ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT (the "Agreement") dated as of February 24,
1998 by and between EAGLE-PICHER INDUSTRIES, INC., an Ohio corporation (the
"Company"), as survivor and successor by merger with E-P Acquisition, Inc., and
ABN AMRO Bank N.V., as Agent for the lenders from time to time party to the
Credit Agreement (as hereinafter defined) for the benefit of the Agents, the
Lenders, the Swingline Lender and the Letter of Credit Issuers. Capitalized
terms used herein without definition which are defined in the Credit Agreement
shall have the same meanings herein as ascribed to such terms in the Credit
Agreement.
WITNESSETH THAT:
WHEREAS, E-P Acquisition, Inc., a Delaware corporation ("Acquisition")
and ABN AMRO Bank N.V. ("ABN AMRO"), individually and as agent (ABN AMRO acting
as such agent and any successor or successors to ABN AMRO in such capacity being
hereinafter referred to as the "Agent") have entered into a Credit Agreement
dated as of February 19, 1998 ("Credit Agreement") pursuant to which (i) ABN
AMRO and such other banks, financial institutions and letter of credit issuers
from time to time parties thereto (ABN AMRO, in its individual capacity, and
such other banks and financial institutions being hereinafter referred to
collectively as the "Lenders" and such letter of credit issuers being
hereinafter referred to collectively as the "Letter of Credit Issuers") have
agreed to extend various credit facilities to the Company on a condition, among
others, that Acquisition shall have merged with and into the Company and (ii)
Acquisition has undertaken certain obligations (the "Assumed Obligations") in
contemplation of such merger; and
WHEREAS, Acquisition has today merged itself into the Company pursuant
to the laws of the States of Delaware and Ohio, with the Company as the
surviving and continuing entity and, as a result of such merger, the Company
has, by operation of law, assumed and become liable for the Assumed Obligations;
and
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and for the purpose of acknowledging the Company's assumption of
the Assumed Obligations,
the Company agrees with the Agent, for the benefit of the Agents, the Lenders,
the Swingline Lender and the Letter of Credit Issuers as follows:
1. The Company hereby acknowledges and confirms that it has
assumed and is liable for the Assumed Obligations and agrees to pay the
same to the Agents, the Lenders, the Swingline Lenders and the Letter of
Credit Issuers, as applicable, together with interest thereon, on and
subject to the terms and conditions of the Credit Agreement to the same
extent and with the same force and effect as if the Company had
originally executed the Credit Agreement.
2. The Assumed Obligations shall be deemed "Obligations" of the
Company under and as defined in, and shall be subject to all of the
terms and conditions of, the Credit Agreement as supplemented hereby and
shall be secured by all the Collateral, and entitled to all other
benefits and security, described or referred to in the Credit Agreement
as so supplemented.
3. Notwithstanding the execution and delivery hereof, the Credit
Agreement shall be and remain in full force and effect as supplemented
hereby and any rights and remedies of the Agents, the Lenders, the
Swingline Lender and the Letter of Credit Issuers, and obligations of
Acquisition thereunder shall be and remain in full force and effect as
contemplated hereby and shall not be discharged.
4. In evidence of the foregoing, the Company hereby adopts the
Credit Agreement as a new and separate contract, all to the same extent
and with the same force and effect as if the Company had originally
executed the Credit Agreement and all references therein to Acquisition
(as therein referenced as "Borrower") were instead references to the
Company. The Company hereby acknowledges and agrees that all of the
terms and conditions contained in the Credit Agreement, in each case as
so adopted and otherwise supplemented hereby, shall be applicable to all
Obligations of the Company, including the Assumed Obligations (the term
"Obligations" as used herein to have the same meaning herein as such
term has in the Credit Agreement). The Company agrees to observe and
comply with all of the terms and conditions of the Credit Agreement
adopted by the Company herein and hereby repeats and reaffirms for the
benefit of the parties thereto all covenants, agreements,
representations and warranties contained in the Credit Agreement as so
supplemented hereby, each and all of which are and shall remain
applicable to the Company and all the Obligations.
5. In order to induce the Lenders, the Swingline Lender and the
Letter of Credit Issuers to extend credit to the Company under the
Credit Agreement as
supplemented hereby and to accept this Agreement, the Company hereby
represents and warrants to the parties to the Credit Agreement that as
of the date hereof, after giving effect to the Transaction, each of the
representations and warranties set forth in the Credit Agreement is and
shall be and remain true and correct and the Company shall be in full
compliance with all of the terms and conditions of the Credit Agreement
as so supplemented and no Default or Event of Default as defined in the
Credit Agreement as so supplemented shall have occurred and be
continuing.
6. The effectiveness of this Agreement is subject to the
condition precedent that the merger of Acquisition into the Company has
been successfully consummated and the Agent shall have received evidence
thereof.
7. This Agreement may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which
when so executed shall be an original but all of which to constitute one
and the same instrument. The execution and acceptance of this Agreement
by the Lenders, the Swingline Lender, the Letter of Credit Issuers and
the Agents (other than the Agent) is not necessary for the effectiveness
of this Agreement. The execution and acceptance of this Agreement by the
Agent shall be deemed execution and acceptance of this Agreement by such
parties. Except as specifically supplemented hereby, all of the terms
and conditions of the Credit Agreement shall stand and remain unchanged
and in full force and effect. No reference to this Agreement need to be
made in any note, instrument or other document making reference to the
Credit Agreement, any reference to the Credit Agreement in any of such
to be deemed to be a reference to the Credit Agreement as supplemented
hereby. This instrument shall be construed and governed by and in
accordance with the internal laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first hereinabove written.
EAGLE-PICHER INDUSTRIES,
INC., as survivor and
successor by merger
with E-P Acquisition,
Inc.
By /s/ ANDRIES RUIJSSENAARS
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Its President
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ABN AMRO BANK N.V., as Agent
By: /s/ GREGORY D. AMOROSO
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Name: Gregory D. Amoroso
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Title: Group Vice President
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By: /s/ PAUL WIDUCH
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Name: Paul Widuch
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Title: Group Vice President
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