EXHIBIT 99.1
THIRD AMENDMENT TO POSTPETITION CREDIT AGREEMENT
This THIRD AMENDMENT, dated as of January 9, 2003 (this
"Agreement"), refers to that certain Postpetition Credit Agreement, dated as of
April 26, 2002 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the financial institutions from time to
time party thereto (such financial institutions, together with their respective
successors and assigns, are referred to hereinafter each individually as a
"Lender" and collectively as the "Lenders"), CREDIT LYONNAIS NEW YORK BRANCH, as
a Lender, as Issuing Bank with respect to the Letters of Credit, and as agent
for the Lenders and the Issuing Bank thereunder (the "Agent"), SPECIAL METALS
CORPORATION, a Delaware corporation, in its capacity as a debtor and a debtor in
possession on behalf of the estate created upon the commencement of the
Bankruptcy Cases ("SMC"), A-1 WIRE TECH, INC., an Illinois corporation, in its
capacity as a debtor and a debtor in possession on behalf of the estate created
upon the commencement of the Bankruptcy Cases ("Wire"), SPECIAL METALS DOMESTIC
SALES CORPORATION, a Delaware corporation, in its capacity as a debtor and a
debtor in possession on behalf of the estate created upon the commencement of
the Bankruptcy Cases ("Sales"), and HUNTINGTON ALLOYS CORPORATION, formerly
known as Inco Alloys International, Inc., a Delaware corporation, in its
capacity as a debtor and a debtor in possession on behalf of the estate created
upon the commencement of the Bankruptcy Cases ("Alloys," and together with SMC,
Wire and Sales, each a "Borrower" and collectively, the "Borrowers").
Capitalized terms used and not defined in this Agreement shall have the meanings
given such terms in the Credit Agreement.
RECITALS
A. WHEREAS, the Borrowers have requested that the Lenders agree,
subject to the conditions and upon the terms set forth in this Agreement, to
amend subsection 8.16(B) of the Credit Agreement; and
B. WHEREAS, the Lenders are willing to agree to such amendment,
subject to the conditions and on the terms set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE I
AMENDMENT
SECTION 1.1. Amendment. Subject to the conditions and upon the terms
set forth in this Agreement and in reliance on the representations and
warranties of the Borrowers set forth in this Agreement, the Lenders hereby
agree that subsection 8.16(B) of the Credit Agreement (as such subsection was
amended, inter alia, by that certain Second Amendment and Fifth Waiver,
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dated as of November 15, 2002, among the Lenders and the Borrowers) is amended
by deleting the date "January 10, 2003" appearing in the last sentence thereof
and inserting in lieu thereof the date "February 14, 2003".
ARTICLE II
CONDITIONS PRECEDENT
The effectiveness of this Agreement shall be subject to the
satisfaction of each of the following conditions precedent:
SECTION 2.1. Execution. Each of the Agent and the Required Lenders
shall have executed this Agreement and the Borrowers shall have delivered to the
Agent duly executed counterparts of this Agreement.
SECTION 2.2. Representations and Warranties. Each Borrower shall
have confirmed to the Agent, by the signature of a Responsible Officer of such
Borrower below, that on and as of the date of this Agreement:
(a) each of the representations and warranties made by the Borrowers
or their Subsidiaries in or pursuant to the Loan Documents is true and correct
in all material respects (except that any such representation or warranty that
is expressly stated as being made only as of a specified earlier date shall be
true and correct in all material respects as of such earlier date);
(b) no Default or Event of Default has occurred and is continuing;
and
(c) none of the Bankruptcy Cases has been dismissed or converted to
a case under Chapter 7 of the Bankruptcy Code, no Person has filed an
application for an order dismissing any Borrower's Bankruptcy Case or converting
any Borrower's Bankruptcy Case to a case under Chapter 7 of the Bankruptcy Code,
and no trustee under Chapter 7 or Chapter 11 of the Bankruptcy Code or
responsible officer or examiner with powers beyond the duty to investigate and
report, as set forth in Sections 1106(a)(3) and (4) of the Bankruptcy Code, has
been appointed in any of the Bankruptcy Cases. No application has been filed by
any Borrower for the approval of any other superpriority administrative claim in
any Bankruptcy Case which is pari passu with or senior to the claims of the
Agent and/or any Lender against the Borrowers (and, other than the Carve-Out, no
such claim or lien has arisen) and the Final Order is in full force and effect
and has not been stayed, modified, amended, reversed, rescinded or vacated.
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Execution of this Agreement. This Agreement is executed
and shall be construed as the Third Amendment to the Postpetition Credit
Agreement, and, as provided in the Credit Agreement, this Agreement forms a part
thereof and is a Loan Document.
SECTION 3.2. No Amendment or Waiver. This Agreement shall not
constitute an amendment or waiver of, or consent to any provision of, the Credit
Agreement or any other Loan Document not expressly referred to herein and shall
not be construed as an amendment, waiver or consent to any action on the part of
the Borrowers that would require an amendment, waiver or consent of the Agent or
the Lenders except as expressly stated herein. The execution, delivery
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and performance by the parties hereto of this Agreement shall not constitute a
waiver, forbearance or other indulgence with respect to any Default or Event of
Default now existing or hereafter arising, except as expressly set forth herein.
Except as specifically modified pursuant to the terms of this Agreement, the
terms and conditions of the Credit Agreement and the other Loan Documents remain
in full force and effect. Nothing herein shall limit in any way the rights and
remedies of the Agent and the Lenders under the Credit Agreement and the other
Loan Documents.
SECTION 3.3. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement
constitutes the entire contract among the parties hereto relating to the subject
matter hereof and supersedes any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Upon the effectiveness
of this Agreement as set forth in Article II hereof, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and, subject to and
in accordance with SECTION 12.6 of the Credit Agreement, their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by facsimile shall be as effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 3.4. Ratification. Subject to the amendment provided hereby,
the Loan Documents shall continue to be in full force and effect and are hereby
in all respects ratified and confirmed.
SECTION 3.5. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 3.6. Expenses. The Borrowers agree to pay or reimburse the
Agent for all of its reasonable out-of-pocket costs and expenses incurred in
connection with this Agreement, any other documents prepared in connection
herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to the Agent.
SECTION 3.7. Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF
NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS THEREOF THAT
WOULD DIRECT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION, ALL TO THE
EXTENT NOT PREEMPTED BY THE FEDERAL BANKRUPTCY LAWS OF THE UNITED STATES;
PROVIDED, THAT THE LENDERS AND AGENT SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
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SECTION 3.8. Headings. Article and section headings used herein are
for convenience of reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
SPECIAL METALS CORPORATION,
a Delaware corporation, as debtor and
debtor in possession on behalf of the
estate created upon the commencement of
the Bankruptcy Cases
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
A-1 WIRE TECH, INC.,
an Illinois corporation, as debtor and
debtor in possession on behalf of the
estate created upon the commencement of
the Bankruptcy Cases
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President of SMC 100% Owner
SPECIAL METALS DOMESTIC SALES
CORPORATION,
a Delaware corporation, as debtor and
debtor in possession on behalf of the
estate created upon the commencement of
the Bankruptcy Cases
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President of SMC 100% Owner
HUNTINGTON ALLOYS CORPORATION (F/K/A
INCO ALLOYS INTERNATIONAL, INC.)
a Delaware corporation, as debtor and
debtor in possession on behalf of the
estate created upon the commencement of
the Bankruptcy Cases
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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CREDIT LYONNAIS NEW YORK BRANCH,
as Agent, as a Lender and as Issuing
Bank
By: /s/ Xxxx-Xxxxxxx Van Essche
Name: Xxxx-Xxxxxxx Van Essche
Title: Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Lender
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Administrative Vice President
THE BANK OF NOVA SCOTIA,
as Lender
By: /s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: Director
GENERAL ELECTRIC CAPITAL CORPORATION,
as Lender
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
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