AMENDMENT NO. 3 TO AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
MAGNESIUM CORPORATION OF AMERICA
000 Xxxxx 0000 Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
August 28, 1997
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Congress Financial Corporation ("Lender") and Magnesium Corporation of
America ("Borrower") have entered into certain financing arrangements
pursuant to the Amended and Restated Loan Agreement and Security Agreement,
dated as of August 4, 1993, between Lender and Borrower, as amended pursuant
to Amendment No. 1 to Amended and Restated Loan and Security Agreement,
dated January 31, 1996 and Amendment No. 2 to Amended and Restated Loan and
Security Agreement, dated July 3, 1996 (as amended hereby and as the same may
be further amended, modified, supplemented, extended, renewed, restated or
replaced, the "Loan Agreement," and together with all agreements, documents
and instruments at any time executed and/or delivered in connection therewith
or related thereto, collectively, the "Financing Agreements").
Borrower has requested that Lender agree to certain amendments to the
Loan Agreement and Lender is willing to agree to such amendments to the Loan
Agreement, subject to the terms and conditions contained herein. By this
Amendment, Lender and Borrower desire and intend to evidence such amendments.
In consideration of the foregoing, and other good and valuable
consideration, and the respective agreements and covenants contained herein,
the parties hereto agree as follows:
1. DEFINITIONS. For purpose of this Amendment, unless otherwise
defined herein, all terms used herein, including, but not limited to, those
terms used and/or defined in the recitals hereto, shall have the respective
meanings assigned thereto in the Loan Agreement.
2. INDEBTEDNESS. Section 7.3 of the Loan Agreement is hereby amended
by deleting Section 7.3 (1) thereof in its entirety and substituting the
following therefor:
"(1) Indebtedness of Borrower to Renco Metals, outstanding as of the
date hereof in the amount of $71,598,418.45, which Indebtedness is, in all
respects, subject and subordinate in right of payment to the right of
Lender to receive the prior indefeasible payment in full of all of the
Obligations; PROVIDED, THAT, Borrower shall not make any payments in
respect of such Indebtedness except to the extent permitted under Section
7.6"
3. TRANSACTIONS WITH AFFILIATES. The proviso to Section 7.6(b) of the
Loan Agreement is hereby amended by deleting the reference to "April 30,
1993" contained therein and substituting the following therefore: "July 3,
1996."
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by Borrower to Lender pursuant to the other financing Agreements,
Borrower hereby represents, warrants and covenants with and to Lender as
follows (which representations, warranties and covenants are continuing and
shall survive the execution and delivery hereof and shall be incorporated
into and made a part of the Financing Agreements):
(a) No event of Default exists on the date of this Amendment (after
giving effect to the amendments to the Loan Agreement made by this Amendment).
(b) This Amendment has been duly executed and delivered by Borrower
and is in full force and effect as of the date hereof, and the agreements and
obligations of Borrower contained herein constitute legal, valid and binding
obligations of Borrower enforceable against Borrower in accordance with their
respective terms.
5. CONDITIONS PRECEDENT. The effectiveness of the other terms and
conditions contained herein shall be subject to the receipt by Lender of an
original of this Amendment, duly authorized, executed and delivered by
Borrower.
6. EFFECT OF THIS AMENDMENT. Except as modified pursuant hereto, no
other changes or modifications to the Loan Agreement or the other Financing
Agreements are intended or implied and the Financing Agreements are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
effective date hereof. To the extent of conflict between the terms of this
Amendment and the other financing Agreements, the terms of this Amendment
shall control.
7. GOVERNING LAW. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted
-2-
and determined in accordance with the laws of the State of New York.
8. BINDING EFFECT. This Amendment shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns.
9. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one
and the same agreement. In making proof of this Amendment, it shall not be
necessary to produce or account for more than one counterpart thereof signed
by each of the parties hereto.
10. FURTHER ASSURANCES. The parties hereto shall execute and deliver
such additional documents and take such additional action as may be necessary
or desirable to effectuate the provisions and purposes of this Amendment.
Please sign the enclosed counterpart of this Amendment in the space
provided below, whereupon this Amendment, as so accepted by Lender, shall
become a binding agreement between Borrower and Lender.
Very truly yours,
MAGNESIUM CORPORATION OF AMERICA
By: /s/ Xxxxx X. Xxx
-----------------------------
Title: Vice President
--------------------------
AGREED:
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxxxxxx Xxxxxx
-------------------------------
Title: 1st Vice President
-----------------------------
-3-
