2013 10K Exhibit 10.1.17 - 2nd Amendment Cr Agrmnt


 


SECOND AMENDMENT dated as of  October 29, 2012 (this “Amendment”), in respect of the AMENDED AND RESTATED CREDIT AGREEMENT dated as of October 7, 2011, as amended and further restated on April 20, 2012, pursuant to the First Amendment dated March 26, 2012 (as further amended from time to time, the “Credit Agreement”), among GRAFTECH INTERNATIONAL LTD. (“GrafTech”); GRAFTECH LUXEMBOURG I S.À.R.L. (“Luxembourg Parent”);  GRAFTECH LUXEMBOURG II S.À.R.L. (“Luxembourg Holdco”); GRAFTECH FINANCE INC. (“Finance”); GRAFTECH SWITZERLAND S.A. (“Swissco” and, together with Finance and Luxembourg Holdco, the “Borrowers”); 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.
The Borrowers have requested that the Credit Agreement be amended as set forth below.  Capitalized terms used but not defined herein have the meanings assigned to them in the Credit Agreement.
In consideration of the above premises and the agreements, provisions and covenants herein contained, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree, on the terms and subject to the conditions set forth herein, as follows:
SECTION 1.    Amendment.  Upon the effectiveness of this Amendment as provided in Section 3 below, the Credit Agreement is hereby amended as follows:
(a)    Section 1.01 of the Credit Agreement is hereby amended to add the following definition:
““Senior Notes” shall mean the Senior Notes of GrafTech referred to in Section 6.01(b)(vi) hereof.”
(b)    The definition of “General Debt Basket” contained in Section 1.01 of the Credit Agreement is hereby deleted in its entirety and replaced with the following:
““General Debt Basket” shall mean, in connection with any incurrence of Indebtedness, (a) if the Leverage Ratio as of the last day of the then most recently ended fiscal quarter, computed on a pro forma basis giving effect to the incurrence of such Indebtedness and to all other incurrences and repayments of Indebtedness since the end of such fiscal quarter, would be less than 3.25 to 1.00, $400,000,000, and (b) otherwise, $250,000,000.”
(c)    The definition of “Permitted Subsidiary Investment” contained in Section 1.01 of the Credit Agreement is hereby amended (i) by deleting the words “of, and” in clause (a) thereof and inserting “, (b)” in their place and (ii) by relettering clause (b) as clause (c).
(d)    Section 6.01(a) of the Credit Agreement is hereby amended by inserting the following new clause (xiii) immediately after clause (xii) thereof and renumbering clauses (xiii), (xiv), (xv), (xvi) and (xvii) thereof as clauses (xiv), (xv), (xvi), (xvii) and (xviii), respectively (and all references to such clauses in the Credit Agreement shall be amended to reflect such renumbering):
“(xiii) Guarantees by Finance or any Guarantor of the Senior Notes and Indebtedness of Finance representing an intercompany loan from GrafTech of the proceeds of the Senior Notes to permit the repayment of amounts outstanding under this Agreement;”
(e)    Section 6.01(b) of the Credit Agreement is hereby amended (i) by inserting at the end of clause (b)(i) thereof the words “and Permitted Refinancing Notes in respect of the Senior Subordinated Notes”, and (ii) by inserting the following new clause (vi) immediately after clause (v) thereof and renumbering clauses (vi) and (vii) thereof as clauses (vii) and (viii), respectively (and all references to such clauses in the Credit Agreement shall be amended to reflect such renumbering): 
“(vi) up to $350,000,000 aggregate principal amount of Senior Notes of GrafTech issued after the Effective Date and on or prior to November 30, 2012, and intercompany loans of the proceeds thereof to permit the repayment of amounts outstanding under this Agreement;”
(f)    Section 6.01(c) of the Credit Agreement is hereby amended by inserting the following new clause (vi) immediately after clause (v) thereof and renumbering clauses (vi) and (vii) thereof as clauses (vii) and (viii), respectively (and all references to such clauses in the Credit Agreement shall be amended to reflect such renumbering): 
“(vi) Indebtedness to GrafTech or Finance representing the proceeds of the Senior Notes;”
(g)    Section 6.04(j) of the Credit Agreement is hereby amended to read as follows: 
“(j) any Investment constituting a Permitted Subsidiary Investment made after the Effective Date; provided, that (i) either (A) the Leverage Ratio as of the last day of the most recent fiscal quarter of GrafTech for which financial statements have been delivered under Section 5.04(a) or (b) (recomputed on a pro forma basis after giving effect to such Investment as if such Investment had occurred on the first day of the relevant period for such computation) is less than or equal to 3.25 to 1.00 or (B) such Permitted Subsidiary Investment is a Permitted Acquisition and the amount of such Investment, taken together with the aggregate amount of all other Permitted Subsidiary Investments made pursuant to this clause (B) during the term of this Agreement, shall not exceed $400,000,000, and (ii) the Availability Condition shall be satisfied following such Investment and payment of all related costs and expenses;”
(h)    Section 6.04 of the Credit Agreement is hereby amended by inserting the following new clause (s) immediately after clause (r) thereof: 
“(s) Investments constituting intercompany loans to Finance and Luxembourg Holdco (i) of proceeds of Senior Notes to permit the recipients to repay amounts outstanding under this Agreement and (ii) of proceeds of other Indebtedness to fund Investments permitted under Section 6.04(j)(B);”
(i)    Section 6.08(b)(iii), of the Credit Agreement is hereby amended by inserting at the end thereof “and Investments in Subsidiaries permitted by Section 6.04”.
(j)    Section 6.09(a) of the Credit Agreement is hereby amended (i) by replacing the word “and” immediately following clause (ii) thereof with a comma and (ii) by inserting the following new clause (iv):
“or (iv) in order to fund payments in respect of the Senior Notes or other Indebtedness permitted to be incurred under Section 6.01(b).”
SECTION 2.    Representations and Warranties.  Each of GrafTech and the Borrowers hereby represents and warrants to the Administrative Agent and the Lenders, as of the Effective Date (as defined below) that:
(a)    no Default or Event of Default has occurred and is continuing; and
(b)    the representations and warranties of each Loan Party set forth in the Loan Documents 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 they were true and correct as of such earlier date).  
SECTION 3.    Effectiveness.  This Amendment shall become effective on the date (the “Effective Date”) on which the Administrative Agent shall have received counterparts hereof duly executed and delivered by GrafTech, the Borrowers and the Required Lenders.
SECTION 1.    Applicable Law.  THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 2.    Counterparts.  This Amendment may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute but one contract.  Delivery of an executed counterpart of a signature page of this Amendment by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart of this Amendment.  This Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 3.    Expenses.  GrafTech and Finance agree to reimburse the Administrative Agent for all reasonable out-of-pocket expenses incurred by it in connection with this Amendment, including the reasonable fees, charges and disbursements of Cravath, Swaine & Moore LLP, counsel for the Administrative Agent.
SECTION 4.    No Other Amendments; Confirmation.  Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute an amendment of or otherwise affect the rights and remedies of the Lenders 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 Borrowers to a consent to, or an 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.  This Amendment shall apply and be effective only with respect to the provisions of the Credit Agreement specifically referred to herein.  On and after the Effective Date, any reference to the Credit Agreement shall mean the Credit Agreement as modified hereby.
SECTION 5.    Headings.  The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.
	
		
	GRAFTECH INTERNATIONAL LTD.,

	

   by  /s/ Quinn J. Coburn___________

	 
	Name:   Quinn J. Coburn

	 
	Title:   Vice President - Treasury, Treasurer






	
		
	GRAFTECH FINANCE INC.,

	

   by  /s/ Quinn J. Coburn___________

	 
	Name:   Quinn J. Coburn

	 
	Title:   Vice President - Treasury, Treasurer








	
		
	GRAFTECH LUXEMBOURG I S.À.R.L.,

	

   by  /s/ John D. Moran___________

	 
	Name:   John D. Moran

	 
	Title:   Attorney-in-Fact








	
		
	GRAFTECH LUXEMBOURG II S.À.R.L.,

	

   by  /s/ John D. Moran___________

	 
	Name:   John D. Moran

	 
	Title:   Attorney-in-Fact








	
		
	GRAFTECH SWITZERLAND S.A.,

	

   by  /s/ John D. Moran___________

	 
	Name:   John D. Moran

	 
	Title:   Attorney-in-Fact














	
		
	JPMORGAN CHASE BANK, N.A., individually and as Administrative Agent, Collateral Agent, Issuing Bank and Swingline Lender,

	

   by  /s/ Peter S. Predun ___________

	 
	Name:   Peter S. Predun

	 
	Title:   Executive Director








SIGNATURE PAGE
 
SECOND AMENDMENT DATED AS OF OCTOBER 29, 2012, TO THE AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF OCTOBER 7, 2011, AS AMENDED AND FURTHER RESTATED ON APRIL 20, 2012, PURSUANT TO THE FIRST AMENDMENT DATED MARCH 26, 2012, OF GRAFTECH INTERNATIONAL LTD.












Name of Lender: BANK OF AMERICA, N.A. 


  by
       /s/ Kenneth G. Wood    
       Name: Kenneth G. Wood
       Title:  Senior Vice President


  by
           
       Name: 
       Title:






SIGNATURE PAGE
 
SECOND AMENDMENT DATED AS OF OCTOBER 29, 2012, TO THE AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF OCTOBER 7, 2011, AS AMENDED AND FURTHER RESTATED ON APRIL 20, 2012, PURSUANT TO THE FIRST AMENDMENT DATED MARCH 26, 2012, OF GRAFTECH INTERNATIONAL LTD.












Name of Lender: THE BANK OF NOVA SCOTIA 


  by
       /s/ Michelle C. Phillips    
       Name: Michelle C. Phillips
       Title:  Director


 






SIGNATURE PAGE
 
SECOND AMENDMENT DATED AS OF OCTOBER 29, 2012, TO THE AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF OCTOBER 7, 2011, AS AMENDED AND FURTHER RESTATED ON APRIL 20, 2012, PURSUANT TO THE FIRST AMENDMENT DATED MARCH 26, 2012, OF GRAFTECH INTERNATIONAL LTD.












Name of Lender: BANK OF THE WEST 


  by
       /s/ Camille Farnsworth-Schrader    
       Name: Camille Farnsworth-Schrader
       Title:  Vice President


 
SIGNATURE PAGE
 
SECOND AMENDMENT DATED AS OF OCTOBER 29, 2012, TO THE AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF OCTOBER 7, 2011, AS AMENDED AND FURTHER RESTATED ON APRIL 20, 2012, PURSUANT TO THE FIRST AMENDMENT DATED MARCH 26, 2012, OF GRAFTECH INTERNATIONAL LTD.












Name of Lender: BNP PARIBAS


  by
       /s/ Michael A. Kowalczuk    
       Name: Michael A. Kowalczuk
       Title:  Director


  by1 
       /s/ Berangere Allen             
       Name: Berangere Allen
       Title:  Director


 
































_____________________________________
1.  For any Lender requiring a second signature line    
SIGNATURE PAGE
 
SECOND AMENDMENT DATED AS OF OCTOBER 29, 2012, TO THE AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF OCTOBER 7, 2011, AS AMENDED AND FURTHER RESTATED ON APRIL 20, 2012, PURSUANT TO THE FIRST AMENDMENT DATED MARCH 26, 2012, OF GRAFTECH INTERNATIONAL LTD.












Name of Lender: Fifth Third Bank


  by
       /s/ Sandra Centa    
       Name: Sandra Centa
       Title:  Vice President


  By1 
           
       Name: 
       Title:


























_____________________________________
1.  For any Lender requiring a second signature line    
SIGNATURE PAGE
 
SECOND AMENDMENT DATED AS OF OCTOBER 29, 2012, TO THE AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF OCTOBER 7, 2011, AS AMENDED AND FURTHER RESTATED ON APRIL 20, 2012, PURSUANT TO THE FIRST AMENDMENT DATED MARCH 26, 2012, OF GRAFTECH INTERNATIONAL LTD.












Name of Lender: THE HUNTINGTON 
                          NATIONAL BANK


  by
       /s/ Brian H. Gallagher    
       Name: Brian H. Gallagher
       Title:  Senior Vice President


 By1 
           
       Name: 
       Title:


























_____________________________________
1.  For any Lender requiring a second signature line    
 
SIGNATURE PAGE
 
SECOND AMENDMENT DATED AS OF OCTOBER 29, 2012, TO THE AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF OCTOBER 7, 2011, AS AMENDED AND FURTHER RESTATED ON APRIL 20, 2012, PURSUANT TO THE FIRST AMENDMENT DATED MARCH 26, 2012, OF GRAFTECH INTERNATIONAL LTD.












Name of Lender:  KEYBANK NATIONAL
                             ASSOCIATION


  by
       /s/ Suzannah Valdivia    
       Name: Suzannah Valdivia
       Title:  Vice President


 
SIGNATURE PAGE
 
SECOND AMENDMENT DATED AS OF OCTOBER 29, 2012, TO THE AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF OCTOBER 7, 2011, AS AMENDED AND FURTHER RESTATED ON APRIL 20, 2012, PURSUANT TO THE FIRST AMENDMENT DATED MARCH 26, 2012, OF GRAFTECH INTERNATIONAL LTD.












Name of Lender: PNC Bank NA


  by
       /s/ Christian S. Brown    
       Name: Christian S. Brown
       Title:  Senior Vice President


By1 
           
       Name: 
       Title:


























_____________________________________
1.  For any Lender requiring a second signature line    
SIGNATURE PAGE
 
SECOND AMENDMENT DATED AS OF OCTOBER 29, 2012, TO THE AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF OCTOBER 7, 2011, AS AMENDED AND FURTHER RESTATED ON APRIL 20, 2012, PURSUANT TO THE FIRST AMENDMENT DATED MARCH 26, 2012, OF GRAFTECH INTERNATIONAL LTD.












Name of Lender: The Royal Bank of Scotland plc 


  by
       /s/ Brett Thompson    
       Name: Brett Thompson
       Title:  Director


By1 
           
       Name: 
       Title:


























_____________________________________
1.  For any Lender requiring a second signature line    
 
SIGNATURE PAGE
 
SECOND AMENDMENT DATED AS OF OCTOBER 29, 2012, TO THE AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF OCTOBER 7, 2011, AS AMENDED AND FURTHER RESTATED ON APRIL 20, 2012, PURSUANT TO THE FIRST AMENDMENT DATED MARCH 26, 2012, OF GRAFTECH INTERNATIONAL LTD.












Name of Lender: Sovereign Bank, N.A.


  by
       /s/ John W. Deegan    
       Name: John W. Deegan
       Title:  Senior Vice President


 
SIGNATURE PAGE
 
SECOND AMENDMENT DATED AS OF OCTOBER 29, 2012, TO THE AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF OCTOBER 7, 2011, AS AMENDED AND FURTHER RESTATED ON APRIL 20, 2012, PURSUANT TO THE FIRST AMENDMENT DATED MARCH 26, 2012, OF GRAFTECH INTERNATIONAL LTD.












Name of Lender: U.S. Bank National Association


  by
       /s/ Mark Irey    
       Name: Mark Irey 
       Title:  AVP


 
SIGNATURE PAGE
 
SECOND AMENDMENT DATED AS OF OCTOBER 29, 2012, TO THE AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF OCTOBER 7, 2011, AS AMENDED AND FURTHER RESTATED ON APRIL 20, 2012, PURSUANT TO THE FIRST AMENDMENT DATED MARCH 26, 2012, OF GRAFTECH INTERNATIONAL LTD.












Name of Lender: Wells Fargo Bank, NA


  by
       /s/ Jeffrey White    
       Name: Jeffrey White
       Title:  Vice President


 



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