CONFORMED COPY
INDEMNITY, SUBROGATION
AND CONTRIBUTION AGREEMENT
INDEMNITY, SUBROGATION and CONTRIBUTION AGREEMENT
dated as of February 22, 2000, among UCAR INTERNATIONAL INC.,
a Delaware corporation ("UCAR"), UCAR GLOBAL ENTERPRISES INC.,
a Delaware corporation ("GLOBAL"), UCAR FINANCE INC., a
Delaware corporation, as borrower (the "BORROWER"), each of
the Domestic Subsidiaries party hereto (such Domestic
Subsidiaries and Global collectively, the "SUBSIDIARY
GUARANTORS"), and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as collateral agent for the Secured Parties (such term and
each other capitalized term used but not defined herein having
the meaning given it in Article I of the Credit Agreement).
Reference is made to Credit Agreement dated as of February 22,
2000 (as the same may be amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT") among
UCAR, Global, the Borrower, the LC Subsidiaries from time to
time party thereto, the Lenders from time to time party
thereto and Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent, Collateral Agent and Issuing Bank.
The Lenders and the Issuing Bank, respectively, have
agreed to make Loans and to issue Letters of Credit pursuant to, and
upon the terms and subject to the conditions specified in, the Credit
Agreement. Each of the Subsidiary Guarantors has agreed to guarantee,
among other things, all the obligations of the Borrower and the LC
Subsidiaries under the Credit Agreement.
The obligations of the Lenders to make the Loans and
of the Issuing Bank to issue the Letters of Credit under the Credit
Agreement are conditioned upon, among other things, the execution and
delivery by the Subsidiary Guarantors of an indemnity, subrogation and
contribution agreement in the form hereof (the "AGREEMENT") to support
the due and punctual payment of, with respect to each Subsidiary
Guarantor, its obligations as obligor or guarantor in respect of (a)
the due and punctual payment of (i) the principal of and premium, if
any, and interest (including interest accruing during the pendency of
any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on the
Loans, when and as due, whether at maturity, by acceleration, upon one
or more dates set for prepayment or otherwise, (ii) each payment
required to be made by the Borrower or any Subsidiary under the Credit
Agreement in respect of any Letter of Credit, when and as due,
including payments in respect of reimbursement of disbursements,
interest thereon and obligations to provide cash collateral and (iii)
all other monetary obligations, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or
otherwise (including monetary obligations incurred during the pendency
of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such
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proceeding), of UCAR, Global, the Borrower and the Subsidiaries
(including, without limitation, all monetary obligations of the
Intercompany Borrowers under the Intercompany Notes and Intercompany
Borrower Agreements, but only for so long as the Intercompany Notes and
the rights of the Borrower under the Intercompany Borrower Agreements
are pledged to the Collateral Agent under one or more Pledge Agreements
as security for the Obligations), (b) the due and punctual performance
of all covenants, agreements, obligations and liabilities of the Loan
Parties under or pursuant to the Credit Agreement and the other Loan
Documents, (c) unless otherwise agreed upon in writing by the
applicable Lender party thereto, the due and punctual payment and
performance of all obligations of the Borrower and the Subsidiaries,
monetary or otherwise, under each Interest/Exchange Rate Protection
Agreement entered into with any counterparty that (i) was a Lender (or
an Affiliate thereof) at the time such Interest/Exchange Rate
Protection Agreement was entered into or (ii) (A) was a "Lender" (or an
Affiliate thereof) as defined in the Existing Credit Agreements at the
time such Interest/Exchange Rate Protection Agreement was entered into
and (B) was one of the initial lenders under the Credit Agreement (or
an Affiliate thereof) and (d) all obligations of UCAR and Global under
the Guarantee Agreements (all of the foregoing obligations
collectively, the "OBLIGATIONS").
Accordingly, UCAR and the Borrower, each Subsidiary
Guarantor and the Collateral Agent agree as follows:
SECTION 1. INDEMNITY AND SUBROGATION. In addition to
all such rights of indemnity and subrogation as the Subsidiary
Guarantors may have under applicable law (but subject to Section 3),
UCAR and the Borrower agree that (a) in the event a payment shall be
made by any Subsidiary Guarantor under the Guarantee Agreement, UCAR
and the Borrower shall indemnify such Subsidiary Guarantor for the full
amount of such payment and such Subsidiary Guarantor shall be
subrogated to the rights of the person to whom such payment shall have
been made to the extent of such payment and (b) in the event any assets
of any Subsidiary Guarantor shall be sold pursuant to any applicable
security agreement or similar instrument or agreement to satisfy a
claim of any Secured Party, UCAR and the Borrower shall indemnify such
Subsidiary Guarantor in an amount equal to the greater of the book
value or the fair market value of the assets so sold.
SECTION 2. CONTRIBUTION AND SUBROGATION. Each
Subsidiary Guarantor agrees (subject to Section 3) that in the event a
payment shall be made by any Subsidiary Guarantor under the Guarantee
Agreement or assets of any Subsidiary Guarantor shall be sold pursuant
to any applicable security agreement or similar instrument or agreement
to satisfy a claim of any Secured Party, and such Subsidiary Guarantor
(the "CLAIMING SUBSIDIARY GUARANTOR") shall not have been indemnified
by UCAR or the Borrower as provided in Section 1, each other Subsidiary
Guarantor (a "CONTRIBUTING SUBSIDIARY GUARANTOR") shall indemnify the
Claiming Subsidiary Guarantor in an amount equal to the amount of such
payment or the greater of the book value or the fair market value of
such assets, as the case may be, multiplied by a fraction of which the
numerator shall be the net worth of the Contributing Subsidiary
Guarantor on the date hereof and the denominator shall be the aggregate
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net worth of all the Subsidiary Guarantors on the date hereof (or, in
the case of any Subsidiary Guarantor becoming a party hereto pursuant
to Section 16, the date of the Supplement hereto executed and delivered
by such Subsidiary Guarantor). Any Contributing Subsidiary Guarantor
making any payment to a Claiming Subsidiary Guarantor pursuant to this
Section 2 shall be subrogated to the rights of such Claiming Subsidiary
Guarantor under Section 1 to the extent of such payment.
SECTION 3. SUBORDINATION. Notwithstanding any
provision of this Agreement to the contrary, all rights of the
Subsidiary Guarantors under Sections 1 and 2 and all other rights of
indemnity, contribution or subrogation under applicable law or
otherwise shall be fully subordinated to the indefeasible payment in
full of the Obligations. No failure on the part of UCAR, the Borrower
or any Subsidiary Guarantor to make the payments required by Sections 1
and 2 (or any other payments required under applicable law or
otherwise) shall in any respect limit the obligations and liabilities
of any other Subsidiary Guarantor with respect to any Guarantee, and
each Subsidiary Guarantor shall remain liable for the full amount of
the Obligations that such Subsidiary Guarantor has otherwise
guaranteed.
SECTION 4. TERMINATION. This Agreement shall
terminate when all the Obligations have been indefeasibly paid in full,
no Letters of Credit are outstanding and the Secured Parties have no
further Commitments under the Credit Agreement.
SECTION 5. CONTINUED EFFECTIVENESS. UCAR, the
Borrower and each Subsidiary Guarantor further agree that this
Agreement shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of principal of or
interest on any Obligation is rescinded or must otherwise be restored
by any Secured Party or any Subsidiary Guarantor upon the bankruptcy or
reorganization of UCAR, the Borrower, any Subsidiary Guarantor or
otherwise.
SECTION 6. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK.
SECTION 7. WAIVERS; AMENDMENT. (a) No failure or
delay of the Collateral Agent, any Secured Party, or any Guarantor in
exercising any power or right hereunder 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 the remedies of
the Secured Parties under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise
have. No waiver of any provisions of this Agreement or consent to any
departure by any Subsidiary Guarantor 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 which given. No notice or demand on
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any Subsidiary Guarantor in any case shall entitle such Subsidiary
Guarantor to any other or further notice or demand in similar or other
circumstances.
(b) Except for the operation of Section 16 of this
Agreement, neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement
entered into between the Subsidiary Guarantors and the Collateral
Agent, with the prior written consent of the Required Lenders.
SECTION 8. NOTICES. All communications and notices
hereunder shall be in writing and given as provided in the Credit
Agreement, except those to any Subsidiary Guarantor that is not an LC
Subsidiary, which shall be directed to the address set forth under its
signature below.
SECTION 9. BINDING AGREEMENT; ASSIGNMENTS. This
Agreement shall become effective as to each of UCAR, the Borrower or
any Subsidiary Guarantor when a counterpart hereof executed on behalf
of UCAR, the Borrower or such Subsidiary Guarantor shall have been
delivered to the Collateral Agent and a counterpart hereof shall have
been executed on behalf of the Collateral Agent, and thereafter shall
be binding upon each of UCAR, the Borrower or such Subsidiary Guarantor
and the Collateral Agent and their respective successors and permitted
assigns, and shall inure to the benefit of such Subsidiary Guarantor
and the Secured Parties, and their respective successors and permitted
assigns, except that no Subsidiary Guarantor shall have the right to
assign its rights hereunder or any interest herein (and any such
attempted assignment shall be void), except as expressly contemplated
by this Agreement or the other Loan Documents.
SECTION 10. SUCCESSORS AND ASSIGNS. Whenever in this
Agreement any of the parties hereto is referred to, such reference
shall be deemed to include the successors and permitted assigns of such
party, and all covenants, promises and agreements by or on behalf of
each of UCAR, the Borrower or any Subsidiary Guarantor or the
Collateral Agent that are contained in this Agreement shall bind and
inure to the benefit of their respective successors and permitted
assigns.
SECTION 11. SURVIVAL OF AGREEMENT; SEVERABILITY. (a)
All covenants, agreements, representations and warranties made by each
of UCAR, the Borrower and each Subsidiary Guarantor herein and in any
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 Secured Parties and each
Subsidiary Guarantor and shall survive the making by the Lenders of the
Loans, the execution and delivery to the Lenders of the Loan Documents
and the issuance by the Issuing Bank of Letters of Credit, regardless
of any investigation made by the Secured Parties 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 LC Disbursement or any Fee or
any other amount payable under, or in respect of, this Agreement or
under any of the other Loan Documents is outstanding and unpaid and so
long as any Letter of Credit is outstanding and so long as the
Commitments have not been terminated.
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(b) 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
(it being understood that the invalidity of a particular provision in a
particular jurisdiction shall not in and of itself affect the validity
of such provision in any other jurisdiction). 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.
SECTION 12. COUNTERPARTS. This 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
instrument.
SECTION 13. RULES OF INTERPRETATION. The rules of
interpretation specified in Section 1.03 of the Credit Agreement shall be
applicable to this Agreement.
SECTION 14. JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (a) Each of UCAR, the Borrower and each Subsidiary Guarantor
hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court
or Federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment related to any such action
or proceeding, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to
the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit
on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any Loan Party or any Secured
Party may otherwise have to bring any action or proceeding relating to
this Agreement against UCAR, the Borrower or any Subsidiary Guarantor
or any Secured Party or their properties in the courts of any
jurisdiction.
(b) Each of UCAR, the Borrower, each Subsidiary
Guarantor and each Secured Party hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement
in any New York State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents
to service of process in the manner provided for notices in Section 8.
Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
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SECTION 15. 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. 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
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 15.
SECTION 16. ADDITIONAL SUBSIDIARY GUARANTORS.
Pursuant to Section 6.11 of the Credit Agreement, each Domestic
Subsidiary that was not in existence or not a Subsidiary on the date
thereof is required to enter into this Agreement as a Subsidiary
Guarantor upon becoming a Domestic Subsidiary. Upon execution and
delivery, after the date hereof, by the Collateral Agent and a Domestic
Subsidiary of an instrument in the form of Annex 1, such Domestic
Subsidiary shall become a Subsidiary Guarantor hereunder with the same
force and effect as if originally named as a Subsidiary Guarantor
hereunder. The execution and delivery of any such instrument shall not
require the consent of any Subsidiary Guarantor hereunder. The rights
and obligations of each Subsidiary Guarantor hereunder shall remain in
full force and effect notwithstanding the addition of any new
Subsidiary Guarantor as a party to this Agreement.
SECTION 17. HEADINGS. Article and Section headings
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 interpretive, this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their duly authorized officers as of
the date first appearing above.
UCAR INTERNATIONAL INC.
by
/S/ XXXXX X. FALLS
-------------------------------
Name: Xxxxx X. Falls
Title: Treasurer
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UCAR GLOBAL ENTERPRISES INC.
by
/S/ XXXXX X. FALLS
--------------------------------
Name: Xxxxx X. Falls
Title: Treasurer
UCAR FINANCE INC.
by
/S/ XXXXX X. FALLS
---------------------------------
Name: Xxxxx X. Falls
Title: Treasurer
EACH OF THE SUBSIDIARY GUARANTORS
LISTED ON SCHEDULE I HERETO
by
/S/ XXXXX X. FALLS
---------------------------------
Name: Xxxxx X. Falls
Title: Treasurer
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Collateral Agent
by
/S/ XXXXXXX XXXXXXXX
---------------------------------
Name: Xxxxxxx XxXxxxxx
Title: Vice President
SCHEDULE I
TO INDEMNITY SUBROGATION
AND CONTRIBUTION AGREEMENT
SUBSIDIARY GUARANTORS
UCAR Carbon Company Inc.
UCAR Holdings II Inc.
UCAR Holdings III Inc.
UCAR International Trading Inc.
UCAR Composites Inc.
ANNEX I TO
INDEMNITY, SUBROGATION
AND CONTRIBUTION AGREEMENT
SUPPLEMENT NO. dated as of [ ], to
the Indemnity, Subrogation and Contribution
Agreement dated February 22, 2000 (the
"INDEMNITY, SUBROGATION AND CONTRIBUTION
AGREEMENT"), among UCAR INTERNATIONAL INC.,
a Delaware corporation ("UCAR"), UCAR
FINANCE INC., a Delaware corporation (the
"BORROWER"), each of the Subsidiary
Guarantors (each capitalized term used but
not defined having the meaning given it in
the Indemnity, Subrogation and Contribution
Agreement or the Credit Agreement) party
thereto and XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Collateral Agent for the
Secured Parties.
A. Reference is made to Credit Agreement dated as of
February 22, 2000 (as the same may be amended, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among
UCAR, UCAR Global Enterprises Inc., a Delaware corporation ("GLOBAL"),
the Borrower, the LC Subsidiaries from time to time party thereto, the
Lenders from time to time party thereto and Xxxxxx Guaranty Trust
Company of New York, as Administrative Agent, Collateral Agent and
Issuing Bank.
B. Certain Subsidiary Guarantors have entered into
the Indemnity, Subrogation and Contribution Agreement in order to
induce the Lenders to make Loans and the Issuing Bank to issue Letters
of Credit pursuant to, and upon the terms and subject to the conditions
specified in, the Credit Agreement. Pursuant to Section 6.11 of the
Credit Agreement, promptly after its creation or acquisition, each
additional Domestic Subsidiary is required to become a party to the
Indemnity, Subrogation and Contribution Agreement as a Subsidiary
Guarantor. Section 16 of the Indemnity, Subrogation and Contribution
Agreement provides that additional Domestic Subsidiaries may become
Subsidiary Guarantors under the Indemnity, Subrogation and Contribution
Agreement by execution and delivery of an instrument in the form of
this Supplement. The undersigned (the "NEW SUBSIDIARY GUARANTOR") is a
Domestic. Subsidiary and is executing this Supplement in accordance
with the requirements of the Credit Agreement to become a Subsidiary
Guarantor under the Indemnity, Subrogation and Contribution Agreement
in order to induce the Lenders to make additional Loans and the
Fronting Banks to issue additional Letters of Credit and as
consideration for Loans previously made and Letters of Credit
previously issued.
Accordingly, the Collateral Agent and the New
Subsidiary Guarantor agree as follows:
SECTION 1. In accordance with Section 16 of the
Indemnity, Subrogation and Contribution Agreement, the New Subsidiary
Guarantor by its signature below becomes a Subsidiary Guarantor under
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the Indemnity, Subrogation and Contribution Agreement with the same
force and effect as if originally named therein as a Subsidiary
Guarantor and the New Subsidiary Guarantor hereby agrees to all the
terms and provisions of the Indemnity, Subrogation and Contribution
Agreement applicable to it as a Subsidiary Guarantor thereunder. Each
reference to a "Subsidiary Guarantor" in the Indemnity, Subrogation and
Contribution Agreement shall be deemed to include the New Subsidiary
Guarantor. The Indemnity, Subrogation and Contribution Agreement is
hereby incorporated herein by reference.
SECTION 2. The New Subsidiary Guarantor represents
and warrants to the Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal,
valid and binding obligation, enforceable against it in accordance with
its terms, subject to the effects of applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally and equitable
principles of general applicability.
SECTION 3. This Supplement may be executed in two or
more counterparts, each of which shall constitute an original, but all
of which, when taken together, shall constitute but one instrument.
This Supplement shall become effective when the Collateral Agent shall
have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Subsidiary Guarantor and the
Collateral Agent.
SECTION 4. Except as expressly supplemented hereby,
the Indemnity, Subrogation and Contribution Agreement shall remain in
full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. If any one or more of the provisions
contained in this Supplement should be held invalid, illegal or
unenforceable in any respect, neither party hereto shall be required to
comply with such provision for so long as such provision is held to be
invalid, illegal or unenforceable, but the validity, legality and
enforceability of the remaining provisions contained herein and in the
Indemnity, Subrogation and Contribution Agreement shall not in any way
be affected or impaired. The parties hereto shall endeavor in
good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 7. All communications and notices hereunder
shall be in writing and given as provided in the Credit Agreement. All
communications and notices hereunder to the New Subsidiary Guarantor
shall be given to it at the address set forth under its signature, with
a copy to the Borrower.
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IN WITNESS WHEREOF, the New Subsidiary Guarantor and
the Collateral Agent have duly executed this Supplement to the
Indemnity, Subrogation and Contribution Agreement as of the day and
year first above written.
[NAME OF NEW SUBSIDIARY GUARANTOR],
by
Name:
Title:
Address:
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Collateral Agent,
by
Name:
Title:
