Exhibit 10.1.8
EXECUTION COPY
EIGHTH AMENDMENT dated as of
January 12, 2004 (this "Amendment"), to the Credit
Agreement dated as of February 22, 2000 (as
previously amended, the "Credit Agreement") among
GRAFTECH INTERNATIONAL LTD. f/k/a UCAR
INTERNATIONAL INC., a Delaware corporation
("GrafTech"), GRAFTECH GLOBAL
ENTERPRISES INC. f/k/a UCAR GLOBAL
ENTERPRISES INC., a Delaware corporation
("Global"), GRAFTECH FINANCE INC. f/k/a
UCAR FINANCE INC., a Delaware corporation (the
"Borrower"), the LC Subsidiaries from time to
time party thereto, the Lenders from time to time
party thereto and JPMORGAN CHASE BANK, as
Administrative Agent, Collateral Agent and Issuing
Bank.
A. Pursuant to the Credit Agreement, the Lenders and the Issuing
Bank have extended and have agreed to extend credit to the Borrower and the LC
Subsidiaries, on the terms and subject to the conditions set forth therein.
B. The Borrower has requested an amendment of the Credit
Agreement as set forth herein.
C. The requisite Lenders are willing to agree to such amendment
on the terms and subject to the conditions set forth herein.
D. Each capitalized term used and not otherwise defined herein
shall have the meaning assigned to it in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments to the Credit Agreement.
(a) The following two sentences in the preamble to the Credit
Agreement are hereby deleted in their entirety:
"In no circumstance whatsoever will any Letter of Credit issued
pursuant to this Agreement on behalf of Lenders holding Revolving
Commitments or the proceeds of any Revolving Loan be used for any
purpose other than paying (or providing one or more Letters of
Credit to secure, facilitate or defer the payment of) the EU
2
Fine (i) if at the time of the issuance of such Letter of Credit
or the making of such Revolving Loan the Revolving Exposure
exceeds EUR175,000,000 or (ii) if at the time of the issuance of
such Letter of Credit or the making of such Revolving Loan the
Revolving Exposure is less than EUR175,000,000, to the extent
that as a result of the issuance of such Letter of Credit or the
making of such Revolving Loan the Revolving Exposure would exceed
EUR175,000,000. A draw under such a Letter of Credit, or a
Revolving Loan made to replace such a Letter of Credit of equal
or greater amount, the issuance of which was permitted by the
preceding sentence, shall likewise be permitted."
(b) Section 1.01 of the Credit Agreement is hereby amended by
adding thereto, in the appropriate alphabetical order, the following
definitions:
"Convertible Notes" shall mean convertible senior notes of
GrafTech having terms no less favorable to GrafTech and the Lenders than those
contemplated by Exhibit A to the Eighth Amendment.
"Eighth Amendment" shall mean the Eighth Amendment, dated as
of January 12, 2004, to this Agreement.
(c) The definition of "LC Subsidiary" is hereby amended by
inserting immediately after the words "at any time," the words "without
duplication, each of (i) the Borrower and (ii)".
(d) The definition of "Net Proceeds" is hereby amended by
deleting the "and" directly preceding clause (b)(iv), substituting therefor a
"," and adding directly after such clause (b)(iv) the phrase "and (v) in the
case of any issuance of Convertible Notes, accrued net interest paid by the
purchasers of such Convertible Notes".
(e) The definition of "Revolving Commitment" is hereby amended by
deleting the last sentence thereof and replacing it with the following: "The
aggregate amount of the Revolving Commitments on the Amendment Effective Date
under the Eighth Amendment immediately after giving effect to the Eighth
Amendment is EUR175,000,000."
(f) Section 2.05 of the Credit Agreement is hereby amended by
adding the following new sentence to the end of clause (b): "Notwithstanding the
previous sentence, in addition, upon request of the Borrower or the applicable
LC Subsidiary, one or more Letters of Credit shall be issued, amended, renewed
or extended, solely for the purpose of securing payment of the EU Fine during
any appeal process or under any post-appeal payment plan (as contemplated by EU
regulatory and litigation process), so long as upon, and after giving effect to,
the issuance, amendment, renewal or extension of each such Letter of Credit (x)
the aggregate LC Exposure for such Letters of Credit shall not exceed
EUR65,000,000 and (y) the aggregate Revolving Exposures will not exceed the
aggregate Revolving Commitments."
3
(g) Section 2.08(c) of the Credit Agreement is hereby amended by
inserting directly following the phrase "outstanding amount of Term Borrowings,
then," the phrase "except in connection with the sale of assets described in
Section 7.09(d)(5),".
(h) Section 7.01(a)(ix) of the Credit Agreement is hereby amended
by deleting "$25,000,000" and replacing it with "$50,000,000".
(i) Section 7.01(a)(xii) of the Credit Agreement is hereby
amended by deleting "$20,000,000" and replacing it with "$50,000,000"; and
deleting "$15,000,000" and replacing it with "$35,000,000".
(j) Section 7.01(a) of the Credit Agreement is hereby further
amended by renumbering the last two clauses thereof "(xvii)" and "(xviii)"
rather than "(xvi)" and "(xvii)", respectively; changing the reference in such
new clause (xvii) from "(xv)" to "(xvi)"; and inserting between clause (xv) and
new clause (xvii) the following new clause (xvi):
"(xvi) Indebtedness of the Borrower to GrafTech in respect
of the Net Proceeds of the Convertible Notes advanced to it by
GrafTech; and any Guarantee by the Borrower or any Domestic
Subsidiary of the Convertible Notes that is either unsecured or
is secured solely by a lien described in Section 7.02(w);"
(k) Section 7.01(b)(iv) of the Credit Agreement is hereby
amended by deleting the words "and (xiv) of Section 7.01(a)" therein and
substituting therefor the words ", (xiv) and (xv) of Section 7.01(a) and clause
(vii) of this Section 7.01(b)".
(l) Section 7.01(b) of the Credit Agreement is hereby
further amended by deleting the word "and" at the end of clause (v); replacing
the words ""Unrestricted Subsidiary."" at the end of clause (vi) with
""Unrestricted Subsidiary";"; and adding the following new clauses (vii) and
(viii):
"(vii) Indebtedness of GrafTech consisting of the
Convertible Notes in an aggregate principal amount not to
exceed $225,000,000, provided that such Convertible Notes
are not guaranteed by any person other than Global, the
Borrower and the Domestic Subsidiaries; and
(viii) Indebtedness of Global to GrafTech in respect of
the Net Proceeds of the Convertible Notes advanced to it by
GrafTech."
(m) Section 7.02 of the Credit Agreement is hereby amended
by changing the reference to "Senior Notes or Additional Senior Notes" in clause
(h) thereof to "Senior Notes,
4
Additional Senior Notes or Convertible Notes"; changing the reference to "Senior
Notes or Additional Senior Notes" and the reference to "Senior Notes or the
Additional Senior Notes" in clause (w) thereof to "Senior Notes, Additional
Senior Notes or Convertible Notes"; deleting the "and" at the end of clause (v)
thereof; replacing the "." at the end of clause (w) thereof with "; and"; and
adding immediately after clause (w) thereof the following new clause (x):
"(x) Liens on the Indebtedness permitted under Sections
7.01(a)(xvi) and 7.01(b)(viii) to secure Convertible Notes
or to secure the Obligations, provided that the aggregate
principal amount of such Indebtedness securing Convertible
Notes shall not at any time exceed the aggregate principal
amount at such time of the Convertible Notes."
(n) Section 7.04(j) of the Credit Agreement is hereby
amended by: changing each reference to "Amendment Effective Date (as defined in
the Seventh Amendment)" to "Amendment Effective Date (as defined in the Eighth
Amendment)"; changing each reference to "Equity Proceeds" therein to "Equity
Proceeds or with Capital Stock of GrafTech (other than Disqualified Stock)"; by
inserting immediately after the words "pursuant to paragraph (k) of this
Section" in the third parenthetical in clause (ii)(B) therein the words "and the
amount of cash, evidences of Indebtedness or Disqualified Stock paid under
clause (p) of this Section (other than payments of accrued interest on
conversions, redemptions or repurchases thereunder, as applicable); and by
adding the words "except for direct equity investments in Unrestricted
Subsidiaries in an aggregate amount of consideration (as valued at the time each
investment is made) in connection with such investments not to exceed
$5,000,000" immediately after the words "or contributed to the capital of any
Unrestricted Subsidiary)" in the second proviso of such Section.
(o) Section 7.04(k) of the Credit Agreement is hereby
amended and restated as follows:
"(k) investments consisting of repurchases of Senior
Notes or Additional Senior Notes, to the extent permitted in
Section 7.09(d)(2), with an aggregate principal amount not
to exceed $35,000,000; provided, that the aggregate amount
of Senior Notes and Additional Senior Notes repurchased
pursuant to this clause (k), together with (i) the
investments made under clause (j)(ii)(B) of this Section
7.04 and (ii) the aggregate amount of cash, evidences of
Indebtedness or Disqualified Stock paid under clause (p) of
this Section 7.04 (other than payments of accrued interest
on conversions, redemptions or repurchases thereunder, as
applicable) do not exceed the amount permitted under such
clause (j)(ii)(B) (prior to the effectiveness of the
reduction of such permitted amount set forth in such clause
(j) in the aggregate amount of the repurchased Senior Notes
and Additional Senior Notes and the cash, evidences of
Indebtedness or Disqualified Stock paid
5
under such clause (p) (other than payments of accrued interest on
conversions, redemptions or repurchases thereunder, as
applicable));"
(p) Section 7.04 of the Credit Agreement is hereby further
amended by deleting the "and" at the end of clause (l); replacing the period at
the end of clause (m) with ";"; and adding immediately after clause (m) the
following new clauses (n), (o), (p), (q) and (r):
"(n) investments consisting of Indebtedness permitted
under Sections 7.01(a)(xvi) and 7.01(b)(viii);
(o) investments consisting of repurchases of Senior
Notes or Additional Senior Notes, to the extent permitted in
Section 7.09(d)(3);
(p) investments consisting of, or in connection with,
conversions, redemptions or repurchases of Convertible
Notes, to the extent permitted in Section 7.09(d)(4),
provided, that the aggregate amount of cash, evidences of
Indebtedness or Disqualified Stock paid in connection
therewith (other than payments of accrued interest on such
conversions, redemptions or repurchases, as applicable),
together with the investments made under clauses (j)(ii)(B)
and (k) of this Section 7.04, do not exceed the amount
permitted under such clause (j)(ii)(B) (prior to the
effectiveness of the reduction of such permitted amount set
forth in such clause (j) in the aggregate amount of the
Senior Notes and Additional Senior Notes repurchased under
such clause (k) and the cash, evidences of Indebtedness or
Disqualified Stock paid in connection herewith (other than
payments of accrued interest on any such conversions,
redemptions or repurchases, as applicable));
(q) investments consisting of repurchases or
redemptions of Senior Notes, Additional Senior Notes or
Convertible Notes, to the extent permitted in Section
7.09(d)(5); and
(r) investments in Senior Notes, Additional Senior
Notes and Convertible Notes to the extent acquired for
Capital Stock of GrafTech (other than Disqualified Stock)."
(q) Section 7.06 of the Credit Agreement is hereby amended
by deleting the word "and" at the end of clause (f); replacing the period at the
end of clause (g) with "; and"; and adding immediately after clause (g) thereof
the following new clause (h):
"(h) at any time no Default or Event of Default has
occurred and is continuing, the Borrower and Global may make
Restricted Payments to GrafTech of cash in order to fund
payments (A) in connection with conversions,
6
redemptions or repurchases of Convertible Notes, to the
extent permitted under Section 7.09(d), or (B) of interest
then due in respect of the Convertible Notes."
(r) Section 7.08 of the Credit Agreement is hereby amended
by deleting the words "and the Additional Senior Notes" in clause (c)(i) and
substituting therefor the words ", the Additional Senior Notes and the
Convertible Notes"; deleting the words "and Additional Senior Notes" in clause
(c)(iv) and substituting therefor the words ", the Additional Senior Notes and
the Convertible Notes"; and changing the reference "7.09(d)(2)" in clause
(c)(iv) to "7.09(d)".
(s) Section 7.09(a) of the Credit Agreement is hereby
amended by inserting immediately after the phrase "except that" the words "(1)
at any time no Default or Event of Default has occurred and is continuing, the
Borrower and Global may make payments in respect of intercompany Indebtedness
owed to GrafTech and permitted under Sections 7.01(a)(xvi) and 7.01(b)(viii) in
order to fund (i) conversions, redemptions or repurchases of Convertible Notes,
to the extent permitted under Section 7.09(d), or (ii) interest payments then
due in respect of the Convertible Notes and (2)"; deleting the phrase "to this
sentence" appearing in the proviso and replacing it with the phrase "to this
Section 7.09(a)(2)".
(t) Section 7.09(d) of the Credit Agreement is hereby
amended by: inserting the words "or the Convertible Notes" immediately after the
words "Additional Senior Notes" appearing in the first two lines; deleting "and
(2)" appearing therein and replacing it with ", (2)"; deleting "the Euro
Equivalent of $100,000,000" appearing therein and replacing it with
"EUR75,000,000"; and deleting the parenthetical appearing at the end thereof and
replacing it with the following: ", (3) so long as no Default or Event of
Default shall exist or result therefrom, GrafTech, Global, the Borrower or any
Restricted Domestic Subsidiary may from time to time repurchase (but not retire)
and hold up to an additional $50,000,000 aggregate principal amount of Senior
Notes and Additional Senior Notes, to the extent that (i) such repurchases are
made with proceeds of the Convertible Notes on or prior to December 31, 2004 and
(ii) that at the time of, and after giving effect to, any such repurchase the
Borrower has unused borrowing availability under the Revolving Commitments of at
least EUR75,000,000, (4) so long as no Default or Event of Default shall exist
or result therefrom, GrafTech, Global, the Borrower or any Restricted Domestic
Subsidiary may from time to time convert or redeem Convertible Notes or
repurchase (but not retire) and hold Convertible Notes, provided that (i) the
aggregate amount of cash, evidences of Indebtedness or Disqualified Stock paid
in connection therewith (other than payments of accrued interest on such
conversions, redemptions or repurchases, as applicable) shall not exceed
$30,000,000, and (ii) at the time thereof, and after giving effect thereto, the
7
Borrower has unused borrowing availability under the Revolving Commitments of at
least EUR75,000,000 (except in connection with the conversion of Convertible
Notes into Capital Stock of GrafTech or the payment for Convertible Notes in
Capital Stock of GrafTech (other than Disqualified Stock)), (5) so long as no
Default or Event of Default shall exist or result therefrom and at the time of,
and after giving effect thereto, the Borrower has unused borrowing availability
under the Revolving Commitments of at least EUR75,000,000, GrafTech, Global, the
Borrower or any Restricted Domestic Subsidiary may from time to time with the
proceeds from any sales of non-core, non-strategic assets pursuant to its asset
disposition program announced on January 9, 2002 redeem or repurchase up to
$35,000,000 aggregate principal amount of additional Convertible Notes, Senior
Notes and Additional Senior Notes, to the extent required by the applicable
indenture if such proceeds are not reinvested in the business of GrafTech and
its subsidiaries or applied to reduce the Revolving Commitments, and (6)
GrafTech, the Borrower or any Restricted Subsidiary may, from time to time, to
the extent acquired for Capital Stock of GrafTech (other than Disqualified
Stock), repurchase or acquire (but not retire) and hold Senior Notes, Additional
Senior Notes and Convertible Notes. Notwithstanding anything herein to the
contrary, a call for redemption shall not be treated as a redemption until the
consummation of such redemption."
(u) Clause (g) of Article 8 of the Credit Agreement is
hereby amended by adding "(i)" after the phrase "provided that this clause (g)
shall not apply" and adding the following phrase at the end of such clause (g)
"or (ii) to any requirement under the Convertible Notes, Senior Notes or
Additional Senior Notes to offer to redeem or repurchase such notes if such
redemption or repurchase is permitted under Section 7.09(d)(5);".
(v) Schedule A of the Credit Agreement is hereby amended by
(i) deleting the table set forth therein and substituting therefor the
following:
-----------------------------------------------------------------------
Leverage Ratio Amount
-------------- ------
------------------------------------------------------------------------
greater than or equal to 2.0:1.0 $100,000,000
------------------------------------------------------------------------
less than 2.0:1.0 $125,000,000
------------------------------------------------------------------------
SECTION 2. Representations and Warranties. Each of GrafTech,
Global and the Borrower represents and warrants to each Lender as of the date
hereof and as of the Amendment Effective Date that, after giving effect to this
Amendment, (a) the representations and warranties set forth in Article IV of the
Credit Agreement are true and correct in all material respects, except to the
extent such representations and warranties expressly relate to an earlier date
(in which case such representations and warranties were true and correct in all
material respects as of the earlier date), and (b) no Default or Event of
Default has occurred and is continuing.
SECTION 3. Reduction of Revolving Commitments. As of the
Amendment Effective Date, without any notice or any other action by any person,
the aggregate amount of the Revolving Commitments shall automatically and
permanently be reduced by an amount that will result in the Revolving
Commitments equaling EUR175,000,000.
8
SECTION 4. Effectiveness. This Amendment shall become effective
as of the first date on which the following conditions shall have been
satisfied: (i) when the Administrative Agent or its counsel shall have received
counterparts of this Amendment that, when taken together, bear the signatures of
the Borrower, GrafTech, Global and Lenders holding at least 51% of the sum of
all Revolving Loans outstanding, Letters of Credit Exposures and unused
Revolving Commitments; and (ii) the representations and warranties set forth in
Section 2 above shall be true and correct on and as of such date and the
Administrative Agent shall have received a certificate of the Borrower to that
effect. Notwithstanding the foregoing, the provisions of Section 1 above (other
than Section 1(c) and (f)) shall not become effective until as of the first date
(the "Amendment Effective Date") on which the following conditions are met: (a)
GrafTech shall have received not less than $100,000,000 of gross cash proceeds
from the Convertible Notes, (b) the Borrower shall have repaid in full all of
the outstanding Term Loans, together with accrued and unpaid interest thereon,
(c) each Revolving Lender shall have received the Amendment Fee required to be
paid to it pursuant to Section 5 below and (d) the representations and
warranties set forth in Section 2 above shall be true and correct on and as of
such date and the Administrative Agent shall have received a certificate of the
Borrower to that effect. Notwithstanding anything herein to the contrary, the
Amendment Effective Date shall not occur after March 31, 2004.
SECTION 5. Amendment Fee. The Borrower agrees to pay to each
Revolving Lender that executes and delivers to the Administrative Agent (or its
counsel) a copy of this Amendment at or prior to 5:00 p.m., New York City time,
on January 12, 2004 an amendment fee (the "Amendment Fee") in an amount equal to
0.05% of such Lender's Revolving Commitment (whether used or unused), based on
the amount outstanding immediately after the issuance of the Convertible Notes,
the application of the Net Proceeds therefrom pursuant to Section 4 above and
the reduction of the Revolving Commitments pursuant to Section 3 above; provided
that the Borrower shall have no liability for any such Amendment Fee if the
Amendment Effective Date shall not occur. Such Amendment Fee shall be payable on
the Amendment Effective Date.
SECTION 6. Effect of Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Issuing Bank, the Collateral Agent, or the Administrative Agent,
under the Credit Agreement or any other Loan Document, and shall not alter,
modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Loan
Document, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. Nothing herein shall be deemed to entitle the
Borrower to a consent to, or a waiver, amendment, modification or other change
of, any of the terms, conditions, obligations, covenants or agreements contained
in the Credit Agreement or any other Loan Document in similar or different
circumstances.
9
SECTION 7. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
Delivery of any executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 8. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
[SIGNATURE PAGES FOLLOW]
10
IN WITNESS WHEREOF, the parties hereto have caused this Eighth
Amendment to be duly executed by their respective authorized officers as of the
date and year first above written.
GRAFTECH INTERNATIONAL LTD.,
By: /s/ Xxxxxxx X. Xx Xxxxxxxx
________________________________
Name: Xxxxxxx X. Xx Xxxxxxxx
Title: Vice President and Chief
Financial Officer
GRAFTECH GLOBAL
ENTERPRISES INC.,
By: /s/ Xxxxxxx X. XxXxxxxxxx
________________________________
Name: Xxxxxxx X. XxXxxxxxxx
Title: Vice President and Chief
Financial Officer
GRAFTECH FINANCE INC.,
By: /s/ Xxxxxxx X. XxXxxxxxxx
________________________________
Name: Xxxxxxx X. XxXxxxxxxx
Title: Vice President and Chief
Financial Officer
JPMORGAN CHASE BANK, as a Lender,
and as Administrative Agent,
Collateral Agent and Issuing
Bank,
By: ________________________________
Name: Xxxxx X. Xxxxxx
Title: Managing Director
10
IN WITNESS WHEREOF, the parties hereto have caused this Eighth
Amendment to be duly executed by their respective authorized officers as of the
date and year first above written.
GRAFTECH INTERNATIONAL LTD.,
By: ________________________________
Name:
Title:
GRAFTECH GLOBAL ENTERPRISES INC.,
By: ________________________________
Name:
Title:
GRAFTECH FINANCE INC.,
By: ________________________________
Name:
Title:
JPMORGAN CHASE BANK, as a Lender,
and as Administrative Agent,
Collateral Agent and Issuing
Bank,
By: /s/ Xxxxx X. Xxxxxx
________________________________
Name: Xxxxx X. Xxxxxx
Title: Managing Director
11
Signature Page to Eighth Amendment to GrafTech Finance Inc. Credit Agreement.
ABN AMRO Bank N.V.
By: /s/ Xxxx Xxxxxxxxxxx
_______________________________
Name: Xxxx Xxxxxxxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxxxx
_______________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
11
Signature Page to Eighth Amendment to GrafTech Finance Inc. Credit Agreement.
Name of Institution: Bank of America, N.A.
By: /s/ H. Xxxxxxx Xxxxxx
_______________________________
Name: H. Xxxxxxx Xxxxxx
Title: Managing Director
11
Signature Page to Eighth Amendment to GrafTech Finance Inc. Credit Agreement.
Name of Institution: The Bank of New York
By: /s/ Xxxxxxxxx X. Rio
_______________________________
Name: Xxxxxxxxx X. Rio
Title: Vice President
11
Signature Page to Eighth Amendment to GrafTech Finance Inc. Credit Agreement.
Name of Institution: Credit Industriel et Commercial
By: /s/ Xxxxxx Xxxxxxx /s/ Xxxxxx Xxxx
___________________________________________
Name: Xxxxxx Xxxxxxx Xxxxxx Xxxx
Title: Manager Manager
11
Signature Page to Eighth Amendment to GrafTech Finance Inc. Credit Agreement.
Name of Institution: The Bank of Nova Scotia
By: /s/ Xxxx X. Xxxxxxxx
_______________________________
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
11
Signature Page to Eighth Amendment to GrafTech Finance Inc. Credit Agreement.
Name of Institution: CREDIT SUISSE FIRST BOSTON
acting through its Cayman Islands Branch
By: /s/ Xxxx X'Xxxx /s/ Xxxxxxxxx Xxxxxxx
_________________________________________________
Name: Xxxx X'Xxxx Xxxxxxxxx Xxxxxxx
Title: Director Associate
11
Signature Page to Eighth Amendment to GrafTech Finance Inc. Credit Agreement.
Name of Institution: Fleet National Bank
By: /s/ Xxxxxx X. Xxxxxxx
_______________________________
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Officer
11
Signature Page to Eighth Amendment to GrafTech Finance Inc. Credit Agreement.
General Electric Capital Corporation
By: /s/ Xxxxxx X. Xxxxxxx
_______________________________
Name: Xxxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
11
Signature Page to Eighth Amendment to GrafTech Finance Inc. Credit Agreement.
Name of Institution: GoldenTree High Yield Opportunities II, LP
By: GoldenTree Asset Management, LP
By: /s/ Xxxxxx X'Xxxx
_______________________________
Name: Xxxxxx X'Xxxx
Title: Portfolio Manager
11
Signature Page to Eighth Amendment to GrafTech Finance Inc. Credit Agreement.
Name of Institution:
Intercontinental CDO S.A.
By: Pacific Investment Management Company LLC,
as its Investment Advisor
By: /s/ Xxxxx X. Xxxxxxxxxx
_______________________________
Xxxxx X. Xxxxxxxxxx
Executive Vice President
11
Signature Page to Eighth Amendment to GrafTech Finance Inc. Credit Agreement.
Name of Institution: NATEXIS BANQUES POPULAIRES
By: /s/ Xxxxxxx X. Xxxxx
_______________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Associate
11
Signature Page to Eighth Amendment to GrafTech Finance Inc. Credit Agreement.
Name of Institution: Sankaty High Yield Partners II, L.P.
By: /s/ Xxxxx X. Xxxxx
_______________________________
Name: Xxxxx X. Xxxxx
Title: Managing Director
Portfolio Manager
11
Signature Page to Eighth Amendment to GrafTech Finance Inc. Credit Agreement.
Name of Institution: Toronto Dominion (New York), Inc.
By: /s/ Xxxxxx Xxxxx
_______________________________
Name: Xxxxxx Xxxxx
Title: Vice President
11
Signature Page to Eighth Amendment to GrafTech Finance Inc. Credit Agreement.
Name of Institution: UniCredito Italiano
New York Branch
By: /s/ Xxxxx Xxxxx /s/ Xxxxxx X. Xxxxx
____________________________________________________
Name: Xxxxx Xxxxx Xxxxxx X. Xxxxx
Title: Vice President Vice President
12
EIGHTH AMENDMENT
----------------
Definition of "Convertible Notes"
---------------------------------
Exhibit A
---------
Issuer................................................... GrafTech International Ltd. ("GrafTech")
Securities Offered....................................... Up to $225 million principal amount convertible senior debentures.
Maturity Date............................................ Between 2011 and 2024
Interest and Interest Payment Dates...................... Payable semi-annually in cash at a rate to be determined, commencing
2004.
Guarantees............................................... The debentures will be guaranteed by GrafTech's domestic
subsidiaries holding a substantial majority of its U.S.
assets, which are the same subsidiaries that guarantee the
Obligations under the Credit Agreement.
Ranking of and Security for the Debentures and the The debentures will rank equally with present and future senior debt
Guarantees............................................... and senior to present and future subordinated debt of GrafTech.
Each guarantee will rank equally with present and future
senior debt of the subsidiary guarantor and senior to present
and future subordinated debt of the subsidiary guarantor. The
debentures and the guarantees may be secured by first priority
pledges of intercompany notes from GrafTech Finance and GrafTech Global
created with proceeds of the debentures received from GrafTech and
pledges, junior to the first priority pledge under the Credit Agreement,
of shares of AET.
Conversion Rights........................................ The debentures will be convertible into shares of common stock of
GrafTech ("common stock") at a conversion rate to be determined,
subject to antidilution and other adjustments as customary upon the
occurrence of certain events, under customary circumstances to be
determined, but including:
13
o upon the occurrence of certain market price conditions;
o upon a call of the debentures for redemption by GrafTech;
o upon fundamental changes (including a change of control) and
other corporate transactions (including mergers and
consolidations); or
o upon the occurrence of specified credit rating events.
Upon conversion, GrafTech will have the right to deliver, in lieu of
shares of common stock, cash or a combination of cash and shares of
common stock.
Sinking Fund............................................. None.
Optional Redemption by GrafTech.......................... GrafTech may at any time redeem the debentures, in whole or in part,
for cash at a redemption price of up to 101% of principal amount,
plus any accrued and unpaid interest, but GrafTech may do so prior
to a date to be determined (but not earlier than 2007) only if
certain market price conditions are achieved. If GrafTech redeems
the debentures prior to such date (which may be as late as 2013), it
will make an additional payment on the redeemed debentures
approximately equal to the interest that would otherwise accrue
after such date on the debentures through such date. GrafTech may
make the additional payment in cash, shares of common stock or a
combination thereof.
Repurchase of the Debentures by GrafTech at Holders may require GrafTech to repurchase some or all of the
the Option of the Holder................................. debentures at dates to be determined, but not earlier than 2009, at
a repurchase price of up to 101% of principal amount, plus any
accrued and unpaid interest. GrafTech may pay the repurchase price in
cash, shares of common stock or a combination of cash and shares of our
common stock, except that GrafTech will pay accrued and unpaid
interest in cash.
Repurchase of the Debentures by GrafTech Upon a If GrafTech experiences a fundamental change (including a change of
Fundamental Change or Other Transaction.................. control) prior to maturity of the debentures, the Holders will have
the right to require GrafTech to repurchase some or all of the
debentures at a repurchase price of up to 101% of principal amount,
plus any accrued and unpaid interest. GrafTech may pay the repurchase
price in ash, shares of common stock or a
14
combination of cash and shares of common stock, except that GrafTech
will pay any accrued and unpaid interest in cash.
Registration Rights...................................... GrafTech will agree to file a shelf registration statement under the
Securities Act relating to the resale of the debentures and the
shares of common stock issuable upon conversion, redemption or
repurchase thereof. If the registration statement is not filed or
has not become effective within time periods to be determined,
GrafTech will agree to pay customary liquidated damages to holders
of the debentures. It is possible that GrafTech may make the
additional payment in cash, shares of common stock or a combination
thereof.
Covenants................................................ As customary or as appropriate to give effect to the provisions
described above.
Use of Net Proceeds...................................... To repay all of the Tranche B Term Loans and for general corporate
purposes. GrafTech will contribute or on-loan proceeds to GrafTech
Finance and GrafTech Global and may retain proceeds to pay or secure
antitrust fines or for other purposes permitted by the Credit Agreement.
