EXHIBIT 4.1
LEASE MODIFICATION
From
NATIONAL CITY BANK, Trustee
as Lessor
To
BRUSH XXXXXXX INC.
as Lessee
Dated
As of
May 30, 2003
1
Memorandum of Lease Modification recorded on _______________, 2003 at
__________. E.D.S.T. as Instrument No. __________ in the Ottawa County, Ohio
Records at Vol. ___, Page _____.
This Lease Modification modifies the Lease dated as of October 1, 1996, from the
above-named Lessor as assignee to the above-named Lessee, a memorandum of which
was recorded on October 10, 1996 in the Ottawa County, Ohio, Records at Volume
32, Page 525. All right, title and interest of the Lessor under that Lease have
been assigned by the Assignment of Lease, dated as of October 1, 1996 to
National City Bank, as Trustee under the Trust Indenture dated as of October 1,
1996. The Assignment of Lease was recorded in the Ottawa County, Ohio Official
Records on October 10, 1996 at Volume 32, Page 534. That Lease was supplemented
by the First Supplemental Lease dated as of April 1, 1997, from the above-named
Lessor to the above-named Lessee, a memorandum of which was recorded on April
25, 1997 in the Ottawa County, Ohio, Records at Volume 32, Page 707.
INDEX
(This Index is not a part of the
Lease Modification but rather is
for convenience of reference only)
Page
----
Section 1. Definitions...........................................................................2
Section 2. Interpretation........................................................................2
Section 3. Project Facilities....................................................................3
Section 4. The Original Lease....................................................................3
Section 5. Assignment of Lease...................................................................3
Section 6. Events of Default.....................................................................3
Section 7. Annual Statement and Other Reports....................................................4
Section 8. Representations of the Lessor.........................................................4
Section 9. Representations of the Lessee.........................................................4
Section 10. The Lessee's Approval of Documents....................................................5
Section 11. Governing Law.........................................................................5
i
LEASE MODIFICATION
THIS LEASE MODIFICATION dated as of May 30, 2003 (the "2003 Lease
Modification") is made between NATIONAL CITY BANK, Trustee, as lessor (in that
capacity, the "Lessor"), a national banking association duly organized and
validly existing under the laws of the United States of America, and BRUSH
XXXXXXX INC., as lessee (the "Lessee"), a corporation for-profit organized and
existing under the laws of the State of Ohio, to supplement the Lease, dated as
of October 1, 1996 between the Xxxxxx-Xxxxx County Port Authority (the
"Authority") and the Lessee (the "Original Lease"), as supplemented and amended
by the First Supplemental Lease between the Trustee and the Lessee, dated as of
April 1, 1997 (the "First Supplemental Lease"), and with this 2003 Lease
Modification, as each may be hereafter amended or supplemented in accordance
with their respective terms, are hereinafter collectively referred to as the
"Lease") under the following circumstances:
W I T N E S S E T H :
WHEREAS, as authorized by a resolution adopted by the Legislative
Authority on May 23, 1996, as amended and supplemented by a resolution adopted
by the Legislative Authority on July 25, 1996, the Authority entered into the
Original Lease with the Lessee, a memorandum of which was recorded on October
10, 1996, at Volume 32, Page 525, Ottawa County, Ohio Official Records,
providing for the lease of the Project to the Lessee and the Authority assigned
all of its right, title and interest as lessor under the Original Lease to the
Lessor by the Assignment of the Lease from the Authority to the Lessor, which
Assignment of Lease was recorded on October 10, 1996 at Volume 32, Page 534,
Ottawa County, Ohio Official Records;
WHEREAS, to finance a portion of the costs of the Project, the
Authority issued, and The Prudential Insurance Company of America ("Prudential")
has purchased, the Project Bonds;
WHEREAS, to provide additional financing for the Project, and at the
request of the Lessee, the Authority issued, and Prudential has purchased, the
Series 1997 Bonds as Additional Bonds under the Original Indenture to finance
further costs of the Project;
WHEREAS, the Lessor and the Lessee entered into the First Supplemental
Lease, a memorandum of which was recorded on April 25, 1997, at Volume 37, Page
707, Ottawa County Ohio Official Records, to amend and supplement the Original
Lease to reflect issuance of the Series 1997 Bonds;
WHEREAS, as a condition, among others, to Prudential's willingness to
purchase the Project Bonds, Prudential required that the Lessee enter into that
certain Inducement Agreement between the Lessee and Prudential, dated as of
October 1, 1996, (the "Series 1996 Inducement Agreement"), and as a condition,
among others, to Prudential's willingness to purchase the Series 1997 Bonds,
Prudential required that the Lessee enter into that certain Series 1997
Inducement Agreement between the Lessee and Prudential, dated as of April 1,
1997 (the "Series 1997 Inducement Agreement"; the Series 1996 Inducement
Agreement and the Series 1997 Inducement Agreement are referred to herein,
collectively, as the "Existing Inducement Agreements");
WHEREAS, on May 16, 2000, as part of an overall corporate
reorganization, the Lessee became a wholly-owned subsidiary of Brush Engineered
Materials Inc., an Ohio corporation ("Holdings").
WHEREAS, Holdings and the Company have requested that the Existing
Inducement Agreements be amended and restated to, among other things, amend the
financial reporting requirements, and Prudential has agreed to accommodate this
request, subject to the terms and conditions set forth in that certain Amended
and Restated Inducement Agreement (the "Inducement Agreement"), dated as of even
date herewith, by and among the Guarantor, the Company and Prudential;
WHEREAS, no additional real or personal property or combination thereof
will be leased by this 2003 Lease Modification; and
WHEREAS, the Lessor and the Lessee each have full right and lawful
authority to enter into this 2003 Lease Modification and to perform and observe
the provisions hereof on their respective parts to be performed and observed;
NOW THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, the parties hereto agree as follows:
Section 1. Definitions. In addition to the words and terms defined
elsewhere in this 2003 Lease Modification, the Original Lease and the First
Supplemental Lease, for the purpose of the Lease the words and terms set forth
below shall have the meanings set forth below, unless the use or context
indicates another or different meaning or intent, and such definitions shall be
equally applicable to both the singular and plural forms of any of those words
and terms.
"Holdings" shall mean Brush Engineered Materials Inc., an Ohio
corporation.
"Indenture" means the Original Indenture together with the First
Supplemental Indenture and the 2003 Indenture Modification, as each may be
amended or supplemented from time to time in accordance with their respective
terms.
"Lease" means the Original Lease together with the First Supplemental
Lease and this 2003 Lease Modification, as each may be amended and supplemented
from time to time in accordance with their respective terms and pursuant to the
Assignment of Lease and as may be permitted by the Indenture.
"2003 Indenture Modification" shall mean that certain Indenture
Modification dated as of May 30, 2003 between the Authority and the Trustee.
"2003 Lease Modification" shall mean this Lease Modification dated as
of May 30, 2003.
Section 2. Interpretation. Any reference herein to the Lessor, to the
Authority, to the Legislative Authority or to any member or officer of any of
them, includes entities or officials succeeding to their respective functions,
duties or responsibilities pursuant to or by operation of law or lawfully
performing their functions.
2
Any reference to a section or provision of the Constitution of the
State or the Act, or to a section, provision or chapter of the Ohio Revised
Code, or to any statute of the United States of America, includes that section,
provision or chapter as amended, modified, revised, supplemented or superseded
from time to time; provided, that no amendment, modification, revision,
supplement or superseding section, provision or chapter shall be applicable
solely by reason of this provision, if it constitutes in any way an impairment
of the rights or obligations of the Lessor or the Lessee under the Original
Lease, the First Supplemental Lease, this 2003 Lease Modification, or any
modification or amendment to the Original Lease or the First Supplemental Lease
in this 2003 Lease Modification or the rights of any other person under those
instruments.
Unless the context indicates otherwise, words importing the singular
number include the plural number, and vice versa; the terms "hereof," "hereby,"
"herein," "hereto," "hereunder" and similar terms refer to this 2003 Lease
Modification; and the term "hereafter" means after, and the term "heretofore"
means before, the date of this 2003 Lease Modification. Words of any gender
include the correlative words of the other gender, unless the sense indicates
otherwise.
Section 3. Project Facilities. The Lessor, in consideration of the
rents, covenants and agreements stated in the Original Lease, as supplemented
and amended by the First Supplemental Lease, and as modified and amended by this
2003 Lease Modification, agrees to and does hereby affirm its lease to the
Lessee, and the Lessee does hereby affirm its lease from the Lessor, for the
Lease Term, subject to the provisions of the Original Lease, as supplemented and
amended by the First Supplemental Lease, and as supplemented and amended by this
2003 Lease Modification, of the Project.
TO HAVE AND TO HOLD the Project unto the Lessee for the Lease Term and
for the purposes set forth in Section 2.1 of the Original Lease.
Possession of the Project shall be delivered and accepted as provided
in Section 2.1 of the Original Lease.
Section 4. The Original Lease. The Original Lease and the First
Supplemental Lease shall remain in force and effect as originally written,
except as amended and modified hereby.
Section 5. Assignment of Lease. The Lessee acknowledges that all of the
Authority's right, title and interest in and to the Lease (including the First
Supplemental Lease and this 2003 Lease Modification), including the Rental
Payments, has been sold, assigned, transferred and conveyed to the Trustee
pursuant to the Assignment. No subsequent assignment to any Person other than
the Trustee may be made without prior written notice to the Lessee; provided,
however, that upon occurrence and continuation of an Event of Default under the
Lease such an assignment may be made without prior written notice to the Lessee.
The Lessee further acknowledges that all title, interest, obligations and rights
of the Lessor under the Lease are vested irrevocably in the Lessor, as assignee.
Section 6. Events of Default. Section 10.1(g) of the Original Lease be
and the same is hereby amended and restated to read as follows:
(g) An "Event of Default" as defined in the Amended and
Restated Inducement Agreement, dated as of May 30, 2003, by and among
Holdings, the Lessee
3
and the original purchaser of the Project Bonds and the Series 1997
Bonds shall have occurred.
Section 7. Annual Statement and Other Reports. Section 8.5 of the
Original Lease be and the same is hereby amended and restated to read as
follows:
Holdings (i) shall have an annual audit made by its
regular independent certified public accountants and shall furnish a
copy of such audit to the Lessor promptly upon its completion, but not
later than one hundred twenty (120) days after the end of Holding's
fiscal year, and (ii) shall prepare and furnish within sixty (60) days
after the end of each fiscal year of Holdings to the Lessor a
certificate of the Authorized Lessee Representative stating whether,
to the best of its knowledge, the Lessee is in default under this
Lease, and if it is, the nature of the default. Holdings shall also
furnish promptly to the Lessor a copy of all financial statements,
reports, notices, proxy statements and registration statements which
its sends to its shareholders generally or which it files with any
securities exchange or the Securities and Exchange Commission or any
successor agency. In the event Holdings ceases to be an entity
required to file periodic reports with a securities exchange or the
Securities and Exchange Commission or any successor agency, Holdings
shall furnish to the Lessor the same information and at the same times
as it would have furnished such information to a securities exchange
or the Securities and Exchange Commission in financial statements,
reports, notices, proxy statements and registration statements filed
with that securities exchange or the Securities and Exchange
Commission or any successor agency.
Section 8. Representations of the Lessor. The Lessor represents that:
(a) it has duly accomplished all conditions necessary to be accomplished by it
prior to execution and delivery of this 2003 Lease Modification; (b) it is not
in violation of or in conflict with any provisions of the laws of the State or
any agreement or instrument to which the Lessor is a party or by which it is
bound which would materially impair its ability to carry out its obligations
contained in the Lease and the Project Service Agreement; (c) it is empowered to
enter into the transactions contemplated by this 2003 Lease Modification; (d) it
has duly authorized the execution, delivery and performance of this 2003 Lease
Modification; (e) it is duly organized and validly existing under the laws of
the United States of America and is qualified to exercise trust powers under the
laws of the State; and (f) it will do all things in its power in order to
maintain its existence or assure the assumption of its obligations under the
Project Service Agreement and the Lease by an entity capable of performing those
obligations.
Section 9. Representations of the Lessee. The Lessee represents that:
it has full corporate power and authority to execute, deliver and perform this
2003 Lease Modification and to enter into and carry out the transactions
contemplated by this 2003 Lease Modification which execution, delivery and
performance, and such entering into and carrying out of those transactions, do
not violate any provisions of the law of the State applicable to the Lessee or
the Lessee's Articles of Incorporation or its Code of Regulations and do not
conflict with or result in a default under any indenture, agreement or other
instrument to which the Lessee is a party or by which it is bound, which, in
each case, would materially impair its ability to carry out its obligations
contained in this Lease or resulting from those transactions. This 2003 Lease
Modification has, and to the extent required the transactions contemplated by
this 2003 Lease
5
Modification have, by proper action, been duly authorized, and this 2003 Lease
Modification has been duly executed and delivered by the Lessee and all steps
necessary have been taken to constitute this Lease a valid and binding
obligation of the Lessee.
Section 10. The Lessee's Approval of Documents. The 2003 Indenture
Modification, has been submitted to the Lessee for examination, and the Lessee
acknowledges, by execution of this 2003 Lease Modification, that it has approved
it and waives the notice and mailing requirements of consents pursuant to
Section 8.03 of the Original Indenture with respect to that instrument.
The Lessee approves and accepts all rights, remedies, powers and
privileges of the Trustee and the Holders and all duties, covenants, agreements
and obligations of the Lessee which are created or expressly identified in the
Indenture. The Lessee covenants and agrees to be bound by those rights,
remedies, powers and privileges and to observe and perform those duties,
covenants, agreements and obligations.
Section 11. Governing Law. This 2003 Lease Modification shall be deemed
to be a contract made under the laws of the State and for all purposes shall be
governed by and construed in accordance with the laws of the State.
(Balance of page intentionally left blank)
5
IN WITNESS WHEREOF, the Lessor and the Lessee have caused this 2003
Lease Modification to be duly executed in their respective names, all as of the
date hereinbefore written.
Signed and acknowledged in NATIONAL CITY BANK, Trustee, as Lessor
the presence of:
------------------------------------- By:
Name: -----------------------------------
Title:
--------------------------------
-------------------------------------
Name:
(Witnesses as to Lessor)
Signed and acknowledged in BRUSH XXXXXXX INC., as Lessee
the presence of:
------------------------------------- By:
Name: -----------------------------------
Name:
------------------------------
Title:
-----------------------------
------------------------------------- And By:
Name: -------------------------------
(Witnesses as to Lessor) Name:
------------------------------
Title:
-----------------------------
Signed and acknowledged in BRUSH ENGINEERED MATERIALS, INC.
the presence of:
------------------------------------- By:
Name: -----------------------------------
Name:
------------------------------
Title:
-----------------------------
------------------------------------- And By:
Name: -------------------------------
(Witnesses as to Lessor) Name:
------------------------------
Title:
-----------------------------
CONSENT
The undersigned, the fully authorized representatives of The Director
of Development of the State of Ohio and The Prudential Insurance Company of
America, as Majority Holder of the Bonds and in accordance with Sections 8.02
and 8.03 of the Original Indenture each hereby acknowledge satisfactory prior
written notice of, and consent to, the execution and delivery of the foregoing
2003 Lease Modification.
Date: May ___, 2003 THE DIRECTOR OF DEVELOPMENT
OF THE STATE OF OHIO
By:_____________________________________
Title:__________________________________
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:_____________________________________
Title:__________________________________
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
On this _____ day of May, 2003, before me a Notary Public in and for
said County and State, personally appeared _____________________________,
__________________________ of National City Bank, Trustee, and acknowledged the
execution of the foregoing instrument as the duly authorized officer of said
bank on behalf of said bank, and that the same is her voluntary act and deed as
said officer of said bank and the voluntary act and deed of said bank.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year aforesaid.
(SEAL) ___________________________________
Notary Public
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
On this _____ day of May, 2003, before me a Notary Public in and for
said County and State, personally appeared Xxxxxxx X. Xxxxxxxx, Vice President
and Secretary and Xxxx Xxxxxxxxx, Assistant Treasurer of Brush Xxxxxxx Inc.,
respectively, and acknowledged the execution of the foregoing instrument as the
duly authorized officers for and on behalf of said Corporation and pursuant to
authority granted by the Board of Directors of said Corporation, and that the
same is their voluntary act and deed on behalf of said Corporation and the
voluntary act and deed of said Corporation.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year aforesaid.
(SEAL) ___________________________________
Notary Public
MEMORANDUM OF LEASE MODIFICATION
--------------------------------
THIS MEMORANDUM OF LEASE MODIFICATION is for placing of record an
unrecorded Lease Modification (the "Lease Modification") dated as of May 30,
2003 between NATIONAL CITY BANK, a national banking association duly organized
and validly existing under the laws of the United States of America and
qualified to exercise trust powers under the laws of the State of Ohio, in its
capacity as trustee (the "Trustee") pursuant to a Trust Indenture dated as of
October 1, 1996 between the Trustee and the Authority (as hereinafter defined)
as amended thereafter, as lessor, and BRUSH XXXXXXX INC., an Ohio corporation,
as lessee ("Lessee"). The Lease Modification amends and supplements that certain
Lease dated as of October 1, 1996 (the "Original Lease") between the
XXXXXX-XXXXX COUNTY PORT AUTHORITY, a port authority and political subdivision
duly organized and validly existing under the laws of the State of Ohio
("Authority"), as lessor, and Lessee, as amended and supplemented by that
certain First Supplemental Lease, dated as of April 1, 1997 (the "First
Supplemental Lease"), between the Trustee, as lessor, and the Lessee. A
Memorandum of Lease relating to such Original Lease was filed of record on
October 10, 1996 under document number 0000000000 in Volume 32 at page 525,
Ottawa County, Ohio Lease Records, and a Memorandum of First Supplemental Lease
relating to such First Supplemental Lease was filed of record on April 25, 1997,
under document number 9700034679 in Volume 32 at page 707, Ottawa County, Ohio
Lease Records. An Assignment of Lease, whereby the Authority assigned all of its
right, title and interest as lessor under the Original Lease to the Trustee, was
filed of record on October 10, 1996 under document number 9600028763 in Volume
32 at page 534, Ottawa County, Ohio Lease Records. The Trustee in its capacity
as assignee of the right, title and interest of the lessor under the Original
Lease is referred to herein as "Lessor." The Original Lease and the First
Supplemental Lease, as supplemented by the 2003 Lease Modification, are referred
to herein as the "Lease."
1. ADDRESSES. The addresses of Lessor and Lessee as set forth in the
Lease are as follows:
Lessee: Brush Xxxxxxx Inc.
00000 Xx. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attn.: Treasurer
Lessor: National City Bank, Trustee
000 Xxxxxx Xxx., Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Attn.: Corporate Trust Dept.
2. PREMISES. In consideration of the rents, and other terms, covenants
and conditions contained in the Lease, Lessor has demised and leased to Lessee
and Lessee has leased from Lessor the real property located in Ottawa County,
Ohio and further described on Exhibit A attached hereto and incorporated herein
by reference and Lessor's leasehold interest therein and all easements
appurtenant thereto ("Project Site"), including all rights under the Easement
Agreement granted by Lessee to Lessor as recorded in Volume 411, Page 165,
Instrument No. 9600028761 of Ottawa County, Ohio Records, together with any
additions
6
thereto and less any removals therefrom, in the manner and to the extent
provided in the Lease, and all improvements and buildings constructed by Lessor
on the Project Site constituting the Project Facilities (as that term is defined
in the Lease), together constituting "port authority facilities" as defined in
Sections 4582.01 to 4582.20, inclusive, of the Ohio Revised Code as enacted and
amended (collectively, the "Project").
3. TITLE. The Authority claims a ground leasehold interest to the
Project Site pursuant to that certain Amended and Restated Ground Lease ("Ground
Lease"), dated as of October 1, 1996, by and between Brush Xxxxxxx Inc. ("Ground
Lessor") (as ground lessor) and the Authority. A Memorandum of Ground Lease,
evidencing the Ground Lease, was recorded on October 10, 1996, in Volume 32,
Page 513, Instrument No. 9600028760 of Ottawa County, Ohio Records. Ground
Lessor claims title to the Project Site by deeds recorded in Volume 309, Page
515; Volume 391, Page 307; Volume 160, Page 288; and Volume 411, Page 161,
Instrument Xx. 0000000000 xx Xxxxxx Xxxxxx, Xxxx Deed Records.
4. TERM AND OPTION TO EXTEND. The Lease is for a period, unless earlier
terminated as provided in the Lease, commencing on the date of delivery of the
Lease, and ending on May 1, 2011. Subject to the terms and conditions set forth
in the Lease, Lessee may extend the term of the Lease for three (3) additional
terms of five (5) years each with the first such period commencing May 1, 2011,
the second May 1, 2016, and the third May 1, 2021.
5. OPTION TO PURCHASE. The Lessee is hereby granted an option to
purchase all interests of the Lessor in the Project upon the termination of the
lease term pursuant to Section 9.3 of the Lease, or at the expiration of the
term, in any case, by payment to the Lessor of the sums set forth in the Lease,
as applicable.
6. OPTION TO TERMINATE. The Lessee is hereby granted an option to
terminate the Lease pursuant to Section 9.1 or 9.2 of the Lease by payment to
the Lessor of the sums set forth in the Lease and the satisfaction of other
conditions as set forth in the Lease.
7. COUNTERPARTS. This Memorandum of 2003 Lease Modification may be
executed in multiple counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same document.
8. NO MERGER. If the Lessor or the Lessee acquires the interest of the
other in the Project Site or the Project, including under the Lease, there shall
be no merger of the leasehold estate into the fee simple estate or any leasehold
estate in the Project Site or the Project.
[THE BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF this Memorandum of Lease Modification has been
executed by Lessor and Lessee this _____ day of May, 2003.
Witnessed by LESSOR:
NATIONAL CITY BANK, TRUSTEE
________________________________________ By:_____________________________
Witness 1 - Signature
________________________________________ Its:____________________________
Witness 1 - Print or Type Name
________________________________________
Witness 2 - Signature
________________________________________
Witness 2 - Print or Type Name
Witnessed by: LESSEE:
BRUSH XXXXXXX INC.
________________________________________ By:_____________________________
Witness 1 - Signature
________________________________________ Its:____________________________
Witness 1 - Print or Type Name
________________________________________
Witness 2 - Signature
________________________________________
Witness 2 - Print or Type Name
ACKNOWLEDGMENTS
---------------
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
On this _____ day of May, 2003, before me a Notary Public in and for
said County and State, personally appeared ___________________ of National City
Bank, Trustee, and acknowledged the execution of the foregoing instrument, and
that the same is his voluntary act and deed on behalf of said bank and the
voluntary act and deed of said bank.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year aforesaid.
___________________________________
Notary Public
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
On this _____ day of May, 2003, before me a Notary Public in and for
said County and State, personally appeared Xxxxxxx X. Xxxxxxxx, Vice President
and Treasurer of Brush Xxxxxxx Inc., and acknowledged the execution of the
foregoing instrument as the duly authorized officer for and on behalf of said
Corporation and pursuant to authority granted by the Board of Directors of said
Corporation, and that the same is his voluntary act and deed on behalf of said
Corporation and the voluntary act and deed to said Corporation.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year aforesaid.
___________________________________
Notary Public
