**Exhibit 10(a)**

 

**AMENDMENT NO. 4**

 

**TO**

 

**CREDIT AND SECURITYAGREEMENT**

 

AMENDMENT NO.4 to CREDIT AND SECURITY AGREEMENT (this “Amendment”), dated as of April 30, 2002, by and between ASTREX,INC. (“Borrower”), T.F. CUSHING, INC (“TFCI”), AVEST, INC. (“Avest”), and FLEETCAPITAL CORPORATION, a Rhode Island corporation (the “Lender”).  All capitalized terms unless defined hereinshall have the meanings assigned to them in the Credit Agreement (as definedbelow).

 

**WITNESSETH:**

 

WHEREAS, theBorrower, TFCI and Fleet National Bank (the “Bank”) executed and delivered acertain Credit and Security Agreement, dated as of July 9, 1997, which wasamended by an Amendment No. 1 (“Amendment No.1”), dated as of August 31, 1998,by an Amendment No. 2 (“Amendment No. 2”), dated as of December 18, 1998, andby an Amendment No. 3 (“Amendment No. 3”), dated as of May 14, 1999 (as soamended, the “Credit Agreement”); and

 

WHEREAS, theBank has assigned its rights under the Credit Agreement to the Lender; and

 

WHEREAS, theCredit Agreement provides for, among other things, a $3,150,000 revolvingcredit facility and an $850,000 term loan facility; and

 

WHEREAS, TFCIand Avest have each guaranteed repayment of the Borrower’s obligations to theLender under the Credit Agreement pursuant to their respective GuarantyAgreements, each dated as of July 9, 1997; and

 

WHEREAS, theBorrower and TFCI have requested that the Lender provide for a $550,000 letterof credit sub-facility under the existing revolving credit facility, extend theRevolving Credit Loan Termination Date and the Term Loan Maturity Date, andagree to certain other amendments to the Credit Agreement; and

 

WHEREAS, theLender has agreed to such request provided that, among other conditionsprecedent, (a) the Borrower and TFCI execute and deliver this Amendment and (b)TFCI and Avest execute and deliver a Guaranty Confirmation Agreement of evendate herewith (the “Guaranty Confirmation Agreement”).

 

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NOW THEREFORE,in consideration of the premises and for other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged, the Borrower andthe Lender hereby agree as follows:

 

# **PART I.  AMENDMENTS TO THE CREDIT AGREEMENT**

 

**Section 1.**  Section 1.2 of the Credit Agreement ishereby amended and restated to read in its entirety as follows:

 

1.2           **Revolving Credit Loans and Reserves.**

 

(a)           Subject to the terms and conditionsof this Agreement and in reliance on the representations and warranties of theBorrower contained herein, the Lender agrees to make available to the Borrowerfrom time to time, prior to the Revolving Credit Loan Termination Date, uponthe request of the Borrower, revolving credit loans (each a “Revolving CreditLoan” and collectively the “Revolving Credit Loans”) in an aggregate principalamount not to exceed, at any one time outstanding, the Revolving Credit MaximumAmount and, provided, that at no time shall the sum of (i) the then aggregateoutstanding Revolving Credit Loans plus (ii) the then aggregate outstandingLetter of Credit Obligations exceed the Revolving Credit Maximum Amount.

 

(b)           In addition to any of its otherrights hereunder, the Borrower, pursuant to said terms and subject to saidconditions, may borrow, repay and reborrow the Revolving Credit Loans up to, atany one time outstanding, the Revolving Credit Maximum Amount.  Lender shall have the right to establishreserves in such amounts, and with respect to such matters, as Lender shalldeem necessary or appropriate in its reasonable credit judgment, against theamount of Revolving Credit Loans and/or Letters of Credit which Borrower mayotherwise request hereunder.  Suchreserves shall be calculated (as deductions) in determining the Borrowing Base.

 

**Section 2.**  Section 1.5 of the Credit Agreement ishereby amended and restated to read in its entirety as follows:  

 

1.5           **Payment of Principal and Interest andOther Amounts.**  The Borrower shall pay the unpaid principalof all Revolving Credit Loans on the Revolving Credit Maturity Date and of theTerm Loan on the Term Loan Maturity Date. Interest on the Revolving Credit Loans shall be due and payable, inarrears, on each Revolving Credit Interest Payment Date and also on theRevolving Credit Maturity Date. Interest on the Term Loan shall be due and payable, in arrears, on eachTerm Loan Interest Payment Date and also on the Term Loan Maturity Date.  (The Lender in its sole and absolutediscretion may make a Revolving Credit Loan to cover an interest payment due ona

 

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RevolvingCredit Interest Payment Date and/or on a Term Loan Interest Payment Date;provided, that it is understood and agreed that the Lender shall have noobligation to do so).  Payments of theReimbursement Obligations shall be made as set forth in Sections 1.14 and 1.16below.  All payments of principal,interest, Reimbursement Obligations and other amounts due hereunder or underany of the Notes shall be made without any deductions whatsoever, including,but not limited to, any deduction for any set-off, recoupment, orcounterclaim.  All payments shall bemade in United States Dollars and immediately available funds.  Unless the Lender otherwise agrees (andsubject to Section 1.8 below), all payments shall first be applied to fees,costs and expenses which the Borrower is obligated to pay under the FinancingDocuments, then to accrued and unpaid interest and then to unpaid principal andReimbursement Obligations (nothing contained herein shall limit the rights ofthe Lender under Section 7.4).  If anypayment hereunder or under any of the Notes or other Financing Documents shallbe specified to be made upon a day which is not a Business Day, it shall(subject to the provisions regarding Business Days in the definition ofInterest Period) be made on the next succeeding day which is a Business Day andsuch extension of time shall in such case, to the extent applicable, beincluded in computing any interest in connection with such payment.  The records of the Lender shall be primafacie evidence of the making of any Loans, any accrued interest thereon, anydrawings on any Letters of Credit, the amount of Loans bearing interest at thePrime Rate or with reference to the Libor Rate, and all principal and interestpayments made in respect thereof including with respect to ReimbursementObligations; provided, that no failure of the Lender to timely record anytransaction, or any error in any such recordation, shall in any way affect orimpair any liability or other obligation of the Borrower to the Lender.

 

**Section 3.**  Section 1.6(b)(iii) of the Credit Agreementis hereby amended and restated in its entirety to read as follows:

 

(iii)          If any change inany Legal Requirement shall (1) make it unlawful for Lender to fund through thepurchase of U.S. Dollar deposits any LIBOR Revolving Credit Portion or LIBORTerm Loan Portion or otherwise give effect to its obligations as contemplatedunder this Section 1.6(b) (or other applicable provision hereof) or (2) shallimpose on Lender any additional restrictions on the amount of such a categoryof liabilities or assets which Lender may hold, then, in each such case, Lendermay, by notice thereof to Borrower, terminate the LIBOR Option.  If any change in any Legal Requirement shallimpose on Lender (or Lender’s holding company) any additional costs (notalready taken into account under Eurocurrency Reserve Requirements) based on ormeasured by the excess above a specified level of the amount of a category ofdeposits or other liabilities of Lender which includes deposits by reference towhich the LIBOR Rate is determined as provided herein or a category ofextensions of credit or other assets of Lender which includes any LIBORRevolving Credit Portion or LIBOR Term Loan

 

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Portion or thereshall be imposed on Lender (or Lender’s holding company) or the Londoninterbank market any other condition (with respect to a Legal Requirement orotherwise and including without limitation any conditions relating to capitaladequacy) with respect to or affecting this Agreement or the Loans or anyLetter of Credit issued by the Lender and the result of such condition is toimpose any additional costs on the Lender (including, without limitation, anyreduction in Lender’s return), then Borrower shall, upon demand of Lender, payto Lender the amount of any and all such additional costs.  Also, at the Lender’s option, the LIBORRevolving Credit Portion or LIBOR Term Loan Portion subject thereto shallimmediately bear interest thereafter at the rate and in the manner provided forPrime Rate Revolving Credit Portions or the Prime Rate Term Loan Portion, asthe case may be, pursuant to Section 1.4 above.  Borrower shall indemnify Lender against any loss, penalty or expenseincurred by Lender due to liquidation or redeployment of deposits or otherfunds acquired by Lender to fund or maintain any LIBOR Revolving Credit Portionor LIBOR Term Loan Portion that is terminated under this paragraph.

 

**Section 4.**  Section 1.7(d) of the Credit Agreement ishereby amended and restated in its entirety to read as follows:

 

(d)           To the extent thatat any time the sum of (i) the aggregate unpaid principal amount of theRevolving Credit Loans, plus (ii) the then outstanding Letter of CreditObligations shall exceed the Borrowing Base or otherwise shall exceed theRevolving Credit Maximum Amount, the Borrower shall immediately prepay theRevolving Credit Loans (with such prepayment to be in the amount of suchexcess); provided, that, if the Borrower prepays the Revolving Credit Loans infull and any part of such excess still remains, the Borrower shall deliver tothe Lender cash in an amount equal to such remaining part, with such cash to beheld as collateral by the Lender for the payment of any Letter of CreditObligations (and any other Secured Obligations).  The Borrower shall specify in writing that a prepayment is beingmade pursuant to this Section 1.7(d).

 

**Section 5.**  Section 1.7 of the Credit Agreement ishereby amended by adding the following clause (f):

 

(f)            Notwithstandinganything to the contrary in this Agreement, at the effective date oftermination of this Agreement by reason of the Borrower’s prepayment of theLoans in full, Borrower shall pay to Lender (in addition to the thenoutstanding principal, accrued interest and other charges owing under the termsof this Agreement and any of the other Financing Documents) as liquidateddamages for the loss of the bargain and not as a penalty, an amount equal to 3%of the aggregate outstanding amount of the Loans and the Letter of CreditObligations (collectively, the “Obligations”) if termination occurs between thedate hereof and

 

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April 1, 2003, 2% of theaggregate outstanding amount of the Obligations if termination occurs betweenApril 2, 2003 and April 1, 2004, and 1% of the aggregate outstanding amount ofthe Obligations if termination occurs between April 2, 2004 and April 1, 2005.

 

**Section 6.**  With respect to Sections 1.7(c) and 1.8 ofthe Credit Agreement, it is hereby agreed that monies in the cash collateralaccount may, in addition to being applied to other Secured Obligations, also beapplied to outstanding Reimbursement Obligations and, if there is an Event ofDefault, also held as cash collateral for (among other obligations) any and allLetter of Credit Obligations.

 

**Section 7.**  Section 1.10 of the Credit Agreement ishereby amended and restated in its entirety to read as follows:

 

1.10         **Further Assurances.**  Each of the Borrower and TCFI hereby agreesto do and perform any and all acts and to execute any and all furtherinstruments from time to time reasonably requested by the Lender or Issuer tomore fully effect the purposes of this Agreement and the issuance of anyLetters of Credit.

 

**Section 8.**  Section 1.11 of the Credit Agreement ishereby amended and restated in its entirety to read as follows:

 

1.11         **Fees.**  The Borrower shall pay to the Lender (a)quarterly in arrears on the first Business Day of each January, April, July,and October of each year commencing on                            April 1, 2002 (and also on theRevolving Credit Maturity Date), a letter of credit fee, for each day, equal tothe product of (i) a per annum rate of one and one-half percent (1.50%) multipliedby (ii) the average daily aggregate amount available to be drawn under alloutstanding Letters of Credit, and (b) all amounts due Lender in accordancewith Section 1.14(a) of this Agreement.

 

**Section 9.**  Sections 1.12, 1.13, 1.14, 1.15 and 1.16 ofthe Credit Agreement are hereby inserted after Section 1.11:

 

1.12         **Letters of Credit.**  (a) TheLender, subject to the terms and conditions of this Agreement and in relianceon the representations and warranties of Borrower contained herein, shall, uponthe request of the Borrower, issue for the account of the Borrower letters ofcredit, in favor of such beneficiaries as the Borrower shall specify from timeto time (which shall be reasonably satisfactory to the Lender) (such letters ofcredit being referred to herein as the “Letters of Credit”); providedthat on the date of the issuance of any Letter of Credit, and after givingeffect to such issuance, the then outstanding Letter of Credit Obligationsshall not exceed $550,000.00; and, provided, further that at no time shall thesum of (i) the aggregate outstanding Revolving Credit

 

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Loans plus(ii) the then outstanding Letter of Credit Obligations exceed theRevolving Credit Maximum Amount.

 

(b)  Each Letter of Creditshall, unless the Lender otherwise agrees, (i) have an expiry date no laterthan one (1) year from the date of issuance thereof, but in no case, shall suchexpiry date be later than the Revolving Credit Loan Termination Date; (ii) bedenominated in Dollars (unless the Lender otherwise agrees), and (iii) be in aform acceptable to the Lender.

 

1.13         **Procedure for Issuance of Letters ofCredit.**  The Borrower mayfrom time to time, upon at least two (2) Business Days’ notice, request theLender to cause to be issued a Letter of Credit by delivering to the Lender aletter of credit application (with accompanying reimbursement agreement), on aform provided by the Lender, completed to the reasonable satisfaction of theLender, together with (unless the Lender otherwise agrees) a current BorrowingBase Certificate and such other certificates, documents and other papers andinformation as the Lender may reasonably request.  Upon receipt of any such letter of credit application, the Lenderwill process such application, and the other certificates, documents and otherpapers delivered in connection therewith, and determine whether the requestedLetter of Credit will be issued on the date specified in the notice (but in noevent (unless the Lender otherwise agrees) earlier than two (2) Business Days afterreceipt by the Lender of such letter of credit application and accompanyingcertificates, documents, and other papers relating thereto) by the Lenderissuing the original of such Letter of Credit to the beneficiary thereof and byfurnishing a copy thereof to the Borrower (provided, that, failure to supplysuch copy shall not impair any obligation of the Borrower, including anyReimbursement Obligation).

 

1.14         **Payments.**  (a) The Borrower shall respectively payto the Lender any commissions, amounts and other fees charged by the Lender inconnection with the issuance, maintenance or amendment of, or drawings on, anyof the Letters of Credit.

 

(b)  The Borrower shall beobligated to reimburse the Lender for drawings under the Letters of Credit inaccordance with the reimbursement agreement executed by the Borrower inconnection with such Letter of Credit (if a reimbursement agreement is not soexecuted, reimbursement of the applicable drawing shall be immediately made bythe Borrower upon the Lender notifying the Borrower that any such drawing hasbeen made (and any such notification shall be deemed a demand by the Lender forsuch reimbursement)).  If the Borrowerdoes not so immediately reimburse the Lender for the amount of the applicabledrawing, the Borrower shall be deemed, under Section 1.6 hereof (and any otherapplicable provision hereof), to have requested the Lender to make a RevolvingCredit Loan to the Borrower in an amount equal to the amount of such drawingand the Borrower hereby authorizes the Lender to make any such Revolving

 

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Credit Loan and Borrower’s obligation torepay such Loan (with interest) shall be absolute and unconditional.  The proceeds of any such Loan shall be usedto pay such Reimbursement Obligation. Any such deemed request shall (unless the Lender otherwise agrees) beaccompanied by a current Borrowing Base Certificate executed and delivered byBorrower.  Nothing contained hereinshall, or shall be interpreted to, obligate the Lender to make such a Loan ifthe conditions under Article 3 hereof are not satisfied and if such Loan is notmade, the Borrower shall still have the unconditional obligation to reimbursethe Lender, on demand, for any drawing(s) under any Letter of Credit and theBorrower shall be further obligated to pay interest on the outstanding amountof any such reimbursement amount at a per annum rate equal to the Prime Rate(or, if an Event of Default then exists, at the Default Rate).

 

1.15         **Letter of Credit Application.**  The provisions of this Agreement withrespect to any Letter of Credit shall be supplemental to, and not in derogationof, any rights and remedies of the Lender under any letter of creditapplication and/or reimbursement agreement or any other agreement or instrumentrelated to the Letters of Credit or under Applicable Law.

 

1.16         **Reimbursement.**  The Borrower’s obligation to repay theLender for Reimbursement Obligations with respect to any Letters of Creditshall be absolute, unconditional and irrevocable under any and allcircumstances and irrespective of (among other things):

 

(a)           any lack of validityor enforceability of any Letter of Credit;

 

(b)           the existence of anyclaim, defense or other right that the Borrower or any other Person may at anytime have against the beneficiary or the Issuer under any Letter of Credit orany other Person;

 

(c)           any draft or otherdocument presented under a Letter of Credit proving to be forged fraudulent,invalid or insufficient in any respect or any statement therein being untrue orinaccurate in any respect; or

 

(d)           payment by theIssuer under a Letter of Credit against presentation of a draft or otherdocument that does not comply with the terms of such Letter of Credit.

 

The Borrower acknowledges and agrees that the rights and protections ofthe Lender set forth in this Section 1.16 are in addition to, and shall not beinterpreted in any way to limit, any and all rights and protections affordedthe Lender or Issuer in any letter of credit application, reimbursementagreement or other document executed by the Borrower in connection with anyLetter of Credit.

 

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**Section10.**                  (a)  The phrase “make the Loans” in the openingparagraph of Article 2 of the Credit Agreement is hereby deleted and insertedin lieu thereof shall be the phrase “make the Loans or issue any Letter ofCredit”.

 

(b)  Section 2.2 of the Credit Agreement ishereby amended and restated in its entirety to read as follows:

 

2.2           **Corporate Authority; No Conflicts;Binding Agreements.**  Theexecution, delivery and performance by the Borrower and each Guarantor of thisAgreement, the Note and any other Financing Document to which Borrower and/orany such Guarantor is a party, and any borrowings hereunder, and the issuanceof any Letter of Credit, have been duly authorized by all necessary corporateand, if required, stockholder action. The execution, and delivery and performance of this Agreement, the Note,and any other Financing Document to which Borrower and/or any Guarantor is aparty, and any borrowings hereunder, and the issuance of any Letter of Credit,are and will be within the Borrower’s or any such Guarantor’s, as the case maybe, powers, corporate and otherwise, and do not and will not (i) violateany Applicable Law or Borrower’s or such Guarantor’s certificate ofincorporation, by-laws or other organizational document or (ii) result inthe breach of, conflict with, constitute a default under, or give rise to theright of acceleration or mandatory prepayment under, any material Contract orany judgment, decree or order which is binding upon the Borrower or any suchGuarantor or to which the Borrower or any Guarantor or any of their respectiveproperties may be subject, or result in the creation of any Lien (other than infavor of the Lender) upon any property or assets of the Borrower or anyGuarantor pursuant to any Contract or any such judgment, decree or order.  This Agreement has been, and the Note andeach other Financing Document to which the Borrower and/or any Guarantor is aparty will be, duly executed and delivered on behalf of the Borrower or suchGuarantor, as the case may be.  ThisAgreement constitutes, and the Note and each other Financing Document to whichthe Borrower and/or any Guarantor is a party when executed and delivered, willconstitute, a legal, valid and binding obligation of the Borrower or suchGuarantor, as the case may be, enforceable against the Borrower in accordancewith its terms.  No GovernmentalApproval is or will be required in connection with the execution, delivery andperformance of this Agreement or any other Financing Document or any borrowinghereunder.

 

(c)           The following sentence is herebyinserted at the end of Section 2.12:

 

The Borrowershall use the Letters of Credit for general business purposes.

 

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**Section 11.           **(a)           Section 3.1 of the Credit Agreementis hereby amended and restated in its entirety to read as follows:

 

3.1           **Initial Extension of Credit. **The effectiveness of theamendments set forth in this Agreement and the making of the first RevolvingCredit Loan made on or after the date hereof and the issuance of the firstLetter of Credit issued on or after the date hereof shall be subject (inaddition to the conditions precedent set forth in Section 3.2 below) to theBorrower fulfilling the following conditions precedent:

 

(b)           Section 3.2 of theCredit Agreement is hereby amended and restated to read in its entirety asfollows:

 

3.2           **All Loans. **The making of each Revolving Credit Loan (whether theinitial Revolving Credit Loan or any subsequent Revolving Credit Loan) and themaking of the Term Loan and the issuance of any Letter of Credit shall besubject to the following additional conditions precedent:

 

(a)           **Representations and Warranties True andCorrect; No Event of Default.**  (i) All of the representations andwarranties made or deemed to be made under this Agreement or any otherFinancing Document shall be true and correct at the time of the disbursement ofsuch Revolving Credit Loan, the issuance of any Letter of Credit or thedisbursement of the Term Loan, as the case may be (except for therepresentation or warranty contained in Section 2.4 with respect todistributions to the extent it is no longer true by reason of a distributionmade in accordance with, and permitted by, Section 5.7 below), with and withoutgiving effect to the making of such Revolving Credit Loan, issuance of suchLetter of Credit or the making of the Term Loan, as the case may be, and theapplication of the proceeds thereof, and (ii) no Event of Default orDefault, shall have occurred and be continuing at such time, with and withoutgiving effect to the making of such Loan or the issuance of such Letter ofCredit, as the case may be, and the application of the proceeds thereof.  The Lender may, without waiving thiscondition, consider it fulfilled, and a representation and warranty by theBorrower to such effect made to the Lender, if no written notice to thecontrary is received by the Lender from the Borrower prior to the making of thesuch Loan or the issuance of such Letter of Credit, as the case may be.

 

(b)           **Documents in Full Force and Effect.**  All Financing Documents shall remain in fullforce and effect and not be terminated.  The Lender may, without waiving this condition, consider itfulfilled, and a representation and warranty by the Borrower to the Lender tosuch effect made, if no written notice to the contrary is received from the Borrowerprior to the making of the applicable Loan or the issuance of the applicableLetter of Credit, as the case may be.

 

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(c)           **Corporate Actions in Full Force andEffect.**  The corporateactions of the Borrower referred to in Section 3.1(a) shall remain in fullforce and effect and the incumbency of officers shall be as stated in thecertificates of incumbency delivered pursuant to Section 3.1(a) or assubsequently modified and reflected in a certificate of incumbency delivered tothe Lender.  The Lender may, withoutwaiving this condition, consider it fulfilled, and a representation andwarranty by the Borrower to the Lender to such effect made, if no writtennotice to the contrary is received from the Borrower prior to the making of theapplicable Loan or the issuance of the applicable Letter of Credit, as the casemay be.

 

(d)           **No Material Adverse Change. **There has been no materialadverse change in the business, assets, liabilities, financial condition,results of operations or business prospects of the Borrower or any Guarantorsince the date of any financial statements delivered to the Lender prior to orafter the date of this Agreement.  TheLender may, without waiving this condition, consider it fulfilled, and arepresentation and warranty by the Borrower to the Lender to such effect made,if no written notice to the contrary is received from the Borrower prior to themaking of the applicable Loan or the issuance of the applicable Letter ofCredit, as the case may be.

 

(e)           **Request and Borrowing Base Certificate.**  The Borrower shall have requested theapplicable Loan or the issuance of the applicable Letter of Credit, as the casemay be, and Borrower shall have also supplied and/or executed any otherapplicable documentation, including, in the case of such Revolving Credit Loanor Letter of Credit, a Borrowing Base Certificate, in accordance with theapplicable terms and provisions hereof (provided, however, that so long as theBorrowing Base equals or exceeds $1,000,000, the Borrower shall be permitted tosubmit Borrowing Base Certificates on a monthly basis within fifteen days afterthe end of each month; and provided further, that at any time during which theBorrowing Base is less than $1,000,000, Borrower shall furnish a Borrowing BaseCertificate to the Lender on a daily basis).

 

(f)            **Not ExceedRevolving Credit Maximum Amount.** In the case of any Revolving Credit Loan or Letter of Credit,immediately prior to and after the applicable Revolving Credit Loan is made orLetter of Credit is issued, the sum of outstanding Revolving Credit Loans plusthe outstanding Letter of Credit Obligations shall not exceed the RevolvingCredit Maximum Amount.  The Lender may,without waiving this condition, consider it fulfilled, and a representation andwarranty by the Borrower to the Lender to such effect made, if no writtennotice to the contrary is received from the Borrower prior to the making of theapplicable Revolving Credit Loan.

 

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Any request by the Borrower for the borrowing of a Loan or the issuanceof a Letter of Credit shall be deemed a representation and warranty hereunderthat the conditions precedent under Sections 3.2(a), (b) (c), (d) and (f) aboveare satisfied with respect to such borrowing.

 

**Section 12.**            Section 3.3 of the Credit Agreementis hereby amended and restated in its entirety to read as follows:

 

3.3           **Waiver.**  The Lender,in its sole and absolute discretion, may waive a condition(s) precedent withrespect to the making of any Loan or the issuance of any Letter of Credit.  The giving of a waiver on one occasion shallnot obligate the Lender to grant a waiver on any other occasion.

 

**Section 13.**            The opening paragraph of Article 4of the Credit Agreement is hereby amended and restated in its entirety to readas follows:

 

The Borrower (and to the fullest extent applicable, TFCI) covenants andagrees with the Lender that, until payment in full of the Loans and Letter ofCredit Obligations, payment and performance by the Borrower and Guarantors ofall of their other obligations under the Financing Documents and thetermination of the Revolving Credit Facility and the Letter of Credit Facilityand the expiration of all Letters of Credit, unless the Lender otherwiseconsents in writing, the Borrower shall and shall cause its Subsidiaries to:

 

**Section 14.**            Section 4.2.A of the CreditAgreement is amended by amending and restating clause (iv) thereof to read inits entirety as follows:

 

(iv) within 15days after the end of each month, a Borrowing Base Certificate as of the end ofsuch month, in form and substance acceptable to the Lender (provided, however,that at any time during which the Borrowing Base is less than $1,000,000,Borrower shall submit such Borrowing Base Certificates on a daily basis).

 

**Section 15.**            With respect to the second paragraphof Section 4.3 of the Credit Agreement, it is hereby agreed that the creditingagainst Secured Obligations shall be in such order as the Lender may direct andmay include holding the applicable proceeds (or portion thereof) as cashcollateral for the Letter of Credit Obligations.

 

**Section 16.**            The opening paragraph of Article 5of the Credit Agreement is hereby amended and restated in its entirety to readas follows:

 

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The Borrower (and, to the fullest extent applicable, TFCI) covenantsand agrees with the Lender that, until payment in full of all Loans and allLetter of Credit Obligations, payment and performance by the Borrower andGuarantors of all of their other obligations under the Financing Documents andthe termination of the Revolving Credit Facility, the Term Loan Facility andthe Letter of Credit Facility and expiration of all Letters of Credit, unlessthe Lender otherwise consents in writing, the Borrower shall not, and shallcause its Subsidiaries not to (directly or indirectly):

 

**Section 17.**            The phrase “Revolving CreditFacility exists” in the second line of Section 6.4 of the Credit Agreement ishereby deleted and inserted in lieu thereof shall be the phrase “RevolvingCredit Facility or Term Loan Facility exists or any Letter of Credit Obligationremains outstanding”.

 

**Section 18.**            Section 7.1(a) of the CreditAgreement is hereby amended and restated in its entirety to read as follows:

 

(a)                                  Borrower shall failto make any payment of any interest or principal, or to pay any ReimbursementObligation, when any of same shall become due under this Agreement or any otherFinancing Document (whether due at maturity or by reason of acceleration or demandor as part of any prepayment or otherwise); provided, however,that with respect to payments of interest only, Borrower shall have five (5)Business Days after such payment has become due in which to make such paymentto Lender in full before such overdue payment shall constitute an Event ofDefault hereunder (it being agreed that there shall be no grace period forfailure to pay principal or any Reimbursement Obligation).

 

**Section 19.**            Section 7.2 of the Credit Agreementis hereby amended and restated in its entirety to read as follows:

 

7.2**           Acceleration.**  Upon the occurrence and at any time duringthe continuance of any Event of Default, the Lender, by written notice to theBorrower, may (i) terminate the right of the Borrower to borrow any furtherLoans under the Revolving Credit Facility and Term Loan Facility or to requestany Letters of Credit under the Letter of Credit Facility, and/or (ii) declarethe entire unpaid principal balance of the Notes and all Loans and any or allother Secured Obligations, and all accrued and unpaid interest under the Notesand on all Loans, to be due and payable immediately, and upon any suchdeclaration the entire unpaid principal balance of the Notes and all Loans andall accrued and unpaid interest under the Notes and on all Loans (and any otherSecured Obligations so declared by the Lender) shall become and be immediatelydue and payable and/or (iii) require the Borrower to deposit additional cashwith the Lender in an amount equal to the Letter of Credit Obligations (whichcash may, at the Lender’s discretion, be applied to

 

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payment orrepayment of any Reimbursement Obligation or other Secured Obligations, or beheld as additional Collateral (and subsequently so applied at any time)), allwithout the need for presentment, demand for payment, protest, notice ofdishonor or protest or other notice of any kind all of which are expresslywaived by the Borrower; provided, however, that upon the occurrence of any ofthe events specified in subparagraphs (i) and (j) above, (i) the right of theBorrower to borrow under the Revolving Credit Facility and Term Loan Facilityor request Letters of Credit under the Letter of Credit Facility shallautomatically be terminated, (ii) the entire unpaid principal balance of theLoans and the Notes, and all unpaid and accrued interest under the Notes andall Loans and all other Secured Obligations, shall be immediately due andpayable without any notice whatsoever, and (iii) the Borrower shall be requiredto deposit additional cash with the Lender, in an amount equal to the Letter ofCredit Obligations (which cash may, at the Lender’s discretion, be applied topayment or prepayment of any Reimbursement Obligation or other SecuredObligations, or be held as additional Collateral (and subsequently so appliedat any time), all without the need for presentment, demand for payment,protest, notice of dishonor or protest or other notice of any kind all of whichare hereby expressly waived by the Borrower, and Lender shall have, upon theoccurrence and during the continuance of any Event of Default, all otherrights, remedies, and powers provided to the Lender under the FinancingDocuments, any other agreement, instrument or other document or Applicable Law.

 

**Section 20.**            Section 8.6 of the Credit Agreementis amended by substituting the following as the address for notices to theLender:

 

Fleet CapitalCorporation

Attention:  Mary G. Murphy, Vice President

200Glastonbury Boulevard

Glastonbury,Connecticut 06033

Telecopy:  (860) 368-6029

 

With a copyto:

 

Tyler Cooper& Alcorn, LLP

CityPlace — 35thFloor

Hartford,Connecticut 06103-3488

Attention:  Thomas S. Marrion

Telecopy:(860) 278-3802

 

**Section 21.**  Section 8.7 of the Credit Agreement ishereby amended by inserting at the end of clause (c)(i), after the words“Financing Documents”, the phrase “or any Letter of Credit”.

 

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**Section 22.**  The following respective definitions shallbe added to and included in Appendix A to the Credit Agreement, whichdefinitions shall be inserted in their proper alphabetical order therein:

 

“Letters of Credit”: as defined in Section 1.12 of the CreditAgreement.

 

“Letters of Credit Facility”:** **the letter of credit facility established pursuant to theCredit Agreement.

 

“Letter of Credit Obligations”: shall mean, at any particulartime, the sum of (i) the aggregate amount available to be drawn under allLetters of Credit then outstanding and (ii) the aggregate amount of all thenunpaid Reimbursement Obligations.

 

“Reimbursement Obligations”: all obligations of the Borrower toreimburse the Lender for any and all payments made by the Lender pursuant toany and all Letters of Credit.

 

**Section 23.**  Thefollowing definitions contained in Appendix A to the Credit Agreement arehereby amended and restated to read in their entirety as follows:

 

“Borrowing Base”:  as ofany particular time, the sum of (i) eighty-five percent (85%) of the thenEligible Receivables and (ii) the lesser of (a) twenty-five percent (25%) ofthe amount of the then Eligible Inventory or (b) $1,500,000; provided that itis further understood and agreed that for purposes of calculating the BorrowingBase, (1) Eligible Inventory of TFCI shall not exceed $500,000, (2) EligibleReceivables of TFCI shall not exceed $500,000, and (3) Eligible Inventory atthe Massachusetts Site shall not exceed $500,000.  The Lender shall have the right to decrease any such percentagesprovided that the Lender acts in good faith in doing so.

 

“Financing Documents”:         (a)       thisAgreement, the Note, the Guaranty Agreement, of even date herewith, betweenTFCI and the Lender, and the Guaranty Agreement, of even date herewith, betweenAvest, and the Lender, the Pledge Agreement, of even date herewith, from theBorrower to the Lender, the Borrower’s Questionnaire, and the Company’sQuestionnaire, any landlord’s waiver(s), any reimbursement agreements and/orletter of credit applications, and (b) any other written agreement,instrument, certificate, financing statement, landlord waiver(s), the Mortgage,any and all swap or hedging agreements between the Borrower and the Lender andany related documents or other document, whether now or hereafter existing,executed or delivered in connection with or otherwise related to any of theagreements, instruments or other documents referred to in clause (a) orotherwise relating in any way to any of the

 

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Loans, Lettersof Credit or any Collateral, as any of the foregoing referred to in clause (a)or (b) may be amended, supplemented or otherwise modified from time to time.

 

“Permitted Indebtedness”:

 

(a)           any Loans, theReimbursement Obligations and any other Indebtedness owed to the Lender;

 

(b)           annual real propertyrental expenses of Borrower permitted under Section 5.14 of the CreditAgreement;

 

(c)           Indebtedness inrespect of taxes, assessments, governmental charges, levies and claims which atthe time are not required to be paid under Section 4.4 of the Credit Agreement;

 

(d)           Indebtedness securedby Permitted Liens; and

 

(e)           operating leases forpersonal property entered into in the ordinary course of business consistentwith the Borrower’s past practices and permitted under Section 5.14 of theCredit Agreement.

 

“Revolving Credit Loan Termination Date”:  April 30, 2005.

 

“Revolving Credit Maturity Date”:  April 30, 2005.

 

“Secured Obligations”: (a) all indebtedness, obligationsand liabilities of the Borrower to the Lender under this Agreement or the Notes(including, but not limited to, any and all principal, interest, ReimbursementObligations and all amounts under Section 8.7 of the Credit Agreement) or anyother Financing Documents, whether now existing or hereafter arising andwhether for payment or performance; and (b)all other indebtedness, obligations,and liabilities of Borrower to the Lender of every kind, nature anddescription, direct or indirect, secured or unsecured, joint or several,absolute or contingent, due or to become due, whether for payment orperformance, now existing or hereafter arising (including, but not limited to,any and all future advances), regardless of how the same arise or by whatinstrument, agreement, or book account they may be evidenced, or whetherevidenced by any instrument, agreement, or book account, including, but notlimited to, all loans (including any loan by renewal or extension), all otherindebtedness, all guarantees, all reimbursement obligations or otherobligations relating to letters of credit and the like, and all obligationsunder swap and hedging agreements and other swap and hedging arrangements andthe like; provided that, with respect to TFCI and the Security Interest itgrants hereunder in its Collateral, Secured

 

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Obligationsshall also mean, in addition to the above, all indebtedness, obligations, andliabilities of TFCI to the Lender of every kind, nature and description, director indirect, secured or unsecured, joint or several, absolute or contingent,due or to become due, whether for payment or performance, now existing orhereafter arising (including, but not limited to, any and all future advances),regardless of how the same arise or by what instrument, agreement, or bookaccount they may be evidenced, or whether evidenced by any instrument,agreement, or book account, including, but not limited to, all loans (includingany loan by renewal or extension), all other indebtedness, all guarantees, allreimbursement obligations or other obligations relating to letters of creditand the like, and all obligations under swap and hedging agreements and otherswap and hedging arrangements and the like, including without limitation anyguaranty of TFCI under any of the Financing Documents.

 

“Term Loan Maturity Date”: April 30, 2005.

 

**Section 24.**  The definition of “Eligible Receivables” inAppendix A of the Credit Agreement is hereby amended by amending and restatingclause (vii) thereof to read in its entirety as follows:

 

(vii)  The Account is not due from (a) the UnitedStates or any agency, department or subdivision thereof unless the rights tosuch Account have been validly assigned to the Lender in accordance with allapplicable requirements of Applicable Law; or (b) any state or municipality orany agency, department or subdivision thereof; or (c) any account debtorlocated outside the United States unless such Account is secured by a letter ofcredit from a bank acceptable to the Lender and which letter of credit is inform and substance acceptable to the Lender (*provided, however*, thatnotwithstanding clauses (a) and (b), above, Eligible Receivables may includeAccounts due from the United States and any state or municipality or anyagency, department or subdivision thereof, in an amount up to the lesser of (x)$250,000 or (y) ten percent (10%) of the then total amount of EligibleReceivables, so long as such Accounts otherwise qualify as Eligible Receivablesin accordance with the requirements of this Agreement).

 

**Section 25.**  Exhibit A-1 to the Credit Agreement(form of Revolving Credit Note) is amended and restated as set forth in ExhibitA-1 attached hereto, and Exhibit A-2 to the Credit Agreement (formof Term Loan Note) is amended and restated as set forth in Exhibit A-2attached hereto.

 

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**PART II.   REPRESENTATIONS AND WARRANTIES**

 

**Section****1.**              To induce the Lender to enter into this Agreement, eachof the Borrower and TFCI hereby represents and warrants and covenants to theLender that:

 

(i)    Theexecution, delivery and performance by the Borrower, TFCI, and Avest of thisAmendment, the Guaranty Confirmation Agreement (in the case of TFCI and Avest)and any related documents have been duly authorized by all necessary corporateaction on the part of the Borrower, TFCI, or Avest, as the case may be, and donot violate, conflict with, or result in a breach of the certificate ofincorporation or by-laws of Borrower, TFCI, or Avest, as the case may be, orany agreement or instrument or court order or judgment to which Borrower, TFCI,or Avest, as the case may be, is a party or which is binding upon Borrower,TFCI, or Avest, as the case may be, or any of their properties.  This Amendment, and any related documents towhich the Borrower, TFCI, or Avest is a party are the respective legal, validand binding obligations of the Borrower, TFCI, or Avest, as the case may be,enforceable in accordance with their respective terms.

 

(ii)   TheCredit Agreement as amended hereby and all other Financing Documents (as definedin the Credit Agreement) to which the Borrower, TFCI, or Avest, as the case maybe, is a party are the respective legal, valid and binding obligations of theBorrower, TFCI, or Avest, as the case may be, enforceable in accordance withtheir respective terms.

 

(iii)  Thesecurity interests granted by the Borrower and TFCI, pursuant to the CreditAgreement, in the Collateral (as defined in the Credit Agreement) remain infull force and effect and secure the payment and performance of all SecuredObligations (as defined in the Credit Agreement).

 

(iv)  Neitherthe Borrower, TFCI, nor Avest, as of the date hereof, has any claim, defense,counterclaim, or right of offset against the Lender, whether relating to theCredit Agreement or otherwise.

 

(v)   Allrepresentations and warranties of the Borrower, TFCI, or Avest, as the case maybe, under the Credit Agreement and the other Financing Documents to which it isa party are true and correct as of the date hereof.

 

(vi)  Allinterests of the Borrower, as lessee, in the Plainview Real Estate aresubordinate to the Mortgage.

 

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**PART III.  CONDITIONS PRECEDENT**

 

**Section1.     **The Lender’s agreement to enter intothe amendments set forth in this Amendment is contingent upon the followingconditions precedent being satisfied by the Borrower:

 

(a)   TheBorrower, TFCI, and Avest shall execute and deliver this Amendment and suchother documents as the Bank may reasonably require, including withoutlimitation the documents listed in the Closing Checklist attached hereto as ExhibitB.

 

(b)   TFCIand Avest shall execute and deliver a Guaranty Confirmation Agreement in formand substance reasonably satisfactory to the Lender and such other documents asthe Bank may reasonably request.

 

(c)   Eachof the Borrower, TFCI, and Avest shall cause the delivery of a certificate ofits corporate secretary or assistant secretary (i) certifying (and attaching)resolutions adopted by its Board of Directors authorizing the execution,delivery and performance of this Amendment and the Guaranty ConfirmationAgreement (in the case of TFCI and Avest) and any related documentation, (ii)certifying that no amendments have been made to the certificate ofincorporation or by-laws of the Borrower, TFCI, or Avest (or, if such changeshave been made, attaching copies of the relevant amendment documents), and(iii) certifying as to the incumbency (and signature) of any officer of theBorrower, TFCI, or Avest, as the case may be, which executes and delivers this Amendment(or in the case of TFCI and Avest, the Guaranty Confirmation Agreement) and anyrelated documentation.

 

(d)   TheBorrower shall pay the fees and disbursements of the Lender’s legal counselincurred in connection with this Amendment and any related documents andmatters.

 

**PARTIV.   MISCELLANEOUS**

 

**Section1.     **Except as amended hereby, the CreditAgreement (as previously amended by Amendment No.1, Amendment No.2, andAmendment No.3) shall remain in full force and effect.

 

**Section2.**      This Amendment (i) may be executed in anynumber of counterparts, each of which shall be deemed to be an original but allof which together shall be considered one instrument and (ii) shall be bindingupon and inure to the benefit of the parties hereto and their respective successorsand assigns.

 

**Section3.**      This Amendment shall be construed inaccordance with and governed by the laws of the State of Connecticut.

 

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**Section4.     **TheBorrower shall pay all of the fees and disbursements of the Lender’s legalcounsel incurred in connection with this Amendment and any related documentsand matters.

 

[Remainder of Page Intentionally Left Blank]

 

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IN WITNESSWHEREOF, the parties hereto have caused this Amendment to be executed anddelivered by their duly authorized officers as of the day and year first abovewritten.

 

 
|   | ASTREX, INC.               |
|--------|----------------------------|
|   |                       |
|   |                       |   |
|   | By:                        | /s/ | Michael McGuire |
|   |                       | Michael  McGuire |
|   |                       | President |
|   |                       |   |
|   |                       |   |
|   | T.F.  CUSHING, INC.        |
|   |                       |   |
|   |                       |   |
|   | By:                        | /s/ | Michael McGuire |
|   |                       | Michael  McGuire |
|   |                       | President |
|   |                       |   |
|   |                       |   |
|   | AVEST, INC.                |
|   |                       |   |
|   |                       |   |
|   | By:                        | /s/ | Michael  McGuire |
|   |                       | Michael  McGuire |
|   |                       | President |
|   |                       |   |
|   |                       |   |
|   | FLEET  CAPITAL CORPORATION |
|   |                       |   |
|   |                       |   |
|   | By:                        | /s/ | Mary G.  Murphy |
|   |                       | Mary G.  Murphy |
|   |                       | Vice  President |

 

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**EXHIBITA-1**

**FORM OF AMENDED AND RESTATED**

**REVOLVINGCREDIT NOTE**

 

**THIRD AMENDED AND RESTATED REVOLVINGCREDIT PROMISSORY NOTE**

 

 
| $3,150,000.00 |   | Stamford, Connecticut |
|---------------|--------|-----------------------|
|          |   | April 30, 2002        |

 

 

FOR VALUERECEIVED, ASTREX, INC., a Delaware corporation (the “Borrower”), herebyunconditionally promises to pay to the order of FLEET CAPITAL CORPORATION (the“Lender”), at the office of the Lender located at 200 Glastonbury Boulevard,Glastonbury, Connecticut 06033, or such other office as the holder hereof maydesignate, in lawful money of the United States and in immediately availablefunds, the principal sum of Three Million One Hundred Fifty Thousand Dollars($3,150,000.00) or, if less, the aggregate unpaid amount of all RevolvingCredit Loans (as defined in the Credit and Security Agreement referred tobelow) made by the Lender to the Borrower pursuant to the Credit and SecurityAgreement, together with interest thereon as provided for below.  All capitalized terms unless defined hereinshall have the meanings assigned to them in the Credit and Security Agreement.

 

1.             **Payment of Principal.**  Borrower shall pay the outstanding principalbalance of each Revolving Credit Loan in full on the Revolving Credit MaturityDate.

 

2.             **Interest Rate: Payment of Interest.**  Borrower shall pay interest on the aggregateunpaid principal balance of the Revolving Credit Loans outstanding from time totime at the applicable rate or rates set forth in the Credit and SecurityAgreement dated July 9, 1997 between the Borrower, T.F. Cushing, Inc. and theLender, as amended, supplemented or otherwise modified from time to time (the“Credit and Security Agreement”). Interest shall be payable, in arrears, and on each Revolving CreditInterest Payment Date and shall also be payable on the Revolving CreditMaturity Date.  Anything contained inthis Note to the contrary notwithstanding, during any period in which an Eventof Default is continuing, the interest rate hereunder shall, at the option ofthe Lender, be increased to the Default Rate, and all interest accruing at suchrate shall be payable upon demand by the Lender.

 

Interest shallcommence to accrue on the date hereof and shall continue to accrue until allprincipal hereof is paid in full (whether before or after maturity orjudgment).  Interest under this Noteshall be computed on the basis of a year of three hundred sixty (360) days andthe actual number of days elapsed.

 

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3.             **Optional and Mandatory Prepayments.**  Optional and mandatory prepayments of theRevolving Credit Loans shall be made in accordance with Section 1.7 of theCredit and Security Agreement.

 

4.             **Expenses.** Borrower shall pay or reimburse the Lender, on demand, for all costs andexpenses, including, but not limited to, the reasonable fees and disbursementsof legal counsel, appraisers, accountants and other experts employed by theLender, incurred in the administration, preservation, defense, protection, orcollection or other enforcement of this Note or in foreclosing or otherwiseenforcing any security interest securing the payment of this Note or insustaining or protecting the lien or priority of any such security interest, orin attempting to do any of the foregoing.

 

5.             **Credit and Security Agreement; Lender’s Records.**  This Note evidences Revolving Credit Loansunder, and has been executed and delivered by the Borrower in accordance with,the terms and conditions of the Credit and Security Agreement, which Credit andSecurity Agreement, among other things, contains provisions with respect toprepayment (optional and mandatory), and the acceleration of the unpaidprincipal of, and accrued and unpaid interest on the Revolving Credit Loansupon the occurrence and at any time during the continuance of any Event ofDefault.  The Lender is entitled to thebenefits of the Credit and Security Agreement and the other Financing Documentsand may enforce the covenants and other agreements of the Borrower containedtherein, and the Lender may exercise the respective rights, remedies and powersprovided for thereby or otherwise available in respect thereof, all inaccordance with the respective terms thereof.

 

The records ofthe Lender shall be prima facie evidence of the Revolving Credit Loans, anyaccrued interest thereon and all principal and interest payments made inrespect thereof; provided, that no failure of the Lender to timely record anytransaction, or any error therein, shall in any way affect or impair anyliability or other obligation of the Borrower to the Lender.

 

6.             **Certain Waivers.**  Borrower and any indorser hereof or any other party hereto or anyguarantor hereof (collectively, the “Obligors”) and each of them (i) waive(s)presentment, diligence, protest, demand, notice of demand, notice of acceptanceor reliance, notice of non-payment, notice of dishonor, notice of protest andall other notices to parties in connection with the delivery, acceptance,performance, default or enforcement of this Note, any indorsement or guaranty ofthis Note, or any collateral or other security; (ii) consent(s) to any and alldelays, extensions, renewals or other modifications of this Note, any otherFinancing Document or the debt(s) or collateral evidenced hereby or thereby orany waivers of any term hereof or thereof, any release, surrender, taking ofadditional, substitution, exchange, failure to perfect or record any interestin, failure to preserve or realize upon, failure to lawfully dispose of, or anyother impairment of, any collateral or other security, or any other failure toact by the Lender or any

 

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other forbearance or indulgenceshown by the Lender, from time to time and in one or more instances (withoutnotice to or assent from any of the Obligors) and agree(s) that none of theforegoing shall release, discharge or otherwise impair any of theirliabilities; (iii) agree(s) that the full or partial release or discharge ofany Obligor(s) shall not release, discharge or otherwise impair the liabilitiesof any other Obligor(s); and (iv) waive(s) any defenses based on suretyship orimpairment of collateral.

 

7.             **Commercial Transaction: Jury Waiver.**  (a) THE BORROWER ACKNOWLEDGES THAT THETRANSACTION OF WHICH THIS NOTE IS A PART IS A “COMMERCIAL TRANSACTION” WITHINTHE MEANING OF CHAPTER 903a OF THE CONNECTICUT GENERAL STATUTES, AS AMENDED,AND THAT ANY MONIES, PROPERTY OR SERVICES WHICH ARE THE SUBJECT OF SUCHTRANSACTION ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES.  THE BORROWER HEREBY WAIVES ANY RIGHT WHICHBORROWER MIGHT HAVE TO A NOTICE AND A HEARING, UNDER SECTIONS 52-278a-52-278g,INCLUSIVE, OF THE CONNECTICUT GENERAL STATUTES, AS AMENDED, OR OTHER APPLICABLEFEDERAL OR STATE LAW.  IN THE EVENT THELENDER (OR ITS SUCCESSORS OR ASSIGNS) SEEKS ANY PREJUDGMENT REMEDY INCONNECTION WITH THIS NOTE, THE CREDIT AND SECURITY AGREEMENT OR ANY OTHERFINANCING DOCUMENT.

 

(b)           **THE BORROWER HEREBY KNOWINGLY AND VOLUNTARILY WAIVESTRIAL BY JURY AND THE RIGHT THERETO IN ANY ACTION OR PROCEEDING OF ANY KIND,ARISING UNDER OR OUT OF, OR OTHERWISE RELATED TO OR OTHERWISE CONNECTED WITHTHIS NOTE OR ANY OTHER FINANCING DOCUMENT.**

 

8.             **Binding Nature.**  This Note shall bind the Borrower and Borrower’s successors andassigns and shall inure to the benefit of the Lender and its successors andassigns.  The term “Lender” as usedherein shall include, in addition to the Lender, any successors, indorsees, orother assignees of Lender and shall also include any other holder of thisNote.  Any transferee of this Note shallhave the rights of a holder in due course under Article 3 of the ConnecticutUniform Commercial Code if the transferee took rights under this Note in goodfaith for value and without notice of a claim or defense.

 

9.             **Governing Law.**  This Note shall be governed by, and construed and interpreted inaccordance with the laws the State of Connecticut, without regard to its rulespertaining to conflicts of laws thereunder.

 

10.           **Amended and Restated Note.**  This Note (i) amends and restates the SecondAmended and Restated Revolving Credit Promissory Note, dated May 14, 1999, fromthe Borrower to Fleet National Bank (the “Existing Note”), (ii) evidences, inaddition to any Revolving Credit

 

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Loans made by the Lender on orafter the date hereof, any Revolving Credit Loans outstanding as of the datehereof and previously evidenced by the Existing Note and (iii) and is amodification with respect to, and does not constitute a novation of, any suchoutstanding Revolving Credit Loans.

 

Anythingcontained herein to the contrary notwithstanding, and in addition to, and notin limitation of, any other obligations of the Borrower hereunder, the Borrowershall pay to the Lender in accordance with the Credit and Security Agreementany unpaid interest which has accrued under the Existing Note, as of the datehereof, on any outstanding Revolving Credit Loans.

 

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IN WITNESSWHEREOF, the Borrower has executed and delivered this Note as of the day andyear first written above.

 

 
| WITNESSES: | ASTREX, INC.       |
|------------|--------------------|
|       |               |
|       |               |
| /s/        | Mary Murphy        |   | By: | /s/ | Michael  McGuire |   |
| Name:      |               |
|       |               |
|       |               |
| /s/        | Lori A.  Sarnataro |   |   |
| Name:      |               |

 

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**EXHIBIT A-2**

**FORMOF AMENDED AND RESTATED**

**TERMNOTE**

 

AMENDED AND RESTATED TERM LOAN PROMISSORY NOTE

 
| $850,000.00 |   | Stamford, Connecticut |
|-------------|--------|-----------------------|
|        |   | April 30, 2002        |

 

FOR VALUERECEIVED, ASTREX, INC., a Delaware corporation (the “Borrower”), herebyunconditionally promises to pay to the order of FLEET CAPITAL CORPORATION (the“Lender”), at the office of the Lender located at 200 Glastonbury Boulevard,Glastonbury, Connecticut 06033, or such other office as the holder hereof maydesignate, in lawful money of the United States and in immediately availablefunds, the principal sum of Eight Hundred Fifty Thousand Dollars ($850,000.00),together with interest thereon as provided for below.  All capitalized terms unless defined herein shall have themeanings assigned to them in the Credit and Security Agreement.

 

1.             **Payment of Principal.**  Borrowershall pay the outstanding principal balance of the Term Loan in full on theTerm Loan Maturity Date.

 

2.             **Interest Rate; Payment of Interest. **Borrower shall pay interest onthe aggregate unpaid principal balance of the Term Loan outstanding from timeto time at the applicable rate or rates set forth in Credit and SecurityAgreement, dated July 9, 1997 between the Borrower, T.F. Cushing, Inc. and theLender, as amended, supplemented or otherwise modified from time to time (the“Credit and Security Agreement”). Interest shall be payable, in arrears, and on each Term Loan InterestPayment Date and shall also be payable on the Term Loan Maturity Date.  Anything contained in this Note to thecontrary notwithstanding, during any period in which an Event of Default iscontinuing, the interest rate hereunder shall, at the option of the Lender, beincreased to the Default Rate, and all interest accruing at such rate shall bepayable upon demand by the Lender.

 

Interest shallcommence to accrue on the date hereof and shall continue to accrue until allprincipal hereof is paid in full (whether before or after maturity orjudgment).  Interest under this Noteshall be computed on the basis of a year of three hundred sixty (360) days andthe actual number of days elapsed.

 

3.             **Optional and Mandatory Prepayments.**  Optional and mandatory prepayments of the Term Loan shall be madein accordance with Section 1.7 of the Credit and Security Agreement.

 

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4.             **Expenses.**  Borrower shall pay or reimburse the Lender,on demand, for all costs and expenses, including, but not limited to, thereasonable fees and disbursements of legal counsel, appraisers, accountants andother experts employed by the Lender, incurred in the administration,preservation, defense, protection, or collection or other enforcement of thisNote or in foreclosing or otherwise enforcing any security interest securingthe payment of this Note or in sustaining or protecting the lien or priority ofany such interest, or in attempting to do any of the foregoing.

 

5.             **Credit and Security Agreement; Lender’s Records.**  This Note evidences the Term Loan under, andhas been executed and delivered by the Borrower in accordance with, the termsand conditions of the Credit and Security Agreement, which Credit and SecurityAgreement, among other things, contains provisions with respect to prepayment(optional and mandatory), and the acceleration of the unpaid principal of, andaccrued and unpaid interest on the Term Loan upon the occurrence and at anytime during the continuance of any Event of Default.  The Lender is entitled to the benefits of the Credit and SecurityAgreement and other Financing Documents and may enforce the covenants and otheragreements of the Borrower contained therein, and the Lender may exercise therespective rights, remedies and powers provided for thereby or otherwiseavailable in respect thereof, all in accordance with the respective termsthereof.

 

The records ofthe Lender shall be prima facie evidence of the Term Loan, any accrued interestthereon and all principal and interest payments made in respect thereof;provided, that no failure of the lender to timely record any transaction, orany error therein, shall in any way affect or impair any liability or otherobligation of the Borrower to the Lender.

 

6.             **Certain Waivers.**  Borrower and any indorserhereof or any other party hereto or any guarantor hereof (collectively, the“Obligors”) and each of them (i) waive(s) presentment, diligence, protest,demand, notice of demand, notice of acceptance or reliance, notice ofnon-payment, notice of dishonor, notice of protest and all other notices toparties in connection with the delivery, acceptance, performance, default orenforcement of this Note, any indorsement or guaranty of this Note, or anycollateral or other security; (ii) consent(s) to any and all delays,extensions, renewals or other modifications of this Note, any other FinancingDocument or the debt(s) or collateral evidenced hereby or thereby or any waivesof any term hereof or thereof, any release, surrender, taking of additional,substitution, exchange, failure to perfect or record any interest in, failureto preserve or realize upon, failure to lawfully dispose of, or any otherimpairment of , any collateral or other security, or any other failure to actby the Lender or any other forbearance or indulgence shown by the Lender, fromtime to time, and in one or more instances (without notice to or assent fromany of the Obligors) and agree(s) that none of the foregoing shall release,discharge or otherwise impair any of their liabilities; (iii) agree(s) that thefull or partial release or discharge of any Obligor(s) shall not release,discharge or otherwise

 

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impair the liabilities of anyother Obligor(s); and (iv) waive(s) any defenses based on suretyship orimpairment of collateral.

 

7.             **Commercial Transaction; Jury Waiver.**        (a) THE BORROWER ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS NOTE IS APART IS A “COMMERCIAL TRANSACTION” WITHIN THE MEANING OF CHAPTER 903a OF THECONNECTICUT GENERAL STATUTES, AS AMENDED, AND THAT ANY MONIES, PROPERTY ORSERVICES WHICH ARE THE SUBJECT OF SUCH TRANSACTION ARE NOT FOR PERSONAL, FAMILYOR HOUSEHOLD PURPOSES.  THE BORROWERHEREBY WAIVES ANY RIGHT WHICH BORROWER MIGHT HAVE TO A NOTICE AND A HEARING,UNDER SECTIONS 52-278a-52-278g.  INCLUSIVE,OF THE CONNECTICUT GENERAL STATUTES, AS AMENDED, OR OTHER APPLICABLE FEDERAL ORSTATE LAW, IN THE EVENT THE LENDER (OR ITS SUCCESSORS OR ASSIGNS) SEEKS ANYPREJUDGMENT REMEDY IN CONNECTION WITH THIS NOTE.  THE CREDIT AND SECURITY AGREEMENT OR ANY OTHER FINANCINGDOCUMENT.

 

(b)           **THE BORROWER HEREBY KNOWINGLY AND VOLUNTARILY WAIVES TRIALBY JURY AND THE RIGHT THERETO IN ANY ACTION OR PROCEEDING OF ANY KIND, ARISINGUNDER OR OUT OF, OR OTHERWISE RELATED TO OR OTHERWISE CONNECTED WITH THIS NOTEOR ANY OTHER FINANCING DOCUMENT.**

 

8.             **Binding Nature.**  This Note shall bind the Borrower and Borrower’s successors andassigns and shall inure to the benefit of the Lender and its successors andassigns.  The term “Lender” as usedherein shall include, in addition to the Lender, any successors, indorsees, orother assignees of Lender and shall also include any other holder of thisNote.  Any transferee of this Note shallhave the rights of a holder in due course under Article 3 of the ConnecticutUniform Commercial Code if the transferee took rights under this Note in goodfaith for value and without notice of claim or defense.

 

9.             **Governing Law. **This Note shall be governed by, and construed and interpretedin accordance with the laws the State of Connecticut, without regard to itsrules pertaining to conflicts of laws thereunder.

 

10.           **Amended and Restated Note.**  This Note (i) amends and restates the TermLoan Promissory Note, dated May 14, 1999, from the Borrower to Fleet NationalBank (the “Existing Note”), (ii) evidences, in addition to any portion of theTerm Loan made by the Lender on or after the date hereof, any portion of theTerm Loan outstanding as of the date hereof and previously evidenced by theExisting Note and (iii) and is a modification with respect to, and does notconstitute a novation of, any such outstanding portion of the Term Loan.

 

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Anythingcontained herein to the contrary notwithstanding, and in addition to, and notin limitation of, any other obligations of the Borrower hereunder, the Borrowershall pay to the Lender in accordance with the Credit and Security Agreementany unpaid interest which has accrued under the Existing Note, as of the datehereof, on any outstanding portion of the Term Loan.

 

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IN WITNESSWHEREOF, the Borrower has executed and delivered this Note as of the day andyear first written above.

 

 
| WITNESS: | ASTREX, INC.       |
|----------|--------------------|
|     |               |
|     |               |
| /s/      | Mary Murphy        |   | By: | /s/ | Michael  McGuire |   |
| Name:    |               |
|     |               |
|     |               |
| /s/      | Lori A.  Sarnataro |   |   |
| Name:    |               |

 

30

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**EXHIBIT B**

**CLOSING CHECKLIST**

 

1.               Assignment of Loan Documents (FleetNational Bank to Fleet Capital Corporation)

2.               Amendment No. 4 to Credit Agreement

3.               Third Amended and Restated RevolvingCredit Note

4.               First Amended and Restated Term LoanPromissory Note

5.               Guaranty Confirmation Agreement

6.               Mortgage Modification Agreement — Avest,Inc.

7.               Endorsement to Title Insurance Policy(Avest Mortgage)

8.               UCC, judgment lien, and tax liensearches

a.               Astrex, Inc.

b.              T.F. Cushing, Inc.

c.               Avest, Inc.

9.               Corporate Documents

a.               Astrex, Inc.

i.                                          Certificateof Legal Existence (Delaware)

ii.                                       Certificate ofQualification as a Foreign Corporation (New York)

iii.                                    Secretary’sCertificate (Certificate of Incorporation, Bylaws, Resolutions, Incumbency)

b.              T.F. Cushing, Inc.

i.                                          Certificateof Legal Existence (Massachusetts)

ii.                                       Secretary’sCertificate (Certificate of Incorporation, Bylaws, Resolutions, Incumbency)

c.               Avest, Inc.

i.                                          Certificateof Legal Existence (Delaware)

ii.                                       Secretary’sCertificate (Certificate of Incorporation, Bylaws, Resolutions, Incumbency)

10.         Evidence of Continuing Insurance Coverage

 

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