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EXHIBIT 10
FIRST AMENDMENT
TO AMENDED AND RESTATED LOAN AGREEMENT
This First Amendment to Amended and Restated Loan Agreement dated as of
October 11, 2000 (this "Amendment"), by and among (a) Metallurg, Inc., a
Delaware corporation having its principal place of business at 6 East 43rd
Street, New York, New York 10017 ("MI"), Shieldalloy Metallurgical Corporation,
a Delaware corporation having its principal place of business at 12 West
Boulevard, Newfield, New Jersey 08344 ("SMC") and Metallurg International
Resources, Inc., a New York corporation having its principal place of business
at 6 East 43rd Street, New York, New York 10017 ("MIR" and together with MI and
SMC, the "Borrowers"), (b) Metallurg Services, Inc., a New York corporation
having its principal place of business at 6 East 43rd Street, New York, New York
10017 ("MSI"), MIR (China), Inc., a Delaware corporation having its principal
place of business at 6 East 43rd Street, New York, New York 10017 ("MIR China"),
and Metallurg Holdings Corporation, a New Jersey corporation having its
principal place of business at 12 West Boulevard, Newfield, New Jersey 08344
("MHC" and collectively with MSI and MIR China, the "Guarantors"), (c) Fleet
National Bank (formerly known as BankBoston, N.A.), a national banking
association, as agent (in such capacity the "Agent") for itself and the other
financial institutions from time to time parties to the Loan Agreement referred
to below (collectively, the "Banks"); and (d) the Banks, amends certain
provisions of the Amended and Restated Loan Agreement dated as of October 29,
1999, by and among the Borrowers, the Guarantors, the Agent and the Banks (as
amended, modified, supplemented or restated and in effect from time to time, the
"Loan Agreement"). Terms not otherwise defined herein which are defined in the
Loan Agreement shall have the respective meanings herein assigned to such terms
in the Loan Agreement. Terms not otherwise defined herein or in the Loan
Agreement but which are defined in section 1 of this Amendment shall have the
respective meanings in this Amendment assigned to such terms in section 1.
WHEREAS, the Borrowers and the Guarantors have requested that the Agent and
the Banks agree to amend the terms of the Loan Agreement in certain respects in
order to permit MI to repurchase all or a portion of the Parent Notes on or
before March 30, 2001, at a price for each such repurchased Parent Note not to
exceed an average for all such repurchases of $300 per $1000 face value of such
Parent Notes at maturity, with an aggregate repurchase price of all such
repurchased Parent Notes not to exceed $20,000,000; and
WHEREAS, the Agent and the Banks are willing to so amend the terms of the
Loan Agreement in such respects as hereinafter more fully set forth, upon the
terms and subject to the conditions contained herein;
NOW, THEREFORE, in consideration of the mutual agreements contained in the
Loan Agreement, herein and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
SECTION 1. Amendment of Section 9 of the Loan Agreement.
(a) Section 9.2(d) of the Loan Agreement is hereby amended by deleting the
word "and" immediately preceding subsection (xvi) thereof; and inserting
immediately following such subsection the following new subsection (xvii):
, and (xvii) so long as no Default or Event of Default shall have occurred
and be continuing, and none would result therefrom, investments in an
amount not to exceed $20,000,000 in the aggregate, which consist of the
repurchase by MI of all or a portion of the outstanding Parent Notes on or
before March 30, 2001, provided that such repurchases may only be made at a
price per Parent Note not to exceed an average for all such repurchases of
$300 per $1,000 face value of such Parent Notes at maturity, and that the
Parent Notes so repurchased shall be immediately delivered into the control
of the Agent to be held as Collateral pursuant to the Security Agreement.
(b) Section 9 of the Loan Agreement is hereby amended by amending Section
9.2(e) of the Loan Agreement by deleting such section in its entirety, and
inserting in place thereof, the following:
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(e) make any Restricted Payment other than (i) [intentionally omitted]
(ii) Distributions in the form of dividends by the Guarantors or MCL to the
Borrowers, (iii) so long as no Default or Event of Default shall have
occurred and be continuing, and none would result therefrom, payments under
the Safeguard Management Agreement in an aggregate amount not to exceed
$500,000 during any fiscal year of MI, (iv) so long as no Default or Event
of Default shall have occurred and be continuing, and none would result
therefrom, Distributions to M Holdings: (A) to the extent that the same is
deemed a Distribution to M Holdings, the investment by MI in the Parent
Notes permitted pursuant to Section 9.2(d)(xvii), and (B) in each fiscal
year up to an aggregate amount equal to the amount of regularly scheduled
cash interest payments that M Holdings is required to pay on the Parent
Notes in such fiscal year, solely for the purpose of making such interest
payments, provided, however, the amount shall not include any payments to
fund any increases in the rate of interest under the Parent Notes from that
in effect on the Restatement Date or any interest accrued on the Parent
Notes for any period prior to July 15, 2003, provided, further that such
Distributions 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 M
Holdings, (v) so long as no Default or Event of Default shall have occurred
and be continuing, and none would result therefrom, repurchases of capital
stock from employees of MI in connection with the termination of such
employees' employment with MI in an aggregate amount not to exceed $200,000
during any fiscal year of MI, (vi) payments for goods and services on an
arm's length basis on terms competitive with those afforded by third
parties, (vii) payments under a tax sharing agreement approved by the Banks
and the Agent, and (viii) payments, not otherwise prohibited by the terms
of this Agreement, to Affiliates of M Holdings which are Subsidiaries of
MI.
SECTION 2. 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.
SECTION 3. Conditions to Effectiveness. The effectiveness of this
Amendment, including the amendments and limited consent contained herein, shall
be subject to the satisfaction of the following conditions precedent:
(a) This Amendment shall have been duly executed and delivered by the
Borrowers, the Guarantors and the Majority Banks and shall be in full force and
effect;
(b) The Borrowers shall have paid to the Administrative Agent, (i) for the
accounts of the Banks in accordance with each such Bank's Commitment Percentage,
an amendment fee in the amount of $100,000, and (ii) for its own account, all
other fees and expenses that are due and payable as of the date hereof;
(c) The Borrowers have demonstrated to the reasonable satisfaction of the
Agent, based on a pro forma Compliance Certificate, compliance with section 9.3
of the Credit Agreement on a pro forma basis immediately prior to and after
giving effect to the investment permitted under Section 9.2(d)(xvii) (or the
Distribution permitted under Section 9.2(e)(iv)(A)); and
(d) The Borrowers have delivered to the Agent a certificate of the chief
financial officer of each Borrower to the effect that (i) the Borrowers will be
solvent upon the consummation of the investment permitted under Section
9.2(d)(xvii) (or the Distribution permitted under Section 9.2(e)(iv)(A)); (ii)
the pro forma Compliance Certificate fairly presents the financial condition of
the Borrowers and their
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Subsidiaries as of the date thereof and after giving effect to such Distribution
and (iii) no Default or Event of Default then exists or would result after
giving effect to such Distribution.
SECTION 4. Ratification, Etc. Except as expressly amended hereby, the Loan
Agreement and all documents, instruments and agreements related thereto are
hereby ratified and confirmed in all respects. All references in the Loan
Agreement or any related agreement or instrument to the Loan Agreement shall
hereafter refer to the Loan Agreement as amended hereby.
SECTION 5. 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.
SECTION 6. 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.
SECTION 7. 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/ BARRY C. NUSS
------------------------------------
Name: Barry C. Nuss
Title: Vice President, Finance & CFO
SHIELDALLOY METALLURGICAL
CORPORATION
By: /s/ BARRY C. NUSS
------------------------------------
Name: Barry C. Nuss
Title: Vice President, Finance
METALLURG INTERNATIONAL
RESOURCES, INC.
By: /s/ BARRY C. NUSS
------------------------------------
Name: Barry C. Nuss
Title: Vice President, Finance
METALLURG SERVICES, INC.
By: /s/ BARRY C. NUSS
------------------------------------
Name: Barry C. Nuss
Title: Vice President & CFO
MIR (CHINA), INC.
By: /s/ BARRY C. NUSS
------------------------------------
Name: Barry C. Nuss
Title: Vice President & CFO
METALLURG HOLDINGS CORPORATION
By: /s/ BARRY C. NUSS
------------------------------------
Name: Barry C. Nuss
Title: Vice President & CFO
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FLEET NATIONAL BANK
(Formerly Known as BankBoston, N.A.),
individually and as Agent
By: /s/ MARK B. SCHAFER
------------------------------------
Name: Mark B. Schafer
Title: Vice President
BANK OF SCOTLAND
By: /s/ JOSEPH FRATUS
------------------------------------
Name: Joseph Fratus
Title: Vice President
NATIONAL BANK OF CANADA
By: /s/ GAETAN R. FROSINA
------------------------------------
Name: Gaetan R. Frosina
Title: Vice President & Manager
By: /s/ MICHAEL F. MCINTYRE
------------------------------------
Name: Michael F. McIntyre
Title: Assistant Vice President
