AMENDMENT NO. 6 TO THIRD AMENDED AND RESTATED PRECIOUS METALS AGREEMENT
Exhibit 4.1
AMENDMENT NO. 6
TO
THIRD AMENDED AND RESTATED PRECIOUS METALS AGREEMENT
THIS AMENDMENT NO. 6 TO THIRD AMENDED AND RESTATED PRECIOUS METALS AGREEMENT (this “Amendment”) is made as of April 10, 2015, by and among THE BANK OF NOVA SCOTIA, a Canadian chartered bank (the “Metal Lender”); MATERION CORPORATION (f/k/a Brush Engineered Materials Inc.), an Ohio corporation (“BEM”); MATERION ADVANCED MATERIALS TECHNOLOGIES AND SERVICES INC. (f/k/a Xxxxxxxx Advanced Materials Inc.), a New York corporation (“WAM”); MATERION TECHNICAL MATERIALS INC. (f/k/a Technical Materials, Inc.), an Ohio corporation (“TMI”); MATERION BRUSH INC. (f/k/a Brush Xxxxxxx Inc.), an Ohio corporation (“BWI”); MATERION TECHNOLOGIES INC. (f/k/a Zentrix Technologies Inc.), an Arizona corporation (“ZTI”); MATERION XXXXXXXX LLC (f/k/a Xxxxxxxx Acquisition, LLC), a New York limited liability company d/b/a Pure Tech (“Pure Tech”); MATERION PRECISION OPTICS AND THIN FILM COATINGS CORPORATION (f/k/a Thin Film Technology, Inc.), a California corporation (“TFT”); MATERION LARGE AREA COATINGS LLC (f/k/a Techni-Met, LLC), a Delaware limited liability company (“TML”); MATERION ADVANCED MATERIALS TECHNOLOGIES AND SERVICES CORP. (f/k/a Academy Corporation), a New Mexico corporation (“AC”); MATERION ADVANCED MATERIALS TECHNOLOGIES AND SERVICES LLC (f/k/a Academy Gallup, LLC), a New Mexico limited liability company (“AG”); 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, TML, AC, AG 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 Third Amended and Restated Precious Metals Agreement, effective as of October 1, 2010, as amended by that certain Amendment No. 1, dated as of March 31, 2011, that certain Amendment No. 2, dated as of August 18, 2011, that certain Amendment No. 3, dated as of October 17, 2011, that certain Amendment No. 4, dated as of September 13, 2013, and that certain Amendment No. 5, dated as of January 13, 2015 (as amended, the “Precious Metals Agreement”); and
WHEREAS, the parties hereto desire to amend the list of Approved Refiners/Fabricators under 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.Amendment. Schedule 1 (Approved Locations) of the Precious Metals Agreement is hereby amended and restated in its entirety to read as set forth in Annex I hereto.
2.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, after giving effect to this Amendment, no Default or Event of Default exists under the Precious Metals Agreement.
3.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.
4.Integration. 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.
5.Ratification. 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.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]
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: | |
MATERION CORPORATION By: /s/ Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxx Vice President, Treasurer and Secretary | MATERION ADVANCED MATERIALS TECHNOLOGIES AND SERVICES INC. By: /s/ Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxx Vice President, Treasurer and Secretary |
MATERION TECHNICAL MATERIALS INC. By: /s/ Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxx Vice President, Treasurer and Secretary | MATERION BRUSH INC. By: /s/ Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxx Vice President, Treasurer and Secretary |
MATERION TECHNOLOGIES INC. By: /s/ Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxx Chief Financial Officer and Secretary | MATERION XXXXXXXX LLC By: /s/ Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxx Treasurer |
MATERION PRECISION OPTICS AND THIN FILM COATINGS CORPORATION By: /s/ Xxxx X. Xxxxxxxxx Xxxx X. Xxxxxxxxx Secretary | MATERION LARGE AREA COATINGS LLC By: /s/ Xxxx X. Xxxxxxxxx Xxxx X. Xxxxxxxxx Asst. Secretary and Asst. Treasurer |
MATERION ADVANCED MATERIALS TECHNOLOGIES AND SERVICES CORP. By: /s/ Xxxx X. Xxxxxxxxx Xxxx X. Xxxxxxxxx Asst. Secretary and Asst. Treasurer | MATERION ADVANCED MATERIALS TECHNOLOGIES AND SERVICES LLC By: /s/ Xxxxxx X. Xxxxxxxxxx Xxxxxx X. Xxxxxxxxxx Manager |
METAL LENDER: | |
THE BANK OF NOVA SCOTIA By: /s/ Bimaldas Name: Bimaldas Title: Managing Director | By: /s/ Xxxx Hernstein Name: Xxxx Hernstein Title: Directors |
ANNEX I
SCHEDULE 1
APPROVED LOCATIONS
Approved Domestic Locations | |
Materion Advanced Materials Technologies and Services Inc. (f/k/a Xxxxxxxx Advanced Materials Inc.) 2978 Xxxx Xxxxxx Xxxxxxx, Xxx Xxxx 00000 | Materion Large Area Coatings LLC (f/k/a Techni-Met, LLC) 300 Xxxxxxxxx Xxxx Xxxxxxx, Xxxxxxxxxxx 00000 |
Materion Advanced Materials Technologies and Services Inc. (f/k/a Xxxxxxxx Advanced Materials Inc.) 2080 Lockport Road Wheatfield, New York 14304 | Materion Large Area Coatings LLC (f/k/a Techni-Met, LLC) 30 Xxxx Xxxxxxxx Xx. Xxxxxxxxxx, Xxxxxxxxxxx 00000 |
Materion Xxxxxxxx LLC (f/k/a Xxxxxxxx Acquisition, LLC) 42 Xx. Xxx Xxxx Xxxxx Xxxxxxxx, Xxx Xxxx 00000 | Cerac, inc. (a Materion Advanced Materials Technologies and Services site) 404-407 N. 13th St. and 1316 X. Xx. Xxxx Xx. Xxxxxxxxx, Xxxxxxxxx 00000 |
Materion Brush Inc. (x/xx/ Xxxxx Xxxxxxx Xxx.) 00000 X. Xxxxxxx Xxxxx Xxxxx Xx. Xxxxxx, Xxxx 00000-0000 | Materion Advanced Materials Technologies and Services Inc. (f/k/a Xxxxxxxx Advanced Materials Xxx.) 0000 Xxxxxx Xx, Xxxxx X Xxxxx Xxxxx, Xxxxxxxxxx 00000 |
Materion Advanced Materials Technologies and Services Corp. (f/k/a Academy Corporation) 6905 Xxxxxxxxxx Xxxxxx XX Xxxxxxxxxxx, Xxx Xxxxxx 00000 | Materion Brush Inc. (f/ka/ Brush Xxxxxxx Inc.) 27555 Xxxxxxx Xxxx Xxxxx Xxxxxx, Xxxxxxxx 00000 |
Materion Advanced Materials Technologies and Services Corp. (f/k/a Academy Corporation) 5520 Xxxxxx Xxxx Xxxxx XX Xxxxxxxxxxx, Xxx Xxxxxx 00000 | Materion Advanced Materials Technologies and Services Corp. (f/k/a Academy Corporation) 5531 Xxxxxx Xxxx Xxxxx XX Xxxxxxxxxxx, Xxx Xxxxxx 00000 |
Materion Technical Materials Inc. (f/k/a Technical Materials, Inc.) 5 Xxxxxxxxxx Xxxx Xxxxxxx, Xxxxx Xxxxxx 00000 | Materion Advanced Materials Technologies and Services Corp. (f/k/a Academy Corporation) 5941 Xxxxxx Xxxx Xxxxx XX Xxxxxxxxxxx, Xxx Xxxxxx 00000 |
Approved Foreign Locations | |
Materion Advanced Materials Technologies and Services Far East Pte. Ltd. (f/k/a Xxxxxxxx Advanced Materials Far East PTE Ltd.) 110 Paya Lebar Road #02-01 Singapore Warehouse Singapore 409009 | Materion Czech S.R.O. (f/k/a OMC Scientific, Czech X.X.X) Xxxxxxxxxx xx. 000 00 Xxxxx Xxxxx Xxxxxxxx |
Materion Advanced Materials Technologies and Services Far East Pte. Ltd. (f/k/a Xxxxxxxx Advanced Materials Far East PTE Ltd.) 10 Xxxxxxxx Xx. Lion Industrial Bldg. Singapore Warehouse Singapore 4099957 | Seagate 1 Disc Xxxxx Xxxxxxxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxxxx, Xxxxxxxx Xxxxxxx XX00 OBF United Kingdom |
Materion Advanced Materials Technologies and Services Taiwan Co. Ltd. (f/k/a Xxxxxxxx Advanced Materials Technology Taiwan Co., Ltd.) No. 19 Zhongxing 1st St. Luzhu Shiang, Taoyuan County Taiwan, ROC | Materion Advanced Materials Technologies and Services Suzhou Ltd. (f/k/a Xxxxxxxx Advanced Materials (Suzhou) Ltd.) No. 00, Xx Xxxx Xxxx Xxxxxx Xxxxxxxxxx Xxxx Xxxxx 215021 |
Materion Ireland Holdings Limited (f/k/a OMC Scientific Holdings Limited) Ballysimon Road Limerick, Ireland | Materion Advanced Materials Technologies and Services Inc. (f/k/a Xxxxxxxx Advanced Materials Inc.) - Philippines Bldg. 8365 Argionaut Highway Cubi Pt. Subic Bay Freeport Zone Philippines 2222 |
Materion Advanced Materials Technologies and Services Far East Pte. Ltd. (f/k/a Xxxxxxxx Advanced Materials Far East PTE Ltd.) 28 Woodlands Loop #10-00 Singapore 738308 | |
Approved Refiners / Fabricators | |
Coining of America 280 Xxxxxxx Xxxxxx Xxxxxx Xxxxx, Xxx Xxxxxx 00000 | Xxxxxxx Xxxxxxx Limited 130 Xxxxxxx Xxxx Xxxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0 |
Xxxxxxx Xxxx Xxxx. 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxx Xxxxxx, Xxx Xxxx 00000 | Xxxxxxx Xxxxxxx Xxxxxxx Xxxx Xxxxxxx, Xxxxxxxxxxxxx, Xxxxxxx XX0 0XX |
Xxxxxxx Mfg. 2 Xxxx Xxxxxx Xxxxxxxxxx Xxxx, Xxx Xxxxxx 00000 | Xxxxxxx Matthey 2001 Xxxxx Xxxxx Xxxx Xxxxxxxx, Xxx Xxxxxx 00000 |
NuTec Metal Joining Xxxxxxxx 00000 Xxxxx Xxxxx Xxxxxxxxx, Xxxx 00000 | Rohm & Xxxx Electric Materials LLC 272 Buffalo Xxxxxx Xxxxxxxx, Xxx Xxxx 00000 |
BASF Catalysts, LLC 554 Xxxxxxxxx Xxxxx Xxxxxx, Xxxxx Xxxxxxxx 00000 | Xxxxx Metal Xxxx. 000 Xxxxxxx Xxxxx Xxxx Xxxxxxx, Xxx Xxxx 00000 |
Heraeus Metal Processing, Xxx. 00000 Xxxxxxx Xxxx. Xxxxx Xx Xxxxxxx, Xxxxxxxxxx 00000 | Seagate Technology 7801 Computer Xxx. Xxxxxxxxxxx, XX 00000 |
Xxxxxx, Inc. 1011 Xxxx Xxxxx Xxxxx Xxxxxx Xxxxxxxxxxxx, Xxxxxxx 00000 | Xxxxxx, Xxx. 0000 Xxxxx Xxxxxxx Xxxx Xxxxxxxxxx, Xxxxxxx 00000 |
Mastermelt America XXX 000 Xxxxxxxxxx Xxxx Xxxx Xxxxxxxxxx, Xxxxxxxxx 37847 (With a value (determined in accordance with Section 2.2 of the Agreement) not in excess of $2,000,000.) | Ohio Precious Metals XXX 00000 Xxxxxx Xxxx Xxxxxxx, XX 00000 |
United Precious Metal Refining, Xxx. 0000 Xxxxxxxx Xxxx Xxxxx, XX 00000 | |
Approved Subconsignees and Approved Subconsignee Locations | |
Honeywell 830 Xxxxxxx Xxxx Xxxxxxxxxx, Xxxxx 00000 | International Rectifier a Hexfet America Xxxxxxxx 00000 Xxxxxxxx Xxxx Xxxxx Xxxxxxxx, Xxxxxxxxxx 00000 |
Triquint Semiconductor 500 X. Xxxxxx Xxxx Xxxxxxxxxx, Xxxxx 00000-0000 | International Xxxxxxxxx Xxxxxxx Xxxx Xxxxxxx Xxxxx Xxxxx, Xxxxxxx XX00 0XX |
Triquint Semiconductor 2300 N.E. Brookwood Pkwy. Hillsboro, Oregon 97124 | Hewlett Xxxxxxx 0000 XX Xxxxxx Xxxx. Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxxxxx, XX 00000 |
Triquint Semiconductor 1818 Xxxxxxx 000, X Xxxxxx, Xxxxxxx 00000 | PPG Industries 400 Park Drive, Works #6 Carlisle, Pennsylvania 00000 |
XXX Xxxxxxxxxx 0000 Xxxxxxx Xxxxxxx Xxxxxxx Xxxxx, Xxxxx 00000 | PPG Industries 4004 Xxxxxxxx Xxxxxxxxxx Xxxxx XX, Xxxxx #00 Xxxxx, Xxxxxx 00000 |
Cree, Xxx. 0000 Xxxxxxx Xxxxx Xxxxxx, Xxxxx Xxxxxxxx 00000 | |
Approved Storage Facility Locations | |
Materion Advanced Materials Technologies and Services Inc. (f/k/a Xxxxxxxx Advanced Materials Inc.) 2978 Xxxx Xxxxxx Xxxxxxx, Xxx Xxxx 00000 | Materion Advanced Materials Technologies and Services Corp. (f/k/a Academy Corporation) 5531 Xxxxxx Xxxx Xxxxx XX Xxxxxxxxxxx, Xxx Xxxxxx 00000 |
Materion Advanced Materials Technologies and Services Corp. (f/k/a Academy Corporation) 6905 Xxxxxxxxxx Xxxxxx XX Xxxxxxxxxxx, Xxx Xxxxxx 00000 | Materion Advanced Materials Technologies and Services Corp. (f/k/a Academy Corporation) 5941 Xxxxxx Xxxx Xxxxx XX Xxxxxxxxxxx, Xxx Xxxxxx 00000 |
