EXHIBIT 10.2
FIRST AMENDMENT
TO FINANCING AGREEMENT
FIRST AMENDMENT, dated as of November 10, 2004 (the "Amendment"), to
the Financing Agreement referred to below, by and among Metallurg, Inc., a
Delaware corporation ("MI"), and Shieldalloy Metallurgical Corporation, a
Delaware corporation ("SMC" and, together with MI, each an "A Borrower" and
collectively, the "A Borrowers"), Metallurg Holdings, Inc., a Delaware
corporation ("MHI" or the "B Borrower", together with the A Borrowers, the
"Borrowers"), the financial institutions identified as lenders on the signature
pages hereto (each a "Lender" and collectively, the "Lenders"), and MHR
Institutional Partners II LP, as collateral and administrative agent for the
Lenders (the "Agent").
WHEREAS, the A Borrowers, each subsidiary of MI identified as an "A
Guarantor" on the signature pages thereto (each an "A Guarantor" and
collectively, the "A Guarantors"), the B Borrower, MI, in its capacity as the
guarantor of the B Borrower (in such capacity, the "B Guarantor"), the Lenders,
the Agent and Fleet National Bank, as L/C Issuer, are parties to the Financing
Agreement, dated as of August 13, 2004 (such agreement, as amended, restated,
supplemented or otherwise modified from time to time, being hereinafter referred
to as the "Financing Agreement");
WHEREAS, the A Borrowers have requested the Lenders to make an
additional Term Loan A1 to the Borrowers in the principal amount of $5,000,000
(the "Second Term Loan A1") for general working capital purposes; and
WHEREAS, the Agent and the Lenders are willing to enter into this
Amendment in order to (i) provide for the Second Term Loan A1 and (ii) amend
certain other terms and conditions of the Financing Agreement relative to the
making of the Second Term Loan A1, in each case subject to the terms and
conditions set forth in this Amendment;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto hereby agree as follows:
1. Definitions in Amendment. Any capitalized term used herein and not
defined shall have the meaning assigned to it in the Financing Agreement.
2. Recitals to the Financing Agreement. The first sentence of the
first paragraph of the Recitals to the Financing Agreement is hereby amended in
its entirety to read as follows:
"The A Borrowers have asked the Lenders to extend credit to the A
Borrowers consisting of term loans in the aggregate principal amount of
$36,000,000, which will include, among other things, a subfacility for the
issuance of letters of credit."
3. Definitions in the Financing Agreement. Section 1.01 of the
Financing Agreement is hereby amended as follows:
(a) The definition of the term "First Amendment" is hereby
inserted, in appropriate alphabetical order, to read as follows:
"'First Amendment' means the First Amendment to the Financing
Agreement dated as of November 10, 2004, among the A Borrowers, the B
Borrower, the Lenders, and the Agent."
(b) The definition of the term "First Amendment Effective Date"
is hereby inserted, in appropriate alphabetical order, to read as follows:
"'First Amendment Effective Date' means the date on which all of
the conditions precedent to the effectiveness of the First Amendment have
been fulfilled or waived."
(c) The definition of the term "Initial Term Loan A1" is hereby
inserted, in appropriate alphabetical order, to read as follows:
"'Initial Term Loan A1' has the meaning specified therefor in
Section 2.01(a)(i).
(d) The definition of the term "Second Term Loan A1" is hereby
inserted, in appropriate alphabetical order, to read as follows:
"'Second Term Loan A1' has the meaning specified therefor in
Section 2.01(a)(i).
(e) The definition of the term "Term Loan A1" is hereby amended
in its entirety to read as follows:
"'Term Loan A1' has the meaning specified therefor in Section
2.01(a)(i)."
4. Second Term Loan A1. Section 2.01(a)(i) of the Financing Agreement
is hereby amended in its entirety to read as follows:
"(i) On the Effective Date, each Lender with a Term Loan A1
Commitment made a term loan (collectively, the "Initial Term Loan A1") to
the A Borrowers in an amount equal to such Lender's Pro Rata Share of
$10,000,000, all of which remains outstanding on the First Amendment
Effective Date, and on the First Amendment Effective Date, each Lender with
a Term Loan A1 Commitment agrees (severally, not jointly or jointly and
severally) to make a term loan (collectively, the "Second Term Loan A1"
and, together with the Initial Term Loan A1, the "Term Loan A1") to the A
Borrowers in an amount equal to such Lender's Pro Rata Share of $5,000,000.
Each of the Initial Term Loan A1 and the Second Term Loan A1 shall be
considered part of the Term Loan A1 for all purposes of the Financing
Agreement and all Loan Documents and any reference to the "Term Loan A1" in
the Financing Agreement or in any other Loan Document shall be deemed to
include both the Initial Term Loan A1 and the Second Term Loan A1 made by
the Lenders to the A Borrowers."
5. CIF Intercompany Loan. Section 7.02(e)(ii) of the Financing
Agreement is hereby amended by (a) deleting the word "and" immediately before
subclause (B) thereof and inserting a comma in lieu thereof, (b) deleting the
word "and" immediately before subclause (C)
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thereof and inserting a comma in lieu thereof and (c) inserting a new subclause
(D) at the end of clause (ii) of such Section to read as follows:
"and (D) one or more A Borrowers to one or more of any A
Guarantor, XXX, LSM, ALPOCO and CIF, made on or after the First Amendment
Effective Date, in an aggregate principal amount not to exceed $5,000,000
at any time outstanding,"
6. Schedule 1.01(A) Commitments. Schedule 1.01(A) to the Financing
Agreement is hereby amended in its entirety to read as set forth in Annex I to
this Amendment.
7. Conditions Precedent. The effectiveness of this Amendment is
subject to the fulfillment, in a manner satisfactory to the Agent, of each of
the following conditions precedent (the first date upon which all such
conditions shall have been fulfilled or waived being herein called the "First
Amendment Effective Date"):
(a) Representations and Warranties; No Event of Default. The
representations and warranties contained herein, in Article VI of the Financing
Agreement and in each other Loan Document and certificate or other writing
delivered to the Agent or any Lender pursuant hereto on or prior to the First
Amendment Effective Date shall be correct in all material respects on and as of
the First Amendment Effective Date as though made on and as of such date, except
to the extent that such representations and warranties (or any schedules related
thereto) expressly relate solely to an earlier date (in which case such
representations and warranties shall be true and correct in all material
respects on and as of such date); and no Default or Event of Default shall have
occurred and be continuing on the First Amendment Effective Date or would result
from this Amendment becoming effective in accordance with its terms.
(b) Delivery of Documents. The Agent shall have received on or
before the First Amendment Effective Date the following, each in form and
substance satisfactory to the Agent and, unless indicated otherwise, dated the
First Amendment Effective Date:
(i) counterparts of this Amendment which bear the signatures
of each A Borrower, the B Borrower, the Agent and each Lender;
(ii) a copy of an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx &
Xxxxxxxx LLP, special counsel to the Loan Parties, as to such matters as the
Agent may request;
(iii) a copy of the resolutions of each A Borrower,
certified as of the First Amendment Effective Date by an authorized officer
thereof, authorizing (A) the borrowing of the Second Term Loan A1 contemplated
by this Amendment by each A Borrower and the transactions contemplated by the
Loan Documents to which such Person is or will be a party, and (B) the
execution, delivery and performance by each such Person of this Amendment and
the other Loan Documents to be executed and delivered pursuant hereto to which
such Person is a party, and the performance of the Financing Agreement, as
amended;
(iv) a certificate of an authorized officer of each of the A
Borrowers certifying as to the matters set forth in subsection (a) of this
Section 7;
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(v) a disbursement letter duly executed and delivered by the
Administrative Borrower regarding the Second Term Loan A1 to be made on the
First Amendment Effective Date;
(vi) an acknowledgment and consent, in the form attached as
Exhibit A to this Amendment, duly executed by each Guarantor, consenting to the
transactions contemplated by this Amendment; and
(vii) such other agreements, instruments, approvals,
opinions and other documents as Agent may reasonably request from the Borrowers.
(c) Proceedings. All proceedings in connection with the
transactions contemplated by this Amendment, and all documents incidental
thereto, shall be satisfactory to the Agent and its special counsel, and the
Agent and such special counsel shall have received from the Borrowers all such
information and such counterpart originals or certified copies of documents, and
such other agreements, instruments, approvals, opinions and other documents, as
the Agent or such special counsel may reasonably request.
(d) Lender Expenses. The A Borrowers shall have paid to Agent, in
immediately available funds, an amount equal to the amount of the Lenders'
expenses (including, without limitation, reasonable fees, costs, and expenses of
Lenders' counsel) which were incurred in connection with the preparation,
execution and delivery of this Amendment and the other related agreements,
instruments and documents.
(e) Amendment Fee. The A Borrowers shall have paid to Agent, in
immediately available funds, an amendment fee in the amount of $50,000.
8. Representations and Warranties. Each Borrower hereby represents and
warrants to the Agent and the Lenders as follows:
(a) Representations and Warranties; No Event of Default. The
representations and warranties herein, in Article VI of the Financing Agreement
and in each other Loan Document and certificate or other writing delivered to
the Agent or any Lender pursuant hereto on or prior to the First Amendment
Effective Date are correct in all material respects on and as of the First
Amendment Effective Date as though made on and as of such date, except to the
extent that such representations and warranties (or any schedules related
thereto) expressly relate solely to an earlier date (in which case such
representations and warranties are true and correct in all material respects on
and as of such date); and no Default or Event of Default has occurred and is
continuing on the First Amendment Effective Date or would result from this
Amendment becoming effective in accordance with its terms.
(b) Organization, Good Standing, Etc. Each Borrower (i) is a
corporation duly organized, validly existing and in good standing under the laws
of the state of its organization, (ii) has all requisite power and authority to
execute, deliver and perform this Amendment and the other Loan Documents to
which it is a party being executed in connection with this Amendment, and to
perform the Financing Agreement, as amended hereby, and (iii) is duly qualified
to do business and is in good standing in each jurisdiction in which the
character of the properties owned or leased by it or in which the transaction of
its business makes such
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qualification necessary except where the failure to be so qualified reasonably
could not be expected to have a Material Adverse Change.
(c) Authorization, Etc. The execution, delivery and performance
by each A Borrower of this Amendment, and the performance by each A Borrower of
the Financing Agreement, as amended hereby, (i) have been duly authorized by all
necessary action on the part of such A Borrower, (ii) do not and will not
contravene such A Borrower's charter or by-laws, any applicable law or any
material contractual restriction binding on or otherwise affecting it or any of
its properties, (iii) do not and will not result in or require the creation of
any Lien (other than pursuant to any Loan Document) upon or with respect to any
of its properties, and (iv) do not and will not result in any suspension,
revocation, impairment, forfeiture or nonrenewal of any permit, license,
authorization or approval applicable to its operations or any of its properties.
(d) Governmental Approvals. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or other
regulatory body is required in connection with the due execution, delivery and
performance by each A Borrower of this Amendment or any other Loan Document to
which it is a party being executed in connection with this Amendment, or for the
performance of the Financing Agreement, as amended hereby.
(e) Enforceability of Loan Documents. Each of this Amendment, the
Financing Agreement, as amended hereby, and each other Loan Document to which
each A Borrower is a party is a legal, valid and binding obligation of such
Person, enforceable against such Person in accordance with its terms, except as
such enforceability may be limited by or subject to any bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally.
9. Miscellaneous.
(a) Continued Effectiveness of the Financing Agreement. Except as
otherwise expressly provided herein, the Financing Agreement and the other Loan
Documents are, and shall continue to be, in full force and effect and are hereby
ratified and confirmed in all respects, except that on and after the First
Amendment Effective Date (i) all references in the Financing Agreement to "this
Agreement", "hereto", "hereof", "hereunder" or words of like import referring to
the Financing Agreement shall mean the Financing Agreement as amended by this
Amendment, and (ii) all references in the other Loan Documents to which any
Borrower is a party to the "Financing Agreement", "thereto", "thereof",
"thereunder" or words of like import referring to the Financing Agreement shall
mean the Financing Agreement as amended by this Amendment. Except as expressly
provided herein, the execution, delivery and effectiveness of this Amendment
shall not operate as an amendment of any right, power or remedy of the Lender
under the Financing Agreement or any other Loan Document, nor constitute an
amendment of any provision of the Financing Agreement or any other Loan
Document.
(b) Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement.
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(c) Headings. Section headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(d) Governing Law. This Amendment shall be governed by, and
construed in accordance with, the law of the State of New York.
(e) Costs and Expenses. The A Borrowers jointly and severally
agree to pay on demand all reasonable fees, costs and expenses of Agent and each
Lender in connection with the preparation, execution and delivery of this
Amendment and the other related agreements, instruments and documents.
(f) Amendment as Loan Document. Each A Borrower and the B
Borrower hereby acknowledges and agrees that this Amendment constitutes a "Loan
Document" under the Financing Agreement. Accordingly, it shall be an Event of
Default under the Financing Agreement (i) if any representation or warranty made
by a Borrower under or in connection with this Amendment shall have been untrue,
false or misleading in any material respect when made or (ii) if Borrowers fail
to perform, keep, or observe any term, provision, condition, covenant, or
agreement contained in Section 7 of this Amendment.
(g) Collateral. It is understood and agreed that all Collateral
shall secure the Obligations under the Loan Documents in accordance with the
terms thereof. In addition, each Borrower confirms and agrees that to the extent
that any Loan Document purports to assign or pledge to the Agent (on behalf of
the Lenders), or to grant to the Agent (on behalf of the Lenders) a Lien on any
collateral as security for the Obligations of such Borrower from time to time
existing in respect of the Financing Agreement and the Loan Documents, such
pledge, assignment and/or grant of a Lien is hereby ratified and confirmed in
all respects.
(h) Waiver of Jury Trial. EACH BORROWER, THE AGENT AND THE
LENDERS HEREBY IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AMENDMENT OR ANY OF
THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered as of the date first above written.
A BORROWERS:
METALLURG, INC.
By:
------------------------------------
Name:
Title:
SHIELDALLOY METALLURGICAL CORPORATION
By:
------------------------------------
Name:
Title:
B BORROWER:
METALLURG HOLDINGS, INC.
By:
------------------------------------
Name:
Title:
AGENT AND LENDER:
MHR INSTITUTIONAL PARTNERS II LP
By: MHR INSTITUTIONAL ADVISORS II LLC,
its General Partner
By:
------------------------------------
Name:
Title:
LENDER:
MHR INSTITUTIONAL PARTNERS IIA LP
By: MHR INSTITUTIONAL ADVISORS II LLC,
its General Partner
By:
------------------------------------
Name:
Title:
ANNEX I
SCHEDULE 1.01(A)
COMMITMENTS
MHR Institutional MHR Institutional
Lender Partners II LP Partners II A LP TOTAL
------------------------ ----------------- ----------------- -----------
Term A1 Loan Commitment:
Initial Term A1 Loan $ 2,841,471 $ 7,158,529 $10,000,000
Second Term A1 Loan $ 1,420,735 $ 3,579,265 $ 5,000,000
Term A2 Loan Commitment $ 4,262,206 $10,737,794 $15,000,000
Term A3 Loan Commitment $ 1,704,882 $ 4,295,118 $ 6,000,000
Term B1 Loan Commitment $ 475,946 $ 1,199,054 $ 1,675,000
Term B2 Loan Commitment $ 223,766 $ 563,734 $ 787,500
Total Commitment $10,929,006 $27,533,494 $38,462,500
Percentage 28.41471% 71.58529% 100%
EXHIBIT A
ACKNOWLEDGMENT AND CONSENT
The undersigned, as a party to one or more Loan Documents, as defined
in the FINANCING AGREEMENT dated as of August 13, 2004 (the "Financing
Agreement"), among, on the one hand, the lenders from time to time party thereto
(such lenders, together with their respective successors and assigns, are
referred to hereinafter each individually as a "Lender" and collectively as the
"Lenders"), MHR Institutional Partners II LP, as collateral and administrative
agent for the Lenders (the "Agent"), and, on the other hand, Metallurg, Inc., a
Delaware corporation ("MI") and Shieldalloy Metallurgical Corporation, a
Delaware corporation ("SMC" and, together with MI, each an "A Borrower" and
collectively, the "A Borrowers"), each subsidiary of MI identified as an "A
Guarantor" on the signature pages thereto (each an "A Guarantor" and
collectively, the "A Guarantors"), Metallurg Holdings, Inc., a Delaware
corporation ("MHI" or the "B Borrower") and MI, in its capacity as the guarantor
of the B Borrower (in such capacity, the "B Guarantor"), hereby (i) acknowledges
and consents to the First Amendment dated the date hereof (the "Amendment", all
terms defined therein being used herein as defined therein) to the Financing
Agreement; (ii) confirms and agrees that each Loan Document to which it is a
party is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects except that on and after the First
Amendment Effective Date all references in any such Loan Documents to "the
Financing Agreement", "thereto", "thereof", "thereunder" or words of like import
referring to the Financing Agreement shall mean the Financing Agreement as
amended by the Amendment; and (iii) confirms and agrees that to the extent that
any such Loan Document purports to assign or pledge to the Agent, or to grant to
the Agent a security interest in or lien on, any collateral as security for the
obligations of any Guarantor from time to time existing in respect of the Loan
Documents, such pledge, assignment and/or grant of a security interest or lien
is hereby ratified and confirmed in all respects as security for, in addition to
the other obligations secured thereby, all obligations of such Guarantors
outstanding upon the taking effect of the Amendment.
Dated: November 10, 2004
A GUARANTORS:
METALLURG HOLDINGS CORPORATION
By:
------------------------------------
Name:
Title:
METALLURG INTERNATIONAL RESOURCES, LLC
By:
------------------------------------
Name:
Title:
METALLURG SERVICES, INC.
By:
------------------------------------
Name:
Title:
B GUARANTOR:
METALLURG, INC., in its capacity
as B Guarantor
By:
------------------------------------
Name:
Title:
