EXHIBIT 10.11
CONFORMED COPY
FIFTH AMENDMENT dated as of
January 18, 2002 (this "Amendment") to
Credit Agreement dated as of February
22, 2000 (as previously amended, the
"Credit Agreement") among UCAR
INTERNATIONAL INC., a Delaware
corporation ("UCAR"), UCAR GLOBAL
ENTERPRISES INC., a Delaware
corporation ("Global"), 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 Required 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)(i) Section
1.01 of the Credit Agreement is hereby amended by amending and restating in its
entirety the definition of "Amendment Fees" as follows:
"AMENDMENT FEES" shall mean, collectively, the Amendment
Fee as such term is defined in each of the First Amendment dated
as of October 11, 2000 to this Agreement, the Second Amendment
dated as of April 25, 2001 to this Agreement, the Third Amendment
dated as of July 10, 2001 to this Agreement, the Fourth Amendment
dated as of December 6, 2001 to this Agreement, and the Fifth
Amendment dated as of January
18, 2002 to this Agreement, plus any other fees, costs and
expenses incurred in connection with such amendments, including,
but not limited to, attorneys' fees.
(b) Section 1.01 of the Credit Agreement is hereby amended by
adding thereto, in the appropriate alphabetical order the following
definitions:
"EU LETTER OF CREDIT" shall mean any letter of credit
issued to secure the payment to the European Union of the
antitrust fine owed thereto.
"GRAFTECH" shall mean, initially, Graftech Inc. and,
following its name change in the Realignment Transactions,
Graftech Technology Company Inc.
"INTERCOMPANY SENIOR LOANS" shall mean a loan (a) made by
the Borrower to an Intercompany Borrower having substantially the
same terms as the Intercompany Term Loans (or other terms
approved by the Administrative Agent), but not secured by any
asset (other than, at any time that Graftech is not a guarantor
of the Senior Notes, a Lien on the Capital Stock of Graftech then
held by UCAR, Global or any Subsidiary that is junior to the Lien
of the Lenders thereon) and not benefiting from any Guarantee
(other than unsecured guarantees from Subsidiaries that guarantee
the Intercompany Loans and other than in the case of the
Intercompany Senior Loan of UCAR Holdings S.A., which may be
guaranteed by UCAR SNC; PROVIDED that the Intercompany Loans of
UCAR Holdings S.A. are also guaranteed by UCAR SNC); (b) all the
proceeds of which shall have been used by such Intercompany
Borrower to repay Intercompany Term Loans; and (c) at the time of
the initial issuance thereof, the principal amount of which shall
be in the same proportion to the principal amount of the
Intercompany Term Loan of such Intercompany Borrower as the
proportion between the Intercompany Senior Loan and the
Intercompany Term Loan of each other Intercompany Borrower.
"SENIOR NOTES" shall mean senior notes of the Borrower
having terms no less favorable to the Borrower and the Lenders
than those contemplated by Exhibit A to the Fifth Amendment to
this Agreement.
(c) The definition of "Applicable Rate" is hereby amended by
deleting Tables I and II set forth therein and substituting therefor the
following:
TABLE I
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COMMITMENT
EUROCURRENCY BASE RATE FEE
LEVERAGE RATIO: SPREAD SPREAD RATE
--------------------------------------------------------------------
CATEGORY 1
> 3.75 3.375% 2.375% 0.500%
-
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CATEGORY 2
< 3.75 and > 3.50 3.250% 2.250% 0.500%
-
---------------------------------------------------------------------
CATEGORY 3
< 3.50 > 2.75 3.125% 2.125% 0.500%
-
---------------------------------------------------------------------
CATEGORY 4
< 2.75 and > 2.50 2.875% 1.875% 0.500%
-
---------------------------------------------------------------------
CATEGORY 5
< 2.50 and > 2.25 2.375% 1.375% 0.375%
-
---------------------------------------------------------------------
CATEGORY 6
< 2.25 and > 2.00 2.125% 1.125% 0.375%
-
---------------------------------------------------------------------
CATEGORY 7
< 2.00 and > 1.75 1.875% 0.875% 0.375%
-
---------------------------------------------------------------------
CATEGORY 8
< 1.75 1.375% 0.375% 0.375%
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TABLE II
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LEVERAGE RATIO: EUROCURRENCY BASE RATE
SPREAD SPREAD
---------------------------------------------------------------------
CATEGORY 1
> 3.75 3.625% 2.625%
-
---------------------------------------------------------------------
CATEGORY 2
< 3.75 and > 3.50 3.500% 2.500%
-
---------------------------------------------------------------------
CATEGORY 3
< 3.50 > 2.75 3.375% 2.375%
-
---------------------------------------------------------------------
CATEGORY 4
< 2.75 and > 2.50 3.375% 2.375%
-
---------------------------------------------------------------------
CATEGORY 5
< 2.50 and > 2.25 2.875% 1.875%
-
---------------------------------------------------------------------
CATEGORY 6
< 2.25 and > 2.00 2.875% 1.875%
-
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CATEGORY 7
< 2.00 and > 1.75 2.875% 1.875%
-
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CATEGORY 8
< 1.75 2.875% 1.875%
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(d) The definition of "Collateral and Guarantee Requirement" is
hereby amended by adding at the end of clause (a) thereof the phrase "; and
PROVIDED FURTHER that no person shall be required to pledge any Intercompany
Senior Loan".
(e) The definition of "Total Debt" is hereby amended by inserting
the phrase "without duplication" before the phrase "all Capital".
(f) The definition of "EBITDA" is hereby amended by deleting the
"and" prior to clause (g) thereof and inserting immediately prior to the phrase
", minus" the phrase "and (h) any breakage fees or other fees or expenses paid
in connection with the prepayment of Term Loans in connection with the issuance
of the Senior Notes".
(g) The definition of "Wholly Owned Subsidiary" is hereby amended
by deleting the phrase "any Subsidiary included in Brazil or" and by inserting
after the phrase "Russian corporation," the phrase "Graftech, UCAR Carbon
Mexicana S.A. de C.V., UCAR Carbon S.A. or any subsidiary of any of the
foregoing".
(h) Section 1.03 of the Credit Agreement is hereby amended by
adding at the end thereof the sentence: "Each reference herein to "director's
qualifying shares" or similar terms shall be deemed to include a reference to
"or other de minimis amounts of equity required under applicable local law to be
owned by local persons".
(i) Section 2.09(d) of the Credit Agreement is hereby amended by
inserting in the proviso thereof immediately following the phrase "with the Net
Proceeds received from the UCAR Equity Offering" the phrase "or the issuance of
the Senior Notes".
(j) Section 2.10(c) of the Credit Agreement is hereby amended by
deleting in clause (iii) of the parenthetical contained therein the phrase
"clause (B) of the proviso thereto" and replacing it with the phrase "clause
(A)(2) or (B)(y) of the proviso thereto".
(k) Section 3.03(b) of the Credit Agreement is hereby amended by
deleting the "and" at the end of clause (ii) thereof, replacing the "." at the
end of clause (iii) thereof with "; and" and adding immediately after clause
(iii) thereof the following new clause (iv):
"(iv) the proceeds of each Intercompany Borrower's Intercompany
Senior Loan may be used to prepay the Intercompany Term Loan of such
Intercompany Borrower."
(l) Section 7.01(a) of the Credit Agreement is hereby amended by
(i) inserting in clause (xiii) thereof between the phrases "Term Loans," and
"and by the Borrower" the phrase "(or are otherwise advanced to the Borrower)";
and (ii) deleting clause (xiv) and substituting therefor the following:
"(xiv) Senior Notes not guaranteed by any person other than UCAR,
Global and the Domestic Subsidiaries in an aggregate principal amount
not to exceed $400,000,000; any unsecured Guarantee by UCAR, Global or
any Domestic Subsidiary of the Senior Notes; and Intercompany Senior
Loans (and Guarantees of the Intercompany Senior Loans by Subsidiaries
that Guarantee the Intercompany Loans and any Guarantee by UCAR SNC of
the Intercompany Senior Loan of UCAR Holdings S.A.; PROVIDED that the
Intercompany Loans of UCAR Holdings S.A. are guaranteed by UCAR SNC) in
an aggregate principal amount at the time of the incurrence of any
thereof not to exceed the aggregate principal amount of the Senior Notes
at such time; PROVIDED that (A) if the
aggregate principal amount of the Senior Notes exceeds $300,000,000,
then (1) 100% of the Net Proceeds of the first $250,000,000 aggregate
principal amount thereof, and (2) 50% of the Net Proceeds of the next
$150,000,000 aggregate principal amount thereof, shall be applied to
prepay Term Loans in accordance with Section 2.10(c); and (B) if the
aggregate principal amount of the Senior Notes does not exceed
$300,000,000, then (x) 100% of the Net Proceeds of the first
$200,000,000 aggregate principal amount thereof, and (y) 50% of the Net
Proceeds of the next $100,000,000 aggregate principal amount thereof,
shall be applied to prepay Term Loans in accordance with Section
2.10(c); and"
(m) Section 7.01(b)(iv) is hereby amended by replacing the "and"
therein with a "," and inserting after the reference therein to "(xii)" a
reference to "and (xiv)".
(n) Section 7.02 of the Credit Agreement is hereby amended by (i)
adding at the end of clause (n) thereof the phrase "or is effectively stayed",
and (ii) deleting the "and" at the end of clause (t) thereof, replacing the "."
at the end of clause (u) thereof with ";" and adding immediately after clause
(u) thereof the following new clauses (v) and (w):
"(v) Liens on Intercompany Senior Loans to secure Senior Notes or
to secure the Obligations, PROVIDED that the aggregate principal amount
of Intercompany Senior Loans securing Senior Notes shall not at any time
exceed the aggregate principal amount at such time of the Senior Notes;
and
(w) at any time that Graftech is not a guarantor of the Senior
Notes, a Lien on the Capital Stock of Graftech then held by UCAR, Global
or any Subsidiary that is junior to the Lien of the Lenders thereon."
(o) Section 7.04(j) of the Credit Agreement is hereby amended by
(i) replacing each reference to "2.75:1.00" in the Schedule A referred to
therein with a reference to "4.50:1.00" and by replacing the reference in such
Schedule A to "$75,000,000" in the category based on the Leverage Ratio being
"greater than or equal to 4.50:1.00" with a reference to "$50,000,000", (ii)
deleting the references to "Effective Date" in clause (ii) thereof and replacing
them with "Amendment Effective Date (as defined in the Fifth Amendment to this
Agreement)" and (iii) adding at the end thereof the phrase "(it being understood
that any noncash investment in the Jilin joint venture made after the Amendment
Effective Date (as defined in the Fifth Amendment to this Agreement) pursuant to
a contractual commitment entered into prior to the such date shall not be
counted in determining compliance with the numerical limitations hereof)".
(p) Clause (c) of Section 7.08 of the Credit
Agreement is hereby deleted and replaced with the following:
"(c) in the case of the Borrower, own any Capital Stock of any
person or engage at any time in any business activity other than (i)
performance of its obligations under the Loan Documents and in respect
of the Senior Notes, (ii) ownership of the Intercompany
Loans and the Intercompany Senior Loans, (iii) conducting treasury and
cash management functions for UCAR, Global and the Subsidiaries
consistent with past practices and (iv) activities required by law to
maintain its status as a corporation.
(q) Section 7.09 of the Credit Agreement is hereby
amended by adding at the end thereof the following new paragraph (d):
"(d) Directly or indirectly, make any payment, retirement,
repurchase or redemption on account of all or any part of the principal
of the Senior Notes or directly or indirectly prepay or defease all or
any portion of the Senior Notes, except that the Borrower may, to the
extent permitted without penalty or premium under the Senior Notes prior
to the third anniversary of the issuance thereof and so long as no
Default or Event of Default shall exist or result therefrom, prepay up
to 35% of the initial aggregate principal amount of the Senior Notes
with (i) if at the time of receipt thereof the Leverage Ratio at the end
of the most recent fiscal quarter for which financial statements shall
have been received under Section 6.04(a) or (b) (computed on a pro forma
basis after giving effect to the prepayment to be made) is less than
3.75 to 1.00, up to 50% of the proceeds received by UCAR or any of its
subsidiaries from the UCC/MC Lawsuit (including a judgment thereunder or
a settlement thereof or arising out of any other disposition of the
claims therein) or (ii) the portion of the Net Proceeds remaining in
respect of the issuance of any Capital Stock of UCAR after giving effect
to the prepayment of Loans required under Section 2.10(c) in respect
thereof; PROVIDED that, substantially contemporaneously with such
prepayment of Senior Notes, Intercompany Senior Loans shall be released
from the Lien of the Senior Notes in an aggregate principal amount
sufficient so that the aggregate principal amount of Intercompany Senior
Loans subject to such Lien shall not exceed the aggregate principal
amount of the Senior Notes."
(r) Section 7.11 of the Credit Agreement is hereby amended by (i)
deleting the table set forth therein and substituting therefor the following:
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FROM AND INCLUDING: TO AND INCLUDING: RATIO:
----------------------------------------------------------------
Fifth Amendment September 30, 2003 1.75:1.0
Effective Date
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October 1, 2003 December 31, 2004 2.00:1.0
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January 1, 2005 September 30, 2005 2.50:1.0
----------------------------------------------------------------
October 1, 2005 September 30, 2006 3.00:1.0
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October 1, 2006 Tranche B Maturity 3.50:1.0
Date
----------------------------------------------------------------
and (ii) deleting the further proviso contained therein and replacing it with
the following further proviso:
"; PROVIDED FURTHER HOWEVER, that for purposes of calculating the
Interest Coverage Ratio to determine compliance with this
Section, (A) to the extent that (i) any amount of the Amendment
Fees, (ii) any fees, costs and expenses (including fees of
counsel and experts) paid or incurred by UCAR, Global, the
Borrower or any Subsidiary in connection with the UCC/MC Lawsuit,
up to $20,000,000 in the aggregate and $3,000,000 in any one
fiscal quarter or (iii) any fees, costs and expenses paid or
incurred by UCAR, Global, the Borrower or any LC Subsidiary in
respect of any EU Letter of Credit are deducted in determining
the consolidated net income of UCAR, Global, the Borrower and the
Subsidiaries and are not added back by the definition of EBITDA,
such amount shall be added back to EBITDA, and (B) Cash Interest
Expense shall not include any amounts attributable to
Indebtedness incurred to finance the Amendment Fees, the EU
Letter of Credit or the fees, costs or expenses paid in
connection with the UCC/MC Lawsuit."
(s) Section 7.12 of the Credit Agreement is hereby amended by (i)
deleting the table set forth therein and substituting therefor the following:
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FROM AND INCLUDING: TO AND INCLUDING: RATIO:
----------------------------------------------------------------
Effective Date of Fifth September 30, 2002 6.50:1.0
Amendment
----------------------------------------------------------------
October 1, 2002 December 31, 2002 6.25:1.0
----------------------------------------------------------------
January 1, 2003 September 30, 2003 5.75:1.0
----------------------------------------------------------------
October 1, 2003 December 31, 2003 5.00:1.0
----------------------------------------------------------------
January 1, 2004 September 30, 2004 4.00:1.0
----------------------------------------------------------------
October 1, 2004 September 30, 2005 3.75:1.0
----------------------------------------------------------------
October 1, 2005 September 30, 2006 3.75:1.0
----------------------------------------------------------------
October 1, 2006 Tranche B Maturity Date 3.50:1.0
----------------------------------------------------------------
and (ii) deleting the further proviso contained therein and replacing it with
the following further proviso:
"; PROVIDED FURTHER HOWEVER, that for purposes of calculating the
Leverage Ratio to determine compliance with this Section, (A) to
the extent that (i) any amount of the Amendment Fees, (ii) any
fees, costs and expenses (including fees of counsel and experts)
paid or incurred by UCAR, Global, the Borrower or any Subsidiary
in connection with the UCC/MC Lawsuit, up to $20,000,000 in the
aggregate and $3,000,000 in any one fiscal quarter or (iii) any
fees, costs and expenses paid or incurred by UCAR, Global, the
Borrower or any LC Subsidiary in respect of any EU Letter of
Credit are deducted in determining the consolidated net income of
UCAR, Global, the Borrower and the Subsidiaries and is not added
back by the definition of EBITDA, such amount shall be added back
to EBITDA, and (B) Net Debt shall not include Indebtedness
incurred to finance (i) the Amendment Fees,
(ii) any fees, costs and expenses (including fees of counsel and
experts) paid or incurred by UCAR, Global, the Borrower or any
Subsidiary in connection with the UCC/MC Lawsuit, up to
$20,000,000 in the aggregate and $3,000,000 in any one fiscal
quarter or (iii) any fees, costs and expenses paid or incurred by
UCAR, Global, the Borrower or any LC Subsidiary in respect of any
EU Letter of Credit."
(t) Each of the following provisions of the Credit Agreement
relating to Graftech shall be amended as set forth below:
(i) The penultimate sentence of the definition of
"Collateral and Guarantee Requirement" is hereby amended by
deleting the "(a)" therein and by deleting the phrase "and (b)
none of UCAR, Global or any Subsidiary shall be required to
pledge the Capital Stock of Graftech Technology Company Inc"
(ii) The definition of "Unrestricted Subsidiary" is hereby
amended to delete in clause (a) the phrase "Graftech Technology
Company Inc. and"; to delete in the parenthetical contained in
clause (a) the phrase "other than Graftech Technology Company
Inc."; and to delete in clause (a) the parenthetical "(except
that the Capital Stock of Graftech Technology Company Inc. may be
so owned while UCAR is diligently acting to transfer the
ownership of such Capital Stock to UCAR)".
(iii) Section 7.04(j) is hereby amended by deleting the
phrase "(A) no more than $15,000,000 of such amount at any time
may be invested in Graftech Technology Company Inc. and (B)".
(iv) Section 7.05 is hereby amended by (i) deleting the
phrase ", subject to Section 7.06(f)," from the last sentence of
clause (i) thereof, (ii) adding an "and" at the end of such
clause (i), (iii) deleting clause (k) therefrom, and (iv)
relettering the last clause thereof "(k)" rather than "(l)".
(v) Section 7.06 shall be amended by deleting clause (f)
and clause (g) thereof, adding at the end of clause (e) thereof
the word "and" and by relettering the last clause thereof "(f)"
rather than "(h)".
(u) The Agents are hereby directed and authorized to take
such action and to execute such documents as the Borrower may
reasonably request, at the Borrower's sole expense, including
consents to the Liens permitted under Section 7.02(v) and (w), to
facilitate or permit the transactions contemplated hereunder in
respect of the Senior Notes, the Intercompany Senior Loans and
the Intercompany Term Loans.
SECTION 2. REPRESENTATIONS AND WARRANTIES. Each of UCAR, 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 on and as of the date hereof, 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. EFFECTIVENESS. This Amendment shall become effective
when the Administrative Agent or its counsel shall have received counterparts of
this Amendment that, when taken together, bear the signatures of the Borrower,
UCAR, Global and the Required Lenders, but the provisions of Section 1 above
shall not become effective until as of the first date (the "AMENDMENT EFFECTIVE
DATE") on which the following conditions are met: (a) the Borrower shall have
received gross proceeds in respect of the Senior Notes in an amount not less
than $250,000,000 and Term Loans shall have been prepaid in an aggregate
principal amount not less than that required under Sections 2.10(c) and
7.01(a)(xiv) as amended hereby in connection with the issuance of such Senior
Notes; (b) the Collateral and Guarantee Requirement shall have been satisfied
with respect to Graftech and in connection therewith each of Graftech and its
subsidiaries shall have become a Guarantor and shall have entered into each
applicable Security Document and UCAR Carbon Company Inc. shall have pledged all
the Capital Stock of Graftech to secure the Obligations; (c) each Lender shall
have received the Amendment Fee required to be paid to it pursuant to Section 4
below and (d) the representations and warranties set forth in Section 2 above
shall be true and correct on and as of such date. Notwithstanding anything
herein to the contrary, the Amendment Effective Date shall not occur after March
15, 2002.
SECTION 4. AMENDMENT FEE. The Borrower agrees to pay to each
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
18, 2002, an amendment fee (the "AMENDMENT FEE") in an amount equal to 0.25% of
such Lender's Revolving Commitment (whether used or unused) and outstanding Term
Loans, in each case based on the amount outstanding immediately after the
issuance of the Senior Notes and the application of the Net Proceeds therefrom
in accordance with Section 2.10(c); 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 5. 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.
SECTION 6. 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 7. APPLICABLE LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. 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]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed by their respective authorized officers as of the date and
year first above written.
UCAR INTERNATIONAL INC.,
By: /s/ Walter D. Carter, Jr.
-------------------------
Name: Walter D. Carter, Jr.
Title: Assistant Treasurer
UCAR GLOBAL ENTERPRISES INC.,
By: /s/ Walter D. Carter, Jr.
-------------------------
Name: Walter D. Carter, Jr.
Title: Assistant Treasurer
UCAR FINANCE INC.,
By: /s/ Walter D. Carter, Jr.
-------------------------
Name: Walter D. Carter, Jr.
Title: Assistant Treasurer
JPMORGAN CHASE BANK, as a Lender,
and as Administrative Agent, Collateral
Agent and Issuing Bank,
By: /s/ Jim Ramage
--------------
Name: Jim Ramage
Title: Managing Director
Signature Page to Fifth Amendment to UCAR Finance Inc. Credit Agreement.
CREDIT SUISSE FIRST BOSTON
By: /s/ Paul J. Corona
------------------
Name: Paul J. Corona
Title: Director
By: /s/ Mark E. Gleason
-------------------
Name: Mark E. Gleason
Title: Director
BANK OF AMERICA, N.A.
By: /s/ Harold L. Norman
--------------------
Name: Harold L. Norman
Title: Managing Director
FLEET NATIONAL BANK
By: /s/ Irene Bertozzi Bartenstein
------------------------------
Name: Irene Bertozzi Bartenstein
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Todd Meller
---------------
Name: Todd Meller
Title: Managing Director
FIRST UNION NATIONAL BANK
By: /s/ Robert Brown
----------------
Name: Robert Brown
Title: Vice President
ABN AMRO BANK N.V.
By: /s/ James S. Kreitler
---------------------
Name: James S. Kreitler
Title: Group Vice President
By: /s/ Craig W. Trautwein
----------------------
Name: Craig W. Trautwein
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Attila Koc
---------------
Name: Attila Koc
Title: Senior Vice President
MELLON BANK, N.A.
By: /s/ Peter K. Lee
----------------
Name: Peter K. Lee
Title: Vice President
INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ John Dippo
--------------
Name: John Dippo
Title: Senior Vice President
CREDIT INDUSTRIEL ET COMMERCIAL
By: /s/ Gary George
----------------
Name: Gary George
Title: Manager
By: /s/ Tim Huband
---------------
Name: Time Huband
Title: Manager
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Gregory L. Hong
-------------------
Name: Gregory L. Hong
Title: Duly Authorized Signatory
THE BANK OF NEW YORK
By: /s/ Christine T. Rio
--------------------
Name: Christine T. Rio
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By: /s/ Larry Materi
----------------
Name: Larry Materi
Title: Vice President
By: /s/ Theodore D. Tice
--------------------
Name: Theodore D. Tice
Title: Senior Relationship Manager
PNC BANK NATIONAL ASSOCIATION
By: /s/ Louis K. Mclinden, Jr.
---------------------------
Name: Louis K. McLinded, Jr.
Title: Vice President
CIBC WORLD MARKETS PLC
By: /s/ S.E.Devane
--------------
Name: S. E. DeVane
Title: Authorized Signatory
THE FUJI BANK, LIMITED
By: /s/ John Doyle
--------------
Name: John Doyle
Title: Vice President and Manager
PB CAPITAL CORPORATION
By: /s/ Christopher J. Ruzzi
------------------------
Name: Christopher J. Ruzzi
Title: Vice President
By: /s/ Aurelio Almonte
-------------------
Name: Aurelio Almonte
Title: Associate
NATIEXIS BANQUES POPULAIRES
By: /s/ Frank H. Madden
-------------------
Name: Frank H. Madden
Title: Vice President & Group Manager
By: /s/ Harris Frommer
------------------
Name: Harris Frommer
Title: Assistant Vice President
BANK PEKAO SA
By: /s/ Hussein B. El-Tawil
-----------------------
Name: Hussein B. El-Tawil
Title: Vice President
MONUMENT CAPITAL LTD., as Assignee
By: Alliance Capital Management L.P.,
As Investment Manager
By: Alliance Capital Management Corporation,
as General Partner
By: /s/ Sverker Johansson
---------------------
Name: Sverker Johansson
Title: Vice President
AIMCO CDO SERIES 2000-A
By: /s/ Jerry D. Zinkula
--------------------
Name: Jerry D. Zinkula
Title: Authorized Signatory
By: /s/ Chris Goergen
-----------------
Name: Chris Georgen
Title: Authorized Signatory
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Jerry D. Zinkula
--------------------
Name: Jerry D. Zinkula
Title: Authorized Signatory
By: /s/ Chris Goergen
-----------------
Name: Chris Georgen
Title: Authorized Signatory
SIMCO CLO SERIES 2001-A
By: /s/ Jerry D. Zinkula
--------------------
Name: Jerry D. Zinkula
Title: Authorized Signatory
By: /s/ Chris Goergen
-----------------
Name: Chris Georgen
Title: Authorized Signatory
AMMC CDO I, LIMITED
By: American Money Management Corp., as
Collateral Manager
By: /s/ David P. Meyer
------------------
Name: David P. Meyer
Title: Vice President
AMMC CDO II, LIMITED
By: American Money Management Corp., as
Collateral Agent
By: /s/ David P. Meyer
------------------
Name: David P. Meyer
Title: Vice President
ARES III CLO LTD.
By: ARES CLO Management LLC, Investment
Manager
By: /s/ Seth J. Brufsky
-------------------
Name: Seth J. Brufsky
Title: Vice President
ARES IV CLO LTD.
By: Ares CLO Management IV, L.P.,
Investment Manager
By: Ares CLO GP IV, LLC, Its Managing
Member
By: /s/ Seth J. Brufsky
-------------------
Name: Seth J. Brufsky
Title: Vice President
ARES LEVERAGED INVESTMENT FUND II,
L.P.
By: ARES Management II, L.P.
Its General Partner
By: /s/ Seth J. Brufsky
-------------------
Name: Seth J. Brufsky
Title: Vice President
ARES V CLO LTD.
By: Ares CLO Management V, L.P., Investment
Manager
By: Ares CLO GP V, LLC, Its Managing
Member
By: /s/ Seth J. Brufsky
-------------------
Name: Seth J. Brufsky
Title: Vice President
Sankaty Adivsors, Inc., as Collateral Manager
for BRANT POINT CBO 1999-1 LTD., as Term
Lender
By: /s/ Diane J. Exter
------------------
Name: Diane J. Exter
Title: Managing Director
Portfolio Manager
Sankaty Advisors, Inc., as Collateral Manager
for GREAT POINT CLO 1999-1 LTD., as Term
Lender
By: /s/ Diane J. Exter
------------------
Name: Diane J. Exter
Title: Managing Director
Portfolio Manager
Sankaty Advisors, Inc., as Collateral Manager
for RACE POINT CLO, LIMITED, as Term
Lender
By: /s/ Diane J. Exter
------------------
Name: Diane J. Exter
Title: Managing Director
Portfolio Manager
SANKATY HIGH YIELD ASSET
PARTNERS, L.P.
By: /s/ Diane J. Exter
------------------
Name: Diane J. Exter
Title: Managing Director
Portfolio Manager
SANKATY HIGH YIELD PARTNERS III, L.P.
By: /s/ Diane J. Exter
------------------
Name: Diane J. Exter
Title: Managing Director
Portfolio Manager
HARBOUR TOWN FINDING TRUST
By: /s/ Kelly W. Warnement
----------------------
Name: Kelly W. Warnement
Title: Authorized Agent
RIVIERA FUNDING LLC
By: /s/ Diana L. Mushill
--------------------
Name: Diana L. Mushill
Title: Assistant Vice President
APEX (TRIMARAN) CDO I, LTD.
By Trimaran Advisors, L.L.C.
By: /s/ David A. Millison
---------------------
Name: David A. Millison
Title: Managing Director
SAWGRASS TRADING LLC
By: /s/ Ann E. Morris
-----------------
Name: Ann E. Morris
Title: Assistant Vice President
CARLYLE HIGH YIELD PARTNERS II, LTD.
By: /s/ Linda M. Pace
-----------------
Name: Linda M. Pace
Title: Vice President
CARLYLE HIGH YIELD PARTNERS III, LTD.
By: /s/ Linda M. Pace
-----------------
Name: Linda M. Pace
Title: Vice President
CARLYLE HIGH YIELD PARTNERS, L.P.
By: /s/ Linda M. Pace
-----------------
Name: Linda M. Pace
Title: Vice President
KZH CNC LLC
By: /s/ Susan Lee
-------------
Name: Susan Lee
Title: Authorized Agent
WINGED FOOT FUNDING TRUST
By: /s/ Diana L. Mushill
--------------------
Name: Diana L. Mushill
Title: Authorized Agent
EATON VANCE SENIOR INCOME TRUST
By: Eaton Vance Management
As Investment Advisor
By: /s/ Barbara Campbell
--------------------
Name: Barbara Campbell
Title: Vice President
GRAYSON & CO.
By: Boston Management and Research
As Investment Advisor
By: /s/ Barbara Campbell
--------------------
Name: Barbara Campbell
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
As Investment Advisor
By: /s/ Barbara Campbell
--------------------
Name: Barbara Campbell
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Gregory Hong
----------------
Name: Gregory Hong
Title: Duly Authorized Signatory
HARCH CLO I, LTD.
By: /s/ Michael E. Lewitt
---------------------
Name: Michael E. Lewitt
Title: Authorized Signatory
BLUE SQUARE FUNDING SERIES 3
By: Bankers Trust Company, as Trustee
By: /s/ Susan Anderson
------------------
Name: Susan Anderson
Title: Assistant Vice President
ELF FUNDING TRUST I
By: Highland Capital Management, L.P.
As Collateral Manager
By: /s/ Todd Travers
----------------
Name: Todd Travers
Title: Senior Portfolio Manager
GLENEAGLES TRADING LLC
By: /s/ Diana L. Mushill
--------------------
Name: Diana L. Mushill
Title: Assistant Vice President
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P.
As Collateral Manager
By: /s/ Todd Travers
----------------
Name: Todd Travers
Title: Senior Portfolio Manager
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: RBC Leveraged Capital as Portfolio
Advisor
By: /s/ Melissa Marano
------------------
Name: Melissa Marano
Title: Director
ARCHIMEDES FUNDING II, LTD.
By: ING Capital Advisors LLC,
As Collateral Manager
By: /s/ Gordon R. Cook
------------------
Name: Gordon R. Cook
Title: Senior Vice President
& Portfolio Manager
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC,
As Collateral Manager
By: /s/ Gordon R. Cook
------------------
Name: Gordon R. Cook
Title: Senior Vice President
& Portfolio Manager
KZH ING-1 LLC
By: /s/ Susan Lee
-------------
Name: Susan Lee
Title: Authorized Agent
KZH ING-2 LLC
By: /s/ Susan Lee
-------------
Name: Susan Lee
Title: Authorized Agent
KZH ING-3 LLC
By: /s/ Susan Lee
-------------
Name: Susan Lee
Title: Authorized Agent
SEQUILS-ING I (HBDGM), LTD.
By: ING Capital Advisors LLC,
As Collateral Manager
By: /s/ Gordon R. Cook
------------------
Name: Gordon R. Cook
Title: Senior Vice President
& Portfolio Manager
SWISS LIFE US RAINBOW LIMITED
By: ING Capital Advisors LLC,
As Collateral Manager
By: /s/ Gordon R. Cook
------------------
Name: Gordon R. Cook
Title: Senior Vice President
& Portfolio Manager
COPERNICUS CDO EURO-I B.V.
By: ING Capital Advisors LLC, as Collateral
Manager
By: /s/ Gordon R. Cook
------------------
Name: Gordon R. Cook
Title: Senior Vice President
& Portfolio Manager
AERIES FINANCE-II LTD.
By: INVESCO Senior Secured Management,
Inc. as Sub-Managing Agent
By: /s/ Gregory Stockle
-------------------
Name: Gregory Stockle
Title: Authorized Signatory
AMARA 2 FINANCE LTD.
By: INVESCO Senior Secured Management,
Inc. as Sub-Advisor
By: /s/ Gregory Stockle
-------------------
Name: Gregory Stockle
Title: Authorized Signatory
AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management,
Inc. as Portfolio Advisor
By: /s/ Gregory Stockle
-------------------
Name: Gregory Stockle
Title: Authorized Signatory
AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management,
Inc. as Portfolio Advisor
By: /s/ Gregory Stockle
-------------------
Name: Gregory Stockle
Title: Authorized Signatory
CERES II FINANCE LTD.
By: INVESCO Senior Secured Management,
Inc. as Sub-Managing Agent (Financial)
By: /s/ Gregory Stockle
-------------------
Name: Gregory Stockle
Title: Authorized Signatory
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management,
Inc. as Investment Advisor
By: /s/ Gregory Stockle
-------------------
Name: Gregory Stockle
Title: Authorized Signatory
TRITON CDO IV, LIMITED
By: INVESCO Senior Secured Management,
Inc. as Investment Advisor
By: /s/ Gregory Stockle
-------------------
Name: Gregory Stockle
Title: Authorized Signatory
KATONAH I, LTD.
By: /s/ Ralph Della Rocca
---------------------
Name: Ralph Della Rocca
Title: Authorized Officer
Katonah Capital, L.L.C.
as Manager
KATONAH II, LTD.
By: /s/ Ralph Della Rocca
---------------------
Name: Ralph Della Rocca
Title: Authorized Officer
Katonah Capital, L.L.C.
as Manager
MAPLEWOOD (CAYMAN) LTD.
By: Mass Mutual Life Insurance Co.
As Investment Manager
By: /s/ Steven J. Katz
------------------
Name: Steven J. Katz
Title: Second Vice President and
Associate General Counsel
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Steven J. Katz
------------------
Name: Steven J. Katz
Title: Second Vice President and
Associate General Counsel
SIMSBURY CLO, LTD.
By: Mass Mutual Life Insurance Co.
As Collateral Manager
By: /s/ Steven J. Katz
------------------
Name: Steven J. Katz
Title: Second Vice President and
Associate General Counsel
MOUNTAIN CAPITAL CLO II LTD.
By: /s/ Guy Major
-------------
Name: Guy Major
Title: Director
MUZINICH CASHFLOW CBO LTD.
By: /s/ Daniel Naccarella
---------------------
Name: Daniel Naccarella
Title: Authorized Signatory
OCTAGON INVESTMENT PARTNERS II,
LLC
By: Octagon Credit Investors, LLC
As sub-investment manager
By: /s/ Michael B. Nechamkin
------------------------
Name: Michael B. Nechamkin
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS III,
LTD
By: Octagon Credit Investors, LLC
As Portfolio Manager
By: /s/ Michael B. Nechamkin
------------------------
Name: Michael B. Nechamkin
Title: Portfolio Manager
OCTAGON INVESTMENT PARTNERS IV,
LTD
By: Octagon Credit Investors, LLC
As collateral manager
By: /s/ Michael B. Nechamkin
------------------------
Name: Michael B. Nechamkin
Title: Portfolio Manager
ADDISON CDO, LIMITED (ACCT 1279)
BY: Pacific Investment Management Company
LLC, as its Investment Advisor
By: /s/ Mohan V. Phansalkar
-----------------------
Name: Mohan V. Phansalkar
Title: Executive Vice President
ATHENA CDO, LIMITED (ACCT 1277)
BY: Pacific Investment Management Company
LLC, as its Investment Advisor
By: /s/ Mohan V. Phansalkar
-----------------------
Name: Mohan V. Phansalkar
Title: Executive Vice President
BEDFORD CDO, LIMITED (ACCT 1276)
BY: Pacific Investment Management Company
LLC, as its Investment Advisor
By: /s/ Mohan V. Phansalkar
-----------------------
Name: Mohan V. Phansalkar
Title: Executive Vice President
CAPTIVA III FINANCE LTD. (ACCT 275),
As Advised by Pacific Investment Management
Company LLC
By: /s/ David Dyer
--------------
Name: David Dyer
Title: Director
DELANO COMPANY (ACCT 274)
BY: Pacific Investment Management Company
LLC, as its Investment Advisor
By: /s/ Mohan V. Phansalkar
-----------------------
Name: Mohan V. Phansalkar
Title: Executive Vice President
JISSEKIKUN FUNDING, LTD. (ACCT 1228)
BY: Pacific Investment Management Company
LLC, as its Investment Advisor
By: /s/ Mohan V. Phansalkar
-----------------------
Name: Mohan V. Phansalkar
Title: Executive Vice President
JACKSON NATIONAL LIFE INSURANCE
COMPANY
By: PPM America, Inc., as Attorney-in-Fact
By: /s/ David C. Wagner
-------------------
Name: David C. Wagner
Title: Managing Director
PPM SPYGLASS FUNDING TRUST
By: /s/ Diana L. Mushill
--------------------
Name: Diana L. Mushill
Title: Authorized Agent
KZH RIVERSIDE LLC
By: /s/ Susan Lee
-------------
Name: Susan Lee
Title: Authorized Agent
SCUDDER FLOATING RATE FUND
By: /s/ Kenneth Weber
-----------------
Name: Kenneth Weber
Title: Senior Vice President
STANFIELD CLO LTD.
By: Stanfield Capital Partners LLC
as its Collateral Manager
By: /s/ Christopher E. Jansen
-------------------------
Name: Christopher E. Jansen
Title: Managing Partner
HAMILTON CDO, LTD.
By: Stanfield Capital Pertners LLC
As its Collateral Manager
By: /s/ Christopher E. Jansen
-------------------------
Name: Christopher E. Jansen
Title: Managing Partner
STANFIELD/RMF TRANSATLANTIC CDO
LTD.
By: Stanfield Capital Partners LLC
as its Collateral Manager
By: /s/ Christopher E. Jansen
-------------------------
Name: Christopher E. Jansen
Title: Managing Partner
LIBERTY - STEIN ROE ADVISOR
FLOATING RATE ADVANTAGE FUND
By: Stein Roe & Farnham Incorporated, as
Advisor
By: /s/ James R. Fellows
--------------------
Name: James R. Fellows
Title: Senior Vice President & Portfolio
Manager
SRF 2000 LLC
By: /s/ Diana Mushill
-----------------
Name: Diana Mushill
Title: Assistant Vice President
SRF TRADING, INC.
By: /s/ Diana Mushill
-----------------
Name: Diana Mushill
Title: Assistant Vice President
STEIN ROE & FARNHAM CLO I LTD.
By: Stein Roe & Farnham Incorporated, as
Portfolio Manager
By: /s/ James R. Fellows
--------------------
Name: James R. Fellows
Title: Senior Vice President & Portfolio
Manager
STEIN ROE FLOATING RATE LIMITED
LIABILITY COMPANY
By: /s/ James R. Fellows
--------------------
Name: James R. Fellows
Title: Senior Vice President
Stein Roe & Farnham Incorporated, as
Advisor to the Stein RoeFloating Rate
Limited Liability Company
GALAXY CLO 1999-1, LTD.
By: SAI Investment Advisor, Inc.
Its Collateral Manager
By: /s/ John G. Latham
-------------------
Name: John G. Latham
Title: Authorized Agent
KZH SOLIEL - 2 LLC
By: /s/ Susan Lee
-------------
Name: Susan Lee
Title: Authorized Agent
TORONTO DOMINION (NEW YORK), INC.
By: /s/ Gwen Zirkle
---------------
Name: Gwen Zirkle
Title: Vice President
VAN KAMPEN CLO II, LIMITED
By: Van Kampen Management Investment
Advisory Corp. as Collateral Manager
By: /s/ Darvin D. Pierce
--------------------
Name: Darvin D. Pierce
Title: Executive Director
VAN KAMPEN PRIME RATE INCOME
TRUST
By: Van Kampen Investment Advisory Corp.
By: /s/ Darvin D. Pierce
--------------------
Name: Darvin D. Pierce
Title: Executive Director
VAN KAMPEN SENIOR INCOME TRUST
By: Van Kampen Investment Advisory Corp.
By: /s/ Darvin D. Pierce
--------------------
Name: Darvin D. Pierce
Title: Executive Director
VAN KAMPEN SENIOR FLOATING RATE FUND
By: Van Kampen Investment Advisory Corp.
By: /s/ Darvin D. Pierce
--------------------
Name: Darvin D. Pierce
Title: Executive Director
EXHIBIT A
TERM SHEET - SENIOR NOTES
ISSUER: UCAR Finance Inc.
PARENT COMPANY GUARANTORS: UCAR International Inc. and UCAR Global
Enterprises Inc.
PRINCIPAL AMOUNT: $250 - 400 million
RANKING: Senior
TERM: 8 - 10 years
OPTIONAL REDEMPTION: 4 - 5 year non-call protection
CLAWBACK: Up to 35% of the Notes may be redeemed at
any time within __ years with the proceeds
of an equity offering or at any time with
net proceeds from our lawsuit initiated
against our former parents.
CHANGE OF CONTROL PUT: Change of control put at 101%
CUSTOMARY COVENANTS: LIMITATION ON INDEBTEDNESS
LIMITATION ON RESTRICTED PAYMENTS
LIMITATION ON MERGERS AND CONSOLIDATIONS
LIMITATION ON ASSET SALES
LIMITATION ON PAYMENTS RESTRICTIONS
AFFECTING SUBSIDIARIES
LIMITATION ON TRANSACTIONS WITH AFFILIATES
LIMITATION ON LIENS
USE OF NET PROCEEDS: 100% of first $200 million (first $250
million, if offering is more than $300
million) and 50% of balance to be used to
repay senior secured term bank debt; balance
to be used for working capital and general
corporate purposes (to reduce revolver
pending use)
STRUCTURE: Same as senior secured lenders (excluding
security except for pledge of unsecured
notes and, at any time that Graftech is not
a guarantor of the Senior Notes, junior
security on the shares of Graftech held by
us)
Senior unsecured guarantees by virtually all
U.S. subsidiaries
Equivalent structure by foreign subsidiaries
(which cannot give guarantees for tax
reasons):
Foreign subsidiaries issue senior
unsecured intercompany notes to UCAR
Finance, in a principal amount equal
to Senior Notes
These notes are pledged to secure
repayment of the Senior Notes
No material priority debt incurred
by foreign subsidiaries at the date
of issuance of the Senior Notes,
except secured intercompany notes to
UCAR Finance, which are pledged to
senior lenders
Graftech and its subsidiaries will guarantee
the Senior Notes on a senior unsecured
basis:
Unless we determine that the SEC
reporting requirements would be
unduly burdensome or detrimental to
Graftech's business, in which case
we would give a junior pledge on the
shares of Graftech held by us to
secure the Senior Notes
Until Graftech either completes an
IPO or we or Graftech sell privately
a material portion of the equity of
Graftech, at which time the
guarantee would be released and a
junior pledge would be created