EXHIBIT 4(a)
LETTER AGREEMENT
December 4, 2003
Brush Engineered Materials Inc.
00000 Xx. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
RE: POST CLOSING DELIVERIES OF BORROWER TO AGENT
Ladies and Gentlemen:
Brush Engineered Materials Inc. ("Borrower"), Bank One, NA, as Agent
for the benefit of the Lenders named in the Credit Agreement (as herein defined)
("Agent"), and the other parties named therein entered into a Credit Agreement
dated as of the date hereof (the "Credit Agreement") and certain related
documents (the "Loan Documents"). In connection with the Credit Agreement, this
letter serves to acknowledge and confirm certain deliveries were required to be
made by Borrower prior to the closing of the transactions contemplated by the
Credit Agreement and the Loan Documents, which deliveries Agent has agreed to
permit to be satisfied on a post-closing basis in accordance with the terms and
conditions of this Letter Agreement. Borrower hereby agrees that Borrower shall
deliver certain items to Agent as set forth in Exhibit A attached hereto no
later than the dates specified with respect to such items in Exhibit A unless
such delivery is waived in writing by Agent. Except as set forth in Exhibit A,
all of the conditions set forth in Section 4.1 of the Credit Agreement have been
satisfied.
Borrower, by acceptance hereof, acknowledges and agrees that Borrower's
failure to deliver the items set forth in Exhibit A on or prior to the dates
specified therein shall (except as may be specified in Exhibit A with respect
particular items) constitute a Default under the Credit Agreement and all
related Loan Documents. Capitalized terms not defined herein shall have the
meanings ascribed to such terms in the Credit Agreement.
Very truly yours,
BANK ONE, NA, AS AGENT
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx, Senior Vice President
Acknowledged and Agreed:
BRUSH ENGINEERED MATERIALS INC.
By: /s/ XXXX XXXXXXXXX
-------------------------------
Name: Xxxx Xxxxxxxxx
-----------------------------
Title: Assistant Treasurer
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EXHIBIT A
Post-Closing Deliveries
1. A release or estoppel certificate and subordination agreement within 120
days of closing from KeyBank, successor to the interests of Ameritrust
Company, as Trustee under the Indenture of Trust dated July 15, 1980, filed
on March 15, 1989, and recorded as Entry 72403, Book 225, Pages 169-251 in
the Office of the Xxxxxxx County Recorder, from the County of Xxxxxxx,
Utah, Issuer to Ameritrust Company, as Trustee.
2. Within 90 days of closing, consent to the filing of Agent's mortgage by the
Niagara County Industrial Development Agency ("Niagara") pursuant to the
Lease Agreement dated March 1, 1999 between Niagara and Xxxxxxxx Advanced
Materials, Inc. ("Xxxxxxxx") as recorded on March 12, 1999 in Liber 2906 of
Deeds at Page 334 of the Niagara County, New York real estate records (the
"New York Lease").
3. Within 120 days of closing, a subordination and non-disturbance agreement
among Borrower, Agent, and The Xxxxxx-Xxxxx County Port Authority as ground
lessee pursuant to the Ground Lease Agreement dated October 6, 1996 of a
portion of the property located in Ottawa County, Ohio.
4. Within 120 days of closing, a subordination and non-disturbance agreement
among Borrower, Agent, and National City Bank, as assignee of that certain
Lease dated as of October 1, 1996 between the Xxxxxx-Xxxxx County Port
Authority as lessor and Borrower as lessee.
5. On or before December 15, 2004, replacement of the letter of credit with
regard to Borrower's Lorain County, Ohio property and issuance/execution
and/or delivery of all opinions, amendments, modifications, consents, and
any other documents in connection therewith.
6. On or before December 15, 2004, replacement of the letter of credit with
regard to Borrower's Pima County, Arizona property and issuance/execution
and/or delivery of all opinions, amendments, modifications, consents, and
any other documents in connection therewith.
7. On or before December 15, 2004, the NCB Letters of Credit and the Fifth
Third Letter of Credit, as those terms are defined in the Payoff Letter
dated December 4, 2003, should be replaced with Bank letters of credit.
LIMITED WAIVER UNDER POST-CLOSING LETTER AGREEMENT
April 1, 2004
Brush Engineered Materials Inc.
00000 Xx. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Re: Letter Agreement, dated December 4, 2003, between Bank One, NA, as
Agent (the "Agent"), and Brush Engineered Materials Inc., as Borrower
(the "Borrower")
Ladies and Gentlemen:
Reference is made to that certain Letter Agreement, dated as of
December 4, 2003 (a copy of which is attached hereto as Exhibit A, the "Letter
Agreement"), between the Borrower and the Agent with respect to the Borrower's
agreement to deliver certain items on a post-closing basis under the Credit
Agreement, dated as of December 4, 2003 (the "Credit Agreement"), among the
Borrower, the Agent, the other Loan Parties and Lenders party thereto from time
to time, LaSalle Bank National Association, as documentation agent, and Banc One
Capital Markets, Inc., as lead arranger and sole book runner. Capitalized terms
used but not defined herein shall have the meanings given to them in the Credit
Agreement
Borrower and Agent hereby acknowledge and agree that Borrower has
delivered to the Agent the items set forth in numbers 2, 5 and 6 of Exhibit A to
the Letter Agreement. At the request of the Borrower, the Agent hereby waives
the requirement that Borrower ever deliver the item set forth in number 4 of
Exhibit A to the Letter Agreement, and hereby waives any Unmatured Default or
Default that might otherwise occur under the Credit Agreement or any other Loan
Document with respect Borrower's failure to deliver such item. At the further
request of the Borrower, the Agent hereby extends the time periods during which
the Borrower may deliver the items set forth in numbers 1 and 3 of Exhibit A to
the Letter Agreement for an additional 30 days beyond the time periods set forth
in the Letter Agreement, and during such additional 30-day period, hereby waives
any Unmatured Default or Default that might otherwise occur under the Credit
Agreement or any other Loan Document with respect to Borrower's failure to
deliver such items.
The waivers set forth herein are limited to the express terms hereof,
and nothing contained herein shall be construed as an agreement by the Agent to
make any further waivers or extensions of any of the obligations of the Borrower
or any other Loan Party under the Letter Agreement or the Credit Agreement.
Very truly yours,
BANK ONE, NA, as Agent
By: /s/ X. XXXXXXX
---------------------------------
Its: Director
--------------------------------
Acknowledged and Agreed:
BRUSH ENGINEERED MATERIALS INC.
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------------
Its: Vice President and Treasury and Secretary
-----------------------------------------
SECOND LIMITED WAIVER UNDER POST-CLOSING LETTER AGREEMENT
May 3, 2004
Brush Engineered Materials Inc.
00000 Xx. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Re: Letter Agreement, dated December 4, 2003, between Bank One,
NA, as Agent (the "Agent"), and Brush Engineered Materials
Inc., as Borrower (the "Borrower")
Ladies and Gentlemen:
Reference is made to that certain Letter Agreement, dated as of
December 4, 2003 (as amended, the "Letter Agreement"), between the Borrower and
the Agent with respect to the Borrower's agreement to deliver certain items on a
post-closing basis under the Credit Agreement, dated as of December 4, 2003 (as
amended, the "Credit Agreement"), among the Borrower, the Agent, the other Loan
Parties and Lenders party thereto from time to time, LaSalle Bank National
Association, as documentation agent, and Banc One Capital Markets, Inc., as lead
arranger and sole book runner. Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement
At the request of the Borrower, the Agent hereby extends to time period
during which the Borrower may deliver the items set forth in numbers 1 and 3 of
Exhibit A to the Letter Agreement until June 30, 2004, and during such time
period, hereby waives any Unmatured Default or Default that might otherwise
occur under the Credit Agreement or any other Loan Document with respect to
Borrower's failure to deliver such items. In addition, in lieu of the items
listed in number 1 of Exhibit A to the Letter Agreement, the Agent agrees to
accept an Officer's Certificate from Borrower substantially in the form of
Exhibit 1 hereto.
The waivers and modifications set forth herein are limited to the
express terms hereof, and nothing contained herein shall be construed as an
agreement by the Agent to make any further waivers or modifications of any of
the obligations of the Borrower or any other Loan Party under the Letter
Agreement or the Credit Agreement.
Very truly yours,
BANK ONE, NA, as Agent
By: /s/ X. XXXXXXX
--------------------------
Its: Director
-------------------------
Acknowledged and Agreed:
BRUSH ENGINEERED MATERIALS INC.
By: XXXXXXX X. XXXXXXXX
-----------------------------
Its: V.P. Treasury Secretary
----------------------------
EXHIBIT 1
FORM OF OFFICER'S CERTIFICATE
See attached.
BRUSH ENGINEERED MATERIALS INC.
CERTIFICATE OF ASSISTANT TREASURER
This Certificate of Assistant Treasurer (this "Certificate") is being
delivered to Bank One, N.A., as Agent, in connection with that certain Credit
Agreement, dated as of December 4, 2003 (as amended, the "Credit Agreement"), by
and among Brush Engineered Materials Inc. (the "Company"), the Agent, the other
Loan Parties and Lenders party thereto from time to time, LaSalle Bank National
Association, as documentation agent, and Banc One Capital Markets, Inc., as lead
arranger and sole book runner. Capitalized terms used but not defined in this
Certificate shall have the meanings given to them in the Credit Agreement. The
undersigned hereby certifies to Agent as follows:
1. I am an Assistant Treasurer of the Company, and I am familiar with
the facts stated in this Certificate.
2. To my knowledge, after review of the Company's records, the
indebtedness evidenced by that certain Indenture of Trust, dated June 15, 1980,
from the County of Xxxxxxx, Utah, as issuer, to Ameritrust Company, as trustee,
a copy of which was filed on March 15, 1989 and recorded as Entry 72403, Book
225, Pages 169-251 in the Office of the Xxxxxxx County Recorder, has been
satisfied in full.
Dated: /s/ XXXX X. XXXXXXXXX
------------------------ -------------------------------
Xxxx X. Xxxxxxxxx
Assistant Treasurer
Brush Engineered Materials Inc.
THIRD LIMITED WAIVER UNDER POST-CLOSING LETTER AGREEMENT
June 30, 2004
Brush Engineered Materials Inc.
00000 Xx. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Re: Letter Agreement, dated December 4, 2003, between Bank One, NA, as Agent
(the "Agent"), and Brush Engineered Materials Inc., as Borrower (the
"Borrower")
Ladies and Gentlemen:
Reference is made to that certain Letter Agreement, dated as of
December 4, 2003 (as amended, the "Letter Agreement"), between the Borrower and
the Agent with respect to the Borrower's agreement to deliver certain items on a
post-closing basis under the Credit Agreement, dated as of December 4, 2003 (as
amended, the "Credit Agreement"), among the Borrower, the Agent, the other Loan
Parties and Lenders party thereto from time to time, LaSalle Bank National
Association, as documentation agent, and Banc One Capital Markets, Inc., as lead
arranger and sole book runner. Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement
At the request of the Borrower, the Agent hereby extends the time
period during which the Borrower may deliver the items set forth in paragraph 3
of Exhibit A to the Letter Agreement until August 31, 2004, and during such time
period, hereby waives any Unmatured Default or Default that might otherwise
occur under the Credit Agreement or any other Loan Document with respect to
Borrower's failure to deliver such items.
The waivers and modifications set forth herein are limited to the
express terms hereof, and nothing contained herein shall be construed as an
agreement by the Agent to make any further waivers or modifications of any of
the obligations of the Borrower or any other Loan Party under the Letter
Agreement or the Credit Agreement.
Very truly yours,
BANK ONE, NA, as Agent
By: /s/ XXXXX XXXXXXX
------------------
Its: Director
------------------
Acknowledged and Agreed:
BRUSH ENGINEERED MATERIALS INC.
By: /s/ XXXX XXXXXXXXX
------------------------
Its: Assistant Treasurer and
------------------------
Assistant Secretary
FOURTH LIMITED WAIVER UNDER POST-CLOSING LETTER AGREEMENT
July 6, 2004
Brush Engineered Materials Inc.
00000 Xx. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Re: Letter Agreement, dated December 4, 2003, between Bank One, NA, as Agent
(the "Agent"), and Brush Engineered Materials Inc., as Borrower (the
"Borrower")
Ladies and Gentlemen:
Reference is made to that certain Letter Agreement, dated as of
December 4, 2003 (as amended, the "Letter Agreement"), between the Borrower and
the Agent with respect to the Borrower's agreement to deliver certain items on a
post-closing basis under the Credit Agreement, dated as of December 4, 2003 (as
amended, the "Credit Agreement"), among the Borrower, the Agent, the other Loan
Parties and Lenders party thereto from time to time, LaSalle Bank National
Association, as documentation agent, and Banc One Capital Markets, Inc., as lead
arranger and sole book runner. Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement
At the request of the Borrower, the Agent hereby waives the requirement
that the Borrower ever deliver the item set forth in paragraph 3 of Exhibit A to
the Letter Agreement, and hereby waives any Unmatured Default or Default that
might otherwise occur under the Credit Agreement or any other Loan Document with
respect to the Borrower's failure to deliver such item.
The waivers and modifications set forth herein are limited to the
express terms hereof, and nothing contained herein shall be construed as an
agreement by the Agent to make any further waivers or modifications of any of
the obligations of the Borrower or any other Loan Party under the Letter
Agreement or the Credit Agreement.
Very truly yours,
BANK ONE, NA, as Agent
By: /s/ XXXXX XXXXXXX
------------------
Its: DIRECTOR
------------------
Acknowledged and Agreed:
BRUSH ENGINEERED MATERIALS INC.
By: /s/ XXXXXXX X. XXXXXXXX
--------------------------
Its: V.P. TREASURY & SECRETARY
--------------------------
