AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED PRECIOUS METALS AGREEMENT
Exhibit 10.1
THIS AMENDMENT NO. 5 TO SECOND AMENDED AND RESTATED PRECIOUS METALS AGREEMENT (this
“Amendment”) is made as of April 30, 2010, by and among THE BANK OF NOVA SCOTIA, a Canadian
chartered bank (the “Metal Lender”); BRUSH ENGINEERED MATERIALS INC., an Ohio corporation
(“BEM”); XXXXXXXX ADVANCED MATERIALS INC., a New York corporation (“WAM”);
TECHNICAL MATERIALS, INC., an Ohio corporation (“TMI”); BRUSH XXXXXXX INC., an Ohio
corporation (“BWI”); ZENTRIX TECHNOLOGIES INC., an Arizona corporation (“ZTI”);
XXXXXXXX ACQUISITION, LLC, a New York limited liability company d/b/a Pure Tech (“Pure
Tech”); THIN FILM TECHNOLOGY, INC., a California corporation (“TFT”), TECHNI-MET, LLC,
a Delaware limited liability company (“Techni-Met”), ACADEMY CORPORATION, a New Mexico
corporation (“Academy”), and ACADEMY GALLUP, LLC, a New Mexico limited liability company
and wholly-owned subsidiary of Academy (“Gallup”), and such other Subsidiaries of BEM who
may from time to time become parties by means of their execution and delivery with the Metal Lender
of a Joinder Agreement under the Precious Metals Agreement (as defined below). BEM, WAM, TMI, BWI,
ZTI, Pure Tech, TFT, Techni-Met, Academy, Gallup and such Subsidiaries are herein sometimes
referred to collectively as the “Customers” and each individually as a “Customer”.
WITNESSETH:
WHEREAS, the Metal Lender and the Customers are parties to a certain Second Amended and
Restated Precious Metals Agreement, dated as of December 28, 2007, as heretofore amended from time
to time (as amended, the “Precious Metals Agreement”); and
WHEREAS, the parties hereto desire to amend certain provisions of the Precious Metals
Agreement as hereinafter provided;
NOW, THEREFORE, for value received and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto hereby amend the Precious Metals
Agreement and agree, effective as of the date first written above, as follows:
1. Defined Terms. Initially capitalized terms used but not defined in this Amendment
have the meanings given to them in the Precious Metals Agreement.
2. Amendment of Schedule 1. Schedule 1 to the Precious Metals Agreement is
hereby amended and restated in its entirety to read as set forth in Annex I hereto.
3. Representations and Warranties. To induce the Metal Lender to enter into this
Amendment, each Customer hereby represents and warrants to the Metal Lender that: (a) such
Customer has full power and authority, and has taken all action necessary, to execute and deliver
this Amendment and to fulfill its obligations hereunder and to consummate the transactions
contemplated hereby; (b) the making and performance by such Customer of this Amendment do not
and will not violate any law or regulation of the jurisdiction of its organization or any other law
or regulation applicable to it; (c) this Amendment has been duly executed and delivered by such
Customer and constitutes the legal, valid and binding obligation of such Customer, enforceable
against it in accordance with its terms, except as enforceability may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors’ rights generally and except as
the same may be subject to general principles of equity; and (d) on and as of the date hereof, no
Default or Event of Default exists under the Precious Metals Agreement.
4. Governing Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and performed in such State.
5. Integration of Amendment into Precious Metals Agreement. The Precious Metals
Agreement, as amended hereby, together with the other Precious Metal Documents, is intended by the
parties as the final, complete and exclusive statement of the transactions evidenced by the
Precious Metals Agreement. All prior or contemporaneous promises, agreements and understandings,
whether oral or written, are deemed to be superseded by the Precious Metals Agreement, as amended
hereby, and no party is relying on any promise, agreement or understanding not set forth in the
Precious Metals Agreement, as amended hereby. The Precious Metals Agreement, as amended hereby,
may not be amended or modified except by a written instrument describing such amendment or
modification executed by the Customers and the Metal Lender. The parties hereto agree that this
Amendment shall in no manner affect or impair the liens and security interests evidenced or granted
by the Precious Metals Agreement or in connection therewith. Except as amended hereby, the
Precious Metals Agreement shall remain in full force and effect and is in all respects hereby
ratified and affirmed.
6. Expenses. The Customers covenant and agree jointly and severally to pay all
reasonable out-of-pocket expenses, costs and charges incurred by the Metal Lender (including
reasonable fees and disbursement of counsel) in connection with the preparation and execution of
this Amendment.
7. Signatures. This Amendment may be executed by the parties hereto in several
counterparts hereof and by the different parties hereto on separate counterparts hereof, each of
which shall be an original and all of which shall together constitute one and the same agreement.
Delivery of an executed signature page of this Amendment by electronic transmission shall be
effective as an in hand delivery of an original executed counterpart hereof.
[Signature Page Follows]
-2-
IN WITNESS WHEREOF, the undersigned parties have caused this Amendment to be executed by their
duly authorized officers as of the date first written above.
CUSTOMERS:
| BRUSH ENGINEERED MATERIALS INC. | XXXXXXXX ADVANCED MATERIALS INC. | |||||||
By:
|
/s/ Xxxxxxx X. Xxxxxxxx
|
By: | /s/ Xxxxxxx X. Xxxxxxxx
|
|||||
| Xxxxxxx X. Xxxxxxxx | Xxxxxxx X. Xxxxxxxx | |||||||
| Vice President, Treasurer and Secretary | Vice President, Treasurer and Secretary | |||||||
| TECHNICAL MATERIALS, INC. | BRUSH XXXXXXX INC. | |||||||
By:
|
/s/ Xxxxxxx X. Xxxxxxxx | By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||
| Xxxxxxx X. Xxxxxxxx | Xxxxxxx X. Xxxxxxxx | |||||||
| Vice President, Treasurer and Secretary | Vice President, Treasurer and Secretary | |||||||
| ZENTRIX TECHNOLOGIES INC. | XXXXXXXX ACQUISITION, LLC | |||||||
By:
|
/s/ Xxxxxxx X. Xxxxxxxx | By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||
| Xxxxxxx X. Xxxxxxxx | Xxxxxxx X. Xxxxxxxx | |||||||
| Chief Financial Officer and Secretary | Treasurer | |||||||
| THIN FILM TECHNOLOGY, INC. | TECHNI-MET, LLC | |||||||
By:
|
/s/ Xxxx X. Xxxxxxxxx | By: | /s/ Xxxx X. Xxxxxxxxx | |||||
| Xxxx X. Xxxxxxxxx | Xxxx X. Xxxxxxxxx | |||||||
| Secretary | Asst. Secretary and Asst. Treasurer | |||||||
| ACADEMY CORPORATION | ACADEMY GALLUP, LLC | |||||||
By:
|
/s/ Xxxxxxx X. Xxxxx | By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Xxxxxxx X. Xxxxx | Xxxxxxx X. Xxxxx | |||||||
| President | Manager | |||||||
METAL LENDER:
THE BANK OF NOVA SCOTIA
By: |
/s/ Xxxxxxx X. Dinenny | ||
Name: |
Xxxxxxx X. Dinenny | ||
Title: |
Managing Director | ||
By: |
/s/ Xxxxxxxx Xxxx | ||
Name: |
Xxxxxxxx Xxxx | ||
Title: |
Associate Director | ||
-3-
ANNEX I
AMENDED AND RESTATED SCHEDULE 1 (APPROVED LOCATIONS)
AMENDED AND RESTATED SCHEDULE 1 (APPROVED LOCATIONS)
SCHEDULE 1
APPROVED LOCATIONS
Approved Domestic Locations |
||
Xxxxxxxx Advanced Materials Inc.
|
Technical Materials, Inc. | |
0000 Xxxx Xxxxxx
|
0 Xxxxxxxxxx Xxxx | |
Xxxxxxx, Xxx Xxxx 00000
|
Xxxxxxx, Xxxxx Xxxxxx 00000 | |
Xxxxxxxx Advanced Materials Inc.
|
Techni-Met, LLC | |
0000 Xxxxxxxx Xxxx
|
000 Xxxxxxxxx Xxxx | |
Xxxxxxxxxx, Xxx Xxxx 00000
|
Xxxxxxx, Xxxxxxxxxxx 00000 | |
Xxxxxxxx Acquisition, LLC
|
Techni-Met, LLC | |
00 Xx. Xxx Xxxx Xxxxx
|
00 Xxxx Xxxxxxxx Xx. | |
Xxxxxxxx, Xxx Xxxx 00000
|
Xxxxxxxxxx, Xxxxxxxxxxx 00000 | |
Thin Film Technology
|
Cerac, inc. (a Xxxxxxxx Advanced Materials site) | |
000 Xxxxxxxxxx Xxx
|
000-000 X. 00xx Xx. xxx | |
Xxxxxxxx, XX 00000
|
0000 X. Xx. Xxxx Xx. | |
| Xxxxxxxxx, Xxxxxxxxx 00000 | ||
Zentrix Technologies Inc.
|
Xxxxxxxx Advanced Materials Inc. | |
Newburyport Industrial Park
|
0000 Xxxxxx Xx, Xxxxx X | |
00 Xxxx Xxxx
|
Xxxxx Xxxxx, Xxxxxxxxxx 00000 | |
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 |
||
Brush Xxxxxxx Inc.
|
Brush Xxxxxxx Inc. | |
00000 X. Xxxxxxx Xxxxx Xxxxx Xx.
|
00000 Xxxxxxx Xxxx Xxxxx | |
Xxxxxx, Xxxx 00000-0000
|
Xxxxxx, Xxxxxxxx 00000 | |
Academy Corporation
|
Academy Corporation | |
0000 Xxxxxxxxxx Xxxxxx XX
|
0000 Xxxxxx Xxxx Xxxxx XX | |
Xxxxxxxxxxx, Xxx Xxxxxx 00000
|
Xxxxxxxxxxx, Xxx Xxxxxx 00000 | |
Academy Corporation
|
Academy Corporation | |
0000 Xxxxxx Xxxx Xxxxx XX
|
0000 Xxxxxx Xxxx Xxxxx XX | |
Xxxxxxxxxxx, Xxx Xxxxxx 00000
|
Xxxxxxxxxxx, Xxx Xxxxxx 00000 | |
Academy Gallup, LLC |
||
0000 Xxxxx Xxxxxxx 000 |
||
Xxxxxx, Xxx Xxxxxx 00000 |
-4-
Approved Foreign Locations |
||
Far East PTE LTD.
|
OMC Scientific Czech, sro | |
000 Xxxx Xxxxx Xxxx #00-00
|
Xxxxxxxxxx xx. | |
Xxxxxxxxx Warehouse
|
440 01 Louny | |
Xxxxxxxxx 000000
|
Czech Republic | |
Far East PTE LTD.
|
Xxxxxxx | |
00 Xxxxxxxx Xx.
|
0 Xxxx Xxxxx | |
Xxxx Xxxxxxxxxx Xxxx.
|
Xxxxxxxxxx Xxxxxxxxxx Xxxxxx | |
Xxxxxxxxx Warehouse
|
Londonderry, Northern Ireland | |
Singapore 4099957
|
XX00 XXX Xxxxxx Xxxxxxx | |
XXX Taiwan Co. Ltd.
|
Xxxxxxxx Advanced Material (Suzhou) Ltd. | |
Xx. 00 Xxxxxxxxx 0xx Xx.
|
Xx. 00, Xx Xxxx Xxxx | |
Xxxxx Xxxxxx, Xxxxxxx Xxxxxx
|
Suzhou Industrial Park | |
Taiwan, ROC
|
China 215021 | |
OMC Scientific
|
Xxxxxxxx Advanced Materials — Philippines | |
Ballysimon Road
|
Bldg. 8365 Argionaut Highway | |
Limerick, Ireland
|
Cubi Pt. | |
| Subic Bay Freeport Zone | ||
| Philippines 2222 | ||
Approved Refiners / Fabricators |
||
Coining of America
|
Xxxxxxx Xxxxxxx Limited | |
000 Xxxxxxx Xxxxxx
|
000 Xxxxxxx Xxxx | |
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
|
Xxxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0 | |
Xxxxxxx Xxxx Corp.
|
Xxxxxxx Matthey | |
000 Xxxxx Xxxxxxxx Xxxxxx
|
Xxxxxxx Xxxx | |
Xxxxx Xxxxxx, Xxx Xxxx 00000
|
Xxxxxxx, Xxxxxxxxxxxxx, Xxxxxxx XX0 0XX | |
Xxxxxxx Mfg.
|
Xxxxxxx Matthey | |
0 Xxxx Xxxxxx
|
0000 Xxxxx Xxxxx | |
Xxxxxxxxxx Xxxx, Xxx Xxxxxx 00000
|
Xxxx Xxxxxxxx, Xxx Xxxxxx 00000 | |
NuTec Metal Joining Products
|
Rohm & Xxxx Electric Materials LLC | |
00000 Xxxxx Xxxxx
|
000 Xxxxxxx Xxxxxx | |
Xxxxxxxxx, Xxxx 00000
|
Xxxxxxxx, Xxx Xxxx 00000 | |
BASF Catalysts, LLC
|
Xxxxx Metal Corp. | |
000 Xxxxxxxxx Xxxxx
|
000 Xxxxxxx Xxxxx | |
Xxxxxx, Xxxxx Xxxxxxxx 00000
|
East Hampton, New York 11937 | |
Heraeus Metal Processing, Inc.
|
Seagate Technology | |
00000 Xxxxxxx Xxxx.
|
0000 Xxxxxxxx Xxx. | |
Xxxxx Xx Xxxxxxx, Xxxxxxxxxx 00000
|
Xxxxxxxxxxx, XX 00000 |
| Approved Subconsignees and Approved Subconsignee Locations | ||
Honeywell
|
International Rectifier | |
000 Xxxxxxx Xxxx
|
a Hexfet America Facility | |
Xxxxxxxxxx, Xxxxx 00000
|
00000 Xxxxxxxx Xxxx Xxxxx | |
| Xxxxxxxx, Xxxxxxxxxx 00000 | ||
Triquint Semiconductor
|
International Rectifier | |
000 X. Xxxxxx Xxxx
|
Xxxxxxx Xxxx | |
Xxxxxxxxxx, Xxxxx 00000-0000
|
Xxxxxxx | |
| Xxxxx Xxxxx, Xxxxxxx XX00 0XX | ||
Triquint Semiconductor
|
Hewlett Packard | |
0000 X.X. Xxxxxxxxx Xxxx.
|
0000 XX Xxxxxx Xxxx. | |
Xxxxxxxxx, Xxxxxx 00000
|
Chemical Storage Building | |
| Xxxxxxxxx, XX 00000 | ||
Approved Storage Facility Locations |
||
Xxxxxxxx Advanced Materials Inc.
|
Academy Corporation | |
0000 Xxxx Xxxxxx
|
0000 Xxxxxx Xxxx Xxxxx XX | |
Xxxxxxx, Xxx Xxxx 00000
|
Xxxxxxxxxxx, Xxx Xxxxxx 00000 | |
Academy Corporation
|
Academy Corporation | |
0000 Xxxxxxxxxx Xxxxxx XX
|
0000 Xxxxxx Xxxx Xxxxx XX | |
Xxxxxxxxxxx, Xxx Xxxxxx 00000
|
Xxxxxxxxxxx, Xxx Xxxxxx 00000 | |
