EXHIBIT 4(f)
FIRST AMENDMENT TO
CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into on March 1, 2004 and made effective as of December 4, 2003 (the "Effective
Date"), by and among Brush Engineered Materials Inc., an Ohio corporation (the
"Company"), the other Borrowers (as defined in the Credit Agreement (as defined
below)), the other Loan Parties (as defined in the Credit Agreement), the
Lenders (as defined in the Credit Agreement), and Bank One, NA, a national
banking association (the "Agent").
WHEREAS, the Company, the other Borrowers, the other Loan Parties, the
Lenders, and the Agent entered into a certain Credit Agreement dated as of the
Effective Date (as may from time to time be amended, restated, modified, or
supplemented, the "Credit Agreement");
WHEREAS, the Company, the other Borrowers, the other Loan Parties, the
Lenders, and the Agent desire to clarify certain provisions and correct certain
typographical and other minor errors in the Credit Agreement so that, as
modified by this Amendment, the Credit Agreement reflects the intent of the
parties thereto as of the Effective Date (i.e., the Closing Date (as defined in
the Credit Agreement));
WHEREAS, the Company, the other Borrowers, the other Loan Parties, the
Lenders, and the Agent have agreed to amend the Credit Agreement as set forth
herein; and
WHEREAS, the defined terms used but not defined herein shall have the
meanings ascribed to such terms in the Credit Agreement;
NOW, THEREFORE, for valuable consideration received to their mutual
satisfaction, the parties hereby agree as follows:
1. Amendment to Article I - Revised Definitions. The definitions "LC
Obligations," and "Loan Documents" in Article I of the Credit Agreement are
hereby deleted in their entirety and replaced with the following:
"LC Obligations" means, at any time, the sum, without
duplication, of (a) the aggregate undrawn stated amount under all
Facility LCs outstanding at such time, including, without
limitation, the IRB Facility LCs, plus (b) the aggregate unpaid
amount at such time of all Reimbursement Obligations.
"Loan Documents" means this Agreement, any Notes, the Facility
LC Applications, the Collateral Documents, the Guaranty, the
Export-Import Loan Documents, the Intercreditor Agreements, the LC
Reimbursement Agreements, the IRB Facility LCs, the LC Bond Pledge
Agreements, and all other agreements, instruments, documents and
certificates identified in
Section 4.1 executed and delivered to, or in favor of, Agent or any
Lenders and including all other pledges, powers of attorney,
consents, assignments, contracts, notices, letter of credit
agreements and all other written matter whether heretofore, now or
hereafter executed by or on behalf of any Loan Party, or any
Authorized Officer of any Loan Party, and delivered to the Agent or
any Lender in connection with the Agreement or the transactions
contemplated thereby. Any reference in the Agreement or any other
Loan Document to a Loan Document shall include all appendices,
exhibits or schedules thereto, and all amendments, restatements,
supplements or other modifications thereto, and shall refer to the
Agreement or such Loan Document as the same may be in effect at any
and all times such reference becomes operative.
2. Amendment to Article I -- New Definitions. The definitions "Domestic
Obligations," "IRB Facility LCs" and "LC Reimbursement Agreements" are hereby
added to Article I of the Credit Agreement in proper alphabetical order:
"Domestic Obligations" means all of the Obligations other than
the Singapore Obligations.
"IRB Facility LCs" means, collectively, all commercial or
stand-by letters of credit issued by the LC Issuer at the request of
the Borrower for the purpose of providing credit support for one or
more industrial revenue development bond issues, the proceeds of
which issues are used by or loaned to one or more Domestic Borrowers
for the purpose of financing one or more industrial, manufacturing,
or similar development projects, including, in each case, any
amendments, modifications, supplements, or replacements.
"LC Bond Pledge Agreements" means, collectively, all bond
pledge agreements entered into by one or more Domestic Borrowers,
the LC Issuer, and the applicable bond trustees to secure the
Reimbursement Obligations associated with any particular IRB
Facility LC or LC Reimbursement Agreement, including, in each case,
any amendments, modifications, supplements, or replacements.
"LC Reimbursement Agreements" means, collectively, all
reimbursement agreements entered into by one or more Domestic
Borrowers and the LC Issuer to further evidence the Reimbursement
Obligations associated with any particular IRB Facility LC,
including, in each case, any amendments, modifications, supplements,
or replacements.
3. Amendment concerning the Defined Term "Aggregate Revolving Commitment"
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(a) Sections 2.15(b), 2.15(c), 2.15(d), 6.7(c), and 8.1(a) of the Credit
Agreement are hereby amended by deleting the text "Revolving Commitment" therein
and replacing it with "Aggregate Revolving Commitment".
(b) Sections 12.3(a) and 12.3(b) of the Credit Agreement are hereby
amended by deleting the text "Revolving Commitment" therein and replacing it
with "a portion of the Aggregate Revolving Commitment".
(c) Section 12.6 of the Credit Agreement is hereby amended by deleting the
text "Revolving Commitment" therein and replacing it with "share of the
Aggregate Revolving Commitment".
4. Amendment to Section 2.1.2. Section 2.1.2(a) of the Credit Agreement is
hereby amended by deleting the first sentence therein and replacing it with the
following:
The LC Issuer hereby agrees, on the terms and conditions set
forth in this Agreement, to issue to a Domestic Loan Party standby
and commercial Letters of Credit, including, without limitation, the
IRB Facility LCs (each, a "Facility LC") and to renew, extend,
increase, decrease or otherwise modify each Facility LC ("Modify,"
and each such action a "Modification"), from time to time from and
including the Closing Date of this Agreement and prior to the
Facility Termination Date upon the request of the Company, on behalf
of itself or the applicable Loan Party; provided that, the maximum
face amount of the Facility LC to be issued or Modified, does not
exceed the lesser of (i) an amount equal to $25,000,000 minus the
sum of (A) the aggregate undrawn amount of all outstanding Facility
LCs at such time plus, without duplication, (B) the aggregate unpaid
Reimbursement Obligations with respect to all Facility LCs
outstanding at such time and (ii) the Domestic Availability.
5. Amendment to Section 2.11. Section 2.11(a) of the Credit Agreement is
hereby amended by deleting the first and last sentences therein and replacing
them, respectively, with the following:
Each Floating Rate Advance shall bear interest on the
outstanding principal amount thereof, for each day from and
including the date such Advance is made or is automatically
converted from a Fixed Rate Advance into a Floating Rate Advance
pursuant to Section 2.7, to but excluding the date it is paid or is
converted into a Fixed Rate Advance pursuant to Section 2.7 hereof,
at a rate per annum equal to the Floating Rate or Singapore Derived
Floating Rate, as the case may be, for such day.
If at any time Loans are outstanding with respect to which the
Company has not delivered a notice to the Applicable Agent
specifying the
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basis for determining the interest rate applicable thereto, those
Loans shall bear interest at the Floating Rate or the Singapore
Derived Floating Rate, as the case may be.
6. Amendment to Section 6.20. Section 6.20(l) of the Credit Agreement is
hereby amended by deleting the text "$500,000" therein and replacing it with
"$1,000,000".
7. Amendment to Section 8.1. Section 8.1(a)(i) of the Credit Agreement is
hereby amended by deleting the text "Singapore Commitment" therein and replacing
it with "Aggregate Singapore Commitment".
8. Amendment to Section 9.16. Section 9.16 of the Credit Agreement is
hereby amended in its entirety and replaced with the following:
9.16 No Cross Collateralization. For the avoidance of doubt,
the parties hereto agree that the Collateral of the Singapore Loan
Parties securing the Secured Obligations of the Singapore Loan
Parties shall not constitute security for the Domestic Obligations.
9. Amendment to Section 16.2. Section 16.2 of the Credit Agreement is
hereby amended by deleting the second sentence therein and replacing it with the
following:
Upon the occurrence and during the continuance of a Default
which has not been waived in writing, all such deposits to the Cash
Management Account in respect of a Borrower shall be credited to
such Borrower as follows: (1) to the extent such deposits constitute
the proceeds of the Export-Import Collateral, such deposits shall be
applied directly to the outstanding principal, accrued and unpaid
interest, and fees related to the Export-Import Loan and (2) all
deposits other than those described in the immediately preceding
subparagraph (1) (except to the extent such deposits remain after
the Export-Import Loan is indefeasibly paid in full), (a) first to
the payment of any fees, expenses or Obligations (other than
Obligations to pay (i) principal and interest relating to the
Advances and (ii) principal, accrued and unpaid interest, and fees
related to the Export-Import Loan) then due and payable by the
Borrowers to the Applicable Agent or Lenders hereunder or under any
of the other Loan Documents; (b) second, to the ratable payment of
interest due on the Loans made to the Borrowers (other than interest
related to the Export-Import Loan); (c) third, to late charges until
paid in full; (d) fourth, to the principal installments then due and
payable with respect to the Term Loans; (e) fifth, to the
outstanding principal amount of any Revolving Loans; (f) sixth, at
the Required Lenders' option, in their sole and absolute discretion,
to any and all other outstanding Obligations of the Borrowers (other
than in respect of the (i) aggregate undrawn amount of any Facility
LC outstanding for the account of the Borrowers and (ii) principal,
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accrued and unpaid interest, and fees related to the Export-Import
Loan) in such order as the Required Lenders may choose in their sole
discretion; and (g) seventh, as cash collateral security against the
aggregate undrawn amount of any Letter of Credit outstanding for the
account of the Borrowers and any other Obligations (whether then or
thereafter outstanding, including, without limitation, to the extent
not indefeasibly paid in full by the deposits described in
subparagraph (1) above, the Export-Import Loan) of the Borrowers.
10. Amendment to Section 16.2. Section 16.2 of the Credit Agreement is
hereby amended by adding the following sentence the end of such section:
Notwithstanding the foregoing, (a) all deposits received in
the Locked Box in Singapore shall be applied to the Singapore
Obligations in the order set forth above, and (b) all deposits
received in the Locked Box located in the United States shall be
applied first to the Domestic Obligations in the order set forth
above and then to the Singapore Obligations in the order set forth
above.
11. Amendment to the Pricing Schedule. The Pricing Schedule attached to
the Credit Agreement is hereby amended by deleting the text "Fixed Charge
Coverage Ratio" from the first row, second column and replacing it with
"Leverage Ratio".
12. General Terms. This Amendment shall be effective as of the Effective
Date. Except as specifically amended herein, directly or by reference, all of
the terms and conditions set forth in the Credit Agreement are confirmed and
ratified, and shall remain as originally written. This Amendment shall be
construed in accordance with the laws of the State of Ohio, without regard to
principles of conflict of laws. The Credit Agreement and all other Loan
Documents shall remain in full force and effect in all respects as if the unpaid
balance of the principal outstanding, together with interest accrued thereon,
had originally been payable and secured as provided for therein, as amended from
time to time and as modified by this Amendment. Nothing herein shall affect or
impair any rights and powers which the Company, any other Borrower, any Loan
Party, any Lender or the Agent may have under the Credit Agreement and any and
all other Loan Documents.
13. No Effect. The parties hereto agree that this Amendment shall in no
manner affect or impair the liens and security interests evidenced by the Credit
Agreement and/or any other instruments evidencing, securing or related to the
Obligations.
14. Counterparts. This Amendment may be executed in counterparts and all
such counterparts shall constitute one agreement binding on all the parties,
notwithstanding that the parties are not signatories to the same counterpart.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Company, the other Borrowers, the Lenders and the
Agent have executed this Amendment as of the date first above written.
BORROWERS:
BRUSH ENGINEERED MATERIALS INC. BEM SERVICES, INC.
By: By:
--------------------------------- ----------------------------------
Name: Name:
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Title: Title:
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BRUSH INTERNATIONAL, INC. BRUSH WELLMAN INC.
By: By:
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Name: Name:
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Title: Title:
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ZENTRIX TECHNOLOGIES INC. BRUSH RESOURCES INC.
By: By:
--------------------------------- ----------------------------------
Name: Name:
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Title: Title:
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BRUSH CERAMIC PRODUCTS INC. CIRCUITS PROCESSING TECHNOLOGY, INC.
By: By:
--------------------------------- ----------------------------------
Name: Name:
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Title: Title:
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TECHNICAL MATERIALS, INC. WILLIAMS ADVANCED MATERIALS INC.
By: By:
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Name: Name:
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Title: Title:
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WILLIAMS ACQUISITION, LLC
By:
---------------------------------
Name:
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Title:
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SINGAPORE BORROWER:
BRUSH WELLMAN (SINGAPORE) PTE LTD.
By:
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Name: Tony Ong Wee Swez
Title: Managing Director
Address: c/o Brush Engineered Materials, Inc.
17876 St. Clair Avenue
Cleveland, Ohio 44110
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LENDERS:
BANK ONE, NA
Individually, as the Agent, a Lender and LC Issuer
By:
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Name: Joseph J. Virzi
Title: Senior Vice President
Address: 100 East Broad Street
Columbus, OH 43215
Attention: Randy R. Radik
Telephone: (330) 972-1206
Facsimile: (330) 972-1456
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BANK ONE, NA Singapore Branch
as a Lender
By:
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Name: Joseph J. Virzi
Title: Senior Vice President
Address: 100 East Broad Street
Columbus, OH 43215
Attention: Randy R. Radik
Telephone: (330) 972-1206
Facsimile: (330) 972-1456
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LASALLE BANK NATIONAL ASSOCIATION
as a Lender
By:
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Name: Patrick F. Dunphy
Title: First Vice President
Address : 1300 E. 9th Street, Suite 1000
Cleveland, OH 44114
Attention: Jeri Zimmerman
Telephone: (216) 802-2200
Facsimile: (216) 802-2212
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RZB FINANCE LLC
as a Lender
By:
---------------------------------
Name:
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Title:
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By:
---------------------------------
Name:
-------------------------------
Title:
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Address : 24 Grassy Plain Street
Bethel, CT 06801
Attention: Marisa Mancini
Telephone: (203) 207-0115
Facsimile: (203) 744-6474
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THE CIT GROUP/BUSINESS CREDIT, INC.
as a Lender
By:
---------------------------------
Name: Douglas A. Nickel
Title: Vice President
Address : Two Wachovia Center, 23rd Fl.
301 S. Tryon Street
P.O. Box 30337
Charlotte, NC 28239-0337
Attention: Robert Newman, Vice President
Telephone: (704) 339-3044
Facsimile: (704) 339-2208
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FIFTH THIRD BANK
as a Lender
By:
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Name: Ken Horner
Title: Vice President
Address : 1404 East Ninth Street, 3rd Floor
Mail Drop: A65111
Cleveland, OH 44114
Attention: Ken Horner
Vice President
Telephone: (216) 274-5579
Facsimile: (216) 274-5441
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ORIX FINANCIAL SERVICES, INC.
as a Lender
By:
---------------------------------
Name:
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Title:
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Address : One South Wacker, Suite 2750
Chicago, IL 60606
Attention: Jonathan Millard
Telephone: (312) 469-5081
Facsimile: (770) 970-8181
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