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Exhibit 10(ee)
FIRST AMENDMENT TO MASTER LEASE AGREEMENT
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THIS FIRST AMENDMENT TO MASTER LEASE AGREEMENT, dated as of
September 2, 1997 ("Amendment"), by and between Brush Xxxxxxx Inc., an Ohio
corporation ("Lessee"), and National City Bank, for itself and as agent for
certain participants ("Lessor"),
WITNESSETH THAT:
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WHEREAS, Lessee and Lessor entered into a Master Lease
Agreement, dated as of December 30, 1996 (together with all Exhibits and
Schedules thereto, the "Lease Agreement"), under which Lessor agreed to lease to
Lessee certain equipment to be used by Lessee at its Elmore, Ohio facility,
subject to certain conditions and in accordance with the terms thereof; and
WHEREAS, the parties desire to amend the Lease 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.
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The Lease Agreement shall be and hereby is amended as provided
in Section 2 hereof. Except as expressly amended in Section 2 hereof, the Lease
Agreement shall continue in full force and effect in accordance with its
respective provisions on the date hereof. As used in the Lease Agreement, the
terms "Master Lease Agreement", "Lease Agreement", "Agreement", "this
Agreement", "herein", "hereinafter", "hereto", "hereof", and words of similar
import shall, unless the context otherwise requires, mean the Lease Agreement as
amended and modified by this Amendment.
2. Amendments.
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Section XXV of the Lease Agreement shall be amended as
follows:
(1) The definition of "Port Authority Bonds" is amended by
deleting the same and inserting the following in lieu thereof:
"PORT AUTHORITY BONDS means the Xxxxxx-Xxxxx County
Port Authority Taxable Project Development Revenue Bonds,
Series 1996 (Brush Xxxxxxx Inc. Project) in the principal
amount of $13,100,000, and the Xxxxxx-Xxxxx County Port
Authority Taxable Project Development Revenue Bonds, Series
1997 (Brush Xxxxxxx Inc. Project) in the principal amount of
$2,175,000, both of which were issued,
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sold and delivered by the Xxxxxx-Xxxxx County Port Authority
to The Prudential Insurance Company of America;"
(2) The definition of "Port Authority Lease" is amended by
deleting the same and inserting the following in lieu thereof:
"PORT AUTHORITY LEASE means the Lease, dated as of
October 1, 1996, between the Xxxxxx-Xxxxx County Port
Authority, as lessor, and Lessee, as lessee, as amended by the
First Supplemental Lease, dated as of April 1, 1997, between
National City Bank, as trustee, as lessor (as assignee of all
of the lessor's rights from the Xxxxxx-Xxxxx County Port
Authority), relating to certain real and personal property
located at 00000 Xxxx Xxxxxxx Xxxxx X. Xxxx, Xxxxxx Xxxxxxxx,
Xxxx 00000;"
3. Representations and Warranties.
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(A) Lessee hereby represents and warrants to Lessor that all
representations and warranties set forth in the Lease Agreement, as amended
hereby, are true and correct in all material respects, and that this Amendment
has been executed and delivered by a duly authorized officer of Lessee and
constitute the legal, valid and binding obligation of Lessee, enforceable
against Lessee in accordance with their respective terms.
(B) The execution, delivery and performance by Lessee of this
Amendment and its performance of the Lease Agreement have 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 Lessee, or (c) any provision of any indenture, agreement
or other instrument to which Lessee is a party, or by which Lessee or any of its
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. Miscellaneous.
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(A) This Amendment shall be construed in accordance with and
governed by the laws of the State of Ohio, without reference to principles of
conflict of laws. Lessee agrees to pay on demand all costs and expenses of
Lessor, including reasonable attorneys' fees and expenses, in connection with
the preparation, execution and delivery of this Amendment.
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(B) The execution, delivery and performance by Lessor of this
Amendment shall not constitute, or be deemed to be or construed as, a waiver of
any right, power or remedy of Lessor, or a waiver of any provision of the Lease
Agreement. None of the provisions of this Amendment shall constitute, or be
deemed to be or construed as, a waiver of any "Default" or "Potential Default,"
as those terms are defined in the Lease Agreement.
(C) This Amendment 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.
IN WITNESS WHEREOF, the parties have caused this Amendment to
be duly executed as of the day and year first above written.
LESSOR: LESSEE:
NATIONAL CITY BANK, BRUSH XXXXXXX INC.
FOR ITSELF AND AS AGENT FOR
CERTAIN PARTICIPANTS
By: /s/ Xxxxxx X. Xxxxxx By: /s/ X. X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxx Name: X. X. Xxxxxxxx
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Title: Vice President Title: Treasurer and Secretary
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THE FOREGOING FIRST AMENDMENT TO MASTER LEASE AGREEMENT is
hereby acknowledged, consented and agreed to by each of the undersigned by their
respective duly authorized officers as of the day and year first above written.
Address: KEYBANK NATIONAL ASSOCIATION
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000 By: /s/ Xxxxxxx X. Xxxxxx
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Title: AVP
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Address: NBD BANK
000 Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000 By:
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Title:
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Address: BANK ONE, NA
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000 By: /s/ Xxxxxxx Xxxxx Coerdt
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Title: Vice President and Group Manager
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Address: XXXXXX TRUST AND SAVINGS BANK
X.X. Xxx 000 (000/0X)
Xxxxxxx, Xxxxxxxx 00000-0000 By: /s/ W.A. XxXxxxxxx
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Title: Vice President
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