EXHIBIT 4
INDENTURE MODIFICATION
Between
XXXXXX-XXXXX COUNTY PORT AUTHORITY
NATIONAL CITY BANK,
as Trustee
Dated
as of
May 30, 2003
INDENTURE MODIFICATION
THIS INDENTURE MODIFICATION, dated as of May 30, 2003 (the
"2003 Indenture Modification"), is made by and between the XXXXXX-XXXXX COUNTY
PORT AUTHORITY (the "Issuer"), a port authority and a political subdivision in
and of, and duly organized and validly existing under the laws of, the State of
Ohio (the "State"), and NATIONAL CITY BANK, a national banking association duly
organized and validly existing under the laws of the United States of America
and authorized to exercise corporate trust powers under the laws of the State,
with its principal place of business located in Cleveland, Ohio, as Trustee (the
"Trustee"), to supplement the Trust Indenture, dated as of October 1, 1996
between the Issuer and the Trustee (the "Original Indenture"), as supplemented
and amended by the First Supplemental Indenture between the Issuer and the
Trustee, dated as of April 1, 1997 (the "First Supplemental Indenture"), and
with this 2003 Indenture Modification, as each may be hereafter collectively
referred to as the "Indenture"), under the circumstances summarized in the
following recitals (the capitalized terms being used as defined herein or, if
not defined herein, being used as defined in the Original Indenture):
A. Pursuant to and in accordance with the laws of the State,
including without limitation, Section 13 of Article VIII of the Ohio
Constitution and the Act, the Issuer has heretofore issued, and the Original
Purchaser has purchased, the Project Bonds and the Series 1997 Bonds, and the
Issuer executed and delivered to the Trustee the Original Indenture and the
First Supplemental Indenture to secure the Project Bonds, the Series 1997 Bonds
and any Additional Bonds that might thereafter be issued pursuant to Section
2.04 of the Original Indenture.
B. As a condition among others to the Original Purchaser's
willingness to purchase the Project Bonds and the Series 1997 Bonds, the
Original Purchaser required that Brush Xxxxxxx enter into that certain
Inducement Agreement between Brush Xxxxxxx and the Original Purchaser, dated as
of October 1, 1996 (the "Series 1996 Inducement Agreement") and that certain
Series 1997 Inducement Agreement between Brush Xxxxxxx and the Original
Purchaser, 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").
C. On May 16, 2000, as part of an overall corporate
reorganization, Brush Xxxxxxx became a wholly-owned subsidiary of Brush
Engineered Materials Inc., an Ohio corporation ("Holdings").
D. Brush Xxxxxxx and Holdings have requested that the Existing
Inducement Agreements be amended and restated to, among other things, amend the
financial reporting requirements, and the Original Purchaser has agreed, 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 Holdings, Brush Xxxxxxx and the Original Purchaser, to
Holdings' and Brush Xxxxxxx'x request.
E. To satisfy one of the conditions precedent to the
effectiveness of the Inducement Agreement, Holdings has executed that certain
Guaranty Agreement, dated as of even date herewith (the "Guaranty"), in favor of
the Issuer, the Director, each Holder and the Trustee pursuant to which Holdings
has guaranteed payment and performance of the liabilities and obligations of
Brush Xxxxxxx under the Lease and certain other documents related to the
Project.
F. To modify the Original Indenture, as supplemented by the
First Supplemental Indenture, to contemplate potential payments by Holdings
pursuant to the Guaranty, and to satisfy one of the conditions precedent to the
effectiveness of the Inducement Agreement, the Issuer and the Authority have
agreed to enter into this 2003 Indenture Modification.
G. Pursuant to a Resolution No. 20-03 of the Issuer adopted
April 24, 2003 (the "Bond Legislation") the Issuer is authorized to execute and
deliver this 2003 Indenture Modification to modify the Original Indenture, as
supplemented by the First Supplemental Indenture, and to observe and perform all
covenants, agreements and obligations to be observed or performed.
H. All acts and conditions required to happen, exist and be
performed precedent to and in the execution and delivery of this 2003 Indenture
Modification have happened, exist and have been performed, to make the Original
Indenture, as supplemented by the First Supplemental Indenture and as modified
by this 2003 Indenture Modification, a legal and valid trust agreement for the
protection of the Series 1997 Bonds, the Project Bonds and any further
Additional Bonds, and the Holders thereof in accordance with its terms.
I. The Trustee has accepted the additional trusts created by
this 2003 Indenture Modification, and in evidence thereof has joined in the
execution hereof.
NOW, THEREFORE, THIS 2003 INDENTURE MODIFICATION WITNESSETH,
that in order to secure the payment of the Bond Service Charges on the Project
Bonds, the Series 1997 Bonds and any Additional Bonds hereafter issued according
to their true intent and meaning, and to secure the performance and observance
of all the covenants and conditions therein and herein contained, the Issuer, in
consideration of the premises and the acceptance by the Trustee of the trusts
heretofore and hereby created, and for other good and valuable consideration,
the receipt of which is hereby acknowledged, has executed and delivered this
2003 Indenture Modification, and assigns hereby to the Trustee, and its
successors in trust, all right, title and interest of the Issuer in and to (i)
the Bond Fund and moneys and investments therein, including any interest or
other investment earnings thereon; (ii) the Revenues, including Rental Payments
which have been absolutely transferred to the Trustee pursuant to the Assignment
of Lease; and (iii) all proceeds from enforcement of the Mortgage; and hereby
acknowledges that by the Assignment of Lease it has heretofore assigned all of
its right, title and interest in and to the Original Lease, the First
Supplemental Lease and the 2003 Lease Modification to the Trustee;
TO HAVE AND TO HOLD unto the Trustee and its successors in
that trust and to its and their assigns forever;
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BUT IN TRUST, NEVERTHELESS, and subject to the terms hereof
and of the Original Indenture, as supplemented by the First Supplemental
Indenture, to establish the terms:
(a) under which all present and future Holders of the
Series 1997 Bonds, the Project Bonds and any further
Additional Bonds issued or to be issued under and secured by
the Indenture will hold such Bonds;
(b) for the enforcement of the payment of moneys
payable under the Indenture, when payable, including moneys
payable with respect to Bond Service Charges on, or the
Optional Purchase Price of, the Series 1997 Bonds, the Project
Bonds and any further Additional Bonds hereafter issued, when
payable, all according to the true intent and meaning of the
Indenture; and
(c) for the performance and observance of and
compliance with the covenants, agreements, obligations, terms
and conditions of the Indenture;
in each case, without performance, priority or distinction, as to lien or
otherwise, of any one Bond over any other by reason of designation, number, date
of the Bonds or of authorization, issuance, sale, execution, authentication,
delivery or maturity thereof, or otherwise, so that each Bond and all Bonds
shall have the same right, lien and privilege under the Indenture and shall be
secured equally and ratably hereby, it being intended, however, that the
Original Indenture, the First Supplemental Indenture and this 2003 Indenture
Modification take effect from the respective dates thereof without regard to the
date of actual issue, sale or disposition of the Bonds, as though upon such
dates all of the Bonds were actually issued, sold and delivered to purchasers
for value; provided, however, that
(i) if the principal of the Bonds and the
interest due or to become due thereon together with
any premium required by redemption of any of the
Bonds prior to maturity shall be well and truly paid,
at the times and in the manner to which reference is
made in the Bonds, according to the true intent and
meaning thereof, or the Outstanding Bonds shall have
been paid and discharged in accordance with Article
IX of the Original Indenture;
(ii) if all payments due or to become due
which are to be paid under the Indenture shall be
well and truly paid; and
(iii) if all of the covenants, agreements,
obligations, terms and conditions of the Issuer under
the Indenture shall have been kept, performed and
observed and there shall have been paid to the
Trustee, the Registrar, the Paying Agents and the
Authenticating Agents all sums of money due or to
become due to them in accordance with the terms and
provisions of the Indenture;
then the Indenture and the rights assigned thereby shall cease and be void,
except as provided in Section 9.03 of the Original Indenture with respect to the
survival of certain provisions thereof; otherwise, the Indenture shall be and
remain in full force and effect.
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It is declared that all Bonds issued under the Indenture and
secured thereby are to be issued, authenticated and delivered, and that all
interests assigned thereby are to be dealt with and disposed of under, upon and
subject to, the terms, conditions, stipulations, covenants, agreements,
obligations, trusts, uses and purposes provided in the Original Indenture as
supplemented by the First Supplemental Indenture and as modified by this 2003
Indenture Modification. The Issuer has agreed and covenanted, and agrees and
covenants with the Trustee and with each and all Holders, to the extent set
forth herein, as follows:
Section 1. Definitions. Words and terms used and not defined
herein and defined in the Original Indenture or the First Supplemental Indenture
shall have the meanings given to them in the Original Indenture or the First
Supplemental Indenture, as the case may be. In addition to the words and terms
elsewhere defined in this 2003 Indenture Modification, the following words and
terms shall have the meanings given to them in this Section 1 for purposes of
the Original Indenture, the First Supplemental Indenture and this 2003 Indenture
Modification unless the context or use clearly indicates another or different
meaning or intent:
"Guaranty" shall mean that certain Guaranty Agreement, dated
of even date herewith, by Holdings in favor of the Authority, the Trustee, the
Director and the Holders, as the same may be amended, modified or supplemented
from time to time in accordance with the provisions thereof.
"Holdings" shall mean Brush Engineered Materials Inc., an Ohio
corporation.
"Indenture" means the Original Indenture together with the
First Supplemental Indenture and this 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 the 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.
"Rental Payments" means the Rental Payments and the Series
1997 Rental Payments required to be paid by Brush Xxxxxxx pursuant to Section
3.1 of the Original Lease and Section 4 of the First Supplemental Lease,
respectively, and shall include, without limitation, any such Rental Payments or
Series 1997 Rental Payments paid by Holdings pursuant to the Guaranty.
"2003 Lease Modification" shall mean that certain Lease
Modification dated as of May 30, 2003 between the Issuer and the Company.
"2003 Indenture Modification" shall mean this Indenture
Modification dated as of May 30, 2003.
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Section 2. Interpretation. Any reference herein to the Issuer,
to the Legislative Authority or to any member or officer of either, includes
entities or officials succeeding to their respective functions, duties or
responsibilities pursuant to or by operation of law or lawfully performing their
functions.
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 Issuer, the Holders, the Trustee, the
Registrar or the Paying Agent under this 2003 Indenture Modification, the
Original Indenture, the First Supplemental Indenture, the Bond Legislation, the
Bonds, the Mortgage or any other instrument or document entered into in
connection with any of the foregoing, including without limitation, any
alteration of the obligation to pay Bond Service Charges in the amount and the
manner, at the times, and from the sources provided in the Bond Legislation and
the 2003 Indenture Modification, except as permitted herein.
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
Indenture Modification; and the term "hereafter" means after, and the term
"heretofore" means before, the date of this 2003 Indenture Modification. Words
of any gender include the correlative words of the other genders, unless the
sense indicates otherwise.
Section 3. Captions and Headings. The captions and headings in
this 2003 Indenture Modification are solely for convenience of reference and in
no way define, limit or describe the scope or intent of any Articles, Sections,
subsections, paragraphs, subparagraphs or clause hereof.
Section 4. Restatement of Section 5.04 of the Original
Indenture. The introductory paragraph of Section 5.04 of the Original Indenture
is hereby amended and restated to read as follows:
SECTION 5.04. Distribution of Moneys and Creation of the Bond
Fund. Pursuant to Sections 3.1 and 3.3 of the Original Lease and Section 4 of
the First Supplemental Lease, and pursuant to the Assignment of Lease, the
Trustee will receive Rental Payments from Brush Xxxxxxx on each Rental Payment
Date, and pursuant to the terms of the Guaranty, the Trustee may receive Rental
Payments from Holdings. So long as there is no Event of Default hereunder, the
Trustee shall immediately deposit such Rental Payments into the Rental Payment
Account in the Bond Fund. The Trustee shall hold moneys in the Rental Payment
Account until needed for the deposits or payments to be made in accordance with
the provisions of the balance of this Section 5.04, which payments and deposits
shall be made in the order and subject to the conditions set forth below:
Section 5. Representations and Warranties of the Issuer. The Issuer represents
and warrants that:
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(a) It is duly authorized by the Constitution and
laws of the State, including particularly and without
limitation the Act, to execute and deliver this 2003 Indenture
Modification and to provide the security for payment of the
Bond Service Charges in the manner and to the extent set forth
in this Indenture.
(b) All actions required on its part to be performed
for the execution and delivery of this 2003 Indenture
Modification have been or will be taken duly and effectively.
Section 6. Concerning the Trustee. The Trustee hereby accepts
the trusts hereby declared and provided and agrees to perform the same upon the
terms and conditions set forth in the Original Indenture, the First Supplemental
Indenture and this 2003 Indenture Modification.
The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this 2003 Indenture
Modification or the due execution thereof by the Issuer, nor for or in respect
of the recitals contained herein, all of which recitals are made solely by the
Issuer.
Section 7. The Indenture. Except as modified by this 2003
Indenture Modification, the Original Indenture, as modified by the First
Supplemental Indenture, shall continue in full force and effect.
Section 8. Binding Effect. This 2003 Indenture Modification
shall inure to the benefit of and shall be binding upon the Issuer and the
Trustee and their respective successors and assigns, subject, however, to the
limitations contained herein.
Section 9. Counterparts. This 2003 Indenture Modification may
be executed in any number of counterparts, each of which shall be regarded as an
original and all of which shall constitute but one and the same instrument.
Section 10. Governing Law. This 2003 Indenture Modification
shall be deemed to be 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)
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IN WITNESS WHEREOF, the Issuer has caused this 2003 Indenture
Modification to be executed for it and in its name and on its behalf by its duly
authorized officers; and the Trustee, in token of its acceptance of the trusts
created hereunder, has caused this 2003 Indenture Modification to be executed
for it and in its name and on its behalf by its duly authorized officers, as
Trustee and as Registrar, all as of the day and year first above written.
Signed and Acknowledged as to XXXXXX-XXXXX COUNTY
the Issuer in the presence of: PORT AUTHORITY
By:
------------------------------------- -----------------------------------
Name: President
And by:
------------------------------------- --------------------------------
Name: Secretary
(Witnesses as to both)
Signed and Acknowledged as to NATIONAL CITY BANK, Trustee
the Trustee in the presence of:
By:
------------------------------------- -----------------------------------
Name:
Title:
------------------------------------- ---------------------------------
Name:
(Witnesses as to Trustee)
The legal form and substance of the
within instrument is hereby approved.
By:____________________________
Staff Counsel
CERTIFICATE
The undersigned, Fiscal Officer of the Issuer under the
foregoing 2003 Indenture Modification, hereby certifies that the moneys required
to meet the obligations of the Issuer during the year 2003 under that 2003
Indenture Modification have been lawfully appropriated by the Legislative
Authority for such purposes and are in the treasury of the Issuer or in the
process of collection to the credit of an appropriate fund, free from any
previous encumbrances. This Certificate is given in compliance with Sections
5705.41 and 5705.44 of the Ohio Revised Code.
Dated: May ___, 2003 ------------------------------------
Secretary
Xxxxxx-Xxxxx County Port Authority
CONSENT
The undersigned, the duly authorized representatives of Brush
Xxxxxxx, Holdings, 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 Indenture Modification.
Dated: May ___, 2003 BRUSH ENGINEERED MATERIALS INC.
By: ________________________________
Title: _______________________________
BRUSH XXXXXXX INC.
By: ________________________________
Title: _______________________________
THE DIRECTOR OF DEVELOPMENT
OF the STATE OF OHIO
By: ________________________________
Title: _______________________________
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: ________________________________
Title: _______________________________
