EXHIBIT 10.9
CONFORMED COPY
REAFFIRMATION AGREEMENT, dated as of
March 19, 1997 (as the same may from
time to time be amended, supplemented or
otherwise modified, this "Agreement"),
among UCAR INTERNATIONAL INC., a
Delaware corporation ("UCAR"), UCAR
GLOBAL ENTERPRISES INC., a Delaware
corporation (the "Borrower"), each
Subsidiary Guarantor listed on the
signature pages below (the "Subsidiary
Guarantors"), each other Subsidiary
party hereto (the "Foreign
Subsidiaries", and collectively with
UCAR, the Borrower and the Subsidiary
Guarantors, the "Reaffirming Parties")
and THE CHASE MANHATTAN BANK as
Administrative Agent and Collateral
Agent (in such capacities, "Chase") for
the benefit of the Lenders and the
Fronting Banks (each as defined in the
Amended and Restated Credit Agreement
referred to below),
WHEREAS UCAR, the Borrower, each of the Lenders, each of the Fronting
Banks and Chase have entered into the Effectiveness Agreement, dated as of the
date hereof (the "Effectiveness Agreement");
WHEREAS each of UCAR, the Borrower and certain of the Subsidiary
Guarantors and Foreign Subsidiaries is party to each pledge agreement to which
it is shown on Schedule A to be a party (collectively, the "Pledge Agreement"),
UCAR and the Borrower are party to the Parent Guarantee Agreement (such term and
each other capitalized term used but not defined herein having the meaning
assigned in the Effectiveness Agreement or the Amended and Restated Credit
Agreement referred to therein) and to a parent guarantee agreement in respect of
each Local Facility Credit Agreement (the "Local Parent Guarantees"), the
Subsidiary Guarantors are party to the Subsidiary Guarantee Agreement, certain
of the Foreign Subsidiaries are parties to the Guarantees in respect of certain
Obligations (the "Foreign Guarantees") and the Borrower and the Subsidiary
Guarantors are party to the Indemnity, Subrogation and Contribution Agreement
(the Pledge Agreement, the Parent Guarantee Agreement, the Local Parent
Guarantees, the Subsidiary Guarantee Agreement, the Foreign Guarantees and the
Indemnity, Subrogation and Contribution Agreement herein together referred to as
the "Collateral Documents").
WHEREAS each Reaffirming Party expects to realize, or has realized,
substantial direct and indirect benefits as a result of the Borrower entering
into the
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Effectiveness Agreement and as a result of the Amended and Restated Credit
Agreement becoming effective; and
WHEREAS the execution and delivery of this Agreement is a condition
precedent to the effectiveness of the Amended and Restated Credit Agreement and
to the availability of credit under the Amended and Restated Credit Agreement
under Section 7(f) of the Effectiveness Agreement;
NOW, THEREFORE, in consideration of the foregoing, to induce Chase,
each Lender and each Fronting Bank to enter into the Effectiveness Agreement and
the Amended and Restated Credit Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
REAFFIRMATION/AMENDMENT AND RESTATEMENT
---------------------------------------
SECTION 1.01. REAFFIRMATION. Each of the Reaffirming Parties hereby
consents to the Effectiveness Agreement and the Amended and Restated Credit
Agreement and hereby confirms its respective guarantees, pledges and grants of
security interests, as applicable, and agrees that notwithstanding the
effectiveness of the Amended and Restated Credit Agreement such guarantees,
pledges and grants of security interests shall continue to be in full force and
effect and shall accrue to the benefit of the Lenders under the Amended and
Restated Credit Agreement.
SECTION 1.02. AMENDMENT AND RESTATEMENT. On and after the
effectiveness of the Amended and Restated Credit Agreement, (i) each reference
in each Collateral Document to the "Credit Agreement", "thereunder", "thereof"
or words of like import shall mean and be a reference to the Amended and
Restated Credit Agreement (as such agreement may be amended, modified or
supplemented and in effect from time to time), (ii) the definition of any term
defined in any Collateral Document by reference to the terms defined in the
Credit Agreement shall be amended to be defined by reference to the defined term
in the Amended and Restated Credit Agreement, as the same may be amended,
modified or supplemented and in effect from time to time and (iii) Schedule I to
the Pledge Agreement is hereby amended as set forth on the Attachment hereto.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
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Each Reaffirming Party hereby represents and warrants, which
representations and warranties shall survive execution and delivery of this
Agreement, as follows:
SECTION 2.01. ORGANIZATION. Such Reaffirming Party is duly organized
and validly existing in good standing under the laws of the jurisdiction of its
formation.
SECTION 2.02. AUTHORITY; ENFORCEABILITY. Such Reaffirming Party has
the power and authority to execute, deliver and carry out the terms and
provisions of this Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement. Such Reaffirming
Party has duly executed and delivered this Agreement, and this Agreement
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms.
SECTION 2.03. LOAN DOCUMENTS. The representations and warranties of
such Reaffirming Party contained in each Loan Document are true and correct in
all material respects on and as of the Effectiveness 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.
ARTICLE III
MISCELLANEOUS
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SECTION 3.01. INDEMNITY. Each Reaffirming Party agrees to indemnify
Chase, each Fronting Bank, each Lender and each of their respective directors,
trustees, officers, employees and agents (each such person being called an
"Indemnitee") against, and to hold each Indemnitee harmless from, any and all
liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, suits, costs or expenses or disbursements (including reasonable
attorneys' fees and expenses) of whatsoever kind or nature which may be imposed
on, asserted against or incurred by any of the Indemnitees arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this
Agreement 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 contemplated hereby and
thereby, or (ii) 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
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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, Chase, any Fronting Bank or any
Lender and its directors, trustees, officers and employees as a single
Indemnitee). The obligations of such Reaffirming Party under this Section shall
be secured hereby and 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 Obligations,
the invalidity or unenforceability of any term or provision of this Agreement or
any other Collateral Document, or any investigation made by or on behalf of
Chase, any Fronting Bank or any Lender. All amounts due under this Section 3.01
shall be payable on written demand therefor.
SECTION 3.02. SETOFF, ETC. In addition to, and without limitation of,
any rights of Chase, the Lenders and the Fronting Banks under applicable law, if
an Event of Default shall have occurred and be continuing, Chase, each Lender
and each Fronting Bank 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 (including
all account balances, whether provisional or final and whether or not collected
or available)) at any time held and other indebtedness at any time owing by such
Lender or such Fronting Bank to or for the credit or the account of any
Reaffirming Party against any of and all the obligations of any Reaffirming
Party now or hereafter existing under this Agreement or any other Loan Document
held by Chase, such Lender or Fronting Bank (except that no asset of any Foreign
Subsidiary may be set off and applied against any obligation of any Reaffirming
Party that is a U.S. person), irrespective of whether or not Chase, such Lender
or such Fronting Bank shall have made any demand under this Agreement or such
other Loan Document and although such obligations may be unmatured. The rights
of Chase, each Lender and each Fronting Bank under this Section 3.02 are in
addition to other rights and remedies (including other rights of setoff) which
Chase, such Lender or such Fronting Bank may have.
SECTION 3.03. NOTICES. All notices and other communications hereunder
shall be made at the addresses, in the manner and with the effect provided in
Article IX of the Amended and Restated Credit Agreement; provided that, for this
purpose, the address of each Reaffirming Party shall be the one specified for
the Borrower under the Amended and Restated Credit Agreement.
SECTION 3.04. LIMITATION OF LIABILITY. No claim may be made by any
Reaffirming Party or any other person against Chase, any Lender and any Fronting
Bank or the Affiliates, directors, trustees, officers, employees, attorneys or
agents of any of them for any special, indirect, consequential or punitive
damages in respect of any claim for breach of contract or any other theory of
liability arising out of or related to the transactions contemplated by the
Effectiveness Agreement, the Amended and Restated Credit Agreement, the Credit
Agreement or this Agreement, or any act, omission or event occurring in
connection therewith; and each Reaffirming Party hereby waives, releases and
agrees not to
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sue upon any claim for any such damages, whether or not accrued and whether or
not known or suspected to exist in its favor and each Reaffirming Party agrees
to notify Chase, any Lender and any Fronting Bank, as applicable, of any such
claim promptly upon learning of any such claim.
SECTION 3.05. LIABILITY OF CHASE, ANY LENDER AND ANY FRONTING BANK,
ETC. If any claim is ever made upon Chase, any Lender and any Fronting Bank for
repayment or recovery of any amount or amounts received in payment or on account
of any of the Obligations and any of the aforesaid payees repays all or part of
said amount by reason of (a) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its property
or (b) any settlement or compromise of any such claim effected by such payee
with any such claimant (including the Borrower or any other obligor in respect
of any Obligation), then and in such event each Reaffirming Party agrees that
any such judgment, decree, order, settlement or compromise shall be binding upon
it, notwithstanding any revocation hereof or the cancellation of any Loan
Document or other instrument evidencing any liability of the Borrower or any
other obligor in respect of any Obligation, and such Reaffirming Party shall be
and remain liable to the aforesaid payees hereunder for the amount so repaid or
recovered to the same extent as if such amount had never originally been
received by any such payee.
SECTION 3.06. CHOICE OF LAW; CONSENT TO JURISDICTION. THIS AGREEMENT
SHALL BE IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
EACH REAFFIRMING PARTY 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, 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 LENDER OR FRONTING
BANK MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT AGAINST ANY REAFFIRMING PARTY OR THEIR PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
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SECTION 3.07. EXPENSES. Each Reaffirming Party agrees to pay all
reasonable costs, fees and expenses (including reasonable attorneys' fees and
time charges of attorneys for Chase, any Lender and any Fronting Bank, which
attorneys may be employees of Chase, any Lender and any Fronting Bank) incurred
by Chase, any Lender and any Fronting Bank in collecting or enforcing any
Reaffirming Party's obligations under this Agreement (except that no Foreign
Subsidiary shall be obligated to pay any amount owed by any Reaffirming Party
that is a U.S. person).
SECTION 3.08. LOAN DOCUMENT. This Agreement is a Loan Document
executed pursuant to the Amended and Restated Credit Agreement and shall (unless
otherwise expressly indicated herein) be construed, administered and applied in
accordance with the terms and provisions thereof.
SECTION 3.09. SECTION CAPTIONS. Section captions used in this
Agreement are for convenience of reference only and shall not affect the
construction of this Agreement.
SECTION 3.10. SEVERABILITY. Wherever possible each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
SECTION 3.11. WAIVER OF JURY TRIAL. EACH OF THE REAFFIRMING PARTIES
AND CHASE BY ITS ACCEPTANCE HEREOF HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON OR 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 AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR CHASE, ANY LENDER AND ANY FRONTING BANK TO ENTER INTO THE
EFFECTIVENESS AGREEMENT AND THE AMENDED AND RESTATED CREDIT AGREEMENT.
Section 3.12. SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and assigns.
Section 3.13. AMENDMENT. This Agreement may be waived, modified or
amended only be a written agreement executed by each of the parties hereto.
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Section 3.14 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original
but all of which shall together constitute one and the same agreement. Delivery
of an executed counterpart of a signature page of this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Agreement.
Section 3.15. NO NOVATION. Neither this Agreement nor the execution,
delivery or effectiveness of the Amended and Restated Credit Agreement or the
Effectiveness Agreement shall extinguish the obligations for the payment of
money outstanding under the Credit Agreement or the Amended and Restated Credit
Agreement or discharge or release the Lien or priority of the Pledge Agreement
or any other security therefor. Nothing herein contained shall be construed as a
substitution or novation of the obligations outstanding under the Credit
Agreement or the Amended and Restated Credit Agreement or instruments securing
the same, which shall remain in full force and effect, except to any extent
modified hereby or by instruments executed concurrently herewith. Nothing
implied in this Agreement, the Effectiveness Agreement or in any other document
contemplated hereby or thereby shall be construed as a release or other
discharge of any Borrower or any Guarantor or any Subsidiary Pledgor or any
Pledgor or any party to the Indemnity, Subrogation and Contribution Agreement
under any Collateral Document from any of its obligations and liabilities as a
"Borrower", "Guarantor", "Subsidiary Guarantor", "Pledgor" or "party to the
Indemnity, Subrogation and Contribution Agreement" under the Credit Agreement or
the Collateral Documents. Each of the Credit Agreement and the Collateral
Documents shall remain in full force and effect, until (as applicable) and
except to any extent modified hereby or by the Effectiveness Agreement or in
connection herewith and therewith.
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IN WITNESS WHEREOF, each Reaffirming Party and Chase as Administrative
Agent and Collateral Agent for the benefit of the Lenders and the Fronting Banks
have caused this Agreement to be duly executed and delivered as of the date
first above written.
UCAR INTERNATIONAL INC.,
by: /s/ William P. Wiemels
----------------------
Name: William P. Wiemels
Title: Vice President, Chief Financial
Officer & Treasurer
UCAR GLOBAL ENTERPRISES INC.,
by: /s/ William P. Wiemels
----------------------
Name: William P. Wiemels
Title: Vice President, Chief Financial
Officer & Treasurer
UCAR CARBON COMPANY INC.,
by: /s/ William P. Wiemels
----------------------
Name: William P. Wiemels
Title: Vice President, Chief Financial
Officer & Treasurer
UCAR CARBON TECHNOLOGY
CORPORATION,
by: /s/ William P. Wiemels
----------------------
Name: William P. Wiemels
Title: Vice President, Chief Financial
Officer & Treasurer
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UCAR COMPOSITES INC.,
by: /s/ Karen G. Narwold
--------------------
Name: Karen G. Narwold
Title: Assistant Secretary
UCAR HOLDINGS INC.,
by: /s/ William P. Wiemels
----------------------
Name: William P. Wiemels
Title: Vice President, Chief Financial
Officer & Treasurer
UNION CARBIDE GRAFITO INC.,
by: /s/ James H. Wimer
------------------
Name: James H. Wimer
Title: V.P. - Finance & Treasurer
UCAR HOLDINGS II INC.,
by: /s/ William P. Wiemels
----------------------
Name: William P. Wiemels
Title: Vice President, Chief Financial
Officer & Treasurer
UCAR HOLDINGS III INC.,
by: /s/ William P. Wiemels
----------------------
Name: William P. Wiemels
Title: Vice President, Chief Financial
Officer & Treasurer
UCAR INTERNATIONAL TRADING INC.,
by: /s/ William P. Wiemels
----------------------
Name: William P. Wiemels
Title: Vice President, Chief Financial
Officer & Treasurer
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UCAR MEXICANA S.A. de C.V.,
by: /s/ William P. Wiemels
----------------------
Name: William P. Wiemels
Title: Vice President, Chief Financial
Officer & Treasurer
UCAR CARBON MEXICANA S.A. de C.V.,
by: /s/ William P. Wiemels
----------------------
Name: William P. Wiemels
Title: Vice President, Chief Financial
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
and Collateral Agent,
by: /s/ James H. Ramage
-------------------
Name: James H. Ramage
Title: Vice President
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