EX-10.1






EXHIBIT 10.1




AMENDMENT NO. 7 TO CONSIGNMENT AGREEMENT




THIS AMENDMENT NO. 7



TO CONSIGNMENT AGREEMENT (this “Amendment”) is made as of August 24, 2012, 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”); MATERION CORPORATION
(f/k/a Brush Engineered Materials Inc.), an Ohio corporation (“BEM”); MATERION ADVANCED
MATERIALS TECHNOLOGIES AND SERVICES INC. (f/k/a Williams Advanced Materials Inc.), a New York
corporation (“WAM”); MATERION TECHNICAL MATERIALS INC. (f/k/a Technical Materials, Inc.),
an Ohio corporation (“TMI”); MATERION BRUSH INC. (f/k/a Brush Wellman Inc.), an Ohio
corporation (“BWI”); MATERION TECHNOLOGIES INC. (f/k/a Zentrix Technologies Inc.), an
Arizona corporation (“ZTI”); MATERION BREWSTER LLC (f/k/a Williams Acquisition, LLC), a New
York limited liability company d/b/a Pure Tech (“Pure Tech”); MATERION PRECISION OPTICS AND
THIN FILM COATINGS CORPORATION (f/k/a Thin Film Technology, Inc.), a California corporation
(“TFT”); MATERION LARGE AREA COATINGS LLC (f/k/a Techni-Met, LLC), a Delaware limited
liability company (“TML”); MATERION ADVANCED MATERIALS TECHNOLOGIES AND SERVICES CORP.
(f/k/a Academy Corporation), a New Mexico corporation (“AC”); MATERION ADVANCED MATERIALS
TECHNOLOGIES AND SERVICES LLC (f/k/a 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 Lender of a Joinder Agreement under the
Precious Metals Agreement (as defined below). BEM, WAM, TMI, BWI, ZTI, Pure Tech, TFT, TML, 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, (iv)
Amendment No. 4 to Consignment Agreement, dated as of November 10, 2010, (v) Amendment No. 5 to
Consignment Agreement, dated as of March 7, 2011, and (vi) Amendment No. 6 to Consignment
Agreement, dated as of September 13, 2011 (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 “Maturity Date” appearing in Section 1 of the Consignment Agreement is
hereby amended and restated in its entirety to read as follows:



“Maturity Date” means September 30, 2013. Any
obligations of the Customers under this Agreement that are not paid
when due on or before the Maturity Date shall remain subject to the
provisions of this Agreement until all Obligations are paid and
performed in full.



(b) Section 2.6 of the Consignment Agreement is hereby amended and restated in its
entirety to read as follows:




Section 2.6 Inability to Determine Fixed Consignment Fee.



In the event, prior to the commencement of any Fixed Rate
Period relating to any Fixed Rate Consignment, the applicable Metal
Lender shall determine in good faith that adequate and reasonable
methods do not exist for ascertaining the Fixed Consignment Fee that
would otherwise determine the Fixed Rate Consignment during any
Fixed Rate Period, the applicable Metal Lender shall forthwith give
notice of such determination (which shall be conclusive and binding
on the Customer) to the Customer. In such event, (a) any request
for a Fixed Rate Consignment shall be automatically withdrawn and
shall be deemed a request for a Floating Rate Consignment; (b) each
Fixed Rate Consignment will automatically on the last day of the
then current Fixed Rate Period thereof, become a Floating Rate
Consignment; and (c) the obligations of the applicable Metal Lender
to make Fixed Rate Consignments shall be suspended until the
circumstances giving rise to such suspension no longer exist,
whereupon the applicable Metal Lender shall so notify the Customers.



(c) Section 9.1(c) of the Consignment Agreement is hereby amended and restated in its
entirety to read as follows:



(c) concurrently with any delivery of financial statements
under Section 9.1(a) or 9.1(b) above, a certificate
of an executive officer of Materion (i) showing the calculations
necessary to determine compliance with this Agreement, and (ii)
certifying as to whether a Default has occurred and, if a Default
has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto;



(d) Section 9.3 of the Consignment Agreement is hereby amended and restated in its entirety to
read as follows:



Section 9.3 Notices.



Each Customer through the Customer Agent, will give prompt notice in
writing to the Metal Lenders of: (a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or governmental authority against or
affecting any Customer that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect; (c)
any Lien (other than Permitted Metal Liens) attaching or asserted
against any material portion of the Collateral; (d) any loss,
damage, or destruction to the Collateral in the amount of $500,000
or more, whether or not covered by insurance; (e) the occurrence of
any “Default” under the Senior Credit Agreement or any “Event of
Default” under any Permitted Metals Agreement which is subject to
the Metal Intercreditor Agreement; (f) the occurrence of any
“Default” or “Event of Default” under any other Permitted Metal
Agreement not described in the preceding clause (e) which has
resulted in the exercise or commencement of any creditor remedies
thereunder against Metal in the possession, custody or control of
any Customer; (g) any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect; and
(h) any amendment, supplement or restatement of the Senior Credit
Agreement, together with a copy thereof. Each notice delivered
under this Section 9.3 shall be accompanied by a statement
of an executive officer of BEM setting forth the details of the
event or development requiring such notice and any action taken or
proposed to be taken with respect thereto.



(e) Section 9.21 of the Consignment Agreement is hereby amended by (i) adding (a)
immediately prior to the existing paragraph and (ii) adding the following new clauses:



(b) No Customer shall obtain Metal on a secured basis (whether
styled as a consignment, loan, conditional sale or other secured
financing) from any supplier, lender, consignor or financial
institution other than the Metal Lenders unless (i) no Metal is
outstanding on Consignment to any Customer under Section 2
hereof, or (ii) such other supplier, lender, consignor or financial
institution executes and delivers to the Collateral Agent a
counterpart or joinder to the Metal Intercreditor Agreement in form
and substance acceptable to the Collateral Agent.



(c) For the avoidance of doubt, each Customer shall be entitled to
(i) purchase Metal for cash from any Person, (ii) enter into hedging
transactions with any Person, and (iii) enter into Client-Customer
Arrangements in the ordinary course of such Customer’s business.



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.
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.



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:	 	 
	MATERION CORPORATION

By:/s/ Michael C. Hasychak

Michael C. Hasychak

Vice President, Treasurer and Secretary

	 	MATERION ADVANCED MATERIALS TECHNOLOGIES

AND SERVICES INC.

By: /s/ Michael C. Hasychak

—

Michael C. Hasychak

Vice President, Treasurer and Secretary
	MATERION TECHNICAL MATERIALS INC.

By:/s/ Michael C. Hasychak

Michael C. Hasychak

Vice President, Treasurer and Secretary

	 	MATERION BRUSH INC.

By:/s/ Michael C. Hasychak

Michael C. Hasychak

Vice President, Treasurer and Secretary
	MATERION TECHNOLOGIES INC.

By: /s/ Michael C. Hasychak

	 	MATERION BREWSTER LLC

By: /s/ Michael C. Hasychak
	 

	 	 
	Michael C. Hasychak

Chief Financial Officer and Secretary

	 	Michael C. Hasychak

Treasurer
	MATERION PRECISION OPTICS AND THIN FILM

COATINGS CORPORATION

By: /s/ Gary W. Schiavoni




Gary W. Schiavoni

Secretary

	 	MATERION LARGE AREA COATINGS LLC

By: /s/ Gary W. Schiavoni

—

Gary W. Schiavoni

Asst. Secretary and Asst. Treasurer



	MATERION ADVANCED MATERIALS TECHNOLOGIES

AND SERVICES CORP.

By: /s/ Richard W. Sager

Richard W. Sager

	 	MATERION ADVANCED MATERIALS TECHNOLOGIES

AND SERVICES LLC



By: /s/ Richard W. Sager
	
 
	 	 
	President

	 	Richard W. Sager

Manager
	METAL LENDERS:

	 	

	CANADIAN IMPERIAL BANK OF COMMERCE

By: /s/ Eoin Roche

Name: Eoin Roche

	 	CIBC WORLD MARKETS INC.

By: /s/ Eoin Roche

Name: Eoin Roche
	 

	 	 
	Title: Executive Director

	 	Title: Executive Director