EX-10.1.6 12 dex1016.htm PLEDGE AGREEMENT MADE BY GRAFTECH SWITZERLAND S.A. EXECUTION VERSION
Exhibit 10.1.6
EXECUTION VERSION
PLEDGE AGREEMENT dated as of April 28, 2010 (the “Agreement”), by GRAFTECH SWITZERLAND S.A., a Swiss corporation (“Swissco” or the “Pledgor”), in favor of JPMORGAN CHASE BANK, N.A., 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 the Credit Agreement dated as of April 28, 2010, among GrafTech, Global, GrafTech Finance Inc., GrafTech Switzerland S.A., the LC Subsidiaries from time to time party thereto, the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent, Collateral Agent and Issuing Bank (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”)).
WHEREAS it is a condition precedent to the obligations of the Lenders to make the Loans and of the Issuing Bank to issue the Letters of Credit that Swissco shall have executed and delivered this Pledge Agreement;
(b) The following terms shall have the following meanings:
“Additional Collateral” shall mean all rights of the Pledgor under any Guarantees, security agreements or other instruments or documents guaranteeing or securing any other Collateral.
“Collateral” shall mean the Pledged Securities, the UCC Collateral, the Additional Collateral and all Proceeds thereof.
“Collateral Account” shall mean any account established to hold money Proceeds, maintained under the sole dominion and control of and on terms and conditions reasonably satisfactory to the Collateral Agent, subject to withdrawal by the Collateral Agent for the account of the Secured Parties and the Pledgor, as provided in Section 8(a) and Section 15.
“Issuers” shall mean the companies identified on Schedule I attached hereto as the issuers of the Pledged Securities and each issuer of any securities included in the Additional Collateral.
“Pledged Notes” shall mean any Indebtedness owned by Swissco, including (a) the notes listed on Schedule I hereto and (b) all other notes and instruments evidencing Indebtedness of GrafTech, Global, the Borrowers, any Subsidiary or any other person that shall be owned at any time or from time to time by Swissco.
“Pledged Securities” shall mean the Pledged Notes and the Pledged Stock.
“Pledged Stock” shall mean the Capital Stock listed on Schedule I hereto or hereafter acquired by Swissco (other than Capital Stock issued by an entity organized under the laws of South Africa, Australia or England and Wales), together with all certificates from time to time evidencing such Capital Stock.
“Proceeds” shall mean all “proceeds” (as such term is defined in Section 9-102 of the UCC on the date hereof) of any Collateral and, in any event, shall include all interest, payments, prepayments, collections, dividends or other distributions or other income on the Pledged Stock or the Pledged Notes.
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Swissco Obligations” shall mean (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 of Swissco, 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 Swissco or any Swissco CFC under this 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, (iii) 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 all Indebtedness of Swissco owed to Finance or any other Loan Party, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, and (iv) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of Swissco and the Swissco CFCs under this Agreement, the other Loan Documents and the Indebtedness referred to in clause (iii), (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of Swissco and the Swissco CFCs under or pursuant to this Agreement and the other Loan
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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 Swissco, monetary or otherwise, under each Interest/Exchange Rate Protection Agreement and each Commodity Rate Protection Agreement entered into with any counterparty that (i) is or was a Lender (or an Affiliate thereof) at the time such Interest/Exchange Rate Protection Agreement or Commodity Rate Protection Agreement was entered into or (ii)(A) was a “Lender” as defined in the Existing Credit Agreement (or an Affiliate thereof) at the time such Interest/Exchange Rate Protection Agreement was entered into and (B) was one of the initial Lenders under this Agreement (or an Affiliate thereof), (d) all obligations of Swissco and the Swissco CFCs under the Guarantee Agreements and (e) unless otherwise agreed upon in writing by the applicable Lender party thereto, the due and punctual payment and performance of the obligations of Swissco, monetary or otherwise, under each Cash Management Arrangement entered into with (i) any person that is or was a Lender (or an Affiliate thereof) at the time such Cash Management Arrangement was entered into or (ii) in the case of any Cash Management Arrangement in effect on the Effective Date, any person that was a Lender under this Agreement on the Effective Date (or an Affiliate thereof).
“UCC” shall mean the Uniform Commercial Code from time to time in effect in the State of New York.
“UCC Collateral” shall have the meaning given such term in Section 2.
(c) The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and section references are to this Agreement unless otherwise specified. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.
(d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
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pledges, hypothecates and transfers to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of the Pledgor’s right, title and interest in and to all of the property now owned or at any time hereafter acquired by the Pledgor in which a security interest may be perfected by the filing of a financing statement under Article 9 of the UCC (the “UCC Collateral”).
(b) The Pledgor agrees that, until the Commitments under the Credit Agreement have been terminated and the principal of and interest on each Loan, all fees referred to in the Credit Agreement and all other expenses or amounts payable under any Loan Document have been paid in full and all Letters of Credit have been canceled or have expired and all amounts drawn thereunder have been reimbursed in full, the Collateral Agent will have the right, after the occurrence and during the continuance of an Event of Default, to the exclusion of the Pledgor, to exercise all rights of the Pledgor, and to make all demands and give all notices to be made or given by the Pledgor, under or in respect of any Pledged Note in accordance with its terms and any related guarantee agreements guaranteeing or security documents securing such Pledged Note, as their rights may appear therein (and the Pledgor agrees that any such demand or notice made or given by it in violation of the provisions of this paragraph shall be of no force or effect). Without limiting the foregoing, the Pledgor agrees that at any time after the occurrence and during the continuance of an Event of Default, the Collateral Agent may demand payment of the principal of and interest accrued on any Pledged Note.
(a) The shares of Pledged Stock listed on Schedule I constitute the portion of the issued and outstanding shares of all classes of the Capital Stock of the applicable Issuer set forth on Schedule I and the Pledged Notes evidence the obligations of the applicable Issuer to the Pledgor in aggregate principal amounts as set forth on Schedule I.
(b) The Pledged Securities have been duly and validly authorized and issued by the Issuers thereof and (i) in the case of Pledged Stock, are fully paid and nonassessable and (ii) in the case of Pledged Notes, are legal, valid and binding obligations of the issuers thereof.
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(c) Subject to Section 21(b), the Pledgor is the legal, record and beneficial owner of the Pledged Securities and of the Additional Collateral, free of any and all Liens, or options in favor of, or claims of, any other person, except Liens permitted by the Credit Agreement.
(d) All Capital Stock or other ownership interests in the Domestic Subsidiaries (other than limited liability companies and partnerships) will at all times constitute certificated securities for purposes of Articles 8 and 9 of the UCC as in effect in the State of New York or its equivalent in other jurisdictions.
(e) Except for restrictions and limitations imposed by the Loan Documents, securities laws generally, the laws of the country of organization of any Issuer of Pledged Securities or any agreement listed on Schedule 7.09 of the Credit Agreement or otherwise permitted by the Credit Agreement, the Pledged Securities are and will continue to be freely transferable and assignable and none of the Pledged Securities are or will be subject to any option, right of first refusal, shareholders agreement, charter or by-law provisions or contractual restriction of any nature that might prohibit, impair, delay or otherwise affect the pledge of such Pledged Securities hereunder, the sale or disposition thereof pursuant hereto or the exercise by the Collateral Agent of rights and remedies hereunder.
(f) This Agreement is effective to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral and, when the Pledged Stock, Pledged Notes, UCC Collateral or Additional Collateral shall be delivered to the Collateral Agent (or, as applicable in the case of Capital Stock of Foreign Subsidiaries, the requisite filings or registrations are made), this Agreement will constitute a duly perfected first priority Lien on, and security interest in, all right, title and interest of the Pledgor thereunder in such Pledged Stock, Pledged Notes, UCC Collateral or Additional Collateral, in each case prior and superior in rights to any other person, subject to the agreements listed in Schedule 4.08 to the Credit Agreement or otherwise permitted by the Credit Agreement.
(a) Any sums paid upon or in respect of the Collateral upon the liquidation or dissolution (other than any liquidation or dissolution permitted by Section 6.01(a) of the Credit Agreement) of any Issuer shall, upon and during the continuance of an Event of Default, upon the written request of the Collateral Agent, be paid over to the Collateral Agent to be held and applied by it hereunder as provided in Section 8(a) and Section 15, and in case any distribution of capital shall be made on or in respect of the Collateral or any property shall be distributed upon or with respect to the Collateral pursuant to the recapitalization or reclassification of capital of any Issuer or pursuant to the reorganization thereof,
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the property so distributed shall, upon and during continuance of an Event of Default, upon the written request of the Collateral Agent, be delivered to the Collateral Agent to be held and applied by it hereunder as provided in Section 8(a) and Section 15. If any sums of money or property so paid or distributed in respect of the Collateral shall be received by the Pledgor, the Pledgor shall, upon and during the continuance of an Event of Default, upon the written request of the Collateral Agent, until such money or property is paid or delivered to the Collateral Agent, hold such money or property in trust for the Secured Parties, segregated from other funds of the Pledgor, for application in accordance with Section 8(a) and Section 15.
(b) Without the prior written consent of the Collateral Agent, the Pledgor will not (i) vote to enable, or take any other action to permit, any Issuer to issue any stock or other equity securities of any nature or to issue any other securities convertible into or granting the right to purchase or exchange for any stock or other equity securities of any nature of any Issuer, except to the extent the same are permitted to be issued under the Credit Agreement, (ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any option with respect to, the Collateral owned by it, except as not prohibited under the terms of the Credit Agreement, (iii) create, incur or permit to exist any Lien or option in favor of, or any claim of any person with respect to, any of such Collateral, or any interest therein, except as not prohibited under the terms of the Credit Agreement and for the security interest created by this Agreement or (iv) enter into any agreement or undertaking restricting the right or ability of the Pledgor or the Collateral Agent to sell, assign or transfer any of such Collateral, except as not prohibited under the terms of the Credit Agreement.
(c) The Pledgor shall maintain the security interest created by it under this Agreement as a first priority, perfected security interest and shall defend such security interest against claims and demands of all persons whomsoever. At any time and from time to time, upon the written request of the Collateral Agent, and at the sole expense of the Pledgor, the Pledgor shall promptly and duly execute and deliver such further instruments and documents and take such further actions as the Collateral Agent may reasonably request for the purposes of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted. If any amount payable under or in connection with any of the Collateral owned by the Pledgor shall be or become evidenced by any promissory note, other instrument or chattel paper, such note, instrument or chattel paper shall, if so requested by the Collateral Agent, be immediately delivered to the Collateral Agent duly endorsed in a manner reasonably satisfactory to the Collateral Agent, to be held as Collateral pursuant to this Agreement, provided that the use of the Proceeds of such Collateral shall nonetheless be governed by Sections 6 and 7.
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retain and use all cash dividends paid in accordance with the terms and conditions of the Credit Agreement in respect of the Pledged Stock and, if applicable, Additional Collateral and to exercise all voting and corporate rights with respect to the Pledged Stock and, if applicable, Additional Collateral, provided, however, that no vote shall be cast or corporate right exercised or other action taken (regardless of whether an Event of Default has occurred and is continuing) which would materially and adversely affect the rights of the Collateral Agent or the Secured Parties or their ability to exercise same or result in any violation of any provision of the Credit Agreement, this Agreement or any other Loan Document.
(b) Unless an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given notice to the Pledgor of the Collateral Agent’s intent to exercise its corresponding rights pursuant to Section 7 below, the Pledgor shall be permitted to receive, retain and use all other Proceeds (in addition to cash dividends as provided under Section 6(a)) from the Collateral.
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Collateral Agent upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 8(a) and Section 15. After all Events of Default under the Credit Agreement have been cured or waived, the Collateral Agent shall, within five Business Days after all such Events of Default have been cured or waived, repay to the Pledgor all cash dividends, interest or principal that the Pledgor would otherwise be permitted to retain pursuant to the terms of Section 6, but only to the extent such Proceeds remain in such Collateral Account.
(b) If an Event of Default shall have occurred and be continuing, the Collateral Agent, on behalf of the Secured Parties, may exercise, in addition to all other rights and remedies granted in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Swissco Obligations, all rights and remedies of a secured party under the UCC. Without limiting the generality of the foregoing, the Collateral Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon the Pledgor or any other person (all and each of which demands, defenses, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, assign, give option or options to purchase or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, in the over-the-counter market, at any exchange, broker’s board or office of the Collateral Agent or any Secured Party or elsewhere upon such terms and conditions as it may reasonably deem advisable and at such prices as it may reasonably deem best, for cash or on credit or for future delivery without assumption of any risk. The Collateral Agent or any Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of (to the extent permitted by law) any right or equity of redemption in the Pledgor which right or equity is, to the extent permitted by law, hereby waived or released. The Collateral Agent shall apply any Proceeds from time to time held by it and the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses incurred in respect thereof or incidental to the care or safekeeping of any of the Collateral or reasonably relating to the Collateral or any of the rights of the Collateral Agent and the Secured Parties hereunder, including reasonable attorney’s fees and disbursements of counsel to the Collateral Agent, to the payment in whole or in part of the Swissco Obligations, in the order set forth in Section 15. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be in writing and deemed reasonable and proper if given at least 10 days before such sale or other disposition. The Pledgor shall remain liable for any deficiency if the proceeds of any sale or other disposition of Collateral are insufficient to pay all the Swissco Obligations.
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(b) In the case of any proposed sale of Pledged Stock in the United States, the Pledgor recognizes that the Collateral Agent may be unable to effect a public sale of any or all the Pledged Stock, by reason of certain prohibitions contained in the Securities Act and applicable state securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such
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circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Collateral Agent shall be under no obligation to delay a sale of any of the Pledged Stock for the period of time necessary to permit the Issuer thereof to register such securities for public sale under the Securities Act, or under applicable state securities laws, even if such Issuer would agree do so.
(c) The Pledgor further agrees to use its best efforts to do or cause to be done all such other acts as may be reasonably necessary to make such sale or sales of all or any portion of the Pledged Stock or Additional Collateral owned by it pursuant to this Section valid and binding and in compliance with any and all other applicable requirements of the laws of any jurisdiction. The Pledgor further agrees that a breach of any of the covenants contained in this Section will cause irreparable injury to the Collateral Agent and the Secured Parties, that the Collateral Agent and the Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in the Section shall be specifically enforceable against the Pledgor.
(b) Each Issuer that is a Subsidiary shall, in the form of the Acknowledgement and Consent attached hereto as Annex A, acknowledge the instructions set forth in clause (a) above and will agree to be bound by the terms of this Agreement and to comply with the terms hereof insofar as such terms are applicable to such Issuer.
(b) The Pledgor hereby ratifies all that said attorneys shall lawfully do or cause to be done pursuant to the power of attorney granted in Section 11(a). All powers, authorizations and agencies contained in this Agreement are coupled with an interest and
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are irrevocable until this Agreement is terminated and the security interests created hereby are released.
First, to the payment of the reasonable costs and expenses of the Collateral Agent as set forth in Section 8(b);
Second, to the payment of all amounts of the Swissco Obligations owed to the Secured Parties in respect of Loans made by them and outstanding and amounts owing in respect of any LC Disbursement or Letter of Credit or under any Cash Management Arrangement, Commodity Rate Protection Agreement or Interest/Exchange Rate Protection Agreement with a Lender, pro rata as among the Secured
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Parties in accordance with the amount of such Swissco Obligations owed them;
Third, to the payment and discharge in full of the Swissco Obligations (other than those referred to above), pro rata as among the Secured Parties in accordance with the amount of such Swissco Obligations owed to them; and
Fourth, after payment in full of all the Swissco Obligations, to the Pledgor, or the successors or assigns thereof, or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct, any Collateral then remaining.
The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of the Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
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arising out of or in connection with the Collateral. All of such liabilities shall, as between the Collateral Agent and the Pledgor, be borne exclusively by the Pledgor.
(b) The Pledgor hereby agrees to pay all reasonable expenses of the Collateral Agent and to indemnify the Collateral Agent with respect to any and all losses, claims, damages, liabilities and related expenses in respect of this Agreement or the Collateral, in each case to the extent the Borrowers are required to do so pursuant to Section 10.03 of the Credit Agreement.
(c) Any amounts payable by the Pledgor as provided hereunder shall be additional Swissco Obligations secured hereby and by its other Security Documents. Without prejudice to the survival of any other agreements contained herein, all indemnification and reimbursement obligations contained herein shall survive the payment in full of the principal and interest under the Credit Agreement, the expiration of the Letters of Credit and the termination of the Commitments or this Agreement.
SECTION 20. Jurisdiction; Consent to Service of Process. (a) The Pledgor 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 the other Loan Documents, 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 Loan Party or any Secured Party may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan Documents against the Pledgor or any Secured Party or its properties in the courts of any jurisdiction.
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(b) Each of the Pledgor and each Secured Party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that 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 or the other Loan Documents 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 22. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
(b) All Collateral sold, transferred or otherwise disposed of, in accordance with the terms of the Credit Agreement (including pursuant to a waiver or amendment of the terms thereof), shall be sold, transferred or otherwise disposed of free and clear of the Lien and the security interest created hereunder. In connection with the foregoing, (i) the Collateral Agent shall execute and deliver to the Pledgor with respect to the Collateral owned by the Pledgor, or to such person or persons as the Pledgor shall reasonably designate, against receipt, such Collateral sold, transferred or otherwise disposed together with appropriate instructions of reassignment and release, (ii) any representation, warranty or covenant contained herein relating to the Collateral shall no longer be deemed to be made with respect to such sold, transferred or otherwise disposed Collateral and (iii) all schedules hereto shall be amended to delete the name of the Issuer. Any such reassignment shall be without recourse or to any warranty by the Collateral Agent and at the expense of the Pledgor.
(c) [Intentionally Omitted]
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(b) Neither the Collateral Agent nor any Secured Party shall by any act (except by a written instrument pursuant in Section 24(a)) or delay be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default or in any breach of any of the terms and conditions hereof. No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise of any other right, power or privilege. A waiver by any Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which such Secured Party would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.
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SECTION 28. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 29. [Intentionally Omitted]
SECTION 30. Conflicts with Foreign Law Documents. In the event of any inconsistency between the terms and conditions of this Agreement applicable to any Pledged Security and the terms and condition of any Pledge Agreement governed by the laws of any foreign jurisdiction applicable to such Pledged Security, the terms and conditions of such foreign law Pledge Agreement, except to the extent the context or applicable law may require, shall control.
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| GRAFTECH SWITZERLAND S.A., | ||
| By | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇ | ||
| Title: Attorney-in-Fact |
| JPMORGAN CHASE BANK, N.A., as Collateral Agent, | ||
| By | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
| Title: Vice President |
[SIGNATURE PAGE TO PLEDGE AGREEMENT—GRAFTECH SWITZERLAND S.A.]
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SCHEDULE I
OF GRAFTECH SWITZERLAND S.A.
I. PLEDGED STOCK
| Pledgor | Issuer | Pledged Stock | Percentage Pledged | |||
II. PLEDGED NOTES
III. OTHER NOTES
| Pledgor | Issuer | Principal Amount | ||
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ANNEX A
OF GRAFTECH SWITZERLAND S.A.
ACKNOWLEDGMENT AND CONSENT
Each of the undersigned hereby acknowledges receipt of a copy of the Pledge Agreement dated as of April 28, 2010 (the “Pledge Agreement”), by GRAFTECH SWITZERLAND S.A., a Swiss corporation (the “Pledgor”), in favor of JPMORGAN CHASE BANK, N.A., 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 the Pledge Agreement, and if not defined therein, having the meaning given it in the Credit Agreement dated as of April 28, 2010, among GrafTech, Global, GrafTech Finance Inc., GrafTech Switzerland S.A., the LC Subsidiaries from time to time party thereto, the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent, Collateral Agent and Issuing Bank (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”)).
1. Each of the undersigned will be bound by the terms of the Pledge Agreement and will comply with such terms insofar as such terms are applicable to the undersigned.
2. Each of the undersigned will notify the Collateral Agent promptly in writing of the occurrence of any of the events described in subsection 5(a) of the Pledge Agreement.
3. The terms of subsection 9(c) of the Pledge Agreement shall apply to it, mutatis mutandis, with respect to all actions that may be required of it under or pursuant to or arising out of Section 9 of the Pledge Agreement.
[Signature Page to Follow]
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| EACH OF THE ISSUERS OF PLEDGED STOCK LISTED ON SCHEDULE I TO THE PLEDGE AGREEMENT, AS SET FORTH ON ATTACHMENT I TO THIS ACKNOWLEDGEMENT AND CONSENT, | ||
| by | ||
| Name: Title: |
ACKNOWLEDGED AND AGREED:
| JPMORGAN CHASE BANK, N.A., as Collateral Agent, | ||
| by | ||
| Name: Title: |
[SIGNATURE PAGE TO ACKNOWLEDGEMENT & CONSENT TO PLEDGE AGREEMENT—GRAFTECH SWITZERLAND S.A.]
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| GRAFTECH BRASIL PARTICIPAÇÕES LTDA. (BRAZIL), | ||
| by | ||
| Name: Title: |
[SIGNATURE PAGE TO ACKNOWLEDGEMENT & CONSENT TO PLEDGE AGREEMENT—GRAFTECH SWITZERLAND S.A.]
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ATTACHMENT I TO
ACKNOWLEDGEMENT AND CONSENT TO
PLEDGE AGREEMENT OF GRAFTECH SWITZERLAND S.A.
ISSUERS OF PLEDGED STOCK
UNDER PLEDGE AGREEMENT
OF GRAFTECH SWITZERLAND S.A.**
| Issuer* |
| GrafTech Ibérica S.L. (Spain) |
| GrafTech S.p.A. (Italy) |
| GrafTech France S.A.S. (France) |
| [intentionally omitted]*** |
| * | Jurisdictions of incorporation of non-United States entities are identified in parentheses following the names of such entities. |
| ** | The pledge of 201 shares (Certificates Nos. 2, 3 and 4), representing 100% of the equity, of GrafTech South Africa (Pty.) Ltd. is excluded from this Pledge Agreement due to restrictions under the local laws of the Republic of South Africa. GrafTech Switzerland S.A. has pledged 100% of the equity in GrafTech South Africa (Pty.) Ltd. solely through the local law Agreement of Pledge dated as of April 28, 2010, between GrafTech Switzerland S.A., as pledgor, and JPMorgan Chase Bank, N.A., as pledgee. |
| *** | GrafTech RUS LLC (Russia) did not sign this Acknowledgement and Consent because, in the judgment of the Administrative Agent, the contractual, operational, expense, tax or regulatory consequences or difficulty of retaining local counsel in Russia would not, in light of the benefits to accrue to the Lenders, justify taking such action. |
Each of GrafTech México, S.A. de C.V. (Mexico) and GrafTech Comercial de México, S. de ▇.▇. de C.V. (Mexico) did not sign this Acknowledgement and Consent for reasons of local law in Mexico.
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