EXHIBIT 10.5
FOURTH AMENDMENT
TO AMENDED AND RESTATED LOAN AGREEMENT
This FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT dated as
of December 13, 2001 (this "Amendment"), by and among (a) METALLURG, INC., a
Delaware corporation having its principal place of business at 0 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("MI"), SHIELDALLOY METALLURGICAL CORPORATION,
a Delaware corporation having its principal place of business at 00 Xxxx
Xxxxxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("SMC") and METALLURG INTERNATIONAL
RESOURCES, LLC, a Delaware limited liability company having its principal place
of business at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("MIR" and together
with MI and SMC, the "Borrowers"), (b) METALLURG SERVICES, INC., a New York
corporation having its principal place of business at 0 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("MSI"), MIR (CHINA), INC., a Delaware corporation having
its principal place of business at 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("MIR China"), and METALLURG HOLDINGS CORPORATION, a New Jersey corporation
having its principal place of business at 00 Xxxx Xxxxxxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000 ("MHC-NJ" and collectively with MSI and MIR China, the
"Guarantors"), (c) FLEET NATIONAL BANK, a national banking association, as agent
(in such capacity the "Agent") for itself and the other financial institutions
from time to time parties to the Loan Agreement referred to below (collectively,
the "Banks"), and (d) the BANKS, amends certain provisions of the Amended and
Restated Loan Agreement dated as of October 29, 1999, by and among the
Borrowers, the Guarantors, the Agent and the Banks (as amended by that certain
First Amendment thereto, dated as of October 11, 2000, that certain Second
Amendment thereto, dated as of November 3, 2000, and that certain Third
Amendment thereto, dated as of July 2, 2001, and as further amended, modified,
supplemented or restated and in effect from time to time, the "Loan Agreement").
Terms not otherwise defined herein which are defined in the Loan Agreement shall
have the respective meanings herein assigned to such terms in the Loan
Agreement.
WHEREAS, in connection with the termination and payoff of that certain
Loan Agreement ("German Loan Agreement"), dated 20 October 1997, amended and
restated as of 22 July 1998, by and among (i) GfE Gesellschaft fur
Elektrometallurgie mit beschrankter Haftung, a German corporation ("GfE Holding
Company"), GfE Umwelttechnik GmbH, a German corporation ("GfE UT"), GfE
Gie(beta)erei- und Stahlwerksbedarf GmbH, a German corporation ("GfE G&S"), GfE
Metalle und Materialien GmbH, a German corporation ("GfE M&M"), KERAMED
Medizintechnik GmbH, a German corporation ("KERAMED", and collectively with GfE
Holding Company, GfE UT, GfE G&S and GfE M&M, the "German Subsidiaries"), and
(ii) Fleet National Bank, London Branch (the "German Lender"), the Borrowers
have requested that certain amendments be made to the Loan Agreement permitting
such transactions;
WHEREAS, the Borrowers have requested that MHC-NJ, a wholly owned
subsidiary of MI, be permitted to merge with and into Metallurg Holdings
Corporation, a New York corporation ("MHC"), with MHC surviving pursuant to and
in accordance with Sections 904 and 907 of the New York Business
Corporation Law and Sections 14A:10-1 and 14A:10-7 of the New Jersey
Corporation Act (the "Merger");
WHEREAS, the Majority Banks have agreed to consent to the Merger (the
"Consent"), subject to certain conditions contained herein, and the Borrowers
and the Guarantors and the Agent have entered into that certain Assumption
Agreement dated as of the date hereof, pursuant to which MHC has assumed all
rights and Obligations of MHC-NJ under and pursuant to the Loan Documents and MI
and the Agent have entered into that certain First Amendment to Amended and
Restated Stock Pledge Agreement, pursuant to which MI has pledged 65% of the
issued and outstanding capital stock of MHC;
WHEREAS, as a condition to the Consent the Borrowers agreed to amend
certain terms of the Loan Documents to reflect the termination of the German
Loan Agreement and the Merger; and
WHEREAS, the Agent and the Banks are willing to so amend the terms of
the Loan Agreement in such respects as hereinafter provided upon the terms and
subject to the conditions contained herein;
NOW, THEREFORE, in consideration of the mutual agreements contained in
the Loan Agreement, herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms used herein without
definition that are defined in the Loan Agreement shall have the same meanings
herein as in the Loan Agreement.
SECTION 2. AMENDMENT TO LOAN AGREEMENT. Subject to the terms and
conditions set forth herein and the effectiveness of this Amendment in
accordance with Section 6 below, the Loan Agreement is hereby amended as
follows:
Section 2.1 AMENDMENTS TO SECTION 1 OF THE LOAN AGREEMENT.
(a) Section 1.1 of the Loan Agreement is hereby amended by
deleting the following defined terms in their entirety:
Deutschemarks or DM
Dollar Equivalent
German Borrowers
German Borrowing Base
German Collateral Instrument Fees
German Collateral Instruments
German Facility Reserve
German Guaranty
German Lender
German Loan Agreement
German Loan Documents
German Loans
German Maximum Drawing Amount
German Obligations
German Outstanding
German Reimbursement Obligations
German Risk Participation Fees
German Unpaid Reimbursement Obligations
(b) Section 1.1 of the Loan Agreement is hereby further
amended by amending and restating the following defined terms in their entirety:
"Borrowing Base Availability: On any Business Day of
determination, the excess of (a) the Borrowing Base, determined by
reference to the most recent Borrowing Base Report and appraisal of
Eligible Fixed Assets delivered to the Banks and the Agent, over (a)
the aggregate amount of Total Outstandings at the close of business on
such day."
"Commitment: With respect to each Bank, the amount
set forth on Schedule 1 hereto as the amount of such Bank's commitment
to make Loans to and to participate in the
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issuance, extension and renewal of Letters of Credit for the account
of, the Borrowers, as the same may be reduced from time to time; or if
such commitment is terminated pursuant to the provisions hereof, zero.
The aggregate Commitments of all the Banks as of the Restatement Date
shall initially be $50,000,000."
"GfE: GfE-Gesellschaft fur Elektrometallurgie MBH, a
company incorporated under the laws of Germany."
"Majority Banks: As of any date (a) the Banks holding
at least fifty-one percent (51%) of the sum of (i) the outstanding
principal amount of the Notes on such date plus (ii) the Letter of
Credit Participations of all of the Banks in the sum of (A) the Maximum
Drawing Amount on such date plus (B) any Unpaid Reimbursement
Obligations on such date; and (b) if no such principal amount of the
Notes and no Letters of Credit are outstanding, the Banks whose
aggregate Commitments constitute at least fifty-one percent (51%) of
the Total Commitment."
"Obligations: All indebtedness, obligations and
liabilities of the Borrowers and the Guarantors to any of the Banks and
the Agent, individually or collectively, existing on the date of this
Agreement or arising thereafter, direct or indirect, joint or several,
absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of
law or otherwise, arising or incurred under this Agreement (including
the Guaranty hereunder) or any other Loan Document or any Foreign
Exchange Contract or in respect of any of the Loans made or
Reimbursement Obligations incurred or any obligations under any Foreign
Exchange Contract or any of the Notes, Letter of Credit Applications,
Letters of Credit, or any interest rate protection arrangements between
any Borrower or Guarantor and any Bank or other instruments at any time
evidencing any thereof."
"Settlement Date: (a) The Drawdown Date relating to
any Loan Request, (b) Friday of each week, or if Friday is not a
Business Day, the Business Day immediately following such Friday, (c)
the Business Day immediately following the Agent's becoming aware of
the existence of an Event of Default, (d) any Business Day on which the
amount of Loans outstanding from Fleet National Bank plus Fleet
National Bank's Commitment Percentage of the sum of the Maximum Drawing
Amount and any Unpaid Reimbursement Obligations is equal to or greater
than Fleet National Bank's Commitment Percentage of the Total
Commitment, (e) the Business Day immediately following any Business Day
on which the amount of Loans outstanding increases or decreases by more
than $5,000,000 as compared to the previous Settlement Date, (f) any
day on which any conversion of a Base Rate Loan to a Eurodollar Rate
Loan occurs or (g) any Business Day on which (i) the amount of
outstanding Loans decreases due to a repayment or prepayment pursuant
to the provisions of Section 2.3 or otherwise, and (ii) the amount of
the Agent's Loans outstanding equals zero Dollars ($0)."
"Total Outstandings: At any time of reference
thereto, the sum of (a) the aggregate principal amount of the Loans
outstanding at such time, (b) the Maximum Drawing Amount at such time,
and (c) any Unpaid Reimbursement Obligations at such time to the extent
not included in the Maximum Drawing Amount."
(c) Section 1.1 of the Loan Agreement is hereby further amended by
adding the following defined term in alphabetical order:
"German Subsidiaries: Collectively, (a) GfE, (b) GfE
Umwelttechnik GmbH, a German corporation, (c) GfE Gie(beta)erei- und
Stahlwerksbedarf GmbH, a German corporation, (d) GfE Metalle und
Materialien GmbH, a German corporation, and (e) KERAMED
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Medizintechnik GmbH, a German corporation, for so long as such Persons
are Subsidiaries of MHC."
Section 2.2 AMENDMENTS TOSECTION 2 OF THE LOAN AGREEMENT..
(a) Section 2.1(a) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"Section 2.1. COMMITMENT TO LEND. (a) Subject to the terms and
conditions set forth in this Agreement, each of the Banks severally
agrees to lend to the Borrowers and the Borrowers may borrow, repay,
and reborrow from time to time between the Restatement Date and the
Maturity Date upon notice by the Borrowers to the Agent given in
accordance with Section 2.1(c), such sums as are requested by the
Borrowers up to a maximum aggregate amount outstanding (after giving
effect to all amounts requested) at any one time equal to such Bank's
Commitment minus such Bank's Commitment Percentage of the sum of the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations,
provided that (i) the aggregate amount of the Total Outstandings (after
giving effect to all amounts requested) shall not at any time exceed
the Total Commitment and (ii) the sum of the aggregate amount of the
Total Outstandings, shall not at any time exceed the Borrowing Base."
(b) Section 2.3 of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"Section 2.3. REPAYMENTS AND PREPAYMENTS. (a) The Borrowers hereby
jointly and severally agree to pay the Banks on the Maturity Date, and there
shall become absolutely due and payable on the Maturity Date, all of the Loans
outstanding on such date, together with any and all accrued and unpaid interest
thereon. If, at any time, for any reason, including fluctuations in currency
exchange rates, (i) the aggregate amount of the Total Outstandings shall exceed
the Total Commitment or (ii) the aggregate amount of the Total Outstandings,
shall exceed the Borrowing Base, then in either such case, the Borrowers shall
immediately pay the amount of such excess to the Agent for the respective
accounts of the Banks for application to the Loans or, if no Loans are then
outstanding, to be held by the Agent as cash collateral to secure payment of all
Reimbursement Obligations on a ratable basis up to the amount of 105% of the sum
of the Maximum Drawing Amount. Each payment of any Unpaid Reimbursement
Obligations or prepayment of Loans shall be allocated among the Banks, as
applicable, in proportion, as nearly as practicable, to each Reimbursement
Obligation or (as the case may be) the respective unpaid principal amount of
each Bank's Note, with adjustments to the extent practicable to equalize any
prior payments or repayments not exactly in proportion."
Section 2.3 AMENDMENT TO SECTION 3A OF THE LOAN AGREEMENT. Section 3A
of the Loan Agreement is hereby amended by deleting such section in its
entirety.
Section 2.4 AMENDMENTS TO SECTION 4 OF THE LOAN AGREEMENT.
(a) Section 4.3(c) of the Loan Agreement is hereby amended by
deleting the phrases "such Bank's participating Interest in the German Loans or
German Collateral Instruments", "or such Bank's participating Interest in the
German Loans or German Collateral Instruments", "German Reimbursement
Obligations", and "German Risk Participation Fees" each time such phrases appear
therein.
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(b) Section 4.4 of the Loan Agreement is hereby amended by
deleting the phrase "or with respect to its participating interest in any German
Obligations" appearing therein.
Section 2.5 AMENDMENTS TO SECTION 5 OF THE LOAN AGREEMENT.
(a) Section 5(b) of the Loan Agreement is hereby amended by
deleting in its entirety the proviso appearing at the end thereof.
Section 2.6 AMENDMENTS TO SECTION 6 OF THE LOAN AGREEMENT.
(a) Section 6.2 of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"Section 6.2. GUARANTY AND SECURITY OF SUBSIDIARIES. The Obligations
shall also be guaranteed by the Guarantors pursuant to the terms of the Guaranty
as provided for in Section 6.4. The obligations of the Guarantors under the
Guaranty, shall be secured by (a) a perfected first priority security interest
(subject only to Permitted Liens entitled to priority under applicable law) in
all of the assets of each of the Borrowers and the Guarantors (excluding (i) all
fee and leasehold interests of the Borrowers or the Guarantors in any real
property, (ii) 100% of the capital stock of MIR China, MSI and the direct
Subsidiaries of MHC (other than MCL) organized under the laws of a foreign
country, (iii) 35% of the capital stock of MHC and MCL, and (iv) any annuities
and trust fund accounts which are dedicated to the payment of environmental
liabilities of the Borrowers pursuant to the express provisions of the
Settlement Agreements, but in any event including the Borrowers' residual
interest (if any) in such annuities and trust fund accounts), whether now owned
or hereafter acquired, and (b) a pledge of and perfected first priority security
interest in 100% of the issued and outstanding capital stock of SMC and the
membership interests in MIR and 65% of the issued and outstanding capital stock
of MHC and MCL; all pursuant to the terms of, and to the extent provided in, the
Security Documents."
(b) Section 6.7 of the Loan Agreement is hereby deleted in its
entirety.
Section 2.7 AMENDMENTS TO SECTION 7 OF THE LOAN AGREEMENT.
(a) Section 7(d) of the Loan Agreement is hereby amended by
deleting the second to last sentence thereof, and inserting in its place the
following:
"The current NRC license (which is now administered by the Ohio
Department of Health) for such Cambridge, Ohio plant was renewed on
June 30, 2000, and expires June 30, 2005, but is further renewable in
the event that the final decommissioning plan has not been approved at
that time."
Section 2.8 AMENDMENTS TO SECTION 8 OF THE LOAN AGREEMENT.
(a) Section 8(b) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"(b) The obligation of the Agent to issue, extend or
renew any Letters of Credit, and the obligation of the Banks to make
any Loans or to participate in any Letters of Credit, including the
initial Loans and Letters of Credit, is subject to the satisfaction of
the following further conditions precedent:"
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(b) Section 8(b)(i) of the Loan Agreement is hereby amended by
deleting the phrases "German Loan or" and "or German Collateral Instrument"
appearing therein.
(b) Section 8(b)(iii) of the Loan Agreement is hereby amended
by deleting the phrases "German Loan or", "German Collateral Instrument or" and
"or German Collateral Instrument" appearing therein.
Section 2.9 AMENDMENTS TO SECTION 9 OF THE LOAN AGREEMENT.
(a) Section 9.1 of the Loan Agreement is hereby amended by
deleting the phrases "German Loans", "German Unpaid Reimbursement Obligations",
"or German Collateral Instruments", "or German Loans", and "or the German
Lender" each time such phrases appear therein.
(b) Section 9.2 of the Loan Agreement is hereby amended by
deleting the phrases "German Loans", "German Unpaid Reimbursement Obligations",
"or German Collateral Instruments", "or German Loans", and "or the German
Lender" each time such phrases appear therein.
(c) Section 9.2(d) of the Loan Agreement is hereby amended by
deleting the phrase "German Borrowers" each time it appears therein, and
substituting the phrase "German Subsidiaries" therefor.
(d) Section 9.2(f) of the Loan Agreement is hereby amended by
deleting the phrases "and all obligations of the Borrowers and the Guarantors in
respect of the German Guaranty" and "plus the aggregate amount of the German
Outstandings" appearing therein.
(e) Section 9.3 of the Loan Agreement is hereby amended by
deleting the phrases "German Loans", "German Unpaid Reimbursement Obligations",
"or German Collateral Instruments", "or German Loans", and "or the German
Lender" each time such phrases appear therein.
Section 2.10 AMENDMENTS TO SECTION 10 OF THE LOAN AGREEMENT.
(a) Section 10(e) of the Loan Agreement is hereby amended by
deleting the text of clause (i) thereof, and replacing it in its entirety with
the phrase: "[intentionally omitted]".
(b) Section 10 of the Loan Agreement is hereby amended by
deleting from Paragraphs (1) and (2), appearing at the end of such section, the
phrases "German Loans or German Collateral Instruments", "all obligations of the
Borrowers and the Guarantors in respect of the German Guaranty", "plus the
aggregate amount of the German Outstandings", "and the obligations of the
Borrowers and the Guarantors in respect of the German Guaranty", "or the German
Outstandings", and "or participant in any German Obligations" each time such
phrases appear therein, and by inserting the word "and" in place of the comma
after the clause "if owned any amount with respect to the Loans" appearing in
the second to last sentence of such Section 10.
Section 2.11 AMENDMENTS TO SECTION 11 OF THE LOAN AGREEMENT.
(a) Section 11(b) of the Loan Agreement is hereby amended by
deleting the phrase "(other than the Obligations of the Borrowers and the
Guarantors in respect of the German Guaranty)" appearing therein.
(b) Section 11(c) of the Loan Agreement is hereby deleted in
its entirety.
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(c) Section 11(d) is hereby amended by renumbering such
section as 11(c) and by deleting the word "Fourth", and inserting the word
"Third" in place thereof in such section.
(d) Section 11(e) is hereby amended by renumbering such
section as 11(d) and by deleting the word "Fifth", and inserting the word
"Fourth" in place thereof in such section.
Section 2.12 AMENDMENTS TO SECTION 12 OF THE LOAN AGREEMENT.
(a) Section 12 of the Loan Agreement is hereby amended by
deleting the phrase "or obligations under the German Guaranty" each time such
phrase appears therein.
Section 2.13 AMENDMENTS TO SECTION 13 OF THE LOAN AGREEMENT.
(a) Section 13.5(c) of the Loan Agreement is hereby amended
and restated in its entirety as follows:
"(c) Notwithstanding anything to the contrary
contained in this Agreement or any of the other Loan Documents, any
Bank that fails (i) to make available to the Agent its pro rata share
of any Loan or to purchase any Letter of Credit Participation or (ii)
to comply with the provisions of Section 12 with respect to making
dispositions and arrangements with the other Banks, where such Bank's
share of any payment received, whether by setoff or otherwise, is in
excess of its pro rata share of such payments due and payable to all of
the Banks, in each case as, when and to the full extent required by the
provisions of this Agreement, shall be deemed delinquent (a "Delinquent
Bank") and shall be deemed a Delinquent Bank until such time as such
delinquency is satisfied. A Delinquent Bank shall be deemed to have
assigned any and all payments due to it from the Borrowers, whether on
account of outstanding Loans, Unpaid Reimbursement Obligations,
interest, fees, or otherwise, to the remaining nondelinquent Banks for
application to, and reduction of, their respective pro rata shares of
all outstanding Loans, and Unpaid Reimbursement Obligations. The
Delinquent Bank hereby authorizes the Agent to distribute such payments
to the nondelinquent Banks in proportion to their respective pro rata
shares of all outstanding Loans, and Unpaid Reimbursement Obligations.
A Delinquent Bank shall be deemed to have satisfied in full a
delinquency when and if, as a result of application of the assigned
payments to all outstanding Loans, and Unpaid Reimbursement Obligations
of the nondelinquent Banks, the Banks' respective pro rata shares of
all outstanding Loans, and Unpaid Reimbursement Obligations have
returned to those in effect immediately prior to such delinquency and
without giving effect to the nonpayment causing such delinquency."
Section 2.14 AMENDMENTS TO SECTION 14 OF THE LOAN AGREEMENT.
(a) Section 14.1 of the Loan Agreement is hereby amended by
deleting the phrase "German Loans and German Collateral Instruments" appearing
therein.
(b) Section 14.2(b)(i) of the Loan Agreement is hereby amended
by deleting the phrase "German Risk Participation Fees in respect of German
Outstandings" appearing therein.
(c) Section 14.3 of the Loan Agreement is hereby amended by
deleting the phrase "and participating interests in German Loans and German
Collateral Instruments purchased by" appearing therein.
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Section 2.15 AMENDMENTS TO SECTION 15 OF THE LOAN AGREEMENT. Section 15
of the Loan Agreement is hereby amended by deleting the phrase "or German Risk
Participation Fees" appearing in the first paragraph of such section and by
deleting the second paragraph of such section in its entirety.
Section 2.16 AMENDMENTS TO SCHEDULE 7(l) OF THE LOAN AGREEMENT.
Schedule 7(l) of the Loan Agreement is hereby amended and restated in its
entirety by the attached Schedule 7(l).
SECTION 3. AMENDMENT TO LOAN DOCUMENTS. Subject to the terms and
conditions set forth herein and the effectiveness of this Amendment, each of the
Loan Documents other than the Loan Agreement is hereby amended as follows:
(a) All references in such Loan Documents to the terms "Metallurg
Holding Corporation, a New Jersey corporation" are hereby amended to refer to
"Metallurg Holding Corporation, a New York corporation".
SECTION 4. CONSENT, RATIFICATIONS, ETC.
(a) Subject to the conditions set forth in Section 6, the Banks hereby
consent to the merger of MHC-NJ with and into MHC, with MHC surviving.
(b) Except for the consent set forth in Section 4(a), nothing contained
in this Amendment shall constitute a waiver of, impair or otherwise affect any
Obligations, any other obligation of the Borrowers or any rights of the Agent or
the Banks consequent thereon.
(c) Except as expressly amended hereby, the Loan Agreement and all
documents, instruments and agreements related thereto, including, but not
limited to the Loan Documents, are hereby ratified and confirmed in all respects
and shall continue in full force and effect.
(d) Each of the Borrowers hereby affirms its absolute and unconditional
promise to perform and pay, to the Banks and the Agent, all Obligations under
the Loan Agreement (as amended hereby) and the other Loan Documents at the times
and in the amounts provided for therein.
(e) Each of the Guarantors hereby acknowledges that it has read, is
aware and consents to the provisions of this Amendment. Each of the Guarantors
hereby reaffirms its absolute and unconditional guaranty of the Borrowers'
payment and performance of the Obligations under the Loan Agreement (as amended
hereby) and the other Loan Documents.
SECTION 5. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers and
the Guarantors represents and warrants to the Agent and the Banks as follows:
(a) The representations and warranties of the Borrowers and the
Guarantors set forth in the Loan Agreement (as amended hereby) and the other
Loan Documents, (i) were true and correct in all material respects when made,
and (ii) continue to be true and correct in all material respects on the date
hereof, except to the extent such representations and warranties by their terms
relate solely as of a prior date.
(b) The execution and delivery by the Borrowers and the Guarantors of
this Amendment and the performance by the Borrowers and the Guarantors of their
agreements and obligations under this Amendment, the Loan Agreement (as amended
hereby) and the other Loan Documents (i) are within the corporate or other
organizational authority of each of the Borrowers and the Guarantors, (ii) have
been duly authorized by all necessary corporate or other organizational
proceedings or actions by each of the
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Borrowers and the Guarantors, (iii) do not conflict with or result in any breach
or contravention of any provision of law, statute, rule or regulation to which
the Borrowers or the Guarantors are subject or any judgment, order, writ,
injunction, license or permit applicable to the Borrowers or the Guarantor, and
(iv) do not conflict with any provision of the corporate charter, by-laws or
other constituent document of, or any agreement or other instrument binding
upon, the Borrowers or the Guarantors.
(c) This Amendment, the Loan Agreement (as amended hereby), and the
other Loan Documents to which any of the Borrowers or the Guarantors is a party
constitute the legal, valid and binding obligations of such Borrowers or
Guarantors (as the case may be), duly enforceable against each such Person in
accordance with their respective terms, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors' rights and except to the
extent that availability of the remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding
therefor may be brought.
(d) No approval or consent of, or filing with, any governmental agency
or authority is required to make valid and legally binding the execution,
delivery or performance by any of them of this Amendment, or the performance by
the Borrowers of the Loan Agreement as amended hereby.
(e) As of the date hereof, after giving effect to the provisions
hereof, there exists no Event of Default.
SECTION 6. CONDITIONS TO EFFECTIVENESS. This Amendment shall be
effective as of the date hereof upon the satisfaction of the following
conditions (each of the following to be in form and substance satisfactory to
the Agent):
(a) delivery to the Agent of original counterpart signature pages to
this Amendment, duly executed and delivered by the Borrowers, the Guarantors and
each of the Banks;
(b) delivery to the Agent of a legal opinion of in-house counsel to the
Borrowers, addressed to the Agent and the Banks with respect to this
transaction;
(c) MHC or the other Borrowers or Guarantors shall have executed and
delivered to the Agent, as the case may be, (i) an Assumption Agreement
substantially in the form of Exhibit A attached hereto; (ii) a First Amendment
to Amended and Restated Stock Pledge Agreement substantially in the form of
Exhibit B attached hereto, together with a share certificate representing 65% of
the issued and outstanding shares of MHC, together with stock powers executed in
blank relating thereto; (iii) a Perfection Certificate of MHC; and (iv) such
UCC-1 financing statements and UCC-3 amendments as the Agent shall have
requested;
(d) the Borrowers shall have delivered to the Agent, (i) an incumbency
certificate, signed by the member or MHC and giving the name and bearing the
signature of each individual who shall be authorized to sign this Amendment and
the other Loan Documents to which MHC is a party in the name and on behalf of
MHC, (ii) certified true and complete copies of all of MHC's organizational and
constituent documents as in effect on the date hereof, (iii) a certified copy of
MHC's articles of incorporation and by-laws, (iv) a certified copy of MHC's
Certificate of Merger, (v) board resolutions or other documents evidencing
authorization of the conversion and the transactions contemplated by this
Amendment and (v) evidence that MHC shall have filed applications to do business
as a foreign corporation in all jurisdictions where such qualification is
necessary;
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(e) all proceedings in connection with the transactions contemplated by
this Amendment shall be reasonably satisfactory in substance and form to the
Agent, and the Agent shall have received all information and such documents as
the Agent may reasonably request;
(f) the German Subsidiaries shall have sent a letter to the German
Lender requesting termination of the German loan facility under the German Loan
Agreement;
(g) the German Lender shall have issued a payoff letter to the German
Subsidiaries;
(h) the German Subsidiaries shall have repayed all amounts outstanding
under the German Loan Agreement and shall have cash collateralized at 105% of
face value, any outstanding Collateral Instruments (as defined in the German
Loan Agreement); and
(i) the German Lender and the Banks shall have executed such
documentation as necessary to release the Collateral (as defined in the German
Loan Agreement), at the sole expense of the German Subsidiaries.
SECTION 7. COSTS AND EXPENSES. The Borrowers acknowledge and jointly
and severally agree that the reasonable costs and expenses incurred by the Agent
(including attorneys' fees) in the preparation, negotiation and execution of
this Amendment and the other documents and instruments contemplated hereby are
for the account of the Borrowers as provided in Section 16 of the Loan
Agreement.
SECTION 8. MISCELLANEOUS PROVISIONS.
(a) Except as otherwise expressly provided by this Amendment, all of
the terms, conditions and provisions of the Loan Agreement shall remain the
same. It is declared and agreed by each of the parties hereto that the Loan
Agreement, as amended hereby, shall continue in full force and effect, and that
this Amendment and the Loan Agreement shall be read and construed as one
instrument.
(b) THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT UNDER SEAL AND
SHALL FOR ALL PURPOSES BE GOVERNED BY, AND CONSTRUED ACCORDING TO, THE LAWS OF
THE COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW).
(c) This Amendment may be executed in any number of counterparts, but
all such counterparts shall together constitute but one instrument. In making
proof of this Amendment it shall not be necessary to produce or account for more
than one counterpart signed by each party hereto against which enforcement
hereof is sought.
(d) Headings or captions used in this Amendment are for convenience of
reference only and shall not define or limit the provisions hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
10
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
as a sealed instrument as of the date first above written.
METALLURG, INC.
By:
-----------------------
Name:
Title:
SHIELDALLOY METALLURGICAL
CORPORATION
By:
-----------------------
Name:
Title:
METALLURG INTERNATIONAL
RESOURCES, LLC (successor
by merger to Metallurg
International Resources,
Inc.)
By:
-----------------------
Name:
Title:
METALLURG SERVICES, INC.
By:
-----------------------
Name:
Title:
MIR (CHINA), INC.
By:
-----------------------
Name:
Title:
METALLURG HOLDINGS
CORPORATION, a New York
corporation (successor by
merger to Metallurg
Holdings Corporation, a New
Jersey corporation)
By:
-----------------------
Name:
Title:
11
FLEET NATIONAL BANK
(formerly known as
BANKBOSTON, N.A.),
individually and as Agent
By:
-----------------------
Name:
Title:
BANK OF SCOTLAND
By:
-----------------------
Name:
Title:
NATIONAL BANK OF CANADA
By:
-----------------------
Name:
Title:
By:
-----------------------
Name:
Title:
12
SCHEDULE 7(l)
SUBSIDIARIES AND JOINT VENTURES OF METALLURG, INC.*
STATE/COUNTRY PERCENTAGE
OF OF AUTHORIZED OUTSTANDING PAR RECORD
NAME OF SUBSIDIARY OR JOINT VENTURE INCORPORATION VOTING POWER CAPITAL CAPITAL VALUE OWNER
----------------------------------- ------------- ------------ ------- ------- ----- -----
SPECIAL PURPOSE/HOLDING
Metallurg Holdings Corporation** New York 100 2,500 200 no par value MI
Metallurg Services, Inc. New York 100 200 10 no par value MI
Metallurg Europe Limited*** England 100 -- 68,754,000 $ 1 MH
Caribbean Metals & Alloys Limited (dormant) Grand Cayman 100 900,000 3,000 $ 1 MH
Metallurgische Gesellschaft AG (dormant) Zurich, Switzerland 100 -- -- -- XX
Xxxxxxx y Cia S. A. (dormant) Spain 100 -- -- -- MH
Aleaciones Metalurgicas Venezolanas C. A.
(dormant) Venezuela 100 (Class B) -- -- -- XX
Xxxxxx Aktiengesellschaft (dormant) Liechtenstein 100 -- -- -- MH
MANUFACTURING
London & Scandinavian Metallurgical Co
Limited England 100 16,000,000 16,000,000 L1 XXX
X. X. Xxxxxxx Limited (dormant) England 100 500 500 L1 --
H. M. I. Limited (dormant) England 100 50,000 50,000 L1 --
Metal Alloys (South Wales) Limited
(dormant) England 100 2,000 2,000 L1 --
The Aluminum Powder Company Limited England 100 436,037 436,037 L1 --
Alpoco Developments Limited
(dormant) England 100 100 100 L1 --
Xxxxx Xxxx Alpoco Sp.z.o.o Poland 100 --
M & A Powders Limited (dormant) England 100 15,000 9,437 L1 --
Bostlan, S.A Spain 25
Metalloys Limited (dormant) England 100 100 2 L1 --
Hydelko AS Norway 000 --
Xxxxxxxxx Xxxxx Xxxxxx (Xxx.) Xxxxxxx Xxxxx Xxxxxx 100 4,000 4,000 R1 XXX
X. X. Xxxxx Limited (dormant) South Africa 100 2,000 2,000 R1 --
Stand 000 Xxxxxxxxx Xxxxxxxxx 0 (Xxx.)
Xxxxxxx Xxxxx Xxxxxx 100 100 2 R1 --
Allied Metallurg South Africa (Pty.)
Limited South Africa 00
Xxxx Xxxxx Xxxxxx (Pty) Limited South Africa 00
Xxxxx Xxxxxxx Xxxxxxxxx (Xxx) Xxxxxxx Xxxxx Xxxxxx 00
Xxxxxxxx Xxxxxxxxxxxx Xxxxx Xxxxxx 00
-x-
XXXXX/XXXXXXX PERCENTAGE
OF OF AUTHORIZED OUTSTANDING PAR RECORD
NAME OF SUBSIDIARY OR JOINT VENTURE INCORPORATION VOTING POWER CAPITAL CAPITAL VALUE OWNER
----------------------------------- ------------- ----------- ------- ------- ----- -----
Shieldalloy Metallurgical Corporation Delaware 100 3,000 1,885 $.01 MI
Xxxx Xxxxxx Sirketi Turkey 100 TL 6,400,000,000 Same Capital in MH
Turkish Xxxx
Xxxx Madencilik (dormant) Turkey 60 --
Gesellschaft fur Elektrometallurgie mbH Germany 99.19 DM 6m DM 6m n/a MH
Societe Miniere du Kivu (dormant) DRC (Zaire) 70 170,000 shares 170,000 shares --
GfE Metalle und Materialien GmbH Germany 100 DM 1m DM 1m n/a --
Intervan GmbH (dormant) Germany 50 --
Recovan S.p.A. (dormant) Italy 60 --
Keramed Medizintechnik Gmbh Germany 100 DM 1m DM 1m n/a --
GfE Giesserei- und Stahlwerksbedarf
GmbH Germany 100 DM 1m DM 1m n/a --
RZM-Recyclingzentrum Mittelfranken
GmbH (dormant)
Germany 75 DM 991,000 DM 247,750 n/a --
Columbite Exploration and Development Ghana 50 --
Company (Ghana) Limited (dormant)
Elektrowerk Weisweiler GmbH Germany 95+ DM 15m DM 15m n/a XXX
Companhia Industrial Fluminense Brazil 99.9 R$933,596 R$.73 R$1.00 XXX
TRADING
Metallurg (Canada) Limited Quebec 100 unlimited 1,100 C$10 MI
MIR (China), Inc. Delaware 100 100 100 $0.01 MI
Ferrolegeringar Aktiengesellschaft Zurich, 100 n/a 3,000 SFr. 1,000 MH
Switzerland --
Metalchimica S. r. l Italy 95+
FAG Poland Sp. z. o. o Poland 100 100 Sfr.20 --
Aktiebolaget Ferrolegeringar Sweden 100 20,000 KR 100 MH
Metallurg International Resources
GmbH Germany 100 DM 200,000 DM 200,000 n/a MH
Metallurg International Resources
Russia --
(dormant) Russia 100
Metallurg (Far East) Limited Japan 100 n/a 20,000 Y500 MH
Montanistica S. A Zug, Switzerland 100 n/a 50 Sfr. 1,000 MH
-ii-
STATE/COUNTRY OF PERCENTAGE OF AUTHORIZED OUTSTANDING PAR RECORD
NAME OF SUBSIDIARY OR JOINT VENTURE INCORPORATION VOTING POWER CAPITAL CAPITAL VALUE OWNER
----------------------------------- ------------- ------------ ------- ------- ----- -----
Metallurg Mexico S. A. de C. V. Mexico 100 140,000 10,000 Ps.1,000 MH
Metallurg Servicios S de RL de CV Mexico 100 MH
Metallurg International Resources, LLC Delaware 100 MI
Note:
* MI is Metallurg, Inc., a Delaware corporation, all of whose issued and
outstanding capital stock is owned of record by Metallurg Holdings, Inc.,
a Delaware corporation.
** MH is Metallurg Holdings Corporation.
*** XXX is Metallurg Europe Limited, an English corporation, all of whose
issued and outstanding capital stock is owned by MH.
+ Balance held beneficially by or for MI or an affiliate of MI.
Revised as of 12/14/01
-iii-
