Attached files
file | filename |
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10-Q - FORM 10-Q - MATERION Corp | l42495e10vq.htm |
EX-11 - EX-11 - MATERION Corp | l42495exv11.htm |
EX-32 - EX-32 - MATERION Corp | l42495exv32.htm |
EX-31.1 - EX-31.1 - MATERION Corp | l42495exv31w1.htm |
EX-31.2 - EX-31.2 - MATERION Corp | l42495exv31w2.htm |
EXHIBIT 10.1
AMENDMENT NO. 5 TO CONSIGNMENT AGREEMENT
THIS AMENDMENT NO. 5 TO CONSIGNMENT AGREEMENT (this Amendment) is made as of March
7, 2011, by and among CANADIAN IMPERIAL BANK OF COMMERCE, a Canadian chartered bank (the PM
Lender); CIBC WORLD MARKETS INC., an Ontario corporation and subsidiary of the PM Lender (the
Copper Lender and together with the PM Lender, the Metal Lenders); BRUSH
ENGINEERED MATERIALS INC., an Ohio corporation (BEM); WILLIAMS ADVANCED MATERIALS INC., a
New York corporation (WAM); TECHNICAL MATERIALS, INC., an Ohio corporation
(TMI); BRUSH WELLMAN INC., an Ohio corporation (BWI); ZENTRIX TECHNOLOGIES
INC., an Arizona corporation (ZTI); WILLIAMS ACQUISITION, LLC, a New York limited
liability company d/b/a Pure Tech (Pure Tech); THIN FILM TECHNOLOGY, INC., a California
corporation (TFT); TECHNI-MET, LLC, a Delaware limited liability company
(Techni-Met); ACADEMY CORPORATION, a New Mexico corporation (AC); ACADEMY
GALLUP, LLC, a New Mexico limited liability company (AG); and such other Subsidiaries of
BEM who may from time to time become parties by means of their execution and delivery with the
Metal Lenders of a Joinder Agreement under the Consignment Agreement (as defined below). BEM, WAM,
TMI, BWI, ZTI, Pure Tech, TFT, Techni-Met AC, AG and such Subsidiaries are herein sometimes
referred to collectively as the Customers and each individually as a Customer.
WITNESSETH:
WHEREAS, the Metal Lenders and the Customers are parties to a certain Consignment Agreement,
dated as of October 2, 2009, as amended by that certain (i) Amendment No. 1 to Consignment
Agreement, dated as of March 10, 2010, (ii) Omnibus Amendment to Metal Documents, dated as of June
10, 2010, (iii) Amendment No. 3 to Consignment Agreement, dated as of September 30, 2010, and (iv)
Amendment No. 4 to Consignment Agreement, dated as of November 10, 2010 (as amended, the
Consignment Agreement); and
WHEREAS, the parties hereto desire to amend the Consignment Agreement as set forth herein;
NOW, THEREFORE, for value received and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Initially capitalized terms used but not defined in this Amendment
have the meanings given to such terms in the Consignment Agreement.
2. Amendments.
(a) The definition of Approved Subconsignee Metal appearing in Section 1 (Definitions) of
the Consignment Agreement is hereby amended by deleting the proviso appearing therein.
(b) Section 9.23(b) of the Consignment Agreement is hereby amended by deleting the text
$20,000,000 appearing therein and replacing such text with $50,000,000.
(c) Section 9.23(c) of the Consignment Agreement is hereby amended by deleting the text
$10,000,000 appearing therein and replacing such text with $20,000,000.
3. Representations and Warranties. To induce the Metal Lenders to enter into this
Amendment, each Customer hereby represents and warrants to the Metal Lenders that: (a) such
Customer has full power and authority, and has taken all action necessary, to execute and deliver
this Amendment and to fulfill its obligations hereunder and to consummate the transactions
contemplated hereby; (b) the making and performance by such Customer of this Amendment do not and
will not violate any law or regulation of the jurisdiction of its organization or any other law or
regulation applicable to it; (c) this Amendment has been duly executed and delivered by such
Customer and constitutes the legal, valid and binding obligation of such Customer, enforceable
against it in accordance with its terms, except as enforceability may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors rights generally and except as
the same may be subject to general principles of equity; and (d) on and as of the date hereof,
after giving effect to this Amendment, no Default or Event of Default exists under the Consignment
Agreement.
4. Governing Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and performed in such State.
5. Integration of Amendment into Consignment Agreement. The Consignment Agreement, as
amended hereby, together with the other Metal Documents, is intended by the parties as the final,
complete and exclusive statement of the transactions evidenced by the Consignment Agreement. All
prior or contemporaneous promises, agreements and understandings, whether oral or written, are
deemed to be superseded by the Consignment Agreement, as amended hereby, and no party is relying on
any promise, agreement or understanding not set forth in the Consignment Agreement, as amended
hereby. The Consignment Agreement, as amended hereby, may not be amended or modified except by a
written instrument describing such amendment or modification executed by the Customers and the
Metal Lenders. The parties hereto agree that this Amendment shall in no manner affect or impair
the liens and security interests evidenced or granted by the Consignment Agreement or in connection
therewith. Except as amended hereby, the Consignment Agreement shall remain in full force and
effect and is in all respects hereby ratified and affirmed.
6. Expenses. The Customers covenant and agree jointly and severally to pay all
reasonable out-of-pocket expenses, costs and charges incurred by the Metal Lenders (including
reasonable fees and disbursement of counsel) in connection with the review and implementation of
this Amendment.
7. Signatures. This Amendment may be executed by the parties hereto in several
counterparts hereof and by the different parties hereto on separate counterparts hereof, each of
which shall be an original and all of which shall together constitute one and the same agreement.
-2-
Delivery of an executed signature page of this Amendment by electronic transmission shall be
effective as an in hand delivery of an original executed counterpart hereof.
-3-
IN WITNESS WHEREOF, the undersigned parties have caused this Amendment to be executed by their
duly authorized officers as of the date first written above.
CUSTOMERS: | ||||||
BRUSH ENGINEERED MATERIALS INC. | WILLIAMS ADVANCED MATERIALS INC. | |||||
By:
|
/s/ Michael C. Hasychak
|
By: | /s/ Michael C. Hasychak
|
|||
Vice President, Treasurer and Secretary | Vice President, Treasurer and Secretary | |||||
TECHNICAL MATERIALS, INC. | BRUSH WELLMAN INC. | |||||
By:
|
/s/ Michael C. Hasychak
|
By: | /s/ Michael C. Hayschak |
|||
Vice President, Treasurer and Secretary | Vice President, Treasurer and Secretary | |||||
ZENTRIX TECHNOLOGIES INC. | WILLIAMS ACQUISITION, LLC | |||||
By:
|
/s/ Michael C. Hasychak
|
By: | /s/ Michael C. Hasychak
|
|||
Chief Financial Officer and Secretary | Treasurer | |||||
THIN FILM TECHNOLOGY, INC. | TECHNI-MET, LLC | |||||
By:
|
/s/ Gary W. Schiavoni
|
By: | /s/ Gary W. Schiavoni
|
|||
Secretary | Asst. Secretary and Asst. Treasurer | |||||
ACADEMY CORPORATION | ACADEMY GALLUP, LLC | |||||
By:
|
/s/ Richard W. Sager President |
By: | /s/ Richard W. Sager
Manager |
|||
METAL LENDERS: | ||||||
CANADIAN IMPERIAL BANK OF COMMERCE | CIBC WORLD MARKETS INC. | |||||
By:
|
/s/ Lydia Vendrasco Title: Authorized Signatory |
By: | /s/ Lydia Vendrasco
Title: Authorized Signatory |
Signature
Page
Amendment No. 5 to Consignment Agreement
Amendment No. 5 to Consignment Agreement