders.
"Required Lenders" shall mean, at any time, Lenders having Loans (or,
prior to the initial Borrowing hereunder, committed to make Loans) representing
at least 51% of the sum of all Loans outstanding at such time (or to be
outstanding).
"Reset Date" shall have the meaning given such term in Section 1.03.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Security Documents" shall mean the Parent Guarantee Agreement and
each document set forth on Schedule 1.01 and each of the guarantees, security
agreements, mortgages and other instruments and documents executed and delivered
pursuant to any of the foregoing or pursuant to Section 5.11 of the U.S. Credit
Agreement.
"Standard Time" shall mean [SPECIFY APPLICABLE TIME ZONE].
"Stated Amount" shall mean, with respect to any Letter of Credit at
any time, the Stated Amount under (and as defined in) such Letter of Credit at
such time, as adjusted in accordance with the terms of such Letter of Credit.
"Subsidiary" shall mean any subsidiary of the Borrower.
-23-
"Testing Date" shall have the meaning given such term in Section 1.03.
"Transactions" shall mean the execution, delivery and performance by
the Borrower and the Subsidiaries of each of the Loan Documents and the
borrowings hereunder and the other transactions contemplated hereby and by the
other Loan Documents.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the currency in which such Loan or Borrowing is denominated and the Rate by
reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, "Rate" shall include the Adjusted
LIBO Rate and the Alternate Base Rate.
"U.S. Credit Agreement" shall mean the Credit Agreement dated as of
the date hereof among UCAR International Inc., UCAR Global Enterprises Inc., the
lenders named therein, the fronting banks named therein and The Chase Manhattan
Bank, as administrative agent and collateral agent thereunder, which is attached
hereto as Exhibit D.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, any reference in this Agreement to any Loan Document
shall mean such document as amended, restated, supplemented or otherwise
modified from time to time.
SECTION 1.03. Currency Equivalents; Currency Fluctuations. Not later
than 1:00 p.m., Standard Time, on each Calculation Date, the Administrative
Agent shall (a) determine the Exchange Rate as of such Calculation Date and (b)
give notice thereof to the Borrower and the Lenders. The Exchange Rate so
determined shall become effective on the first Business Day immediately
following the relevant Calculation Date (each a "Reset Date"), shall remain
effective until the next succeeding Reset Date and shall during the period of
its effectiveness be employed in making any computation of currency equivalents
required to be made under this Agreement (other than any computation required
under Article VII or Section 9.16). Not later than 10:00 a.m., Standard Time, on
the Closing Date and on the date of each prepayment under Section 2.12 (each
such date, a "Testing Date"), the Administrative Agent shall (i) determine the
Dollar Equivalent, based on the Exchange Rate in effect as provided in the
preceding sentence, of each Loan then outstanding that is denominated in Local
Currency (after giving effect to any Loan made or repaid on such date) and (ii)
notify the Borrower and the Lenders of the results of such determination.
ARTICLE II. THE CREDITS
SECTION 2.01. Commitments. (a) Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, on the Closing Date, to make to the Borrower
the Loans set forth opposite its name on Schedule 2.01
-24-
(or, in the case of any Loan indicated on such Schedule 2.01 to be outstanding
under the Existing Agreement, to continue such Loan as a Loan hereunder)2.
(b) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees, severally
and not jointly, at any time prior to the Maturity Date (i) subject to the
simultaneous prepayment of any Borrowing or portion of a Borrowing denominated
in Dollars in accordance with Section 2.11, to make a Loan to the Borrower
denominated in Local Currency in a principal amount not to exceed such Lender's
Applicable Percentage of the Local Currency Equivalent of the principal amount
so prepaid and (ii) subject to the simultaneous prepayment of any Borrowing or
portion of a Borrowing denominated in Local Currency in accordance with Section
2.11, to make a Loan to the Borrower denominated in Dollars in a principal
amount not to exceed such Lender's Applicable Percentage of the Dollar
Equivalent of the principal amount so prepaid; provided, that after giving
effect to any Loan so made and to any such simultaneous prepayment, neither the
Adjusted Outstanding Principal Amount nor the Exposure shall exceed the
Aggregate Available Amount.
(c) The failure of any Lender to make any Loan shall not in itself
relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other Lender).
SECTION 2.02. Loans. (a) Subject to Sections 2.08 and 2.14, each
Borrowing shall be comprised entirely of Eurocurrency Loans (or, in the case of
any Loan denominated in Dollars, ABR Loans) as the Borrower may request pursuant
to Section 2.03 or 2.09. Each Lender may at its option make any Eurocurrency
Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement and such Lender shall not be entitled to any amounts payable
under Section 2.12 or Section 2.18 in respect of increased costs arising as a
result of such exercise. Borrowings of more than one Type may be outstanding at
the same time; provided, however, that the Borrower shall not be entitled to
request any Borrowing which, if made, would result in more than six Eurocurrency
Borrowings outstanding hereunder at any time. For purposes of the foregoing,
Borrowings having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Borrowings.
(b) Each Lender shall make each Loan to be made by it hereunder on any
date by wire transfer to such account as the Administrative Agent may designate
in same day funds not later than 11:00 a.m., Standard Time, and the
Administrative Agent shall by 12:00 (noon), Standard Time, credit the amounts so
received to an account designated by the Borrower or, if a Borrowing shall not
occur on such date because any condition precedent herein specified shall not
have been met, the Administrative Agent shall return the amounts so received to
the respective Lenders.
(c) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on such date in accordance with paragraph
(b) above and the Administrative Agent may, in reliance upon such assumption,
make available to the Borrower on such date a corresponding amount. If the
Administrative Agent shall have so made funds available then, to the extent that
such Lender shall not have made such portion available to the Administrative
Agent, such Lender and the Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such
--------
2 The amounts of the Loans made or continued on the Closing Date will be
such that the Adjusted Outstanding Principal Amount will not exceed the
Aggregate Available Amount.
-25-
amount is made available to the Borrower until the date such amount is repaid to
the Administrative Agent at (i) in the case of the Borrower, the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Lender, a rate determined by the Administrative Agent to represent
its cost of overnight or short-term funds in the applicable currency (which
determination shall be conclusive absent manifest error). If such Lender shall
repay to the Administrative Agent such corresponding amount, such amount shall
constitute such Lender's Loan as part of such Borrowing for purposes of this
Agreement.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing on
any date, the Borrower shall hand deliver or telecopy to the Administrative
Agent a written notice (a) in the case of a Eurocurrency Borrowing, not later
than 11:00 a.m., Standard Time, three Business Days before such date, and (b) in
the case of an ABR Borrowing, not later than 12:00 noon, Standard Time, one
Business Day before such date; provided, however, that in the case of any
Borrowing to be made or continued on the Closing Date such notice may, at the
discretion of the Administrative Agent, be delivered later than the times
specified above. Each such notice shall be irrevocable, shall be signed by or on
behalf of the Borrower and shall specify the following information: (i) the
currency in which such Borrowing is to be denominated, which shall be Dollars or
Local Currency, (ii) in the case of a Borrowing denominated in Dollars, whether
such Borrowing is to be a Eurocurrency Borrowing or an ABR Borrowing; (iii) the
date of such Borrowing (which shall be a Business Day), (iv) the number and
location of the account to which funds are to be disbursed (which shall be an
account that complies with the requirements of Section 2.02(c)); (v) the amount
of such Borrowing; and (vi) if such Borrowing is to be a Eurocurrency Borrowing,
the Interest Period with respect thereto; provided, however, that,
notwithstanding any contrary specification in any such notice, each requested
Borrowing shall comply with the requirements set forth in Section 2.02. If no
election as to the Type of a Borrowing denominated in Dollars is specified in
any such notice, then the requested Borrowing shall be an ABR Borrowing. If no
Interest Period with respect to any Eurocurrency Borrowing is specified in any
such notice, then the Borrower shall be deemed to have selected an Interest
Period of one month's duration. The Administrative Agent shall promptly (and in
any event on the same day that the Administrative Agent receives such notice, if
received by 1:00 p.m., Standard Time, on such day) advise the Lenders of any
notice given pursuant to this Section 2.03 (and the contents thereof) and of
each Lender's portion of the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The
outstanding principal balance of each Loan shall be payable as provided in
Section 2.10. Each Loan shall bear interest from the Closing Date on the
outstanding principal balance thereof as set forth in Section 2.06.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness to such Lender resulting from
each Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid such Lender from time to time under this
Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type of each Loan made
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) of this Section 2.04 shall, to the extent permitted by applicable
law, be prima facie evidence of the existence and amounts of the obligations
therein recorded; provided, however, that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligations of the Borrower to repay the Loans in
accordance with their terms.
-26-
SECTION 2.05. Notes. Notwithstanding any other provision of this
Agreement, in the event that any Lender shall so request, the Borrower shall
execute and deliver to such Lender a Note payable to such Lender and its
registered assigns representing its interests under this Agreement, and the
interests represented by that Note shall at all times thereafter (including
after any assignment of all or part of such interests pursuant to Section 9.04)
be represented by one or more Notes payable to the payee named therein or its
registered assigns.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising each ABR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be, when determined by reference to the Prime Rate
and over a year of 360 days at all other times) at a rate per annum equal to the
Alternate Base Rate.
(b) Subject to the provisions of Section 2.07, the Loans comprising
each Eurocurrency Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum equal
to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus 0.25%.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan and on the Maturity Date, except as otherwise
provided in this Agreement. The applicable Alternate Base Rate or Adjusted LIBO
Rate for each Interest Period or day within an Interest Period, as the case may
be, shall be determined by the Administrative Agent, and such determination
shall be conclusive absent manifest error.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, the Borrower shall on demand from
time to time pay interest, to the extent permitted by law, on such defaulted
amount for the period beginning on the date of such default up to (but not
including) the date of actual payment (after as well as before judgment) at a
rate per annum (computed on the basis of the actual number of days elapsed over
a year of 360 days) equal to (a) in the case of the principal of or interest on
any Loan, the rate that would otherwise be applicable to such Loan plus 2.00%
per annum, and (b) in the case of any other amount, the Alternate Base Rate plus
2.00% per annum.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurocurrency Borrowing the Administrative Agent shall have
determined that deposits in the applicable currency in the principal amounts of
the Loans comprising such Borrowing are not generally available in the London
interbank market, or that the rates at which such deposits are being offered
will not adequately and fairly reflect the cost to any Lender of making or
maintaining its Eurocurrency Loan during such Interest Period, or that
reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the
Administrative Agent shall, as soon as practicable thereafter, give written or
telecopy notice of such determination to the Borrower and the Lenders. In the
event of any such determination, until the Administrative Agent shall have
advised the Borrower and the Lenders that the circumstances giving rise to such
notice no longer exist, any request by the Borrower for a Eurocurrency Borrowing
pursuant to Section 2.03 or 2.09 shall, in the case of a Borrowing denominated
in Dollars, be deemed to be a request for an ABR Borrowing and shall, in the
case of a Borrowing denominated in Local Currency, be disregarded. In the event
that an outstanding Borrowing denominated in Local Currency cannot be continued
into a new Interest Period by reason of the immediately preceding sentence, such
Borrowing shall, at the end of the Interest Period in effect therefor, be
replaced with a Borrowing denominated in Dollars as provided in Section 2.01(b)
or prepaid. Each determination by the Administrative Agent hereunder shall be
conclusive absent manifest error.
-27-
SECTION 2.09. Conversion and Continuation of Borrowings. The Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 12:00 (noon), Standard Time, one
Business Day prior to conversion, to convert any Eurocurrency Borrowing
denominated in Dollars into an ABR Borrowing, (b) not later than 10:00 a.m.,
Standard Time, three Business Days prior to conversion or continuation, to
convert any ABR Borrowing into a Eurocurrency Borrowing denominated in Dollars
or to continue any Eurocurrency Borrowing as a Eurocurrency Borrowing
denominated in the same currency for an additional Interest Period, and (c) not
later than 10:00 a.m., Standard Time, three Business Days prior to conversion,
to convert the Interest Period with respect to any Eurocurrency Borrowing to
another permissible Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting Borrowing
shall satisfy the limitations specified in Sections 2.02(a) and (b)
regarding the principal amount and maximum number of Borrowings of the
relevant Type;
(iii) each conversion shall be effected by each Lender by recording
for the account of such Lender the new Loan of such Lender resulting from
such conversion and reducing the Loan (or portion thereof) of such Lender
being converted by an equivalent principal amount; accrued interest on a
Loan (or portion thereof) being converted shall be paid by the Borrower at
the time of conversion;
(iv) if any Eurocurrency Borrowing is converted at a time other than
the end of the Interest Period applicable thereto, the Borrower shall pay,
upon demand, any amounts due to the Lenders pursuant to Section 2.15;
(v) any portion of a Borrowing maturing or required to be repaid in
less than one month may not be converted into or continued as a
Eurocurrency Borrowing;
(vi) any portion of a Eurocurrency Borrowing which cannot be converted
into or continued as a Eurocurrency Borrowing by reason of the immediately
preceding clause shall be automatically converted at the end of the
Interest Period in effect for such Borrowing into an ABR Borrowing; and
(vii) no Interest Period may be selected for any Eurocurrency
Borrowing that would end later than the Maturity Date.
Each notice pursuant to this Section 2.09 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the Borrower requests be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a Eurocurrency Borrowing or
an ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurocurrency Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurocurrency Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the other Lenders of any notice
given pursuant to this Section 2.09 and of each Lender's portion of any
converted or continued Borrowing. If the Borrower shall not have given notice in
accordance with this Section 2.09 to continue any Borrowing into a subsequent
Interest Period (and shall not otherwise have given notice in accordance with
this Section 2.09 to convert such Borrowing), the Borrower shall be deemed to
have given notice (i) in the case of a
-28-
Borrowing denominated in Dollars, to convert such Borrowing into or continue
such Borrowing as an ABR Borrowing and (ii) in the case of a Borrowing
denominated in Local Currency, to continue such Borrowing for an additional
Interest Period of one month's duration.
SECTION 2.10. Repayment of Borrowings. The Borrowings shall be payable
as to principal on the Maturity Date.
SECTION 2.11. Prepayment. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, upon at
least three Business Days' prior written or telecopy notice (or telephone notice
promptly confirmed by written or telecopy notice) to the Administrative Agent
before 11:00 a.m., Standard Time; provided, however, that each partial
prepayment shall be in an amount which is (i) in the case of a Borrowing
denominated in Dollars, an integral multiple of $1,000,000 and (ii) in the case
of a Borrowing denominated in Local Currency, at least the Local Currency
Equivalent of $1,000,000.
(b) In the event the Borrower shall reduce the Stated Amount of any
Letter of Credit in accordance with the terms thereof, the Borrower shall
simultaneously prepay Loans in such amounts as shall be necessary in order that
neither the Adjusted Outstanding Principal Amount nor the Exposure shall exceed
the Aggregate Available Amount.
(c) If on any Reset Date or on any Testing Date (after giving effect
to any Loans to be made or repaid on such date), the Exposure exceeds the
Aggregate Available Amount, then the Administrative Agent shall promptly notify
the Borrower of such excess. Not later than four Business Days after receiving
such notice the Borrower shall prepay Loans and otherwise reduce the Exposure in
such amounts as shall be necessary in order that neither the Adjusted
Outstanding Principal Amount nor the Exposure shall exceed the Aggregate
Available Amount.
(d) Each notice of prepayment shall specify the prepayment date and
the principal amount of each Borrowing (or portion thereof) to be prepaid, shall
be irrevocable and shall commit the Borrower to prepay such Borrowing by the
amount stated therein on the date stated therein. All prepayments under this
Section 2.11 shall be subject to Section 2.14 but otherwise without premium or
penalty. All prepayments under this Section 2.11 shall be accompanied by accrued
interest on the principal amount being prepaid to the date of payment.
SECTION 2.12. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender in respect of
the principal of or interest on any Eurocurrency Loan made by such Lender or any
other amounts payable hereunder (other than changes in respect of (i) taxes
imposed on the overall net income of such Lender by the jurisdiction in which
such Lender has its principal office or by any political subdivision or taxing
authority therein and (ii) any Taxes described in Section 2.18), or shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets or deposits with or for the account of or credit
extended by such Lender (except any such reserve requirement which is reflected
in the Adjusted LIBO Rate) or shall impose on such Lender or the interbank
Eurocurrency market any other condition affecting this Agreement or any
Eurocurrency Loans of such Lender, and the result of any of the foregoing shall
be to increase the cost to such Lender of making any Eurocurrency Loan or to
reduce the amount of any sum received or receivable by such Lender hereunder
(whether of principal, interest or otherwise) by an amount deemed by such Lender
to be material, then from time to time the Borrower will pay to such Lender upon
demand such additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered.
-29-
(b) If any Lender shall have determined that the adoption after the
date hereof of any law, rule, regulation or guideline regarding capital
adequacy, or any change after the date hereof in any of the foregoing or in the
interpretation or administration of any of the foregoing by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any lending office of
such Lender) or any Lender's holding company with any request or directive
regarding capital adequacy (whether or not having the force of law) made or
issued after the date hereof by any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or its obligations pursuant hereto to a level
below that which such Lender or such Lender's holding company would have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's policies and the policies of such Lender's holding company with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time the Borrower shall pay to such Lender upon demand such
additional amount or amounts as will compensate such Lender or such Lender's
holding company for any such reduction suffered.
(c) A certificate of each Lender setting forth such amount or amounts
as shall be necessary to compensate such Lender or its holding company as
specified in paragraph (a) or (b) above, as the case may be, shall be delivered
to the Borrower through the Administrative Agent and shall be conclusive absent
manifest error. The Borrower shall pay each Lender the amount shown as due on
any such certificate delivered by it within 10 days after its receipt of the
same.
(d) In the event any Lender delivers a notice pursuant to paragraph
(e) below, the Borrower may require, at the Borrower's expense and subject to
Section 2.14, such Lender to assign, at par plus accrued interest and fees,
without recourse (in accordance with Section 9.04) all its interests, rights and
obligations hereunder (including all the Loans at the time owing to it) to a
financial institution specified by the Borrower; provided that (i) such
assignment shall not conflict with or violate any law, rule or regulation or
order of any court or other Governmental Authority, (ii) the Borrower shall have
received the written consent of the Administrative Agent to such assignment, and
(iii) the Borrower shall have paid to the assigning Lender all monies accrued
and owing hereunder to it (including pursuant to this Section 2.12) .
(e) Promptly after any Lender has determined, in its sole judgment,
that it will make a request for increased compensation pursuant to this Section
2.12, such Lender will notify the Borrower thereof. Failure on the part of any
Lender so to notify the Borrower or to demand compensation for any increased
costs or reduction in amounts received or receivable or reduction in return on
capital with respect to any period shall not constitute a waiver of such
Lender's right to demand compensation with respect to such period or any other
period; provided that the Borrower shall not be under any obligation to
compensate any Lender under paragraph (b) above with respect to increased costs
or reductions with respect to any period prior to the date that is six months
prior to such request if such Lender knew or could reasonably have been expected
to be aware of the circumstances giving rise to such increased costs or
reductions and of the fact that such circumstances would in fact result in a
claim for increased compensation by reason of such increased costs or
reductions; provided further that the foregoing limitation shall not apply to
any increased costs or reductions arising out of the retroactive application of
any law, regulation, rule, guideline or directive as aforesaid within such six
month period. The protection of this Section 2.12 shall be available to each
Lender regardless of any possible contention as to the invalidity or
inapplicability of the law, rule, regulation, guideline or other change or
condition which shall have occurred or been imposed.
SECTION 2.13. Change in Legality. (a) Notwithstanding any other
provision herein, if the adoption of or any change in any law or regulation or
in the interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurocurrency Loan or to give effect to its obligations
as
-30-
contemplated hereby with respect to any Eurocurrency Loan, then, by written
notice to the Borrower and to the Administrative Agent, such Lender may:
(i) declare that Eurocurrency Loans will not thereafter be made by
such Lender hereunder, whereupon any request for a Eurocurrency Borrowing
denominated in Dollars, shall, as to such Lender only, be deemed a request
for an ABR Loan unless such declaration shall be subsequently withdrawn and
any request for a Eurocurrency Borrowing denominated in Local Currency
shall be disregarded; and
(ii) require that all outstanding Eurocurrency Loans made by it be
converted into or replaced as contemplated by Section 2.01(b) with ABR
Loans or prepaid, in which event all such Eurocurrency Loans shall be so
converted to or replaced with ABR Loans on or prior to the effective date
of such notice as provided in paragraph (b) below or, if not so converted
or replaced, prepaid.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurocurrency Loans that would have been made by such Lender or the
converted Eurocurrency Loans of such Lender shall instead be applied to repay
any ABR Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurocurrency Loans.
(b) For purposes of this Section 2.13, a notice to the Borrower by any
Lender shall be effective as to each Eurocurrency Loan, if lawful, on the last
day of the Interest Period currently applicable to such Eurocurrency Loan; in
all other cases such notice shall be effective on the date of receipt by the
Borrower.
SECTION 2.14. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense (other than taxes) which such Lender may sustain or
incur as a consequence of (a) any failure by the Borrower to fulfill on the date
of any Borrowing or proposed Borrowing hereunder the applicable conditions set
forth in Article IV, (b) any failure by the Borrower to borrow, convert or
continue any Loan hereunder after irrevocable notice of such Borrowing,
conversion or continuation has been given pursuant to Section 2.03 or 2.09, (c)
any payment, prepayment or conversion of a Eurocurrency Loan required by any
other provision of this Agreement or otherwise made or deemed made on a date
other than the last day of the Interest Period applicable thereto, (d) any
default in payment or prepayment of the principal amount of any Loan or any part
thereof or interest accrued thereon, as and when due and payable (at the due
date thereof, whether by scheduled maturity, acceleration, irrevocable notice of
prepayment or otherwise) or (e) the occurrence of any Event of Default,
including, in each such case, any loss or reasonable expense sustained or
incurred or to be sustained or incurred in liquidating or employing deposits
from third parties acquired to effect or maintain such Loan or any part thereof
as a Eurocurrency Loan. Such loss or reasonable expense shall exclude loss of
margin hereunder but shall include an amount equal to the excess, if any, as
reasonably determined by such Lender, of (i) its cost of obtaining the funds for
the Loan being paid, prepaid, converted or not borrowed, converted or continued
(assumed to be the Adjusted LIBO Rate applicable thereto) for the period from
the date of such payment, prepayment, conversion or failure to borrow, convert
or continue to the last day of the Interest Period for such Loan (or, in the
case of a failure to borrow, convert or continue, the Interest Period for such
Loan which would have commenced on the date of such failure) over (ii) the
amount of interest (as reasonably determined by such Lender) that would be
realized by such Lender in reemploying the funds so paid, prepaid, converted or
not borrowed, converted or continued for such period or Interest Period, as the
case may be. A certificate of any Lender setting forth any amount or amounts
which such Lender is entitled to receive pursuant to this Section 2.14 (and the
reasons therefor) shall be delivered to the Borrower through the Administrative
Agent and shall be conclusive absent manifest error.
-31-
SECTION 2.15. Pro Rata Treatment. Except as required under Section
2.13, each Borrowing, each payment or prepayment of principal of any Borrowing,
each payment of interest on the Loans, and each conversion of any Borrowing to
or continuation of any Borrowing as a Borrowing of any Type shall be allocated
pro rata among the Lenders in accordance with the respective principal amounts
of their outstanding Loans (or, prior to the making of the initial Loans, the
amounts of the Loans to be made by them, as set forth in Schedule 2.01). Each
Lender agrees that in computing such Lender's portion of any Borrowing to be
made hereunder, the Administrative Agent may, in its discretion, round each
Lender's percentage of such Borrowing, computed in accordance with Section 2.01,
to the next higher or lower whole unit of Dollars or Local Currency, as the case
may be.
SECTION 2.16. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code, or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Loan or Loans as a result
of which the unpaid principal portion of its Loans shall be proportionately less
than the unpaid principal portion of the Loans of any other Lender, it shall be
deemed simultaneously to have purchased from such other Lender at face value,
and shall promptly pay to such other Lender the purchase price for, a
participation in the Loans of such other Lender, so that the aggregate unpaid
principal amount of the Loans and participations in Loans held by each Lender
shall be in the same proportion to the aggregate unpaid principal amount of all
Loans then outstanding as the principal amount of its Loans prior to such
exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all Loans outstanding prior to such exercise of banker's
lien, setoff or counterclaim or other event; provided, however, that, if any
such purchase or purchases or adjustments shall be made pursuant to this Section
2.16 and the payment giving rise thereto shall thereafter be recovered, such
purchase or purchases or adjustments shall be rescinded to the extent of such
recovery and the purchase price or prices or adjustment restored without
interest. The Borrower expressly consents to the foregoing arrangements and
agrees that any Lender holding a participation in a Loan deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrower to such
Lender by reason thereof as fully as if such Lender had made a Loan directly to
the Borrower in the amount of such participation.
SECTION 2.17. Payments. (a) The Borrower shall make each payment
without set-off or counterclaim (including principal of or interest on any
Borrowing or any other amounts) hereunder, under any Note and under any other
Loan Document not later than 12:00 (noon), local time at the place of payment,
on the date when due in immediately available funds. Each such payment shall be
made to the Administrative Agent at its offices at [ADDRESS OF LOCAL OFFICE OF
THE CHASE MANHATTAN BANK]. Each such payment shall be made in Dollars or Local
Currency as applicable.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any other amount) hereunder or under any other Loan Document shall
become due, or otherwise would occur, on a day that is not a Business Day, such
payment may be made on the next succeeding Business Day (except in the case of
payment of principal of a Eurocurrency Borrowing if the effect of such extension
would be to extend such payment into the next succeeding month, in which event
such payment shall be due on the immediately preceding Business Day), and such
extension of time shall in such case be included in the computation of interest,
if applicable.
SECTION 2.18 Taxes. (a) Any and all payments by the Borrower to the
Administrative Agent or the Lenders hereunder or under the other Loan Documents
shall be made, in accordance with Section 2.18, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding (i)
in the case of each Lender and the Administrative Agent, taxes that would not be
imposed
-32-
but for a connection between such Lender or the Administrative Agent (as the
case may be) and the jurisdiction imposing such tax, other than a connection
arising solely by virtue of the activities of such Lender or the Administrative
Agent (as the case may be) pursuant to or in respect of this Agreement or under
any other Loan Document, including entering into, lending money or extending
credit pursuant to, receiving payments under, or enforcing, this Agreement or
any other Loan Document, and (ii) in the case of each Lender and the
Administrative Agent, any withholding taxes payable in the jurisdiction of the
Lender with respect to payments made hereunder or under the other Loan Documents
under the laws (including any statute, treaty, ruling, determination or
regulation) in effect on the Initial Date (as hereinafter defined) applicable to
such Lender or the Administrative Agent, as the case may be, but not excluding
any such withholding taxes payable in the jurisdiction of the Lender solely as a
result of any change in such laws occurring after the Initial Date (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). For purposes of this
Section 2.18, the term "Initial Date" shall mean (i) in the case of the
Administrative Agent or any Lender, the date on which such person became a party
to this Agreement and (ii) in the case of any assignment including any
assignment by a Lender to a new lending office, the date of such assignment. If
any Taxes shall be required by law to be deducted from or in respect of any sum
payable hereunder or under any other Loan Document to any Lender or the
Administrative Agent, (i) the sum payable by the Borrower shall be increased as
may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.18) such
Lender or the Administrative Agent, as the case may be, receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law. The Borrower shall not, however, be required to
pay any amounts pursuant to clause (i) of the preceding sentence to any Lender
or the Administrative Agent (in the case of payments to be made by the Borrower)
if such Lender or the Administrative Agent fails to comply with the requirements
of paragraphs (f) and (g) of this Section 2.18).
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Section 2.18)
paid by such Lender or the Administrative Agent, as the case may be, and any
liability (including penalties, interest and expenses including reasonable
attorney's fees and expenses) arising therefrom or with respect thereto whether
or not such Taxes or Other Taxes were correctly or legally asserted. A
certificate as to the amount of such payment or liability prepared by a Lender
or the Administrative Agent, absent manifest error, shall be final, conclusive
and binding for all purposes; PROVIDED, HOWEVER, that if the Borrower reasonably
believes that such Taxes or Other Taxes were not correctly or legally asserted,
such Lender or the Administrative Agent, as the case may be, shall use
reasonable efforts to cooperate with the Borrower to obtain a refund of such
Taxes or Other Taxes. Such indemnification shall be made within 10 days after
the date any Lender or the Administrative Agent, as the case may be, makes
written demand therefor. If a Lender or the Administrative Agent shall become
aware that it is entitled to receive a refund in respect of Taxes or Other
Taxes, it shall promptly notify the Borrower of the availability of such refund
and shall, within 30 days after receipt of a request by the Borrower, pursue or
timely claim such refund at the Borrower's expense. If any Lender or the
Administrative Agent receives a refund in respect of any Taxes or Other Taxes
for which such Lender or the Administrative Agent has received payment from the
Borrower hereunder, it shall promptly repay such refund (plus any interest
received) to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.19 with respect to
the Taxes or Other Taxes giving rise to such refund); provided that the
Borrower, upon the request of such Lender or the Administrative Agent, agrees to
return such refund (plus any penalties, interest or other charges required to be
paid) to such Lender or
-33-
the Administrative Agent in the event such Lender or the Administrative Agent is
required to repay such refund to the relevant taxing authority.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by the Borrower in respect of any payment to any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent, at
its address referred to in Schedule 2.01, the original or a certified copy of a
receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.18 shall
survive the payment in full of principal and interest hereunder and the
termination of the commitments of the Lenders hereunder.
(f) Each Lender and the Administrative Agent that is claiming such
additional amounts agrees that within a reasonable period of time following the
request of the Borrower it will, to the extent it is legally entitled to a
reduction in the rate of or exemption from withholding taxes in the jurisdiction
of the Borrower, deliver to the Borrower and the Administrative Agent any form
or document required under the laws, regulations, official interpretations or
treaties enacted by, made or entered into with such jurisdiction properly
completed and duly executed by such Lender or the Administrative Agent
establishing that any payments hereunder are exempt from withholding tax or
subject to a reduced rate of withholding tax in such jurisdiction as the case
may be; provided that, in the sole determination of such Lender or the
Administrative Agent, such form or document shall not be otherwise
disadvantageous to such Lender or the Administrative Agent.
(g) Any Lender claiming any additional amounts payable pursuant to
this Section 2.18 shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document requested in
writing by the Borrower to change the jurisdiction of its applicable lending
office if the making of such a filing or change would avoid the need for or
reduce the amount of any such additional amounts which would be payable or may
thereafter accrue and would not, in the sole determination of such Lender, be
otherwise disadvantageous to such Lender.
(h) Nothing contained in this Section 2.18 shall require any Lender or
the Administrative Agent to make available any of its tax returns (or any other
information that it reasonably deems to be confidential or proprietary).
ARTICLE III. REPRESENTATIONS AND WARRANTIES
The Borrower hereby makes and confirms each representation and
warranty made in the U.S. Credit Agreement to the extent it relates to the
Borrower or any Subsidiary and in addition represents and warrants to each of
the Lenders that:
SECTION 3.01. Use of Proceeds. (a) The Borrower will use the proceeds
of the Loans only for the purposes specified in the preamble to this Agreement.
(b) No part of the proceeds of any Loan will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, (i) to
purchase or carry Margin Stock or to extend credit to others for the purpose of
purchasing or carrying Margin Stock or to refund indebtedness originally
incurred for such purpose, or (ii) for any purpose which entails a violation of,
or which is inconsistent with, the provisions of the Regulations of the Board,
including Regulation G, U or X.
SECTION 3.02. Exchange Controls. There do not exist any exchange
controls or other restrictions on the Borrower or any Subsidiary that could
materially and adversely affect the Borrower's ability to perform its
obligations hereunder, under any other Loan Document or under the U.S. Credit
Agreement.
-34-
ARTICLE IV. CONDITIONS OF LENDING
The obligations of the Lenders to make the Loans hereunder on the
Closing Date are subject to the satisfaction of the following conditions:
(a) The Administrative Agent shall have received a notice of borrowing
as required by Section 2.03.
(b) The representations and warranties set forth in Article III hereof
shall be true and correct in all material respects on and as of the Closing
Date with the same effect as though made on and as of such date, except to
the extent such representations and warranties expressly relate to an
earlier date.
(c) The Borrower shall be in compliance with all the terms and
provisions set forth herein and in each other Loan Document on its part to
be observed or performed, and at the time of and immediately after the
borrowing on the Closing Date, no Event of Default or Default shall have
occurred and be continuing.
(d) The Administrative Agent shall have received a certificate, dated
the Closing Date and signed by a Financial Officer of the Borrower,
confirming compliance with the conditions precedent set forth in paragraphs
(b) and (c) above.
(e) The Administrative Agent shall have received all amounts due and
payable hereunder or under any other Loan Document on or prior to the
Closing Date, including, to the extent invoiced, reimbursement or payment
of all out-of-pocket expenses required to be reimbursed or paid by the
Borrower.
(f) The Administrative Agent shall have received, on behalf of itself
and the Lenders, a favorable written opinion of [ ], counsel for the
Borrower, substantially to the effect set forth in Exhibit C (i) dated the
Closing Date, (ii) addressed to the Administrative Agent, the Lenders and
each Fronting Bank, and (iii) covering such other matters relating to the
Loan Documents and the Transactions as the Administrative Agent shall
reasonably request, and the Borrower hereby instructs such counsel to
deliver such opinion.
(g) All legal matters incidental to this Agreement, the other Loan
Documents and the Transactions shall be reasonably satisfactory to the
Lenders and to counsel for the Administrative Agent.
(h) The Administrative Agent shall have received (i) a certificate of
the Secretary or an Assistant Secretary of the Borrower dated the Closing
Date and certifying (A) that attached thereto is a true and complete copy
of resolutions duly adopted by the Board of Directors or other governing
body of the Borrower authorizing the execution, delivery and performance of
the Loan Documents and the borrowings hereunder, and that such resolutions
have not been modified, rescinded or amended and are in full force and
effect and (B) as to the incumbency and specimen signature of each officer
of the Borrower executing any Loan Document or any other document delivered
in connection herewith; (ii) a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to (i) above; and (iii) such other
documents as the Lenders or counsel for the Administrative Agent, may
reasonably request.
(i) The Parent Guarantee Agreement and each of the Security Documents
set forth in Schedule 1.01 as being delivered on the Closing Date shall
have been duly executed by the parties thereto and delivered to the
Administrative Agent and shall be in full force and effect.
-35-
(j) Each Letter of Credit set forth on Schedule 4.01 shall have been
duly issued and delivered by the applicable Fronting Bank set forth on
Schedule 4.01 to the Administrative Agent and the Aggregate Available
Amount shall be not less than the sum of (i) the aggregate principal amount
of the Dollar Loans to be made on the Closing Date and the Interest
Component in respect thereof and (ii) the Dollar Equivalent of the Local
Currency Loans to be made on the Closing Date and the Foreign Currency
Component in respect thereof.
(k) The Existing Agreement shall have been or shall simultaneously be
terminated and all amounts outstanding thereunder (including all interest
accrued on loans outstanding thereunder to the Closing Date) paid in full (or,
in the case of the principal of loans outstanding thereunder, continued as Loans
hereunder).
ARTICLE V. AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees with each Lender that so long
as this Agreement shall remain in effect and until the commitments of the
Lenders hereunder have been terminated and the principal of and interest on each
Loan and all other expenses or amounts payable under any Loan Document (other
than the Parent Guarantee Agreement) shall have been paid in full, unless the
Required Lenders shall otherwise consent in writing, the Borrower will, and will
cause each of the Subsidiaries to, comply with each covenant set forth in
Article V of the U.S. Credit Agreement to the extent it relates to the Borrower
or any Subsidiary, and in addition will, and will cause each of the Subsidiaries
to:
SECTION 5.01. Notices. Furnish to the Administrative Agent and each
Lender prompt written notice of any Event of Default or Default, specifying the
nature and extent thereof and the corrective action (if any) proposed to be
taken with respect thereto.
SECTION 5.02. Use of Proceeds. Use the proceeds of the Loans only for
the purposes set forth in the preamble to this Agreement.
SECTION 5.03. Further Assurances. Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing financing statements) that may be required
under applicable law or any Security Document, or which the Administrative Agent
may reasonably request, in order to effectuate the transactions contemplated by
the Loan Documents and in order to grant, preserve, protect and perfect the
validity and first priority (subject only to Liens permitted by Section 6.02 of
the U.S. Credit Agreement) of the security interests created or intended to be
created by the Security Documents. 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 of any new subsidiary (subject to the receipt of required
consents from Governmental Authorities and required consents of other third
parties), promptly secure the Obligations (as defined in the Parent Guarantee
Agreement) 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
reasonably satisfactory in form and substance to the Administrative Agent. In
connection with the creation of such security interests and Liens, under the
Security Documents, the Borrower and the Subsidiaries shall deliver or cause to
be delivered to the Administrative Agent all such instruments and documents
(including legal opinions and lien searches) as the Administrative Agent shall
reasonably request to evidence compliance with this Section 5.03. The Borrower
agrees to provide, and to cause each Subsidiary to provide, such evidence as the
Administrative Agent shall reasonably request as to the perfection and priority
status of each such security interest and Lien.
-36-
ARTICLE VI. NEGATIVE COVENANTS
The Borrower hereby covenants and agrees with each Lender that, so
long as this Agreement shall remain in effect and until the commitments of the
Lenders hereunder have been terminated and the principal of and interest on each
Loan and all other expenses or amounts payable under any Loan Document (other
than the Parent Guarantee Agreement) have been paid in full, unless the Required
Lenders shall otherwise consent in writing, the Borrower will not, and will not
cause or permit any of the Subsidiaries to, fail to comply with each covenant
set forth in Article VI of the U.S. Credit Agreement to the extent it relates to
the Borrower or any Subsidiary, and in addition will not, and will not cause or
permit any of the Subsidiaries to:
SECTION 6.01. Aggregate Available Amount. Permit the Aggregate
Available Amount at any time to be less than the Exposure at such time.
SECTION 6.02. Replacement Fronting Bank. Fail, within 60 days of
receipt of written notice from the Required Lenders requesting the replacement
of any Fronting Bank whose long term credit deposits rating has been downgraded
by Standard & Poor's Ratings Group ("S&P") or Xxxxx'x Investors Service Inc.
("Moody's") and who as a result has a rating of less than A from S&P and a
rating of less than A2 from Moody's to replace such Fronting Bank and each
Letter of Credit issued thereby with one or more Fronting Banks acceptable to
the Required Lenders and Letters of Credit issued by such replacement Fronting
Banks having Stated Amounts in the aggregate equal to the aggregate Stated
Amounts of the Letters of Credit issued by the replaced Fronting Bank.
SECTION 6.03. Amendment of Loan Documents. Amend or modify, or grant
any waiver or release under, any Loan Document without the prior written consent
of the Administrative Agent under the U.S. Credit Agreement.
ARTICLE VII. EVENTS OF DEFAULT
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made by the Borrower
or any Loan Party in any Loan Document, or any representation, warranty,
statement or information contained in any report, certificate, financial
statement or other instrument furnished in connection with or pursuant to
any Loan Document, shall prove to have been false or misleading in any
material respect when so made, deemed made or furnished by the Borrower or
any Loan Party and the Aggregate Available Amount shall be less than the
Exposure;
(b) default shall be made in the payment of any principal of any Loan
when and as the same shall become due and payable, whether (i) on the
Maturity Date or (ii) at a date fixed for prepayment thereof or otherwise
and, in the case of a default under clause (ii), such default shall
continue for a period of five Business Days;
(c) default shall have been made in the payment of any interest on any
Loan or any other amount (other than an amount referred to in (b) above)
due under any Loan Document, when and as the same shall have become due and
payable, and such default shall have continued for a period of five
Business Days and the Aggregate Available Amount shall be less than the
Exposure;
(d) (i) default shall be made in the due observance or performance by
the Borrower or any Subsidiary of any covenant, condition or agreement
contained in Section 6.01 or Section 6.02 or (ii) any Letter of Credit
shall expire or cease to be a legal, valid and binding obligation of the
applicable Fronting Bank and, in the case of clause (i) or (ii), such
default
-37-
shall continue for a period of five Business Days, unless, in the case of
clause (ii), (A) such Letter of Credit is replaced with a Letter of Credit
satisfactory to the Required Lenders or (B) the Aggregate Available Amount
shall be greater than the Exposure notwithstanding such expiration or
cessation with respect to such Letter of Credit;
(e) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of any covenant, condition or agreement
contained in any Loan Document (other than those specified in (b), (c) or
(d) above) and such default shall continue unremedied for a period of 45
Business Days after notice thereof from the Administrative Agent to the
Borrower during which the Aggregate Available Amount shall be less than the
Exposure;
(f) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of the Borrower, or of a substantial part of the property
or assets of the Borrower, under any bankruptcy, insolvency, receivership
or similar law, (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or for a
substantial part of the property or assets of the Borrower or (iii) the
winding up or liquidation of the Borrower; and such proceeding or petition
shall continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(g) the Borrower shall (i) voluntarily commence any proceeding or file
any petition seeking relief under any bankruptcy, insolvency, receivership
or similar law, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or the filing of any petition
described in (f) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or for a substantial part of the property or assets of the
Borrower, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they become due
or (vii) take any action for the purpose of effecting any of the foregoing;
or
(h) the maturity of loans outstanding under the U.S. Credit Agreement
shall be accelerated pursuant to Article VII of such Agreement;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (f) or (g) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Borrower, take any or all of the
following actions, at the same or different times: (i) terminate forthwith the
commitments of the Lenders to make Loans hereunder, (ii) declare the Loans then
outstanding to be forthwith due and payable in whole or in part, whereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all other unpaid liabilities of the Borrower accrued
hereunder and under any other Loan Document, shall become forthwith due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Borrower, anything contained
herein or in any other Loan Document to the contrary notwithstanding, and (iii)
make a drawing under each outstanding Letter of Credit in an aggregate amount
for all such Letters of Credit not in excess of the sum of (A) the aggregate
amount then due and payable hereunder in Dollars and (B) an amount that, when
converted by the Administrative Agent to Local Currency in accordance with
normal banking procedures, is sufficient to discharge the aggregate amount then
due and payable hereunder in Local Currency; and, in any event with respect to
the Borrower described in paragraph (f) or (g) above, the commitments of the
Lenders to make Loans hereunder shall automatically terminate, the principal of
the Loans then outstanding, together with accrued interest thereon and all other
unpaid liabilities of the Borrower accrued hereunder and under any other Loan
Document, shall automatically become due and payable, without present- ment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein or in any other Loan
Document to the contrary notwithstanding,
-38-
and the Administrative Agent, at the request of the Required Lenders, shall make
a drawing under each outstanding Letter of Credit in the aggregate amount
referred to above.
ARTICLE VIII. THE ADMINISTRATIVE AGENT
In order to expedite the transactions contemplated by this Agreement,
each of the Lenders and each assignee of any such Lender hereby irrevocably
designates and appoints the Administrative Agent as its agent under this
Agreement and each other Loan Document and authorizes the Administrative Agent
to take such actions on behalf of such Lender or assignee and to exercise such
powers as are specifically delegated to the Administrative Agent by the terms
and provisions hereof and of the other Loan Documents, together with such
actions and powers as are reasonably incidental thereto. The Administrative
Agent shall not have any duty or responsibility except those expressly set forth
in this Agreement and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into any Loan Document or otherwise
against the Administrative Agent.
Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower of any of the terms, conditions, covenants or agreements contained in
any Loan Document. The Administrative Agent shall not be responsible to the
Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents or other instruments
or agreements. The Administrative Agent shall in all cases be fully protected in
acting, or refraining from acting, in accordance with written instructions
signed by the Required Lenders and, except as otherwise specifically provided
herein, such instructions and any action or inaction pursuant thereto shall be
binding on all the Lenders. The Administrative Agent shall, in the absence of
knowledge to the contrary, be entitled to rely on any instrument or document
believed by it in good faith to be genuine and correct and to have been signed
or sent by the proper person or persons. Neither the Administrative Agent nor
any of its directors, officers, employees or agents shall have any
responsibility to the Borrower on account of the failure of or delay in
performance or breach by any Lender of any of its obligations hereunder or to
any Lender on account of the failure of or delay in performance or breach by any
other Lender or the Borrower of any of their respective obligations hereunder or
under any other Loan Document or in connection herewith or therewith. The
Administrative Agent may execute any and all duties hereunder by or through
agents or employees and shall be entitled to rely upon the advice of legal
counsel selected by it with respect to all matters arising hereunder and shall
not be liable for any action taken or suffered in good faith by it in accordance
with the advice of such counsel. The Lenders hereby acknowledge that the
Administrative Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this Agreement unless
it shall be requested in writing to do so by the Required Lenders.
With respect to the Loans made by it hereunder, the Administrative
Agent in its individual capacity and not as Administrative Agent shall have the
same rights and powers as any other Lender and may exercise the same as though
it were not the Administrative Agent, and the Administrative Agent and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Borrower or any Subsidiary or other Affiliate thereof
as if it were not the Administrative Agent.
Each Lender agrees (a) to reimburse the Administrative Agent, on
demand, in the amount of its pro rata share (based on its outstanding Loans
hereunder) of any expenses incurred for the benefit of the Lenders by the
Administrative Agent, including counsel fees and compensation of agents and
employees paid for services rendered on behalf of the Lenders, which shall not
have been reimbursed by the Borrower and (b) to indemnify and hold harmless the
Administrative Agent and any of its directors, officers, employees or agents, on
demand, in the amount of such pro rata share, from
-39-
and against any and all liabilities, taxes, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against it in its capacity as the Administrative Agent or any of them in any way
relating to or arising out of this Agreement or any other Loan Document or any
action taken or omitted by it or any of them under this Agreement or any other
Loan Document, to the extent the same shall not have been reimbursed by the
Borrower; provided that no Lender shall be liable to the Administrative Agent
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
gross negligence or wilful misconduct of the Administrative Agent or any of its
directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement
or any other Loan Document, any related agreement or any document furnished
hereunder or thereunder.
ARTICLE IX. MISCELLANEOUS
SECTION 9.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at UCAR Global Enterprises Inc., 00 Xxx
Xxxxxxxxx Xxxx, Xxxxxxx, XX 00000-0000, Attention of Chief Financial
Officer (Telecopy No. (000) 000-0000), and if to UCAR, to it in care of the
Borrower;
(b) if to the Administrative Agent, to The Loan and Agency Services
Group, 8th floor, Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: [ ] (Telecopy No. (212) [ ]); and
(c) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and shall survive the making by the Lenders
of the Loans, regardless of any investigation made by the Lenders or on their
behalf, and shall continue in full force and effect as long as the principal of
or any accrued interest on any Loan or any other amount payable under this
Agreement or any other Loan Document is outstanding and unpaid and so long as
the commitments of the Lenders to make Loans hereunder have not been terminated.
Without prejudice to the survival of any other agreements contained herein,
indemnification and reimbursement
-40-
obligations contained herein (including pursuant to Sections 2.12, 2.14, 2.18
and 9.05) shall survive the payment in full of the principal and interest
hereunder and the termination of such commitments or this Agreement.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors and assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrower, the Administrative
Agent or the Lenders that are contained in this Agreement shall bind and inure
to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion
of its interests, rights and obligations under this Agreement (including all or
a portion of the Loans at the time owing to it); provided, however, that (i)
except in the case of an assignment to another Lender or an Affiliate of such
Lender, each of the Administrative Agent and the Borrower must give its prior
written consent to such assignment (which consents shall not be unreasonably
withheld or delayed), (ii) except in the case of an assignment to another Lender
or an Affiliate of such Lender, the amount of the Loans of the assigning Lender
subject to each such assignment (determined as of the date notice of such
assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000, and, unless the assignor ceases to be a Lender, the aggregate amount
of the Loans owing to such Lender after giving effect to such assignment shall
be not less than $5,000,000 and (iii) the parties to each such assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance in
form satisfactory to the Administrative Agent (an "Assignment and Acceptance").
Upon acceptance and recording pursuant to paragraph (e) of this Section 9.04,
from and after the effective date specified in each Assignment and Acceptance,
which effective date shall be at least five Business Days after the execution
thereof, (A) the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement and (B) the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.12, 2.14, 2.18 and 9.05).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
the outstanding balances of its Loans, in each case without giving effect to
assignments thereof which have not become effective, are as set forth in such
Assignment and Acceptance; (ii) except as set forth in (i) above, such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any other
Loan Document or any other instrument or document furnished pursuant hereto, or
the financial condition of the Borrower or any Subsidiary or the performance or
observance by the Borrower or any Subsidiary of any of its obligations under
this Agreement, any other Loan Document or any other instrument or document
furnished pursuant hereto; (iii) such assignee represents and warrants that it
is legally authorized to enter into such Assignment and Acceptance; (iv) such
assignee confirms that it has received a copy of this Agreement and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and
-41-
Acceptance; (v) such assignee will independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (vi) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Administrative Agent by the terms
hereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms
all the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in [ ] a copy of each
Assignment and Acceptance delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Lenders, and the principal
amount of the Loans owing to, each Lender pursuant to the terms hereof from time
to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and the Lenders may
treat each person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the
Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee and, if required, the written
consent of the Administrative Agent to such assignment, the Administrative Agent
shall (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Lenders. Notwithstanding anything to the contrary contained herein, no
assignment under Section 9.04(b) of any rights or obligations shall be effective
unless it has been recorded in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower or the
Administrative Agent sell participations to one or more banks or other entities
in all or a portion of its rights and obligations under this Agreement
(including all or a portion of the Loans owing to it); provided, however, that
(i) such Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other entities
shall be entitled to the benefit of the cost protection provisions contained in
Sections 2.12, 2.14, 2.18 and 9.06 to the same extent as if they were Lenders;
provided that no such participating bank or entity shall be entitled to receive
any greater amount pursuant to such Sections than a Lender would have been
entitled to receive in respect of the amount of the participation sold by such
Lender to such participating bank or entity had no sale occurred, and (iv) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right to
enforce the obligations of the Borrower relating to the Loans and to approve any
amendment, modification or waiver of any provision of this Agreement or any
other Loan Document (other than amendments, modifications or waivers decreasing
the amount of principal of or the rate at which interest is payable on the Loans
or extending the Maturity Date).
(g) Any Lender or participant may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section 9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree to be bound by Section 9.18.
-42-
(h) The Borrower shall not assign or delegate any of its rights or
duties hereunder without the prior written consent of the Administrative Agent
and each Lender, and any attempted assignment without such consent shall be null
and void.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay all
reasonable out-of-pocket expenses incurred by the Administrative Agent in
connection with the preparation of this Agreement and the other Loan Documents,
or by the Administrative Agent in connection with the syndication of the credit
facility established hereby or the administration of this Agreement (including
expenses incurred in connection with due diligence and initial and ongoing
collateral examination to the extent incurred with the reasonable prior approval
of the Borrower) or in connection with any amendments, modifications or waivers
of the provisions hereof or thereof (whether or not the transactions hereby
contemplated shall be consummated) or incurred by the Administrative Agent or
any Lender in connection with the enforcement or protection of their rights in
connection with this Agreement and the other Loan Documents or in connection
with the Loans made hereunder, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, and, in connection with
any such enforcement or protection, the reasonable fees, charges and
disbursements of any other counsel (including the reasonable allocated costs of
internal counsel if a Lender elects to use internal counsel in lieu of outside
counsel) for the Administrative Agent or any Lender (but no more than one such
counsel for any Lender).
(b) The Borrower agrees to indemnify the Administrative Agent, each
Lender and each of their respective directors, officers, employees and agents
(each such person being called an "Indemnitee") against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees, charges and disbursements,
incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto and thereto of their
respective obligations thereunder or the consummation of the Transactions and
the other transactions contemplated hereby and thereby, (ii) the use of the
proceeds of the Loans or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or wilful
misconduct of such Indemnitee (treating, for this purpose only, the
Administrative Agent or any Lender and its directors, officers and employees as
a single Indemnitee). Subject to and without limiting the generality of the
foregoing sentence, the Borrower agrees to indemnify each Indemnitee against,
and hold each Indemnitee harmless from, any Environmental Claim relating to the
Borrower or any of its subsidiaries, and any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel or consultant
fees, charges and disbursements, incurred by or asserted against any Indemnitee
(and arising out of, or in any way connected with or as a result of, any of the
events described in clause (i), (ii) or (iii) of the preceding sentence) arising
out of, in any way connected with, or as a result of (A) any Environmental Claim
related in any way to the Borrower or any subsidiary of the Borrower, (B) any
violation of any Environmental Law, (C) any act, omission, event or circumstance
(including the actual, proposed or threatened, release, removal, presence,
disposition, discharge or transportation, storage, holding, existence,
generation, processing, abatement, handling or presence on, into, from or under
any present, past or future property of the Borrower or any subsidiary of the
Borrower of any Hazardous Material); provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such Environmental Claim is,
or such, losses, claims, damages, liabilities or related expenses are,
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee or any of its directors, officers or employees. The provisions of
this Section 9.05 shall remain operative and in full force and effect regardless
of the expiration of the term of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Loans, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document,
-43-
or any investigation made by or on behalf of the Administrative Agent or any
Lender. All amounts due under this Section 9.05 shall be payable on written
demand therefor.
(c) The Borrower shall be entitled to assume the defense of any action
for which indemnification is sought hereunder with counsel of its choice at its
expense (in which case the Borrower shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by an Indemnitee except as
set forth below); provided, however, that such counsel shall be reasonably
satisfactory to each such Indemnitee. Notwithstanding the Borrower's election to
assume the defense of such action, each Indemnitee shall have the right to
employ separate counsel and to participate in the defense of such action, and
the Borrower shall bear the reasonable fees, costs and expenses of such separate
counsel, if (i) the use of counsel chosen by the Borrower to represent such
Indemnitee would present such counsel with a conflict of interest; (ii) the
actual or potential defendants in, or targets of, any such action include both
the Borrower and such Indemnitee and such Indemnitee shall have reasonably
concluded that there may be legal defenses available to it that are different
from or additional to those available to the Borrower (in which case the
Borrower shall not have the right to assume the defense or such action on behalf
of such Indemnitee); (iii) the Borrower shall not have employed counsel
reasonably satisfactory to such Indemnitee to represent it within a reasonable
time after notice of the institution of such action; or (iv) the Borrower shall
authorize such Indemnitee to employ separate counsel at the Borrower's expense.
The Borrower will not be liable under this Agreement for any amount paid by an
Indemnitee to settle any claims or actions if the settlement is entered into
without the Borrower's consent, which consent may not be withheld unless such
settlement is unreasonable in light of such claims or actions against, and
defenses available to, such Indemnitee.
(d) Notwithstanding anything to the contrary in this Section 9.05,
this Section 9.05 shall not apply to taxes, it being understood that the
Borrower's only obligations with respect to taxes shall arise under Sections
2.12 and 2.18.
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender 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 Lender to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement or
any other Loan Document held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement or such other Loan
Document and although such obligations may be unmatured. The rights of each
Lender under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF [ ].
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent or any Lender in exercising any power or right hereunder or
under any Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or
remedies which they would otherwise have. No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for
-44-
which given. No notice or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of any Loan, or waive or excuse any such payment or any part thereof,
or decrease the rate of interest on any Loan, without the prior written consent
of each Lender directly affected thereby, or (ii) amend or modify the provisions
of Section 2.15, the provisions of this Sections 9.08 or the definition of
"Required Lenders", without the prior written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent hereunder or under any other Loan
Document without the prior written consent of the Administrative Agent.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the applicable interest rate, together
with all fees and charges which are treated as interest under applicable law
(collectively the "Charges"), as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for, charged, received,
taken or reserved by any Lender, shall exceed the maximum lawful rate (the
"Maximum Rate") which may be contracted for, charged, taken, received or
reserved by such Lender in accordance with applicable law, the rate of interest
payable hereunder, together with all Charges payable to such Lender, shall be
limited to the Maximum Rate; provided that such excess amount shall be paid to
such Lender on subsequent payment dates to the extent not exceeding the legal
limitation.
SECTION 9.10. Entire Agreement. This Agreement, the Notes and the
other Loan Documents constitute the entire contract between the parties relative
to the subject matter hereof. Any previous agreement among or representations
from the parties with respect to the subject matter hereof is superseded by this
Agreement and the other Loan Documents. Nothing in this Agreement or in the
other Loan Documents, expressed or implied, is intended to confer upon any party
other than the parties hereto and thereto any rights, remedies, obligations or
liabilities under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. 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 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
-45-
SECTION 9.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
9.03.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. [SUPPLY
APPLICABLE PROVISIONS].
SECTION 9.16. Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum due hereunder
or under any other Loan Document in one currency (the "Obligation Currency")
into another currency, the parties hereto agree, to the fullest extent that they
may legally and effectively do so, that the rate of exchange used shall be that
at which in accordance with normal banking procedures the Administrative Agent
could purchase the Obligation Currency with such other currency in New York, New
York, on the Business Day immediately preceding the day on which final judgment
is given.
(b) The obligations of the Borrower and the Subsidiaries in respect of
any sum due to the Administrative Agent or any Lender hereunder or under any
other Loan Document in any Obligation Currency shall, to the extent permitted by
applicable law, notwithstanding any judgment in a currency other than the
Obligation Currency, be discharged only to the extent that on the Business Day
following receipt of any sum adjudged to be so due in the judgment currency, the
Administrative Agent or such Lender may in accordance with normal banking
procedures purchase the Obligation Currency in the amount originally due to the
Administrative Agent or such Lender with the judgment currency. If the amount of
the Obligation Currency so purchased is less than the sum originally due to the
Administrative Agent or such Lender, the Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent or such Lender against the resulting loss.
SECTION 9.17. Subrogation. In the event that any obligation of any
Loan Party under this Agreement or any other Loan Document (a "Claim") is paid
with the proceeds of an L/C Disbursement, the Borrower, the Administrative Agent
and the Lenders hereby agree for the benefit of the Fronting Banks and the
Lenders under the U.S. Credit Agreement that Lenders under the U.S. Credit
Agreement holding Obligations in an amount equal to the aggregate amount of the
Lenders' participations in such L/C Disbursement under the U.S. Credit Agreement
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; provided
that such right of subrogation shall not be effective until, and shall be
subordinated to, payment in full of all the Claims.
SECTION 9.18. Confidentiality. Each of the Lenders and the
Administrative Agent agrees that it shall maintain in confidence any information
relating to UCAR, the Borrower and the Subsidiaries furnished to it by or on
behalf of UCAR, the Borrower or the Subsidiaries (other than information that
(a) has become generally available to the public other than as a result of a
disclosure by such party, (b) has been independently developed by such Lender or
the Administrative Agent without violating this Section 9.18 or (c) was
available to such Lender or the Administrative Agent from a third party having,
to such person's knowledge, no obligations of confidentiality to UCAR, the
Borrower or any Subsidiary) and shall not reveal the same other than (i) to its
directors, officers, employees and advisors with a need to know and (ii) as
contemplated by Section 9.04(g), except: (A) to the extent necessary to comply
with law or any legal process or the requirements of any Governmental Authority
or of any securities exchange on which securities of the disclosing party or any
Affiliate of the disclosing party are listed or traded, (B) as part of normal
reporting or review procedures to
-46-
Governmental Authorities or its parent companies, Affiliates or auditors and (C)
in order to enforce its rights under any Loan Document in a legal proceeding.
SECTION 9.19. Release of Security Documents. The Administrative Agent
and the Lenders (and the Fronting Banks and the Lenders under the U.S. Credit
Agreement and other beneficiaries of the Loan Documents) agree that all liens,
guarantees and other obligations of the Borrower and its Affiliates under the
Security Documents shall automatically and immediately be released but only to
the extent and in the event that the Borrower notifies the Administrative Agent
that the Borrower has been advised by competent counsel that such Security
Document or the Borrower's or an Affiliate's obligations thereunder either (a)
violate or contravene any applicable law or regulation or the interpretation or
administration thereof by any Governmental Authority charged with the
administration or interpretation thereof (whether or not having the force of
law) or (b) result in a material claim for any taxes, levies, imposts,
deductions, charges or withholding against the Borrower or any of its Affiliates
under any applicable law or regulation or the interpretation or administration
thereof by any Governmental Authority charged with the administration or
interpretation thereof (whether or not having the force of law), other than any
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any other Loan Document.
SECTION 9.20. Release of Liens and Guarantees. In the event that the
Borrower or any subsidiary of the Borrower conveys, sells, leases, assigns,
transfers or otherwise disposes of all or any portion of any of the assets or
property of the Borrower or any Capital Stock, assets or property of any such
subsidiary in a transaction not prohibited by Section 6.05 of the U.S. Credit
Agreement, the Administrative Agent shall promptly (and the Lenders hereby
authorize the Administrative Agent to) take such action and execute any such
documents as may be reasonably requested by the Borrower and at the Borrower's
expense to release any Liens created by any Loan Document in respect of such
assets or property, including the release and satisfaction of record of any
mortgage or deed of trust granted in connection herewith[, and, in the case of a
disposition of all the Capital Stock or assets of [SPECIFY ANY GUARANTOR],
terminate such Subsidiary's obligations under its Guarantee Agreement]. In
addition, the Administrative Agent agrees to take such actions as are reasonably
requested by the Borrower and at the Borrower's expense to terminate the Liens
and security interests created by the Loan Documents when all the Obligations
are paid in full (other than with the proceeds of Tranche A Reimbursement Loans
or of a drawing under a Tranche A Letter of Credit or in connection with a
reallocation under Section 2.10(b) of the U.S. Credit Agreement) and all
commitments of the Lenders to make Loans hereunder are terminated. Any
representation, warranty or covenant contained in any Loan Document relating to
any such Capital Stock, assets or property shall no longer be deemed to be made
once such Capital Stock, assets or property is conveyed, sold, leased, assigned,
transferred or disposed of.
-47-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
[BORROWER],
by
-------------------------
Name:
Title:
[ ], individually and as Administrative
Agent,
by
-------------------------
Name:
Title:
(OTHER LENDERS),
by
-------------------------
Name:
Title:
-48-
[Form of Tranche A]
EXHIBIT C
TO THE EFFECTIVENESS AGREEMENT
LETTER OF CREDIT
BENEFICIARY: [NAME OF ADMINISTRATIVE AGENT]
WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT
NO. [ ] BY ORDER OF [ACCOUNT PARTY] (THE "ACCOUNT PARTY") IN YOUR FAVOR FOR AN
AMOUNT NOT TO EXCEED U.S. DOLLARS [ ] (THE "STATED AMOUNT"). THIS LETTER OF
CREDIT EXPIRES [INSERT DATE THAT IS NO LATER THAN THE FIRST BUSINESS DAY PRIOR
TO [DECEMBER 31, 2001] AT THE COUNTERS OF THE CHASE MANHATTAN BANK, NEW YORK,
NEW YORK.
THE STATED AMOUNT MAY BE REDUCED FROM TIME TO TIME BY PRESENTATION OF A
DATED STATEMENT PURPORTEDLY SIGNED BY YOU AND THE ACCOUNT PARTY IN THE
FOLLOWING FORM:
"THE STATED AMOUNT UNDER THE CHASE MANHATTAN BANK LETTER OF CREDIT NO. [ ] IS,
EFFECTIVE AS OF THE DATE HEREOF, HEREBY REDUCED BY $______________ SO THAT FROM
AND AFTER THE DATE HEREOF THE STATED AMOUNT SHALL BE EQUAL TO $______________."
AN AMOUNT UP TO THE STATED AMOUNT UNDER THIS LETTER OF CREDIT IS AVAILABLE TO
YOU IN A SINGLE DRAWING AGAINST PRESENTATION OF YOUR DRAFT AT SIGHT DRAWN ON THE
CHASE MANHATTAN BANK, NEW YORK, NEW YORK, AND ACCOMPANIED BY YOUR DATED
STATEMENT PURPORTEDLY SIGNED BY ONE OF YOUR OFFICIALS IN THE FOLLOWING FORM:
"THE AMOUNT OF THIS DRAWING OF U.S. DOLLARS $_______________ UNDER THE CHASE
MANHATTAN BANK LETTER OF CREDIT NO. [ ] REPRESENTS OUTSTANDING OBLIGATIONS OF
[ACCOUNT PARTY] UNDER THE CREDIT AGREEMENT [DESCRIBE CREDIT AGREEMENT] WHICH ARE
DUE AND OWING TO US AT THIS TIME. WE HEREBY REPRESENT AND WARRANT TO YOU THAT AN
EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING UNDER THE CREDIT AGREEMENT AND
THAT THIS DRAWING IS BEING MADE AS PROVIDED IN ARTICLE VII OF THE CREDIT
AGREEMENT."
IN THE EVENT OF A DRAWING ON US VIA AUTHENTICATED TELETRANSMISSION, A SIGHT
DRAFT ON US IS NOT REQUIRED.
-49-
PRESENTATION OF NOTICES AND DRAWINGS UNDER THIS LETTER OF CREDIT MAY BE MADE BY
FACSIMILE TRANSMISSION OF THE ABOVE REQUIRED STATEMENT TOGETHER WITH THE SIGHT
DRAFT DRAWN ON US TO OUR FACSIMILE NUMBER [ ] ATTENTION: [ ], CONFIRMED IN
WRITING VIA SAME DAY OVERNIGHT MAIL OR AUTHENTICATED TELETRANSMISSION TO THE
ABOVE ATTENTION PARTY.
WE HEREBY AGREE WITH YOU THAT IF DOCUMENTS ARE PRESENTED TO THE CHASE MANHATTAN
BANK UNDER THIS LETTER OF CREDIT AT OR PRIOR TO 11:00 A.M. NEW YORK TIME, ON A
BUSINESS DAY, AND PROVIDED THAT SUCH DOCUMENTS PRESENTED CONFORM WITH THE TERMS
AND CONDITIONS OF THIS LETTER OF CREDIT, PAYMENT SHALL BE EFFECTED BY US IN
IMMEDIATELY AVAILABLE FUNDS BY THE CLOSE OF BUSINESS ON SUCH BUSINESS DAY. IF
DOCUMENTS ARE PRESENTED TO THE CHASE MANHATTAN BANK UNDER THIS LETTER OF CREDIT
AFTER 11:00 A.M. NEW YORK TIME ON A BUSINESS DAY AND PROVIDED THAT SUCH
DOCUMENTS CONFORM WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT,
PAYMENT SHALL BE EFFECTED BY US IN IMMEDIATELY AVAILABLE FUNDS ON THE FOLLOWING
BUSINESS DAY. AS USED IN THIS LETTER OF CREDIT, "BUSINESS DAY" SHALL MEAN ANY
DAY OTHER THAN A SATURDAY, SUNDAY OR A DAY ON WHICH BANKING INSTITUTIONS IN THE
STATE OF NEW YORK ARE AUTHORIZED OR REQUIRED BY LAW TO CLOSE.
PLEASE DIRECT ALL CORRESPONDENCE IN CONNECTION WITH THIS LETTER OF CREDIT
TO OUR STANDBY LETTER OF CREDIT DEPARTMENT LOCATED AT
[ ], NEW YORK, NEW YORK [ ] ATTENTION: [ ].
TELEPHONIC INQUIRIES MAY BE ADDRESSED TO US AT [ ].
WE HEREBY ENGAGE WITH THE DRAWERS, ENDORSERS, AND/OR BONA FIDE HOLDERS THAT ALL
DRAFTS DRAWN UNDER AND IN ACCORDANCE WITH THE TERMS OF THIS LETTER OF CREDIT
WILL BE DULY HONORED UPON PRESENTATION TO US.
WE HEREBY ISSUE THIS IRREVOCABLE STANDBY LETTER OF CREDIT IN YOUR FAVOR. IT
IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS
(1993 REVISION) INTERNATIONAL CHAMBER OF
-50-
COMMERCE PUBLICATION NO. 500 ("UCP") AND ENGAGES US IN ACCORDANCE WITH THE
TERMS THEREOF. THE NUMBER, AND THE DATE OF OUR CREDIT AND THE NAME OF
OUR BANK MUST BE QUOTED ON ALL DRAFTS REQUIRED.
THE CHASE MANHATTAN BANK,
BY:______________________________________
NAME:
TITLE:
-51-
