EXHIBIT 10.1
SEVENTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
This SEVENTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT dated as
of October 1, 2003 (this "Amendment"), by and among (a) METALLURG, INC., a
Delaware corporation having its principal place of business at ▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("MI"), SHIELDALLOY METALLURGICAL CORPORATION,
a Delaware corporation having its principal place of business at ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("SMC") and METALLURG INTERNATIONAL
RESOURCES, LLC, a Delaware limited liability company having its principal place
of business at ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("MIR" and together
with MI and SMC, the "Borrowers"), (b) METALLURG SERVICES, INC., a New York
corporation having its principal place of business at ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("MSI"), MIR (China), Inc., a Delaware corporation having
its principal place of business at ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("MIR China"), METALLURG HOLDINGS CORPORATION, a New York corporation having its
principal place of business at ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("MHC"), and Metallurg (Canada) LTEE./Metallurg (CANADA) LTD., a corporation
organized under the laws of Quebec ("MCL", and collectively with MHC, 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, that certain Second Amendment thereto,
dated as of November 3, 2000, that certain Third Amendment thereto, dated as of
July 2, 2001, that certain Fourth Amendment thereto, dated as of December 13,
2001, that certain Fifth Amendment thereto, dated as of December 20, 2002, and
that certain Sixth Amendment thereto, dated as of January 30, 2003, the "Loan
Agreement").
WHEREAS, the Borrowers and the Guarantors have requested that the Agent
and the Banks consent to the "Transactions" as defined in that certain letter
agreement, dated as of the date hereof, from the Agent to the Borrowers and the
Guarantors (a copy of such letter agreement is attached hereto as Exhibit B)
(the "Consent");
WHEREAS, the Borrowers and the Guarantors have requested that the Agent
and the Banks consent to the cash sale by MCL of all or substantially all of
MCL's inventory in Canada to SMC (the "Canadian Inventory Sale") and the
subsequent distribution (in the form of a cash dividend) of all of the sales
proceeds received by MCL in connection therewith to MI (the "Cash Dividend",
together with the Canadian Inventory Sale, the "Canadian Transaction");
WHEREAS, the Agent and the Banks are willing to deliver the Consent and
consent to the Canadian Transaction only if the terms of the Loan Agreement are
contemporaneously amended as hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual agreements contained in
the Loan Agreement and 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.
'SS'2. Consent to Canadian Transaction. The Banks and the Agent hereby
consent to the Canadian Transaction so long as (a) all documents relating to the
Canadian Transaction shall be in form and substance satisfactory to the Agent,
(b) the Canadian Inventory Sale shall have occurred no later than December 31,
2003, and (c) all of the cash proceeds from the Canadian Transaction, net of all
costs of sale, underwriting or brokerage costs, and taxes paid or payable as a
result thereof together with all disbursements associated with winding down the
business of MCL are distributed by MCL to MI in the form of a cash dividend not
later than June 30, 2004. The Banks and the Agent hereby consent to the release
of MCL from its guarantee under the Loan Agreement upon consummation of the
Canadian Transaction in accordance with the foregoing terms, so long as, to the
actual knowledge of the account officers of the Agent active upon the Borrowers'
account, no Event of Default shall be outstanding on the date of such release.
The Banks authorize the Agent to enter into appropriate release documents
necessary in order to release MCL from its guarantee under the Loan Agreement as
provided in the foregoing consent. Each of the Borrowers hereby agrees to take
all action and execute all documents that the Agent may reasonably request to
enable the Agent to obtain a valid and perfected first-priority security
interest, for the benefit of the Agent and the Banks, in SMC's inventory in
Canada.
'SS'3. 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:
'SS'3.1 Amendments to 'SS'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:
Eligible Fixed Assets
Determined Value
(b) Section 1.1 of the Loan Agreement is hereby further
amended by restating the definition of Applicable Margin in its entirety as
follows:
"Applicable Margin: For each period commencing on an Adjustment Date
through the date immediately preceding the next Adjustment Date (each a "Rate
Adjustment Period"), the Applicable Margin shall be the applicable margin set
forth below with respect to the Fixed Charge Coverage Ratio, as determined for
the Reference Period ending on the fiscal quarter ended immediately preceding
the applicable Rate Adjustment Period.
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Base Letter
Eurodollar Rate of Commitment Fee
Fixed Charge Rate Loan Loan Credit Percentage
Level Coverage Ratio Margin Margin Margin
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I Less than or equal to 2.50% 1.00% 2.75% .500%
1.10:1.00
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II Greater than 1.10:1.00 2.25% 0.50% 2.50% .375%
but less than or equal
to 1.25:1.00
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III Greater than 1.25:1.00 2.00% 0.00% 2.25% .250%
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Notwithstanding the foregoing, if the Borrowers fail to deliver any
certificate when required by 'SS'9.1(a)(iv) hereof then, for the period
commencing on the next Adjustment Date to occur subsequent to such failure
through the day immediately following the date on which such certificate is
delivered, the Applicable Margin shall be the Applicable Margin set forth above
in Level I."
(c) Section 1.1 of the Loan Agreement is hereby further
amended by restating the definition of Borrowing Base in its entirety as
follows:
"Borrowing Base: At the relevant time of reference thereto, an
amount determined by the Agent by reference to the most recent
Borrowing Base Report, which is equal to
(a) the sum of
(i) 85% of Eligible Accounts at such time with
respect to account debtors with their chief executive
office or a branch office located within the United
States of American and invoiced to and payable from
such office; plus
(ii) 55% of the net book value (valued on an average
cost basis at the lower of cost or market (except as
provided below in this definition) by the Borrowers
in a manner consistent with their past practices) of
Eligible Consignment Accounts at such time; plus
(iii) 55% of the net book value (valued on an average
cost basis at the lower of cost or market (except as
provided below in this definition) by the Borrowers
in a manner consistent with their past practices) of
Eligible Inventory located within the United States
of America at such time; plus
(iv) the lesser of (A) 85% of Eligible Accounts at
such time with respect to account debtors of SMC with
their chief executive office or a branch office
located within Canada and invoiced to and payable
from such office and 55% of the net book value
(valued on an average cost basis at the lower of cost
or market (except as provided below in this
definition) by SMC in a manner consistent with their
past practices) of Eligible Inventory located within
Canada at such time and (B) $3,500,000; plus
(v) the Special Cash Collateral Account Balance at
such time; plus
(b) solely until the period ending March 31, 2004, an amount
equal to the lesser of
(i) the Canadian Borrowing Base at such time, and
(iii) $3,500,000 minus the amount determined at such
time under clause (a)(iv) of this definition; plus
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(c) 55% of the maximum aggregate amount that the beneficiaries
may draw under outstanding documentary Letters of Credit
issued in connection with the purchase of inventory by the
Borrowers solely to the extent that such inventory being
purchased, immediately upon any drawing of any such
documentary Letter of Credit, would constitute Eligible
Inventory located within the United States of America; minus
(d) the amount of any Warehousemen Lien Reserve with respect
to inventory of the Borrowers at such time.
Notwithstanding that the Eligible Consignment Accounts and Eligible
Inventory of the Borrowers shall be reported at the lower of cost or
market as provided above, the Agent and the Banks hereby acknowledge
that the Borrowers review their inventory for market adjustment on a
quarterly basis only. The Borrowers hereby agree to adjust their
inventory to the lower of cost or market on a more current basis in the
event of any material decrease in the market price for any such
inventory which would cause the amount of Eligible Consignment Accounts
and/or Eligible Inventory to be materially misstated if not so
currently adjusted, and at any time during which the amount of unused
availability that the Borrowers may use to request Loans or Letters of
Credit hereunder shall be less than $5,000,000 in the aggregate, the
Agent may, in its discretion, require the Borrowers to adjust their
inventory to the lower of cost or market on a monthly basis.
The Borrowing Base shall be determined monthly (or at such
other interval as may be specified pursuant to 'SS'9.1(a)(v)) by the
Agent by reference to the Borrowing Base Report. The components of the
Borrowing Base and the Canadian Borrowing Base, the advance rates
provided for therein, and the definitions contained in this Agreement
governing eligibility criteria for such components of the Borrowing
Base and the Canadian Borrowing Base may hereafter be adjusted or
revised by the Agent in its reasonable judgment on the basis of any
then recently completed commercial finance examination or appraisal or
other information then recently delivered by the Borrowers to the Agent
and the Banks."
(d) Section 1.1 of the Loan Agreement is hereby further
amended by restating the definition of Borrowing Base Availability in its
entirety as follows:
"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 delivered to the
Banks and the Agent, over (b) the aggregate amount of Total
Outstandings at the close of business on such day."
(e) Section 1.1 of the Loan Agreement is hereby further
amended by restating the definition of Canadian Borrowing Base in its entirety
as follows:
"Canadian Borrowing Base: At the relevant time of reference thereto, an
amount determined by the Agent by reference to the most recent Borrowing Base
Report delivered to the Banks and the Agent pursuant to'SS'9.1(a)(v), which is
equal to the lesser of
(a) $3,500,000, and
(b) the sum of
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(i) 85%, of Eligible Canadian Accounts at such time, plus
(ii) (1) from October 1, 2003 through November 1, 2003, 55%,
and (2) from and after November 1, 2003, 0%, of the net book
value (valued on an average cost basis at the lower of cost or
market (except as provided below in this definition) by MCL in
a manner consistent with its past practice) of Eligible
Canadian Inventory at such time;, plus
(iii) (1) from October 1, 2003 through November 1, 2003, 55%,
and (2) from and after November 1, 2003, 0%, of the maximum
aggregate amount that the beneficiaries may draw under
outstanding documentary Letters of Credit issued for the
account of MCL in connection with the purchase of inventory by
MCL solely to the extent that such inventory being purchased,
immediately upon any drawing of any such documentary Letter of
Credit, would constitute Eligible Canadian Inventory, minus
(iv) the amount of any Warehousemen Lien Reserve with respect
to inventory of MCL at such time.
For purposes of determining the Canadian Borrowing Base, in order to
convert the value of Eligible Canadian Accounts and Eligible Canadian
Inventory from a given amount of Canadian currency into Dollars, such
conversion shall be made at the Agent's spot rate of exchange for
buying Dollars with such amount of Canadian currency prevailing at the
Agent's close of business as of the first Business Day of the month
during which the date of determination occurs or as of such other date
as the Agent may from time to time reasonably require. Notwithstanding
that the Eligible Canadian Inventory of MCL shall be reported at the
lower of cost or market as provided above, the Agent and the Banks
hereby acknowledge that MCL reviews its inventory for market adjustment
on a quarterly basis only. The Borrowers hereby agree to cause MCL to
adjust its inventory to the lower of cost or market on a more current
basis in the event of any material decrease in the market price for any
such inventory which would cause the amount of Eligible Canadian
Inventory to be materially misstated if not so currently adjusted, and
at any time during which the amount of unused availability that the
Borrowers may use to request Loans or Letters of Credit hereunder shall
be less than $5,000,000 in the aggregate, the Agent may, in its
discretion, require the Borrowers to cause MCL to adjust its inventory
to the lower of cost or market on a monthly basis."
(f) Section 1.1 of the Loan Agreement is hereby amended by
restating the definition of Eligible Accounts in its entirety as follows:
"Eligible Accounts: Those Accounts of the Borrowers (net of
any finance charges, late charges, credits, rebates, contras or other
offsets, commissions, counterclaims or adjustments) (a) which the
Borrowers reasonably determine to be collectible, (b) the account
debtors in respect of which are not reasonably deemed uncreditworthy by
the Majority Banks, are not debtors in any bankruptcy, insolvency,
liquidation, reorganization, dissolution or similar case or proceeding
or assignors for the benefit of creditors, are not affiliated with the
Borrowers or the Guarantors, and purchased the goods or services for
reasonably equivalent value, (c) which are not outstanding for more
than ninety (90) days past the earlier to occur of (i) the date of
invoice and (ii) the date of shipment (as to goods) or of provision (as
to services), (d) which are not more than sixty (60) days past due from
the due date thereof and which are on terms not to exceed thirty (30)
days, (e) over which there is no Lien in favor of any person or entity
other
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than the Agent, for the benefit of the Agent and the Banks, and in
which the Agent has a valid and perfected first-priority security
interest, (f) which are in payment of fully performed and undisputed
obligations, (g) that are not due from any account debtor with respect
to which more than fifty percent (50%) of the aggregate amount of all
Accounts owing from such account debtor are not Eligible Accounts by
reason of the foregoing clauses (c) or (d), (h) which are not
Consignment Accounts, (i) which are payable in Dollars from an account
debtor with its chief executive office or a branch office located
within the United States of America and invoiced to and payable from
such office or which are payable in Dollars or Canadian Dollars from an
account debtor of SMC with its chief executive office or a branch
office located within Canada and invoiced to and payable from such
office (except to the extent that the Agent in its sole discretion
shall have agreed to include Accounts payable by certain specified
account debtors from offices outside of the United States of America,
provided, that the Agent may in its discretion, upon thirty (30) days
prior notice to the Borrowers, exclude any such Accounts payable from
offices outside of the United States of America and theretofore
includable in Eligible Accounts), (j) that are not due from an account
debtor located in Minnesota or New Jersey unless the owner of such
Account (i) has received a certificate of authority to do business and
is in good standing in such state or (ii) has filed a notice of
business activities report with the appropriate office or agency of
such state for the current year, and (k) that are not supported by a
letter of credit unless the Agent has a prior, perfected security
interest in such letter of credit for the benefit of the Banks and the
Agent."
(g) Section 1.1 of the Loan Agreement is hereby amended by
restating the definition of Eligible Consignment Accounts in its
entirety as follows:
"Eligible Consignment Accounts: Consignment Inventory of SMC
located within the United States of America which would constitute
Eligible Inventory but for the provisions of clause (d) of the
definition of Eligible Inventory (a) as to which appropriate Uniform
Commercial Code financing statements showing SMC as debtor and the
Agent as secured party have been filed in the appropriate filing office
or offices in order to perfect the Agent's security interest therein,
(b) as to which appropriate Uniform Commercial Code financing
statements showing SMC as the owner and consignor of such Consignment
Inventory have been filed in the appropriate filing office or offices
in order to evidence SMC's ownership interest therein, such filing(s)
to have been made prior to the relevant consignee's taking possession
of such Consigned Inventory, and as to which such financing statements
have been appropriately assigned in favor of the Agent, and (c) as to
which SMC shall have notified, prior to the relevant consignee's taking
possession of such Consigned Inventory, all secured creditors of such
relevant consignee having a security interest of record in inventory of
such relevant consignee of the intention of SMC to consign inventory to
such relevant consignee."
(h) Section 1.1 of the Loan Agreement is hereby amended by
restating the definition of Eligible Inventory in its entirety as follows:
"Eligible Inventory: Inventory owned by any of the Borrowers
(net of reserves for off grade inventory and intercompany profit, as such
reserves may be adjusted by the Agent in its reasonable discretion on account of
improvements or deteriorations in reporting of inventory), (a) which is owned,
possessed and held for sale by SMC or MI or MIR within the United States of
America and by SMC within Canada, but not yet shipped (other than Eligible
In-Transit Inventory, which shall not be excluded from Eligible Inventory
pursuant to this clause (a)), (b) for which, if held on premises leased by SMC
or MI or MIR (other than with respect to any warehouses, the storage expenses
with respect to which have been included in calculating the Warehousemen Lien
Reserve for any period as set forth in the definition
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of Warehousemen Lien Reserve), a waiver of the lessor and, if any, sublessor, in
each case reasonably satisfactory to the Agent has been delivered to the Agent,
(c) over which there is no Lien in favor of any person or entity other than the
Agent, for the benefit of the Banks and the Agent, and in which the Agent has a
valid and perfected first-priority security interest, (d) which is not
Consignment Inventory and which is otherwise in the possession of one of the
Borrowers (other than Eligible In-Transit Inventory, which shall not be excluded
from Eligible Inventory solely because it is not in the possession of the
Borrowers) unless the Agent has received a waiver from the party in possession
of such inventory in form and substance reasonably satisfactory to the Agent,
(e) which is not work in process (other than, in the case of SMC, readily
measurable and identifiable work in process awaiting only final packaging in
bags, drums or cans), (f) which is not production and packing supplies, (g)
which does not reflect any capitalized inventory variances, (h) which, in the
case of SMC, is not slow moving, (i) which has not been deemed by the Majority
Banks to be otherwise either obsolete or unmarketable, (j) which is not held by
the Borrowers on consignment and is actually owned by one of the Borrowers, and
(k) which is not damaged."
(i) Section 1.1 of the Loan Agreement is hereby amended by
restating the definition of Liquidity Level in its entirety as follows:
"Liquidity Level: An amount determined for each Business Day
equal to the sum of the Borrowing Base Availability on such day plus
the Daily Cash Balance on such day minus the Special Cash Collateral
Account Balance on such day."
(j) Section 1.1 of the Loan Agreement is hereby further
amended by adding the following new definitions in alphabetical order:
Special Cash Collateral Account: In relation to any Borrower,
one or more accounts of the such Borrower with the Agent in which funds
are held by the Agent, for the benefit of the Banks and the Agent, as
cash collateral pursuant to a cash collateral account agreement and
other documentation in form and substance satisfactory to the Agent, in
each case, in which the Agent has a prior, perfected Lien, for the
benefit of the Banks and the Agent, to secure the payment of the
Obligations.
Special Cash Collateral Account Balance: With respect to the
Borrowers on any Business Day of determination, the aggregate amount of
all cash and Cash Equivalents of the Borrowers maintained with the
Agent in the Special Cash Collateral Account, determined at the close
of business on such day.
'SS'3.2 Amendment to 'SS'9 of the Loan Agreement. Section 9.1 of the
Loan Agreement is hereby amended by deleting 'SS'9.1(a)(vi) thereof in its
entirety and substituting the following new 'SS'9.1(a)(vi):
"(vi) [intentionally deleted];"
'SS'3.3 Amendments to Schedules and Exhibits of the Loan Agreement.
(a) The Loan Agreement is hereby amended by deleting Schedule
l in its entirety and replacing it with Schedule 1, attached to this Amendment.
(b) The Loan Agreement is hereby amended by deleting Schedule
7(l) in its entirety and replacing it with Schedule 7(l), attached to this
Amendment.
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(c) The Loan Agreement is hereby amended by deleting Exhibit
A, Form of Borrowing Base Report, in its entirety and replacing it with Exhibit
A, attached to this Amendment.
'SS'4. Ratifications, Etc.
(a) 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. All references in the Loan
Agreement or any related documents, instruments and agreements related thereto,
including, but not limited to the Loan Documents, shall hereafter refer to the
Loan Agreement as amended hereby.
(b) 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.
(c) Each of the Guarantors hereby acknowledges that it has
read and is aware of the provisions of this Amendment. Each of the Guarantors
hereby affirms and 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.
'SS'5. Representations, Warranties and Covenants; No Default;
Authorization. Each of the Borrowers and Guarantors hereby represents, warrants
and covenants to the Agent and the Banks as follows:
(a) Each of the representations and warranties of such
Borrower or Guarantor contained in the Loan Agreement was true as of the date as
of which it was made and is true as and at the date of this Amendment, and no
Default or Event of Default has occurred and is continuing as of the date of
this Amendment;
(b) This Amendment has been duly authorized, executed and
delivered by each of the Borrowers and Guarantors and is in full force and
effect; and
(c) Upon the execution and delivery of this Amendment by the
respective parties hereto, this Amendment shall constitute the legal, valid and
binding obligation of the Borrowers and the Guarantors, enforceable in
accordance with its terms, except that the enforceability thereof may be subject
to any applicable bankruptcy, reorganization, insolvency or other laws affecting
creditors' rights generally.
'SS'6. Effective Date. This Amendment, including the amendments
contained herein, shall be effective as of October 1, 2003.
'SS'7. Release. In order to induce the Agent and the Banks to enter
into this Amendment, each Borrower acknowledges and agrees that: (i) no Borrower
has any claim or cause of action against the Agent or any Bank (or any of its
respective directors, officers, employees or agents); (ii) no Borrower has any
offset right, counterclaim or defense of any kind against any of their
respective obligations, indebtedness or liabilities to the Agent or any Bank;
and (iii) each of the Agent and the Banks has heretofore properly performed and
satisfied in a timely manner all of its obligations to each Borrower. The
Borrowers wish to eliminate any possibility that any past conditions, acts,
omissions, events, circumstances or matters would impair or otherwise adversely
affect any of the Agent's and the Banks' rights, interests, contracts,
collateral security or remedies. Therefore, each Borrower unconditionally
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releases, waives and forever discharges (A) any and all liabilities,
obligations, duties, promises or indebtedness of any kind of the Agent or any
Bank to any Borrower, except the obligations to be performed by the Agent or any
Bank on or after the date hereof as expressly stated in this Amendment, the Loan
Agreement (as amended hereby), and the other Loan Documents, and (B) all claims,
offsets, causes of action, suits or defenses of any kind whatsoever (if any),
whether arising at law or in equity, whether known or unknown, which any
Borrower might otherwise have against the Agent, any Bank or any of its
directors, officers, employees or agents, in either case (A) or (B), on account
of any condition, act, omission, event, contract, liability, obligation,
indebtedness, claim, cause of action, defense, circumstance or matter of any
kind existing as of the date hereof, or occurring prior to the date hereof.
'SS'8. No Implied Waiver. Except as expressly provided herein, nothing
contained herein shall constitute a waiver of, impair or otherwise affect any
Obligations, any other obligations of any of the Borrowers or Guarantors or any
right of the Agent or any Bank consequent thereon.
'SS'9. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
'SS'10. Governing Law. THIS AMENDMENT SHALL FOR ALL PURPOSES BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICTS OF LAW).
[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: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Sr. Vice President, Finance & CFO
SHIELDALLOY METALLURGICAL
CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Finance & CFO
METALLURG INTERNATIONAL
RESOURCES, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Finance & CFO
METALLURG SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Finance & CFO
MIR (CHINA), INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Finance & CFO
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METALLURG HOLDINGS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Finance & CFO
METALLURG (CANADA) LTEE./METALLURG (CANADA) LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer and Director
FLEET NATIONAL BANK
(formerly known as BANKBOSTON, N.A.),
individually and as Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BANK OF SCOTLAND
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: First Vice President
PNC BANK, N.A.
(formerly known as National Bank of Canada)
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Bank Officer
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Schedule 1
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Commitment
Banks Commitment Percentage
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Fleet National Bank
Domestic Lending Office:
Fleet National Bank
One Federal Street; Mail Stop: MADE10307X $16,200,000 60%
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
Eurodollar Lending Office:
Fleet National Bank
One Federal Street; Mail Stop: MADE10307X
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
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PNC Bank, N.A.
Domestic Lending Office:
c/o PNC Business Credit
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 31st Floor $8,100,000 30%
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: 215-585- 4754
Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Banking Officer
Eurodollar Lending Office:
PNC Business Credit
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: 215-585- 4754
Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Banking Officer
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Bank of Scotland
Domestic Lending Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ $2,700,000 10%
Telefax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, First Vice President
Eurodollar Lending Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telefax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, First Vice President
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TOTAL: $27,000,000 100.00%
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Schedule 7(l)
Subsidiaries and Joint Ventures of Metallurg, Inc.*
State/Country of Percentage of Authorized Outstanding
Name of Subsidiary or Joint Venture Incorporation Voting Power Capital Capital
----------------------------------- ------------- ------------ ------- -------
SPECIAL PURPOSE/HOLDING
Metallurg Holdings Corporation** New York 100 2,500 200
Metallurg Services, Inc. New York 100 200 10
Metallurg Europe Limited*** England 100 - 68,754,000
Caribbean Metals & Alloys Limited (dormant) Grand Cayman 100 900,000 3,000
▇▇▇▇▇▇▇ y Cia S. A. (dormant) Spain 100 - -
Aleaciones Metalurgicas Venezolanas C. A. (dormant) Venezuela 100 (Class B) - -
MANUFACTURING
London & Scandinavian Metallurgical Co Limited England 100 16,000,000 16,000,000
▇. ▇. ▇▇▇▇▇▇▇ Limited (dormant) England 100 500 500
H. M. I. Limited (dormant) England 100 50,000 50,000
Metal Alloys (South Wales) Limited (dormant) England 100 2,000 2,000
The Aluminum Powder Company Limited England 100 436,037 436,037
Alpoco Developments Limited (dormant) England 100 100 100
▇▇▇▇▇ ▇▇▇▇ Alpoco Sp.z.o.o Poland 100
M & A Powders Limited (dormant) England 100 15,000 9,437
Bostlan, S.A. Spain 25
Metalloys Limited (dormant) England 100 100 2
Hydelko AS ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (Pty.) Limited South Africa 100 4,000 4,000
W. T. Mines Limited (dormant) South Africa 100 2,000 2,000
Stand ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇ (▇▇▇.) ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 100 100 2
Allied Metallurg South Africa (Pty.) Limited South Africa ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (Pty) Limited South Africa ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 51
Par Record
Name of Subsidiary or Joint Venture Value Owner
----------------------------------- ----- ------
SPECIAL PURPOSE/HOLDING
Metallurg Holdings Corporation** no par value MI
Metallurg Services, Inc. no par value MI
Metallurg Europe Limited*** $1 MH
Caribbean Metals & Alloys Limited (dormant) $1 ▇▇
▇▇▇▇▇▇▇ y Cia S. A. (dormant) - MH
Aleaciones Metalurgicas Venezolanas C. A. (dormant) - MH
MANUFACTURING
London & Scandinavian Metallurgical Co Limited 'L'1 ▇▇▇
▇. ▇. ▇▇▇▇▇▇▇ Limited (dormant) 'L'1 -
H. M. I. Limited (dormant) 'L'1 -
Metal Alloys (South Wales) Limited (dormant) 'L'1 -
The Aluminum Powder Company Limited 'L'1 -
Alpoco Developments Limited (dormant) 'L'1 -
▇▇▇▇▇ ▇▇▇▇ Alpoco Sp.z.o.o -
M & A Powders Limited (dormant) 'L'1 -
Bostlan, S.A.
Metalloys Limited (dormant) 'L'1 -
Hydelko AS -
Metallurg South Africa (Pty.) Limited R1 ▇▇▇
▇. ▇. ▇▇▇▇▇ Limited (dormant) R1 -
Stand 359 Wadeville Extension ▇ (▇▇▇.) ▇▇▇▇▇▇▇ ▇▇ -
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (Pty.) Limited -
▇▇▇▇ South Africa (Pty) Limited -
Natal Foundry Suppliers (Pty) Limited
Reframet Installation -
State/Country of Percentage 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
Companhia Industrial Fluminense Brazil 99.9+ R$933,596 R$.73 R$1.00 ▇▇▇
TRADING
-------
Metallurg (Canada) Limited Quebec 100 unlimited 1,100 C$10 MI
MIR (China), Inc. Delaware 100 100 100 $0.01 MI
Metallurg (Far East) Limited Japan 100 n/a 20,000 Y500 MH
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.
*** ▇▇▇ 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 9/30/03
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