[EXECUTION COPY]
SECOND AMENDMENT
TO AMENDED AND RESTATED LOAN AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT dated as
of November 3, 2000 (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 (successor by merger to
Metallurg International Resources, Inc.) 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" and collectively with MSI and MIR China, the "Guarantors"), (c) FLEET
NATIONAL BANK (formerly known as BANKBOSTON, N.A.), 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,
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, on November 3, 2000, the Metallurg International Resources,
Inc., a New York corporation (the "Corporation") and a wholly owned subsidiary
of MI, was merged into MIR pursuant to and in accordance with 'SS'18-209 of the
Delaware Limited Liability Company Act and 'SS'904-A of the New York Business
Corporation Law (the "Merger");
WHEREAS, the Majority Banks granted to the Borrowers and the Guarantors
that certain Limited Waiver dated as of November 3, 2000 (the "Waiver"),
permitting the Merger subject to certain conditions contained therein, and the
Borrowers and the Guarantors and the Agent entered into that certain Assumption
Agreement dated as of November 3, 2000, pursuant to which MIR assumed all rights
and Obligations of the Corporation under and pursuant to the Loan Documents;
WHEREAS, as a condition to the Waiver the Borrowers agreed to amend
certain terms of the Loan Documents to reflect 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:
'SS'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.
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'SS'2. Amendment to Loan Agreement. Subject to the terms and conditions
set forth herein and the effectiveness of this Amendment, the Loan Agreement is
hereby amended as follows:
(a) All references in the Loan Agreement to the terms "BankBoston,
N.A.", "BankBoston" and "BKB" are hereby amended to refer to "Fleet National
Bank" (except in the event that such references refer to BankBoston, N.A. as the
former name of Fleet National Bank).
(b) Section 1.1 of the Loan Agreement is hereby amended by deleting the
definitions of the terms "BKB", "MIR", "Security Documents" and "Subsidiary" in
their entirety and by substituting therefore the following new defined terms
"Fleet National Bank. Fleet National Bank (f/k/a BankBoston,
N.A.), a national banking association, and shall include its successors
and assigns."
"MIR. Metallurg International Resources, LLC a Delaware
limited liability company formerly known as Metallurg International
Resources, Inc., and a wholly-owned Subsidiary of MI."
"Security Documents: The Security Agreement, the Stock Pledge
Agreements, the Foreign Pledge Agreements, the Canadian Assignment
Documents, the Agency Agreements, the Lock Box Agreement, the
Membership Interest Pledge Agreement and all other security agreements,
mortgages, deeds of trust, assignments, or other instruments or
documents, in form and substance satisfactory to the Agent and the
Banks, which shall grant to the Agent, for the benefit of the Banks and
the Agent, Liens upon all of the Collateral."
"Subsidiary: Any corporation, association, trust, limited
liability company or other business entity of which the designated
parent shall at any time own directly or indirectly through a
Subsidiary or Subsidiaries at least a majority (by number of votes) of
the outstanding shares of stock or membership interest having voting
power, regardless of whether such right to vote depends upon the
occurrence of a contingency."
(c) Section 1.1 of the Loan Agreement is hereby further amended by
inserting the following new definition in the appropriate place in the
alphabetical order thereof:
"Membership Interest Pledge Agreement. The Membership Interest
Pledge Agreement dated as of November 3, 2000, between MI and the Agent
with respect to MI's membership interest in MIR and in form and
substance satisfactory to the Agent and the Banks."
(d) The Loan Agreement is hereby amended by deleting 'SS'6.1 thereto in
its entirety and substituting the following new 'SS'6.1:
"6.1 Security of Borrower. The Obligations 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 (excluding (i) all fee and
leasehold interests of the Borrowers in any real property, (ii) 100% of
the capital stock of MIR China and MSI, (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
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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.
(e) The Loan Agreement is hereby amended by deleting 'SS'7(a) thereto
in its entirety and substituting therefor the following new 'SS'7(a):
(a) Each of the Borrowers and each of the Guarantors is duly
organized, validly existing, and in good standing under the laws of its
jurisdiction of incorporation or formation and is duly qualified and in
good standing in every other jurisdiction where it is doing business
and where failure to qualify would have a Materially Adverse Effect,
and the execution, delivery and performance by each of the Borrowers
and each of the Guarantors of each of the Loan Documents to which it is
a party (i) are within its corporate or other organizational authority,
(ii) have been duly authorized by all necessary corporate action or
other organizational proceedings, (iii) do not conflict with or
contravene its Charter Documents.
(f) The Loan Agreement is hereby amended by deleting 'SS'7(h) and (i)
thereto in their entirety and substituting therefor the following new 'SS'7(h)
and (i):
(h) The execution, delivery, performance of its obligations,
and exercise of its rights under the Loan Documents by each of the
Borrowers and each of the Guarantors, including borrowing under this
Agreement and the obtaining of Letters of Credit (i) do not require any
Consents other than those that have been obtained or will be obtained
prior to the Restatement Date and that are in full force and effect;
and (ii) are not and will not be in conflict with or prohibited or
prevented by (A) any Requirement of Law, or (B) any Charter Document,
corporate minute or resolution or limited liability company action,
instrument, agreement or provision thereof, in each case binding on it
or affecting the property of the Borrowers or the Guarantors.
(i) None of the Borrowers nor any of the Guarantors is in
violation of (A) any Charter Document, corporate minute or resolution
or limited liability company action, (B) any instrument or agreement,
in each case binding on it or affecting its property, which violation
could have a Materially Adverse Effect, or (C) any Requirement of Law,
in a manner which could have a Materially Adverse Effect, including,
without limitation, all applicable federal and state tax laws, ERISA,
OSHA and Environmental Laws. Except as set forth in Schedule 7(i), none
of the Borrowers nor any of the Guarantors is a party to a collective
bargaining agreement.
(g) The Loan Agreement is hereby amended by deleting 'SS'8(a)(ii)
thereto in its entirety and substituting therefor the following new
'SS'8(a)(ii):
(ii) All corporate or limited liability company action,
third-party consents and governmental approvals necessary for the valid
execution, delivery and performance by each of the Borrowers and each
of the Guarantors of each of the Loan Documents to which it is a party
shall have been duly and effectively taken or (as the
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case may be) obtained and evidence thereof satisfactory to the Agent
and the Banks shall have been provided to the Agent and the Banks.
(h) The Loan Agreement is hereby amended by deleting 'SS'9(c)(ii)
thereto in its entirety and substituting therefor the following new
'SS'9(c)(ii):
(ii) if to the Agent, at Xxx Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, XXX, Mail Stop: XX XX 00000X, Attention: Xxxx
Xxxxxxx, or such other address for notice as the Agent shall last have
furnished in writing to the Person giving the notice; and
'SS'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 "BankBoston,
N.A.", "BankBoston" and "BKB" are hereby amended to refer to "Fleet National
Bank".
(b) All references in such Loan Documents to the terms "Metallurg
International Resources, Inc." or "MIR" are hereby amended to refer to
"Metallurg International Resources, LLC".
'SS'4. Change in the Fiscal Year of MI. MI's board of directors has
approved a change in MI's fiscal year from January 31 to December 31, effective
beginning December 31, 2000. The Agent and the Banks hereby consent to such
change. In connection with such change in the fiscal year of MI, the Borrowers
hereby agree to provide to the Agent and the Banks from time to time as and when
requested by the Agent or any Bank such reconciliations and financial
information necessary in order for the Agent and the Banks to determine
compliance with the requirements of the Loan Agreement, including the financial
covenants set forth in 'SS'9.3 thereof.
'SS'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 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.
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(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.
'SS'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
the Majority Banks;
(b) delivery to the Agent of a legal opinion of Xxxxxxxx Chance Xxxxxx
& Xxxxx LLP as to the consummation of the Merger and the continued
enforceability of the Loan Documents as against MIR;
(c) MIR 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 Membership
Interest Pledge Agreement substantially in the form of Exhibit B attached
hereto, and evidence of the registration of the pledge created thereby shall
have been registered on the books and records of MIR; (iii) a Perfection
Certificate of MIR; and (iv) such UCC-1 financing statements and UCC-3
amendments as the Agent shall have requested, each to be in form and substance
satisfactory to the Agent;
(d) the Borrowers shall have delivered to the Agent, (i) an incumbency
certificate, signed by the member or MIR 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 MIR is a party in the name and on behalf of
MIR, (ii) certified true and complete copies of all of MIR's organizational and
constituent documents as in effect on the date hereof, (iii) a certified copy of
MIR's certificate of formation, (iv) a certified copy of MIR's certificate of
conversion, (v) board resolutions or other documents evidencing authorization of
the Conversion and the transactions contemplated by this Amendment and (v)
evidence that MIR shall have filed applications to do business as a foreign
limited liability company in all jurisdictions where such qualification is
necessary; and
(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.
'SS'7. Affirmation and Covenants of Borrowers and Guarantors.
(a) 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.
(b) Each of the Guarantors hereby acknowledges that it has read and is
aware of the provisions of this Amendment. Each of the Guarantors hereby
reaffirms its absolute and unconditional
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guaranty of the Borrowers' payment and performance of the Obligations under the
Loan Agreement (as amended hereby) and the other Loan Documents.
(c) Each of the Borrowers hereby covenants and agrees that it shall or
shall cause MIR to deliver to the Agent within thirty (30) days of the date
hereof certificates evidencing that MIR is qualified to do business as a foreign
limited liability company in all jurisdictions where such qualification is
necessary.
'SS'8. 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 'SS'16 of the Loan Agreement.
'SS'9. 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]
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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
By:___________________________
Name:
Title:
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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:
