exv4wh






Exhibit 4h




AMENDMENT NO. 5




Dated as of March 4, 2011



to



CREDIT AGREEMENT



Dated as of November 7, 2007



          THIS AMENDMENT NO. 5 (“Amendment”) is made as of March 4, 2011 by and among Brush
Engineered Materials Inc. (the “Company”), the Foreign Subsidiary Borrowers from time to
time party thereto (together with the Company, the “Borrowers”), the financial institutions
listed on the signature pages hereof and JPMorgan Chase Bank, National Association, as
Administrative Agent (the “Administrative Agent”), under that certain Credit Agreement
dated as of November 7, 2007 by and among the Borrowers, the Lenders and the Administrative Agent
(as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”).
Capitalized terms used herein and not otherwise defined herein shall have the respective meanings
given to them in the Credit Agreement.




          WHEREAS, the Company has requested that the Lenders and the Administrative Agent agree to
certain amendments to the Credit Agreement;




          WHEREAS, the Lenders party hereto and the Administrative Agent have agreed to such amendments
on the terms and conditions set forth herein;




          NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Borrowers, the Lenders party hereto and the Administrative Agent have
agreed to enter into this Amendment.




          1. Amendments to Credit Agreement. Effective as of the date of satisfaction
of the conditions precedent set forth in Section 2 below, the Credit Agreement is hereby
amended as follows:




          (a) The definition of “Consolidated Funded Debt” set forth in Article 1 of the
Credit Agreement is amended to delete the reference to “$270,000,000” therein and to substitute
“$370,000,000” therefor.




          (b) The definition of “Permitted Precious Metals Agreements” set forth in Article
1 of the Credit Agreement is amended to delete the reference to “$270,000,000” therein and to
substitute “$370,000,000” therefor.




          (c) Clause (h) of Section 6.01 of the Credit Agreement is amended to delete the
reference to “$270,000,000” therein and to substitute “$370,000,000” therefor.




          2. Conditions of Effectiveness. The effectiveness of this Amendment is
subject to the conditions precedent that (a) the Administrative Agent shall have received (i)
counterparts of this Amendment duly executed by the Borrowers, the Required Lenders and the
Administrative Agent and (ii) counterparts of the Consent and Reaffirmation attached hereto as
Exhibit A duly executed by the






 









 







Subsidiary Guarantors and (b) the Company shall have paid, to the extent invoiced, all
out-of-pocket expenses of the Administrative Agent (including reasonable attorneys’ fees and
expenses) in connection with this Amendment and the other Loan Documents.




          3. Representations and Warranties of the Borrowers. Each Borrower hereby
represents and warrants as follows:




          (a) This Amendment and the Credit Agreement, as amended hereby, constitute legal, valid and
binding obligations of such Borrower and are enforceable against such Borrower in accordance with
their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.




          (b) As of the date hereof and giving effect to the terms of this Amendment, (i) no Default
shall have occurred and be continuing and (ii) the representations and warranties of the Borrowers
set forth in the Credit Agreement, as amended hereby, are true and correct as of the date hereof.




          4. Reference to and Effect on the Credit Agreement.




          (a) Upon the effectiveness hereof, each reference to the Credit Agreement in the Credit
Agreement or any other Loan Document shall mean and be a reference to the Credit Agreement as
amended hereby.




          (b) Except as specifically amended above, the Credit Agreement and all other documents,
instruments and agreements executed and/or delivered in connection therewith shall remain in full
force and effect and are hereby ratified and confirmed.




          (c) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver
of any right, power or remedy of the Administrative Agent or the Lenders, nor constitute a waiver
of any provision of the Credit Agreement or any other documents, instruments and agreements
executed and/or delivered in connection therewith.




          5. Governing Law. This Amendment shall be construed in accordance with and
governed by the law of the State of New York.




          6. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment for any other
purpose.




          7. Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. Signatures delivered by facsimile or
PDF shall have the same force and effect as manual signatures delivered in person.




[Signature Pages Follow]









2









 








          IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first above
written.




	 	 	 	 	 
	 	BRUSH ENGINEERED MATERIALS INC., as the Company

 	 
	 	By:  	/s/ Michael C. Hasychak
 	 
	 	 	Name:  	Michael C. Hasychak 	 
	 	 	Title:  	Vice President, Treasurer & Secretary 	 
	 
	 	WILLIAMS ADVANCED MATERIALS

(NETHERLANDS) B.V., as the Dutch Borrower

 	 
	 	By:  	/s/ James P. Marrotte
 	 
	 	 	Name:  	James P. Marrotte 	 
	 	 	Title:  	Class A Director 	 
	 	 	 
	 	By:  	                                      /s/ Cynthia H. Friedman
 	 
	 	 	Name:  	Cynthia H. Friedman 	 
	 	 	Title:  	Class A Director 	 
	 	 	 
	 	By:  	                                      /s/ C. J. Horstmanshof
 	 
	 	 	Name:  	C. J. Horstmanshof 	 
	 	 	Title:  	Class B Director 	 
	 



Signature Page to Amendment No. 5

Brush Engineered Materials Inc. et al

Credit Agreement dated as of November 7, 2007









 









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, individually
as a Lender, as Swingline Lender, as Issuing Bank and as
Administrative Agent

 	 
	 	By:  	/s/ William P. McGreehan
 	 
	 	 	Name:  	William P. McGreehan 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Amendment No. 5

Brush Engineered Materials Inc. et al

Credit Agreement dated as of November 7, 2007








 









 








	 	 	 	 	 
	 	FIFTH THIRD BANK, individually as a Lender and as

Co-Syndication Agent

 	 
	 	By:  	/s/ Martin H. McGinty
 	 
	 	 	Name:  	Martin H. McGinty 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Amendment No. 5

Brush Engineered Materials Inc. et al

Credit Agreement dated as of November 7, 2007








 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A., individually as a Lender and as
Co-Syndication Agent

 	 
	 	By:  	/s/ Sandra Guerrieri
 	 
	 	 	Name:  	Sandra Guerrieri 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Amendment No. 5

Brush Engineered Materials Inc. et al

Credit Agreement dated as of November 7, 2007








 









 








	 	 	 	 	 
	 	RBS CITIZENS, NATIONAL ASSOCIATION, individually as a
Lender and as Co-Documentation Agent

 	 
	 	By:  	/s/ Patrick F. Dunphy
 	 
	 	 	Name:  	Patrick F. Dunphy 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Amendment No. 5

Brush Engineered Materials Inc. et al

Credit Agreement dated as of November 7, 2007








 









 








	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION, individually as a Lender
and as Co-Documentation Agent

 	 
	 	By:  	/s/ Marcel Fournier
 	 
	 	 	Name:  	Marcel Fournier 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Amendment No. 5

Brush Engineered Materials Inc. et al

Credit Agreement dated as of November 7, 2007








 









 








	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Lender

 	 
	 	By:  	/s/ Jason W. Sutton
 	 
	 	 	Name:  	Jason W. Sutton 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Amendment No. 5

Brush Engineered Materials Inc. et al

Credit Agreement dated as of November 7, 2007









 









 








EXHIBIT A




CONSENT AND REAFFIRMATION



          Each of the undersigned hereby acknowledges receipt of a copy of the foregoing Amendment No. 5
to the Credit Agreement dated as of November 7, 2007 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”) by and among
Brush Engineered Materials Inc. (the “Company”), the Foreign Subsidiary Borrowers from time
to time party thereto (together with the Company, the “Borrowers”), the financial
institutions from time to time party thereto (the “Lenders”) and JPMorgan Chase Bank,
National Association, as Administrative Agent (the “Administrative Agent”), which Amendment
No. 5 is dated as of March 4, 2011 (the “Amendment”). Capitalized terms used in this
Consent and Reaffirmation and not defined herein shall have the meanings given to them in the
Credit Agreement. Without in any way establishing a course of dealing by the Administrative Agent
or any Lender, each of the undersigned consents to the Amendment and reaffirms the terms and
conditions of the Subsidiary Guaranty, the Security Agreement and any other Loan Document executed
by it and acknowledges and agrees that such agreements and each and every such Loan Document
executed by the undersigned in connection with the Credit Agreement remains in full force and
effect and is hereby reaffirmed, ratified and confirmed. All references to the Credit Agreement
contained in the above-referenced documents shall be a reference to the Credit Agreement as so
modified by the Amendment and as the same may from time to time hereafter be amended, modified or
restated.



Dated: March 4, 2011




[Signature Page Follows]







 









 








	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	BRUSH ENGINEERED MATERIALS INC.	 	 	 	BRUSH WELLMAN INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Michael C. Hasychak	 	 	 	By:	 	/s/ Michael C. Hasychak	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	Michael C. Hasychak
	 	 	 	 	 	Name:
	 	Michael C. Hasychak	 	 
	 

	 	Title:
	 	Vice President, Treasurer & Secretary
	 	 	 	 	 	Title:
	 	Vice President, Treasurer & Secretary
	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	BRUSH RESOURCES INC.	 	 	 	WILLIAMS ADVANCED MATERIALS INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Michael C. Hasychak	 	 	 	By:	 	/s/ Michael C. Hasychak	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	Michael C. Hasychak
	 	 	 	 	 	Name:
	 	Michael C. Hasychak	 	 
	 

	 	Title:
	 	Vice President, Treasurer & Secretary
	 	 	 	 	 	Title:
	 	Vice President, Treasurer & Secretary	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TECHNICAL MATERIALS, INC.	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Michael C. Hasychak	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	Michael C. Hasychak	 	 	 	 	 	 	 	 	 	 
	 

	 	Title:
	 	Vice President, Treasurer & Secretary	 	 	 	 	 	 	 	 	 	 






Signature Page to Consent and Reaffirmation to Amendment No. 5

Brush Engineered Materials Inc. et al

Credit Agreement dated as of November 7, 2007