EXHIBIT 10.10
NINTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
This NINTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT dated as of
February 24, 2004 (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, that
certain Sixth Amendment thereto, dated as of January 30, 2003, that certain
Seventh Amendment thereto, dated as of October 1, 2003, and that certain Eighth
Amendment thereto, dated as of January 14, 2004 (the "Loan Agreement").
WHEREAS, the Borrowers and the Guarantors have notified the Agent and the
Banks that SMC desires to purchase raw materials consisting of "Mexican
Residues" for use in SMC's plant in Cambridge, Ohio and that such purchase will
require SMC to make a prepayment of approximately Nine Million Dollars
($9,000,000) to cover the first full year of purchases of "Mexican Residues" by
SMC (such prepayment is referred as the " Residue Prepayment");
WHEREAS, the Borrowers and the Guarantors have notified the Agent and the
Banks that Safeguard International Fund LP ("Safeguard") and SCP Private Equity
Partners LP (together with Safeguard, the "Residue Loan Lenders") desire to make
a loan to MI in a maximum original principal amount equal to Eight Million
Dollars ($8,000,000) to provide SMC with funds to make the Residue Prepayment
(the "Residue Loan Transaction");
WHEREAS, the Agent and the Banks are willing to consent to the Residue Loan
Transaction subject to the terms and conditions set forth herein;
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. Residue Loan Transaction. Subject to the effectiveness of this
Amendment, the Banks and the Agent hereby consent to the Residue Loan
Transaction.
'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 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 than (i) 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 and (ii) the Residue Loan Agent, for the benefit of the
Residue Loan Agent and the Residue Loan Lenders, under the Residue Loan
Documents (subject to the terms of the Residue Loan Subordination), (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."
(b) Section 1.1 of the Loan Agreement is hereby further amended by
restating the definition of Eligible Canadian Accounts in its entirety as
follows:
"Eligible Canadian Accounts: Those Accounts of MCL (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 than (i) MI, and in which MI has a valid and perfected
first-priority security interest (which security interest in favor of MI is
collaterally assigned in favor of the Agent, for the benefit of the Agent and
the Banks) and (ii) the Residue Loan Agent, for the benefit of the Residue Loan
Agent and the Residue Loan Lenders, under the Residue Loan Documents (subject to
the terms of the Residue Loan Subordination), (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 or Canadian dollars from an account
debtor with its chief executive office or a branch office located within Canada
or the United States and invoiced to and payable from such office, and (j) that
are not supported by a letter of credit unless MI has a prior, perfected
security interest in such letter of credit and such security interest has been
collaterally assigned in favor of the Agent for the benefit of the Banks and the
Agent."
(c) Section 1.1 of the Loan Agreement is hereby further amended by
restating the definition of Eligible Canadian Inventory in its entirety as
follows:
"Eligible Canadian Inventory: Inventory owned by MCL (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 MCL within Canada but not yet shipped (other than Eligible
In-Transit Inventory, which shall not be excluded from Eligible Canadian
Inventory pursuant to this clause (a)), (b) for which, if held on premises
leased by MCL (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 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 (i) MI, and in which MI
has a valid and perfected first-priority security interest (which Lien in favor
of MI is collaterally assigned in favor of the Agent, for the benefit of the
Agent and the Banks) and (ii) the Residue Loan Agent, for the benefit of the
Residue Loan Agent and the Residue Loan Lenders, under the Residue Loan
Documents (subject to the terms of the Residue Loan Subordination), (d) which is
not Consignment Inventory and which is otherwise in the possession of MCL (other
than Eligible In-Transit Inventory, which shall not be excluded from Eligible
Canadian Inventory solely because it is not in the possession of MCL) 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, (f) which is not production and packing supplies, (g) which does not
reflect any capitalized inventory variances, (h) which 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 on consignment and is actually owned by
MCL, and (k) which is not damaged."
(d) Section 1.1 of the Loan Agreement is hereby further 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 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 (i) 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 and (ii) the Residue Loan Agent, for
the benefit of the Residue Loan Agent and the Residue Loan Lenders, under the
Residue Loan Documents (subject to the terms of the Residue Loan Subordination),
(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."
(e) Section 1.1 of the Loan Agreement is hereby further amended by
adding the following new definitions in alphabetical order:
Residue Loan Agent: Safeguard International Fund LP.
Residue Loan Agreement: The Subordinated Loan Agreement, dated as of
February 24, 2004, among the Borrowers, the Guarantors, the Residue Loan
Agent and the Residue Loan Lenders.
Residue Loan Documents: The "Loan Documents" under and as defined in
the Residue Loan Agreement.
Residue Loan Lenders: Collectively, (i) Safeguard International Fund
LP, and (ii) SCP Private Equity Partners LP.
Residue Loan Maturity Date: February 24, 2005.
Residue Loan Notes: Collectively, (i) the Subordinated Promissory
Note, issued on February 24, 2004 (bearing interest at eight percent (8)%
per annum and due on the Residue Loan Maturity Date) by Metallurg, Inc. to
Safeguard International Fund LP in the original principal amount of Five
Million Two Hundred Thousand Dollars and 00/100 Cents ($5,200,000.00)
pursuant to the Residue Loan Documents, and (ii) the Subordinated
Promissory Note, issued on February 24, 2004 (bearing interest at eight
percent (8%)% per annum and due on the Residue Loan Maturity Date) by
Metallurg, Inc. to SCP Private Equity Partners LP in the original principal
amount of Two Million Eight Hundred Thousand Dollars and 00/100 Cents
($2,800,000.00) pursuant to the Residue Loan Documents.
Residue Loan Subordination: The Subordination Agreement, dated as of
February 24, 2004, between the Agent, the Residue Loan Agent, the Residue
Loan Lenders, the Borrowers and the Guarantors.
'SS' 3.2 Amendments to 'SS' 6 of the Loan Agreement.
(a) Section 6.1 of the Loan Agreement is hereby amended by deleting
'SS' 6.1 thereof in its entirety and substituting the following new 'SS' 6.1:
"'SS' 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 and the Lien in favor of the
Residue Loan Agent, for the benefit of the Residue Loan Agent and the Residue
Loan Lenders, under the Residue Loan Documents (subject to the terms of the
Residue Loan Subordination)) 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 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 6.2 of the Loan Agreement is hereby amended by deleting
'SS' 6.2 thereof in its entirety and substituting the following new
'SS' 6.2:
"'SS' 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 'SS' 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 and
the Lien in favor of the Residue Loan Agent, for the benefit of the Residue Loan
Agent and the Residue Loan Lenders, under the Residue Loan Documents (subject to
the terms of the Residue Loan Subordination)) 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."
'SS' 3.3 Amendments to 'SS' 9 of the Loan Agreement.
(a) Section 9.2(b)(xi) of the Loan Agreement is hereby amended by
deleting 'SS' 9.2(b)(xi) thereof in its entirety and substituting the
following new 'SS' 9.2(b)(xi):
"(xi) Indebtedness of MI under the Residue Loan Documents, not to
exceed principal of $8,000,000 in the aggregate,"
(b) Section 9.2(c)(x) of the Loan Agreement is hereby amended by
deleting Section9.2(c)(x) thereof in its entirety and substituting the following
new 'SS' 9.2(c)(x):
"(x) Liens on the assets of the Borrowers and the Guarantors in favor
of the Residue Loan Agent, for the benefit of the Residue Loan Agent and the
Residue Loan Lenders, under the Residue Loan Documents (subject to the terms of
the Residue Loan Subordination);"
(c) Section 9.2(e) of the Loan Agreement is hereby amended by deleting
the word "and" immediately prior to 'SS' 9.2(e)(viii) and by adding the
following new 'SS' 9.2(e)(ix) immediately prior to the period at the end of
'SS' 9.2(e):
", and (ix) so long as no Default or Event of Default shall have
occurred and be continuing, and none would result therefrom, (A) payments to the
Residue Loan Lenders in each fiscal year up to an aggregate amount equal to the
amount of regularly scheduled cash interest payments that MI is required to pay
on the Residue Loan Notes in such fiscal year, solely for the purpose of making
such interest payments, provided, however, that (1) the amount shall not include
any payments to fund any increases in the rate of interest under the Residue
Loan Notes from that in effect on the original date of issue of the Residue Loan
Notes, and (2) such interest payments shall not be made until a date which is
not more than fifteen (15) days prior to the date such interest payments are due
and payable by MI, (B) payments to the Residue Loan Lenders on or after the
scheduled maturity date of the Residue Loan Notes up to an aggregate amount
equal to the cash principal payments that MI is required to pay on the Residue
Loan Notes on such scheduled maturity date, which aggregate amount shall not
exceed Eight Million Dollars ($8,000,000), (C) payments for reasonable
out-of-pocket expenses (including without limitation reasonable attorneys' fees
and costs) incurred by any of the Borrowers and the Guarantors in connection
with the closing of the Residue Loan Agreement provided that all such expenses
shall be paid on or before such closing."
'SS' 3.4 Amendment to 'SS'10 of the Loan Agreement. Section 10 of the
Loan Agreement is hereby amended by deleting 'SS' 10(e) thereof in its
entirety and substituting the following new 'SS' 10(e):
: "(e) (i) any of the Borrowers or the Guarantors shall be in default under the
Residue Loan Documents, (ii) any of the Borrowers, the Guarantors or M Holdings
shall be in default under (A) the Senior Note Documents, (B) any agreement or
agreements (other than the Loan Documents) evidencing Indebtedness owing to the
Agent or any Bank, or any affiliates of the Agent or any Bank, or (C) any
agreement or agreements evidencing other Indebtedness for or in respect of
borrowed money or capitalized leases in excess of $1,000,000 in aggregate
principal amount, or (iii) any of the Borrowers or the Guarantors shall fail to
pay any such Indebtedness specified in clause (i) or clauses (ii)(A), (B) or (C)
when due, or within any applicable period of grace;"
'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. Conditions to Effectiveness. The effectiveness of this Amendment,
including the amendments and consent contained herein, shall be subject to the
satisfaction of the following conditions precedent on or before February 25,
2004:
(a) This Amendment shall have been duly executed and delivered by the
Borrowers, the Guarantors and the requisite Banks and shall be in full force and
effect;
(b) The Subordination Agreement, in the form of Exhibit A attached to
this Amendment, shall have been duly executed and delivered by each of the
Borrowers, the Guarantors, the Residue Loan Agent, the Residue Loan Lenders and
the Agent and shall be in full force and effect;
(c) All documentation associated with the Residue Loan Transaction
shall be in form and substance satisfactory to the Agent. The Residue Loan Agent
and the Residue Loan Lenders shall have obtained all consents and approvals of
the boards of directors, shareholders, governmental entities and other
applicable third parties necessary in connection with the Residue Loan
Transaction and shall have delivered copies of the same to the Agent;
(d) The Residue Loan Transaction shall have been consummated and MI
shall have received or shall be concurrently receiving proceeds thereunder equal
to Eight Million Dollars ($8,000,000) minus the reasonable out-of-pocket
expenses (including without limitation reasonable attorneys' fees and costs)
incurred by any of the Borrowers and the Guarantors in connection with the
closing of the Residue Loan Agreement;
(e) On date of the consummation of the Residue Loan Transaction, to
the actual knowledge of the account officers of the Agent active upon the
Borrowers' account, no Event of Default shall be outstanding;
(f) The Agent shall have received such evidence of corporate authority
and officers' certificates stating that there have been no changes (or
certifying to such changes) in the bylaws or charter documents of each of the
Borrowers and the Guarantors, and shall have received a certificate of
incumbency with respect to each such Person. The Borrowers and the Guarantors
shall have obtained all consents and approvals of the boards of directors,
shareholders, governmental entities and other applicable third parties necessary
in connection with the transactions contemplated herein and shall have delivered
copies of the same to the Agent; and
(g) SMC shall have made or shall be concurrently making the Residue
Prepayment.
'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
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]
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: Senior Vice President & CFO
SHIELDALLOY METALLURGICAL
CORPORATION
By:
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Finance & CFO
METALLURG INTERNATIONAL
RESOURCES, LLC
By:
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Finance & CFO
METALLURG SERVICES, INC.
By:
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Finance & CFO
MIR (CHINA), INC.
By:
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Finance & CFO
METALLURG HOLDINGS CORPORATION
By:
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Finance & CFO
METALLURG (CANADA) LTEE./METALLURG
(CANADA) LTD.
By:
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer and Director
FLEET NATIONAL BANK
(formerly known as BANKBOSTON, N.A.),
individually and as Agent
By:
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BANK OF SCOTLAND
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: First Vice President
PNC BANK, N.A.
(formerly known as National Bank of Canada)
By:
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Bank Officer
Exhibit A
Form of Subordination Agreement
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SUBORDINATION AGREEMENT
DATED as of February 24, 2004
among
FLEET NATIONAL BANK, as Agent
SAFEGUARD INTERNATIONAL FUND LP
SCP PRIVATE EQUITY PARTNERS LP
METALLURG, INC.
SHIELDALLOY METALLURGICAL CORPORATION
METALLURG INTERNATIONAL RESOURCES, LLC
and
The other parties listed on the signature pages hereto
--------------------------------------------------------------------------------
TABLE OF CONTENTS
1. Definitions..............................................................2
2. General..................................................................2
3. Enforcement..............................................................3
4. Payments Held in Trust...................................................3
5. Defense to Enforcement...................................................3
6. Bankruptcy, etc..........................................................4
6.1. Payments relating to Subordinated Debt...........................4
6.2. Securities by Plan of Reorganization or Readjustment.............4
6.3. Subordinated Debt Voting Rights..................................4
7. Lien Subordination.......................................................5
7.1. Further Assurances...............................................5
7.2. Books and Records................................................5
7.3. Release of Guaranties and Collateral.............................5
8. Banks' Freedom of Dealing................................................6
9. Modification or Sale of the Subordinated Debt............................6
10. Borrowers' Obligations Absolute..........................................7
11. Termination of Subordination.............................................7
12. Notices..................................................................8
13. Governing Law............................................................9
14. Waiver of Jury Trial.....................................................9
15. Miscellaneous............................................................9
SUBORDINATION AGREEMENT
SUBORDINATION AGREEMENT (this "Agreement"), dated as of February 24, 2004,
among (a) FLEET NATIONAL BANK, a national banking association, in its capacity
as agent (the "Agent") for the Banks (as hereinafter defined), (b) SAFEGUARD
INTERNATIONAL FUND LP, a Delaware limited partnership having its principal of
business at 400 The Safeguard Building, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Safeguard"), (c) SCP PRIVATE EQUITY PARTNERS LP, a Delaware
limited partnership having its principal of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("SCP"), (d) METALLURG, INC., a
Delaware corporation having its principal place of business at ▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("MI"), (e) SHIELDALLOY METALLURGICAL
CORPORATION, a Delaware corporation having its principal place of business at ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("SMC"), (f) 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"), (g) METALLURG SERVICES, INC., a New York
corporation having its principal place of business at ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("MSI"), (h) MIR (CHINA), INC., a Delaware corporation
having its principal place of business at ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("MIR China"), (i) METALLURG HOLDINGS CORPORATION, a New York corporation
having its principal place of business at ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("MHC"), and (j) 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");
WHEREAS, pursuant to that certain Amended and Restated Loan Agreement dated
as of October 29, 1999 (as amended and in effect from time to time, including
any replacement agreement therefor, the "Loan Agreement"), among the financial
institutions party thereto (the "Banks"), the Agent, the Borrowers, and the
Guarantors, the Banks have extended credit to the Borrowers;
WHEREAS, the Subordinating Creditors have agreed to extend credit to the
Borrowers pursuant to that certain Subordinated Loan Agreement, of even date
herewith (as amended with the consent of the Agent as provided herein and in
effect from time to time, the "Subordinated Agreement"), among the Borrowers,
the Guarantors, Safeguard, in its capacity as agent for the lenders under the
Subordinated Agreement (the "Subordinating Agent") and in its capacity as a
lender and SCP in its capacity as a lender under the Subordinated Agreement
(together with Safeguard in its capacity as a lender as a lender under the
Subordinated Agreement, the "Subordinating Creditors"); and
WHEREAS, it is a condition precedent to the Banks' consenting to the
Subordinating Creditors' extension of credit to the Borrowers and the Borrowers
and the Guarantors granting liens and providing guarantees, as the case may be,
in favor of the Subordinating Agent for the benefit of the Subordinating Agent
and the Subordinating
-2-
Creditors to secure the Subordinated Debt that the Borrowers, the Guarantors,
Safeguard (in its individual capacity and in its capacity as the Subordinating
Agent and a Subordinating Creditor) and SCP (in its individual capacity and in
its capacity as a Subordinating Creditor) enter into this Agreement with the
Agent. Safeguard (in its individual capacity and in its capacity as the
Subordinating Agent and a Subordinating Creditor) and SCP (in its individual
capacity and in its capacity as a Subordinating Creditor) are individually
referred to herein as a "Subordinating Party" and collectively as the
"Subordinating Parties".
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements
herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Definitions. Terms not otherwise defined herein have the same respective
meanings given to them in the Loan Agreement. In addition, the following terms
shall have the following meanings:
Senior Debt. All principal, interest, fees, costs, enforcement expenses
(including legal fees and disbursements), collateral protection expenses and
other reimbursement or indemnity obligations created or evidenced by the Loan
Agreement or any of the other Loan Documents or any prior, concurrent, or
subsequent notes, instruments or agreements of indebtedness, liabilities or
obligations of any type or form whatsoever relating thereto in favor of the
Agent or any of the Banks. Senior Debt shall expressly include any and all
interest accruing or out of pocket costs or expenses incurred after the date of
any filing by or against any Borrower of any petition under the federal
Bankruptcy Code or any other bankruptcy, insolvency or reorganization act
regardless of whether the Agent's or any Bank's claim therefor is allowed or
allowable in the case or proceeding relating thereto.
Subordinated Debt. All principal, interest, fees, costs, enforcement
expenses (including legal fees and disbursements), collateral protection
expenses and other reimbursement and indemnity obligations created or evidenced
by the Subordinated Agreement or any prior, concurrent or subsequent notes,
instruments or agreements of indebtedness, liabilities or obligations of any
type or form whatsoever relating thereto in favor of any Subordinating Party.
Subordinated Documents. Collectively, the Subordinated Agreement, any
promissory notes executed in connection therewith and any and all guaranties and
security interests, mortgages and other liens directly or indirectly guarantying
or securing any of the Subordinated Debt, and any and all other documents or
instruments evidencing or further guarantying or securing directly or indirectly
any of the Subordinated Debt, whether now existing or hereafter created.
2. General. The Subordinated Debt and any and all Subordinated Documents
shall be and hereby are subordinated and the payment thereof is deferred until
the full and
-3-
final payment in immediately available funds of the Senior Debt,
whether now or hereafter incurred or owed by the Borrowers. Notwithstanding the
immediately preceding sentence, so long as no Default or Event of Default shall
have occurred and be continuing under the Loan Agreement, and none would result
therefrom, the Borrowers shall be permitted to pay (i) and the Subordinating
Agent and the Subordinating Creditors shall be permitted to receive, any
regularly scheduled payment of interest on the Subordinated Debt, (ii) and the
Subordinating Agent and the Subordinating Creditors shall be permitted to
receive the payment of principal, in an aggregate amount not to exceed Eight
Million Dollars ($8,000,000), on or after the scheduled maturity date of the
Subordinated Debt, and (iii) reasonable out-of-pocket expenses (including
without limitation reasonable attorneys' fees and costs) incurred by any of the
Borrowers and the Guarantors in connection with the closing of the Subordinated
Agreement provided that all such expenses shall be paid on or before such
closing.
3. Enforcement. No Subordinating Party shall take or omit to take any
action or assert any claim with respect to the Subordinated Debt or otherwise
which is inconsistent with the provisions of this Agreement. Without limiting
the foregoing, no Subordinating Party will assert, collect or enforce the
Subordinated Debt or any part thereof or take any action to foreclose or realize
upon the Subordinated Debt or any part thereof or enforce any of the
Subordinated Documents except to the extent (but only to such extent) that the
commencement of a legal action may be required to toll the running of any
applicable statute of limitation. Until the Senior Debt has been finally paid in
full in immediately available funds, no Subordinating Party shall have any right
of subrogation, reimbursement, restitution, contribution or indemnity whatsoever
from any assets of any Borrower or any Guarantor or any provider of collateral
security for the Senior Debt. Each Subordinating Party further waives any and
all rights with respect to marshalling.
4. Payments Held in Trust. Each Subordinating Party will hold in trust and
immediately pay over to the Agent for the account of the Banks and the Agent, in
the same form of payment received, with appropriate endorsements, for
application to the Senior Debt any cash amount that any Borrower pays to such
Subordinating Party with respect to the Subordinated Debt, or as collateral for
the Senior Debt any other assets of any Borrower that such Subordinating Party
may receive with respect to the Subordinated Debt.
5. Defense to Enforcement. If any Subordinating Party, in contravention of
the terms of this Agreement, shall commence, prosecute or participate in any
suit, action or proceeding against any Borrower, then such Borrower may
interpose as a defense or plea the making of this Agreement, and the Agent or
any Bank may intervene and interpose such defense or plea in its name or in the
name of such Borrower. If any Subordinating Party, in contravention of the terms
of this Agreement, shall attempt to collect any of the Subordinated Debt or
enforce any of the Subordinated Documents, then the Agent, any Bank or any
Borrower may, by virtue of this Agreement, restrain the enforcement thereof in
the name of the Agent or such Bank or in the name of such Borrower. If any
Subordinating Party, in contravention of the terms of this Agreement, obtains
any cash or other assets of any Borrower as a result of any administrative,
legal or equitable actions,
-4-
or otherwise, such Subordinating Party agrees forthwith to pay, deliver and
assign to the Agent, for the account of the Banks and the Agent, with
appropriate endorsements, any such cash for application to the Senior Debt and
any such other assets as collateral for the Senior Debt.
6. Bankruptcy, etc.
6.1. Payments relating to Subordinated Debt. At any meeting of
creditors of any Borrower or in the event of any case or proceeding,
voluntary or involuntary, for the distribution, division or application of
all or part of the assets of any Borrower or the proceeds thereof, whether
such case or proceeding be for the liquidation, dissolution or winding up
of any Borrower or its business, a receivership, insolvency or bankruptcy
case or proceeding, an assignment for the benefit of creditors or a
proceeding by or against any Borrower for relief under the federal
Bankruptcy Code or any other bankruptcy, reorganization or insolvency law
or any other law relating to the relief of debtors, readjustment of
indebtedness, reorganization, arrangement, composition or extension or
marshalling of assets or otherwise, the Agent is hereby irrevocably
authorized at any such meeting or in any such proceeding to receive or
collect for the benefit of the Banks and the Agent any cash or other assets
of such Borrower distributed, divided or applied by way of dividend or
payment, or any securities issued on account of any Subordinated Debt, and
apply such cash to or to hold such other assets or securities as collateral
for the Senior Debt, and to apply to the Senior Debt any cash proceeds of
any realization upon such other assets or securities that the Agent in its
discretion elects to effect, until all of the Senior Debt shall have been
paid in full in immediately available funds, rendering to the Subordinating
Agent for the benefit of the Subordinating Agent and the Subordinating
Creditors any surplus to which the Subordinating Agent and the
Subordinating Creditors are then entitled.
6.2. Securities by Plan of Reorganization or Readjustment.
Notwithstanding the foregoing provisions of 'SS' 6.1, the Subordinating
Agent and the Subordinating Creditors shall be entitled to receive and
retain any securities of any Borrower or any other corporation or other
entity provided for by a plan of reorganization or readjustment (i) the
payment of which securities is subordinate, at least to the extent provided
in this Agreement with respect to Subordinated Debt, to the payment of all
Senior Debt under any such plan of reorganization or readjustment and (ii)
all other terms of which are acceptable to the Banks and the Agent.
6.3. Subordinated Debt Voting Rights. At any such meeting of creditors
or in the event of any such case or proceeding, the Subordinating Agent and
the Subordinating Creditors shall retain the right to vote and otherwise
act with respect to the Subordinated Debt (including, without limitation,
the right to vote to accept or reject any plan of partial or complete
liquidation, reorganization, arrangement, composition or extension),
provided that no Subordinating Party
-5-
shall vote with respect to any such plan or take any other action in any
way so as to contest (i) the validity of any Senior Debt or any collateral
therefor or guaranties thereof, (ii) the relative rights and duties of any
holders of any Senior Debt established in any instruments or agreements
creating or evidencing any of the Senior Debt with respect to any of such
collateral or guaranties or (iii) the Subordinating Parties' obligations
and agreements set forth in this Agreement.
7. Lien Subordination. The Senior Debt, the Loan Agreement and the other
Loan Documents and any and all other documents and instruments evidencing or
creating the Senior Debt and all guaranties, mortgages, security agreements,
pledges and other collateral guarantying or securing the Senior Debt or any part
thereof shall be senior to the Subordinated Debt and all of the Subordinated
Documents irrespective of the time of the execution, delivery or issuance of any
thereof or the filing or recording for perfection of any thereof or the filing
of any financing statement or continuation statement relating to any thereof.
7.1. Further Assurances. Each of the Subordinating Parties hereby
agrees, upon request of the Agent at any time and from time to time, to
execute such other documents or instruments as may be requested by the
Agent further to evidence of public record or otherwise the senior priority
of the Senior Debt as contemplated hereby.
7.2. Books and Records. Each of the Subordinating Parties further
agrees to maintain on its books and records such notations as the Agent may
reasonably request to reflect the subordination contemplated hereby and to
perfect or preserve the rights of the Agent hereunder. A copy of this
Agreement may be filed as a financing statement in any Uniform Commercial
Code recording office.
7.3. Release of Guaranties and Collateral. Without limiting any of the
rights of the Agent or any Bank under the Loan Agreement, the other Loan
Documents or applicable law, in the event that the Agent releases or
discharges any guaranties of the Senior Debt given by guarantors which have
also guarantied the Subordinated Debt in connection with the sale or other
disposition of the stock of such guarantor or any security interests in, or
mortgages or liens upon, any collateral securing the Senior Debt and also
securing the Subordinated Debt in connection with any sale or other
disposition of such collateral, such guarantors or (as the case may be)
such collateral shall thereupon be deemed to have been released from all
such guaranties or security interests, mortgages or liens in favor of the
Subordinating Agent or any Subordinating Creditors, provided that any net
cash proceeds received by any Borrower or such guarantor in connection with
any sale or other disposition of assets in which such release or discharge
is granted are applied, or are held for application, to the Senior Debt.
Each of the Subordinating Parties agrees that, within ten (10) days
following the Agent's written request therefor, such Subordinating Party
will execute, deliver and file any and all such termination statements,
mortgage discharges, lien releases and other agreements and instruments as
the Agent reasonably deems necessary or appropriate in order
-6-
to give effect to the preceding sentence. Each of the Subordinating Parties
hereby irrevocably appoints the Agent, and its successors and assigns, and
their respective officers, with full power of substitution, the true and
lawful attorney(s) of such Subordinating Party for the purpose of effecting
any such executions, deliveries and filings if and to the extent that such
Subordinating Party shall have failed to perform such obligations pursuant
to the foregoing provisions of this Section 3 within such ten (10) day
period.
8. Banks' Freedom of Dealing. Each of the Subordinating Parties agrees,
with respect to the Senior Debt and any and all collateral therefor or
guaranties thereof, that the Borrowers and the Banks may agree to increase the
amount of the Senior Debt or otherwise modify the terms of any of the Senior
Debt, and the Banks may grant extensions of the time of payment or performance
to and make compromises, including releases of collateral or guaranties, and
settlements with any Borrower and all other persons, in each case without the
consent of the Subordinating Parties, the Borrowers or the Guarantors and
without affecting the agreements of the Subordinating Parties, the Borrowers or
the Guarantors contained in this Agreement; provided, however, that nothing
contained in this Section 8 shall constitute a waiver of the right of any
Borrower or any Guarantor itself to agree or consent to a settlement or
compromise of a claim which the Agent or any Bank may have against such Borrower
or Guarantor. The Agent hereby acknowledges that the provisions of this
Agreement nevertheless constitute notice from the Subordinating Agent and the
Subordinating Creditors of their junior security interest in the collateral
securing the Subordinated Debt for purposes of the provisions of 'SS''SS'
9-608(a)(1)(C), 9-615(a)(3)(A), and 9-621(a)(1) of the Uniform Commercial Code
of the Commonwealth of Massachusetts.
9. Modification or Sale of the Subordinated Debt. No Subordinating Party
will, at any time while this Agreement is in effect, modify any of the terms of
any of the Subordinated Debt or any of the Subordinated Documents; nor will any
Subordinating Party sell, transfer, pledge, assign, hypothecate or otherwise
dispose of any or all of the Subordinated Debt to any person other than a person
who agrees in a writing, satisfactory in form and substance to the Agent, to
become a party hereto and to succeed to the rights and to bound by all of the
obligations of a Subordinating Party hereunder. In the case of any such
disposition by any Subordinating Party, such Subordinating Party will notify the
Agent at least ten (10) days prior to the date of any of such intended
disposition.
10. Borrowers' Obligations Absolute. Nothing contained in this Agreement
shall impair, as between the Borrowers and the Subordinating Party, the
obligation of the Borrowers to pay to the Subordinating Agent and the
Subordinating Creditors all amounts payable in respect of the Subordinated Debt
as and when the same shall become due and payable in accordance with the terms
thereof, or prevent the Subordinating Agent or the Subordinating Creditors
(except as expressly otherwise provided in 'SS' 3 or 'SS' 6) from
exercising all rights, powers and remedies otherwise permitted by Subordinated
Documents and by applicable law upon a default in the payment of the
Subordinated Debt or under any Subordinated Document, all, however, subject to
the rights of the Agent and the Banks as set forth in this Agreement.
-7-
11. Termination of Subordination. This Agreement shall continue in full
force and effect, and the obligations and agreements of the Subordinating
Parties, the Borrowers and the Guarantors hereunder shall continue to be fully
operative, until all of the Senior Debt shall have been paid and satisfied in
full in immediately available funds, subject to the provisions hereof relating
to reinstatement. To the extent that any Borrower or any Guarantor or any
provider of collateral for the Senior Debt makes any payment on the Senior Debt
that is subsequently invalidated, declared to be fraudulent or preferential or
set aside or is required to be repaid to a trustee, receiver or any other party
under any bankruptcy, insolvency or reorganization act, state or federal law,
common law or equitable cause (such payment being hereinafter referred to as a
"Voided Payment"), then to the extent of such Voided Payment, that portion of
the Senior Debt that had been previously satisfied by such Voided Payment shall
be revived (and this Agreement shall automatically be reinstated if it has
terminated) and continue in full force and effect as if such Voided Payment had
never been made. In the event that a Voided Payment is recovered from the Agent
or any Bank, an Event of Default shall be deemed to have existed and to be
continuing under the Loan Agreement from the date of the Agent's or such Bank's
initial receipt of such Voided Payment until the full amount of such Voided
Payment is restored to the Agent or such Bank. During any continuance of any
such Event of Default, this Agreement shall be in full force and effect with
respect to the Subordinated Debt (and this Agreement shall automatically be
reinstated if it has terminated). To the extent that any Subordinating Party has
received any payments with respect to the Subordinated Debt subsequent to the
date of the Agent's or any Bank's initial receipt of such Voided Payment and
such payments have not been invalidated, declared to be fraudulent or
preferential or set aside or are required to be repaid to a trustee, receiver,
or any other party under any bankruptcy act, state or federal law, common law or
equitable cause, such Subordinating Party shall be obligated and hereby agrees
that any such payment so made or received shall be deemed to have been received
in trust for the benefit of the Agent or such Bank, and such Subordinating Party
hereby agrees to pay to the Agent for the benefit of the Agent or (as the case
may be) such Bank, upon demand, the full amount so received by such
Subordinating Party during such period of time to the extent necessary fully to
restore to the Agent or such Bank the amount of such Voided Payment. Upon the
payment and satisfaction in full in immediately available funds of all of the
Senior Debt, this Agreement will automatically terminate without any additional
action by any party hereto, subject to the provisions hereof relating to
reinstatement.
12. Notices. All notices and other communications made or required to be
given pursuant to this Agreement shall be in writing and shall be delivered in
hand, mailed by United States registered or certified first class mail, postage
prepaid, sent by overnight courier, or sent by telegraph, telecopy, facsimile or
telex and confirmed by delivery via courier or postal service, addressed as
follows:
(i) If to the Agent, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇, Mail Stop: ▇▇ ▇▇ ▇▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
-8-
(ii) If to Safeguard, 400 The Safeguard Building, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing
Director
(iii) If to SCP, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. Plum, General Partner
(iv) If to the Borrowers or the Guarantors, c/o Metallurg, Inc. at ▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇, Senior Vice President
or such other address or addresses as any party hereto shall have
designated by written notice to the other parties hereto. Any such notice or
communication shall be deemed to have been duly given or made and to have become
effective (A) if delivered by hand, overnight courier or facsimile to a
responsible officer of the party to which it is directed, at the time of the
receipt thereof by such officer or the sending of such facsimile and (B) if sent
by registered or certified first-class mail, postage prepaid, on the third
Business Day following the mailing thereof. Any notice or election required to
be made by or on behalf of the Borrowers hereunder may be made by MI on behalf
of all of the Borrowers.
13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL BE A
SEALED INSTRUMENT UNDER SUCH LAWS. EACH OF THE BORROWERS, THE GUARANTORS AND THE
SUBORDINATING PARTIES AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT
MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL
COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH
COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWERS, THE
GUARANTORS AND THE SUBORDINATING PARTIES BY MAIL AT THE ADDRESS SPECIFIED IN
'SS' 12. EACH OF THE BORROWERS, THE GUARANTORS AND THE SUBORDINATING PARTIES
HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
14. Waiver of Jury Trial. EACH OF THE BORROWERS, THE GUARANTORS AND THE
SUBORDINATING PARTIES HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO
ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS
AND OBLIGATIONS. EXCEPT AS
-9-
PROHIBITED BY LAW, EACH OF THE BORROWERS, THE GUARANTORS AND THE SUBORDINATING
PARTIES HEREBY WAIVES ANY RIGHT WHICH IT MAY HAVE TO CLAIM OR RECOVER IN ANY
LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES. EACH OF THE BORROWERS, THE GUARANTORS AND THE SUBORDINATING
PARTIES (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE AGENT OR
ANY BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR ANY BANK
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND
(B) ACKNOWLEDGES THAT THE AGENT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
15. Miscellaneous. This Agreement may be executed in several counterparts
and by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together shall constitute one
instrument. In proving this Agreement, it shall not be necessary to produce or
account for more than one such counterpart signed by the party against which
enforcement is sought. The Agent, acting upon the instructions of the requisite
Banks, may, in their sole and absolute discretion, waive any provisions of this
Agreement benefiting the Agent and the Banks; provided, however, that such
waiver shall be effective only if in writing and signed by the Agent and shall
be limited to the specific provision or provisions expressly so waived. The
provisions of this Agreement are severable and if any one provision hereof shall
be held invalid or unenforceable in whole or in part in any jurisdiction, such
invalidity or unenforceability shall affect only such provision in such
jurisdiction. This Agreement shall be binding upon the successors and assigns of
each of the Subordinating Parties, each of the Borrowers and each of the
Guarantors and shall inure to the benefit of the Agent and the Banks, the
Agent's and the Banks' respective successors and assigns, any lender or lenders
refunding or refinancing any of the Senior Debt and their respective successors
and assigns, but shall not otherwise create any rights or benefits for any third
party. In the event that any lender or lenders refund or refinance any of the
Senior Debt, the terms "Loan Agreement", "Loan Documents", "Event of Default"
and the like shall refer mutatis mutandis to the agreements and instruments in
favor of such lender or lenders and to the related definitions contained
therein.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
FLEET NATIONAL BANK, as Agent
By:
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
SAFEGUARD INTERNATIONAL FUND LP ,
individually, in its capacity as
Subordinating Agent and in its capacity
as a Subordinating Lender
By:
------------------------------------
Name:
Title:
SCP PRIVATE EQUITY PARTNERS LP,
individually and in its capacity as a
Subordinating Lender
By: SCP Private Equity Management, LP
By:
------------------------------------
Name: ▇▇▇▇▇▇ ▇. Plum
Title: General Partner
METALLURG, INC.
By:
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President & CFO
SHIELDALLOY METALLURGICAL
CORPORATION
By:
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Finance & CFO
METALLURG INTERNATIONAL
RESOURCES, LLC
By:
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Finance & CFO
METALLURG SERVICES, INC.
By:
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Finance & CFO
MIR (CHINA), INC.
By:
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Finance & CFO
METALLURG HOLDINGS
CORPORATION
By:
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Finance & CFO
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METALLURG (CANADA) LTEE./METALLURG
(CANADA) LTD.
By:
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer and Director
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS )
) ss.
COUNTY OF SUFFOLK )
On this ___ day of February, 2004, before me, the undersigned notary
public, personally appeared ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, proved to me through satisfactory
evidence of identification, which were _____________________________, to be the
person whose name is signed on the preceding or attached document, and
acknowledged to me that he signed it voluntarily for its stated purpose (as Vice
President for Fleet National Bank, a national banking association).
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(official signature and seal of notary)
My commission expires: