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Exhibit 4
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of March 30,
2001 ("Agreement"), by and among BRUSH ENGINEERED MATERIALS INC., an Ohio
corporation (the "PARENT"), and BRUSH XXXXXXX INC., an Ohio corporation and a
wholly owned subsidiary of the Parent ("BRUSH XXXXXXX") (the Parent and Brush
Xxxxxxx are herein each a "COMPANY" or a "BORROWER" and collectively, together
with each of their respective successors and assigns, the "COMPANIES" or the
"BORROWERS"), the lending institutions listed that are parties to this Agreement
(herein, together with its or their successors and assigns, each a "LENDER" and
collectively the "LENDERS"), and NATIONAL CITY BANK, a national banking
association, as one of the Lenders, as the Lender under the Swing Line Revolving
Facility (herein, together with its successors and assigns, the "SWING LINE
LENDER"), and as administrative agent (the "ADMINISTRATIVE AGENT"):
WITNESSETH THAT:
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WHEREAS, the Borrowers, the Lenders (or their predecessors, as
the case may be), the Swing Line Lender and the Administrative Agent entered
into a Credit Agreement, dated as of June 30, 2000, under which the Lenders,
subject to certain conditions, agreed to lend to Borrower up to $65,000,000 from
time to time in accordance with the terms thereof; and
WHEREAS, the parties desire to amend the Credit Agreement as
set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein, the parties hereto agree as
follows:
1. EFFECT OF AMENDMENT; DEFINITIONS.
The Credit Agreement shall be and hereby is amended as
provided in Section 2 hereof. Except as expressly amended in Section 2 hereof,
the Credit Agreement shall continue in full force and effect in accordance with
its respective provisions on the date hereof. As used in the Credit Agreement,
the terms "Credit Agreement", "Agreement", "this Agreement", "herein",
"hereinafter", "hereto", "hereof", and words of similar import shall, unless the
context otherwise requires, mean the Credit Agreement as amended and modified by
this Agreement.
2. AMENDMENTS.
(A) Section 1.1 of the Credit Agreement shall be amended as
follows:
(1) The definition of "Consolidated Total Debt" is amended by
deleting the same and inserting the following in lieu thereof:
"`CONSOLIDATED TOTAL DEBT' shall mean, at any time,
the sum (without duplication) of the principal amount (or Capitalized
Lease Obligation, in the case of a Capital Lease, or present value,
based on the implicit interest rate, in the case of any Synthetic
Lease, or the higher of liquidation value or stated value, in the case
of Redeemable Stock) of all Indebtedness of the Borrowers and of the
Subsidiaries, without duplication, all as determined on a consolidated
basis, PROVIDED that for purposes of this definition none of the
following obligations shall be considered in determining Consolidated
Total Debt: obligations under (i) Hedge Agreements, (ii) Permitted
Precious Metal Consignments, (iii) the
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gold-denominated loan under the Letter Agreement for Loan and Purchase
of Gold to be entered into between Xxxxxxxx Advanced Materials Inc. and
The Bank of Nova Scotia and any other gold-denominated loan to Brush
Xxxxxxx, or any other Subsidiary that deals in precious metals, all of
which are to be in a form that is approved by the Administrative Agent,
which approval will not be unreasonably withheld, but only to the
extent that the aggregate payment obligations of Brush Xxxxxxx and any
such other Subsidiaries thereunder do not exceed payments in respect of
23,781 ounces of gold, and (iv) the obligations of Brush Xxxxxxx in
respect of the agreement described in section 9.4(h) to the extent that
those obligations do not exceed $6,000,000 during any twelve month
period."
(2) The following definition shall be inserted in alphabetical
order:
"`PERMITTED MASTER COPPER LEASE AGREEMENTS' shall
mean the Master Copper Lease Agreement, dated March 30, 2001, between
Brush Xxxxxxx and Fleet Precious Metals, Inc. (the "Fleet Copper
Agreement"), and any other master copper lease agreement arrangement
entered into by Brush Xxxxxxx that is approved by the Administrative
Agent, which approval will not be unreasonably withheld, but only to
the extent that the aggregate value, in U. S. Dollars, of the copper
subject to all those master copper lease agreements (including the
Fleet Copper Agreement) does not in the aggregate exceed an amount
greater than $15,000,000."
(B) Section 9.3(d) of the Credit Agreement shall be amended by
deleting the same and substituting in lieu thereof the following:
"(d) INVENTORY CONSIGNMENTS: Liens granted
in connection with: (i) any Permitted Precious Metal
Consignments; and (ii) any Permitted Master Copper Lease
Agreements."
(C) Section 9.4(g) of the Credit Agreement shall be amended by
deleting the same and substituting in lieu thereof the following:
"(g) CONSIGNMENT AND COPPER LEASE
OBLIGATIONS: obligations of Brush Xxxxxxx and subsidiaries of
the Parent in respect of Permitted Precious Metals
Consignments or Permitted Master Copper Lease Agreements."
(D) Section 9.5(1) of the Credit Agreement shall be amended by
deleting the same and substituting in lieu thereof the following:
"(l) the Permitted Precious Metal
Consignments and the Permitted Master Copper Lease
Agreements."
3. REPRESENTATIONS AND WARRANTIES.
(A) Each Borrower hereby represents and warrants to the
Lenders, the Swing Line Lender and the Administrative Agent that all
representations and warranties set forth in the Credit Agreement, as amended
hereby, are true and correct in all material respects, and that this Agreement
has been executed and delivered by duly authorized officers of the Borrowers and
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constitutes the legal, valid and binding obligation of the Borrowers,
enforceable against each of them in accordance with their respective terms.
(B) Each Borrower hereby represents and warrants to the
Lenders, the Swing Line Lender and the Administrative Agent that the execution,
delivery and performance by the Borrowers of this Agreement and their
performance of the Credit Agreement has been authorized by all requisite
corporate action and will not (1) violate (a) any order of any court, or any
rule, regulation or order of any other agency of government, (b) the Articles of
Incorporation, the Code of Regulations or any other instrument of corporate
governance of the Borrowers, or (c) any provision of any indenture, agreement or
other instrument to which either of the Borrowers is a party, or by which either
of the Borrowers or any of their properties or assets are or may be bound; (2)
be in conflict with, result in a breach of or constitute, alone or with due
notice or lapse of time or both, a default under any indenture, agreement or
other instrument referred to in (1)(c) above; or (3) result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever.
4. CONDITIONS PRECEDENT.
This Agreement shall become effective when the following
conditions precedent have been met:
(A) Borrowers shall have caused all Guarantors to execute and
deliver to the Administrative Agent a Reaffirmation of Guaranty in form and
substance satisfactory to the Administrative Agent.
(B) Borrowers shall have delivered or caused to be delivered
such other documents as the Administrative Agent or any of the Lenders may
reasonably request.
6. MISCELLANEOUS.
(A) This Agreement shall be construed in accordance with and
governed by the laws of the State of Ohio, without reference to principles of
conflict of laws. Borrowers agree to pay on demand all costs and expenses of the
Lenders and the Administrative Agent, including reasonable attorneys' fees and
expenses, in connection with the preparation, execution and delivery of this
Agreement.
(B) This Agreement is executed in accordance with and subject
to Section 12.12 of the Credit Agreement. The execution, delivery and
performance by the Lenders and the Administrative Agent of this Agreement shall
not constitute, or be deemed to be or construed as, a waiver of any right, power
or remedy of the Lenders or the Administrative Agent, or a waiver of any
provision of the Credit Agreement, and none of the provisions of this Agreement
shall constitute, or be deemed to be or construed as, a waiver of any "Event of
Default" or any "Default," as those terms are defined in the Credit Agreement.
(C) Borrowers acknowledge and agree that, as of the date
hereof, all of Borrowers' outstanding loan obligations to the Lenders and the
Administrative Agent under the Credit Agreement and the Credit Documents are
owed without any offset, deduction, defense or counterclaim of any nature
whatsoever, and Borrowers hereby waive any such offset, deduction, defense and
counterclaim of any nature whatsoever with respect thereto.
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(D) This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the day and year first above written.
Address: BRUSH XXXXXXX INC.
00000 Xx. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Fax: (000) 000-0000 By:___________________________
Title:________________________
Address: BRUSH ENGINEERED MATERIALS, INC.
00000 Xx. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Fax: (000) 000-0000 By:___________________________
Title:________________________
Address: NATIONAL CITY BANK,
Deliveries: for itself and as Agent
Large Corporate Division
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000 By:___________________________
Fax: (000) 000-0000 Title:________________________
Mail:
Large Corporate Division, Loc. #2077
X.X. Xxx 0000
Xxxxxxxxx, Xxxx 00000
FIFTH THIRD BANK,
Address: NORTHEASTERN OHIO
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000 By:___________________________
Fax: (000) 000-0000 Title:________________________
Address: XXXXXX TRUST AND SAVINGS BANK
X.X. Xxx 000 (000/00X)
Xxxxxxx, Xxxxxxxx 00000-0000 By:___________________________
Fax: (000) 000-0000 Title:________________________
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Address: FIRSTAR BANK, N.A.
0000 Xxxxxx Xxxxxx, XX 0000
Xxxxxxxxx, Xxxx 00000 By:___________________________
Fax: (000) 000-0000 Title:________________________
MANUFACTURERS AND TRADERS
Address: TRUST COMPANY
Xxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000 By:___________________________
Fax: (000) 000-0000 Title:________________________
Address: LASALLE BANK, N.A.
0000 Xxxx 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxx 00000 By:___________________________
Fax: (000) 000-0000 Title:________________________
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