SECURITY AGREEMENT
This Security Agreement (the "Agreement") is dated as of February 24,
1998, by and among EAGLE-PICHER INDUSTRIES, INC., a corporation organized and
existing under the laws of Ohio, as survivor and successor by merger with E-P
Acquisition, Inc., (as further defined in the Credit Agreement referred to
below, the "Borrower"), and the other parties executing this Agreement under the
heading "Debtors" (the Borrower and such other parties, along with any parties
who execute and deliver to the Agent an agreement attached hereto as Schedule D,
being hereinafter referred to collectively as the "Debtors" and individually as
a "Debtor"), each with its mailing address as set forth on its signature page
hereto, and ABN AMRO Bank N.V., a bank organized under the laws of The
Netherlands ("ABN AMRO"), with its mailing address at 1325 Avenue of the
Americas, New York, New York 10019, acting as agent hereunder for the Secured
Creditors hereinafter identified and defined (ABN AMRO acting as such agent and
any successor or successors to ABN AMRO acting in such capacity being
hereinafter referred to as the "Agent");
PRELIMINARY STATEMENTS
A. The Borrower and ABN AMRO, individually and as agent, have entered
into a Credit Agreement dated as of February 19, 1998 (such Credit Agreement as
the same may be amended, modified or restated from time to time being
hereinafter referred to as the "Credit Agreement"), pursuant to which ABN AMRO
and such other banks and financial institutions and letter of 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 individually as a "Lender" and such letter of credit issuers
being hereinafter referred to collectively as the "Letter of Credit Issuers" and
individually as a "Letter of Credit Issuer") have agreed, subject to certain
terms and conditions, to extend credit and make certain other financial
accommodations available to the Borrower.
B. The Borrower may from time to time enter into one or more Interest
Rate Protection Agreements with one or more of the Lenders party to the Credit
Agreement or affiliates thereof for the purpose of hedging or otherwise
protecting the Borrower against changes in interest rates (the liability of the
Borrower in respect of such agreements with such Lenders or affiliates being
hereinafter referred to as the "Hedging Liability") (the Agent, the Lenders, the
Letter of Credit Issuers and such affiliates party to Interest Rate Protection
Agreements being hereinafter referred to collectively as the "Secured Creditors"
and individually as a "Secured Creditor").
C. As a condition to extending credit to the Borrower under the Credit
Agreement, the Secured Creditors have required, among other things, that each
Debtor grant to the Agent a lien on and security interest in the personal
property of such Debtor described herein subject to the terms and conditions
hereof.
D. The Borrower owns, directly or indirectly, equity interests in each
other Debtor and the Borrower provides each other Debtor with financial,
management, administrative, and technical support which enables such Debtor to
conduct its business in an orderly and efficient manner in the ordinary course.
E. Each Debtor will benefit, directly or indirectly, from credit and
other financial accommodations extended by the Secured Creditors to the
Borrower.
NOW, THEREFORE, for and in consideration of the execution and delivery
by the Secured Creditors of the Credit Agreement, and other good and valuable
consideration, receipt whereof is hereby acknowledged, the parties hereto hereby
agree as follows:
Section 1. Terms defined in Credit Agreement. All capitalized terms
used herein without definition shall have the same meanings herein as such terms
have in the Credit Agreement. The term "Debtor" and "Debtors" as used herein
shall mean and include the Debtors collectively and also each individually, with
all grants, representations, warranties and covenants of and by the Debtors, or
any of them, herein contained to constitute joint and several grants,
representations, warranties and covenants of and by the Debtors; provided,
however, that unless the context in which the same is used shall otherwise
require, any grant, representation, warranty or covenant contained herein
related to the Collateral shall be made by each Debtor only with respect to the
Collateral owned by it or represented by such Debtor as owned by it.
Section 2. Grant of Security Interest in the Collateral; Obligations
Secured. (a) Each Debtor hereby grants to the Agent for the benefit of the
Secured Creditors a lien on and security interest in, and acknowledges and
agrees that the Agent has and shall continue to have for the benefit of the
Secured Creditors a continuing lien on and security interest in, any and all
right, title and interest of each Debtor, whether now owned or existing or
hereafter created, acquired or arising, in and to the following:
(i) Receivables. All Receivables, whether now owned or existing
or hereafter created, acquired or arising, and however evidenced or
acquired, or in which such Debtor now has or hereafter acquires any
rights (the term "Receivables" means and includes all accounts, accounts
receivable, contract rights, instruments, notes, drafts, acceptances,
documents, chattel paper, any right of such Debtor to payment for goods
sold or leased or for services rendered, whether or not earned by
performance, and all other forms of obligations owing to such Debtor,
and all of such Debtor's rights to any merchandise or other goods
(including without limitation any returned or repossessed goods and the
right of stoppage in transit) which is represented by, arises from or is
related to any of the foregoing);
(ii) General Intangibles. All General Intangibles, whether now
owned or existing or hereafter created, acquired or arising, or in which
such Debtor now has or hereafter acquires any rights (the term "General
Intangibles" means and includes all general intangibles, all patents,
patent applications, patent licenses, trademarks, trademark
registrations, trademark licenses, trade styles, trade names,
copyrights,
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copyright registrations, copyright licenses and other licenses and
similar intangibles, all customer, client and supplier lists (in
whatever form maintained), all rights in leases and other agreements
relating to real or personal property, all causes of action and tax
refunds of every kind and nature, all privileges, franchises,
immunities, licenses, permits and similar intangibles, and all other
personal property (including things in action) not otherwise covered by
this Agreement);
(iii) Inventory. All Inventory, whether now owned or existing or
hereafter created, acquired or arising, or in which such Debtor now has
or hereafter acquires any rights and all documents of title at any time
evidencing or representing any part thereof (the term "Inventory" means
and includes all inventory and other goods which are held for sale or
lease or are to be furnished under contracts of service or consumed in
such Debtor's business, all goods which are raw materials,
work-in-process, finished goods, materials or supplies of every kind and
nature, in each case used or usable in connection with the acquisition,
manufacture, processing, supply, servicing, storing, packing, shipping,
advertising, selling, leasing or furnishing of such goods, and any
constituents or ingredients thereof, and all goods which are returned or
repossessed goods);
(iv) Equipment. All Equipment, whether now owned or existing or
hereafter created, acquired or arising, or in which such Debtor now has
or hereafter acquires any rights (the term "Equipment" means and
includes all equipment and other machinery, tools, fixtures, trade
fixtures, furniture, furnishings, office equipment, vehicles (including
vehicles subject to a certificate of title law) and all other goods now
or hereafter used or usable in connection with such Debtor's business,
together with all parts, accessories and attachments relating to any of
the foregoing);
(v) Investment Property. All Investment Property, whether now
owned or existing or hereafter created, acquired or arising, or in which
such Debtor now has or hereafter acquires any rights (the term
"Investment Property" means and includes all investment property and all
other securities (whether certificated or uncertificated), security
entitlements, securities accounts, commodity contracts, and commodity
accounts, including all substitutions and additions thereto, all
dividends, distributions and sums distributable or payable from, upon,
or in respect of such property, and all rights and privileges incident
to such property); provided, however that in no event will any of the
Investment Property described above be deemed to include any interest in
any joint venture or in any contract, contract right, or other similar
general intangible if the granting of a lien therein is prohibited by
the terms of the written agreement creating such joint venture or
creating or evidencing such contract, contract right, or similar general
intangible; provided further, that (x) to the extent not prohibited by
law, the Agent has and shall at all times have a security interest in
all rights to payments of money due or to become due under any joint
venture, contract, contract right, or similar general intangible and all
other proceeds thereof and (y) if and when the prohibition which
prevents the granting of a security interest in any such property is
removed, terminated or otherwise becomes unenforceable as a matter of
law, the Agent will be deemed to have, and at all times to have had, a
security interest
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in such property, and the Investment Property will be deemed to include,
and at all times to have included, such property;
(vi) Deposits and Property in Possession. All deposit accounts
(whether matured or unmatured and in whatever currency denominated) of
such Debtor maintained with any of the Secured Creditors and all sums
now or hereafter on deposit therein or payable thereon, and any and all
other property and interests in property which now is or may from time
to time hereafter come into the possession, custody or control of any of
the Secured Creditors, or any agent of any of them, in any way and for
any purpose (whether for safekeeping, custody, pledge, transmission,
collection or otherwise);
(vii) Records. All supporting evidence and documents relating to
any of the above-described property, including, without limitation,
computer programs, disks, tapes and related electronic data processing
media, and all rights of such Debtor to retrieve the same from third
parties, written applications, credit information, account cards,
payment records, correspondence, delivery and installation certificates,
invoice copies, delivery receipts, notes and other evidences of
indebtedness, insurance certificates and the like, together with all
books of account, ledgers and cabinets in which the same are reflected
or maintained, all whether now existing or hereafter arising;
(viii) Accessions and Additions. All accessions and additions to and
substitutions and replacements of any and all of the foregoing, whether
now existing or hereafter arising; and
(ix) Proceeds and Products. All proceeds and products of the
foregoing and all insurance of the foregoing and proceeds thereof,
whether now existing or hereafter arising;
all of the foregoing being herein sometimes referred to as the "Collateral". All
terms which are used herein which are defined in the Uniform Commercial Code of
the State of New York ("UCC") shall have the same meanings herein as such terms
are defined in the UCC, unless this Agreement shall otherwise specifically
provide.
(b) This Agreement is made and given to secure, and shall secure, the
prompt payment and performance when due of (i) any and all indebtedness,
obligations and liabilities of the Debtors, and of any of them individually, to
the Secured Creditors, and to any of them individually, under or in connection
with or evidenced by the Credit Agreement, the Notes of the Borrower heretofore
or hereafter issued under the Credit Agreement and the obligations of the
Borrower to reimburse the Secured Creditors for the amount of all drawings on
all Letters of Credit issued pursuant to the Credit Agreement, and all other
obligations of the Borrower under any and all applications for Letters of
Credit, and any and all liability of the Debtors, and of any of them
individually, arising under or in connection with or otherwise evidenced by
agreements with any one or more of the Secured Creditors with respect to any
Hedging Liability, and any and all liability of the Debtors, and
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of any of them individually, arising under any guaranty issued by it relating to
the foregoing or any part thereof, in each case whether now existing or
hereafter arising (and whether arising before or after the filing of a petition
in bankruptcy and including all interest accrued after the petition date), due
or to become due, direct or indirect, absolute or contingent, and howsoever
evidenced, held or acquired and (ii) any and all reasonable expenses and
charges, legal or otherwise, suffered or incurred by the Secured Creditors, and
any of them individually, in collecting or enforcing any of such indebtedness,
obligations and liabilities or in realizing on or protecting or preserving any
security therefor, including, without limitation, the lien and security interest
granted hereby (all of the indebtedness, obligations, liabilities, expenses and
charges described above being hereinafter referred to as the "Obligations").
Notwithstanding anything in this Agreement to the contrary, the right of
recovery against any Debtor (other than the Borrower to which this limitation
shall not apply) under this Agreement shall not exceed $1.00 less than the
amount which would render such Debtor's obligations under this Agreement void or
voidable under applicable law, including fraudulent conveyance law.
Section 3. Covenants, Agreements, Representations and Warranties. The
Debtors hereby covenant and agree with, and represent and warrant to, the
Secured Creditors that:
(a) Each Debtor is duly organized, validly existing and in good
standing under the laws of the state of its incorporation or
organization, is the sole and lawful owner of the Collateral for which a
security interest is granted by it hereunder and has the power and
authority to enter into this Agreement and to perform each and all of
the matters and things herein provided for. Each Debtor's Federal tax
identification number is set forth under its name under Column 1 on
Schedule A.
(b) Each Debtor's respective chief executive office is at the
location listed under Column 2 on Schedule A attached hereto opposite
such Debtor's name; and such Debtor has no other executive offices or
places of business other than those listed under Column 3 on Schedule A
attached hereto opposite such Debtor's name. The Collateral owned or
leased by each Debtor is and shall remain in such Debtor's possession or
control at the locations listed under Columns 2 and 3 on Schedule A
attached hereto opposite such Debtor's name (collectively for each
Debtor, the "Permitted Collateral Locations"), except as to any
Collateral sold or otherwise disposed of in accordance with this
Agreement and Section 8.02 of the Credit Agreement. If for any reason
any Collateral is at any time kept or located at a location other than a
Permitted Collateral Location, the Agent shall nevertheless have and
retain a lien on and security interest therein. No Debtor shall move its
chief executive office or maintain a place of business at a location
other than those specified under Columns 2 or 3 on Schedule A or permit
any Collateral to be located at a location other than a Permitted
Collateral Location, in each case without first providing the Agent at
least 30 days' prior written notice of the Debtor's intent to do so;
provided that each Debtor shall at all times maintain its chief
executive office and places of business in the United States of America
and Permitted Collateral Locations in the United States of America or
any province of Canada and, with respect to any new chief executive
office or place of business or location of Collateral, such Debtor
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shall have taken all action reasonably requested by the Agent to
maintain the lien and security interest of Agent in the Collateral at
all times fully perfected and in full force and effect.
(c) The Collateral and every part thereof is and shall be free
and clear of all security interests, liens (including, without
limitation, mechanics', laborers' and statutory liens), attachments,
levies and encumbrances of every kind, nature and description and
whether voluntary or involuntary, except for the lien and security
interest of the Agent therein, and other Liens permitted by Section 8.01
of the Credit Agreement (herein, the "Permitted Liens"). Each Debtor
shall warrant and defend the Collateral against any claims and demands
of all persons at any time claiming the same or any interest in the
Collateral adverse to any of the Secured Creditors.
(d) Each Debtor will promptly pay when due all taxes, assessments
and governmental charges and levies upon or against it or its
Collateral, in each case before the same become delinquent and before
penalties accrue thereon, unless and to the extent that the same are
being contested in good faith by appropriate proceedings which prevent
attachment of any Lien resulting therefrom to, foreclosure on or other
realization upon any Collateral and preclude interference with the
operation of its business in the ordinary course and such Debtor shall
have established adequate reserves therefor.
(e) Each Debtor agrees it will not waste or destroy the
Collateral or any part thereof and will not be negligent in the care or
use of any Collateral. Each Debtor agrees it will not use, manufacture,
sell or distribute any Collateral in violation of any statute, ordinance
or other governmental requirement. Each Debtor will perform in all
material respects its obligations under any contract or other agreement
constituting part of the Collateral, it being understood and agreed that
the Secured Creditors have no responsibility to perform such
obligations.
(f) Subject to Sections 4(d), 5(a), 6(b), 6(c), and 7(c) hereof
and the terms of the Credit Agreement (including, without limitation,
Section 8.02 thereof), each Debtor agrees it will not, without the
Agent's prior written consent, sell, assign, mortgage, lease or
otherwise dispose of the Collateral or any interest therein.
(g) Each Debtor will insure its Collateral which is insurable
against such risks and hazards as other companies similarly situated
insure against, and including in any event loss or damage by fire,
theft, burglary, pilferage, and loss in transit, in amounts and under
policies containing loss payable clauses to the Agent as its interest
may appear (and, if the Agent requests, naming the Secured Creditors as
additional insureds therein) by insurers reasonably acceptable to the
Agent. All premiums on such insurance shall be paid by the Debtors and
the policies of such insurance (or certificates therefor) delivered to
the Agent. All insurance required hereby shall provide that any loss
shall be payable notwithstanding any act or negligence of the relevant
Debtor, shall provide that no cancellation thereof shall be effective
until at least 30 days after receipt by the relevant Debtor and the
Agent of written notice
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thereof, and shall be reasonably satisfactory to the Agent in all other
respects. In case of any material loss, damage to or destruction of the
Collateral or any part thereof, the relevant Debtor shall promptly give
written notice thereof to the Secured Creditors generally describing the
nature and extent of such damage or destruction. In case of any loss,
damage to or destruction of the Collateral or any part thereof, the
relevant Debtor, whether or not the insurance proceeds, if any, received
on account of such damage or destruction shall be sufficient for that
purpose, at such Debtor's cost and expense, will promptly repair or
replace the Collateral so lost, damaged or destroyed, except to the
extent such Collateral is not necessary to the conduct of such Debtor's
business in the ordinary course. In the event any Debtor shall receive
any proceeds of such insurance, such Debtor will immediately pay over
such proceeds to the Agent; provided that, in the absence of any Default
or Event of Default such Debtors shall be entitled to retain such
insurance proceeds to the extent such proceeds are used for such repair
or replacement in accordance with Section 4.02.01(g) of the Credit
Agreement. Each Debtor hereby authorizes the Agent, at the Agent's
option, to adjust, compromise and settle any losses under any insurance
afforded at any time after the occurrence and during the continuation of
any Event of Default, and such Debtor does hereby irrevocably constitute
the Agent, its officers, agents and attorneys, as such Debtor's
attorneys-in-fact, with full power and authority after the occurrence
and during the continuation of any Event of Default to effect such
adjustment, compromise and/or settlement and to endorse any drafts drawn
by an insurer of the Collateral or any part thereof and to do everything
necessary to carry out such purposes and to receive and receipt for any
unearned premiums due under policies of such insurance. Net insurance
proceeds received by the Agent under the provisions hereof or under any
policy or policies of insurance covering the Collateral or any part
thereof pursuant to the terms hereof shall be applied to the reduction
of the Obligations (whether or not then due); provided, however, that
the Agent agrees to release such insurance proceeds to the relevant
Debtor for replacement or restoration of the portion of the Collateral
lost, damaged or destroyed required by this Agreement to be so replaced
or restored if, but only if, (i) at the time of release no Default or
Event of Default exists hereunder, (ii) written application for such
release is received from such Debtor within 10 days of receipt of, or in
the event received by the Agent notice of Agent's receipt of, such
proceeds and (iii) the Agent has received evidence reasonably
satisfactory to it that the Collateral lost, damaged or destroyed has
been or will be replaced or restored in accordance with Section
4.02.01(g) of the Credit Agreement. All insurance proceeds shall be
subject to the lien and security interest of the Agent hereunder.
(h) Subject to Section 7.02 of the Credit Agreement, each Debtor
will allow the Secured Creditors, and their respective representatives
free access to and right of inspection of the Collateral.
(i) If any Collateral is in the possession or control of any
agents or processors of a Debtor and the Agent so requests, such Debtor
agrees to notify such agents or processors in writing of the Agent's
security interest therein and instruct them to hold all such Collateral
for the Agent's account and subject to the Agent's
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instructions. Each Debtor will, upon the request of the Agent, authorize
and instruct all bailees and any other parties, if any, at any time
processing, labeling, packaging, holding, storing, shipping or
transferring all or any part of the Collateral to permit the Secured
Creditors and their respective representatives to examine and inspect
any of the Collateral then in such party's possession and to verify from
such party's own books and records any information concerning the
Collateral or any part thereof which the Secured Creditors or their
respective representatives may seek to verify. As to any premises not
owned by a Debtor wherein any of the Collateral is located, if any, such
Debtor shall, upon the Agent's request, cause each party having any
right, title or interest in, or lien on, any of such premises to enter
into an agreement (any such agreement to contain a legal description of
such premises) whereby such party disclaims any right, title and
interest in, and lien on, the Collateral, allowing the removal of such
Collateral by the Agent and otherwise in form and substance reasonably
acceptable to the Agent.
(j) Upon the Agent's request, each Debtor agrees from time to
time to deliver to the any Secured Creditor such evidence of the
existence, identity and location of its Collateral and of its
availability as collateral security pursuant hereto, in each case as
such Secured Creditor may request. The Agent shall have the right to
verify all or any part of the Collateral in any manner, and through any
medium, which the Agent considers appropriate and reasonable, and each
Debtor agrees to furnish all assistance and information, and perform any
acts, which the Agent may require in connection therewith.
(k) Each Debtor will comply in all material respects with the
terms and conditions of any and all leases, easements, right-of-way
agreements and other agreements binding upon such Debtor or affecting
the Collateral, in each case which cover the premises wherein the
Collateral is located, and any orders, ordinances, laws or statutes of
any city, state or other governmental entity, department or agency
having jurisdiction with respect to such premises or the conduct of
business thereon.
(l) No Debtor has invoiced Receivables or otherwise transacted
business, and does not invoice Receivables or otherwise transact
business, under any trade names other than its name set forth on its
signature page to this Agreement or as otherwise set forth on Schedule B
hereto. Each Debtor agrees it will not change its name or transact
business under any other trade name, in each case without first giving
the Agent at least 30 days' prior written notice of its intent to do so.
(m) Each Debtor agrees to execute and deliver to the Agent such
further agreements, assignments, instruments and documents, and to do
all such other things, as the Agent may reasonably deem necessary or
appropriate to assure the Agent its lien and security interest
hereunder, including without limitation, (i) executing such financing
statement or other instruments and documents as the Agent may from time
to time reasonably require to comply with the UCC, and (ii) executing
such patent, trademark, and copyright agreements as the Agent may from
time to time reasonably require to comply with the filing requirements
of the United States Patent and
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Trademark Office and the United States Copyright Office. Each Debtor
hereby agrees that a carbon, photographic or other reproduction of this
Agreement or any such financing statement is sufficient for filing as a
financing statement by the Agent without prior notice thereof to such
Debtor wherever the Agent deems necessary or desirable to perfect or
protect the security interest granted hereby. In the event for any
reason the law of any jurisdiction other than New York becomes or is
applicable to the Collateral or any part thereof, or to any of the
Obligations, each Debtor agrees to execute and deliver all such
instruments and documents and to do all such other things as the Agent
deems necessary or appropriate to preserve, protect and enforce the
security interest of the Agent under the law of such other jurisdiction.
(n) On failure of a Debtor to perform any of the covenants and
agreements herein contained, the Agent may, at its option, perform the
same and in so doing may expend such sums as the Agent deems advisable
in the performance thereof, including, without limitation, the payment
of any insurance premiums, the payment of any taxes, liens and
encumbrances, expenditures made in defending against any adverse claims,
and all other expenditures which the Agent may be compelled to make by
operation of law or which the Agent may make by agreement or otherwise
for the protection of the security hereof. All such sums and amounts so
expended shall be repayable by such Debtor immediately upon demand,
shall constitute additional Obligations secured hereunder, and shall
bear interest from the date said amounts are expended at the rate per
annum (computed on the basis of a year of 365 or 366 days, as the case
may be, for the actual number of days elapsed) determined by adding 2%
to the Base Rate from time to time in effect plus the Applicable Base
Rate Margin for Revolving Loans, with any change in such rate per annum
as so determined by reason of a change in such Base Rate to be effective
on the date of such change in said Base Rate (such rate per annum as so
determined being hereinafter referred to as the "Default Rate"). No such
performance of any covenant or agreement by the Agent on behalf of a
Debtor, and no such advancement or expenditure therefor, shall relieve
any Debtor of any default under the terms of this Agreement or in any
way obligate any Secured Creditor to take any further or future action
with respect thereto. The Agent in making any payment hereby authorized
may do so according to any bill, statement or estimate procured from the
appropriate public office or holder of the claim to be discharged
without inquiry into the accuracy of such bill, statement or estimate or
into the validity of any tax assessment, sale, forfeiture, tax lien or
title or claim. The Agent in performing any act hereunder shall be the
sole judge of whether the relevant Debtor is required to perform the
same under the terms of this Agreement. The Agent is hereby authorized
to charge any depository or other account of any Debtor maintained with
the Agent for the amount of such sums and amounts so expended.
Section 4. Special Provisions Re: Receivables. (a) As of the time any
Receivable becomes subject to the security interest provided for hereby and at
all times thereafter, each Debtor shall be deemed to have warranted as to each
and all of its Receivables that all warranties of such Debtor set forth in this
Agreement are true and correct with respect to each such Receivable; that each
of its Receivable and all papers and documents relating thereto are genuine and
in all respects what they purport to be; that each of its Receivable is
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valid and existing and, if such Receivable is an account, arises out of a bona
fide sale of goods sold and delivered by such Debtor to, or in the process of
being delivered to, or out of and for services theretofore actually rendered by
such Debtor to, the account debtor named therein.
(b) To the extent any Receivables or other item of Collateral is
evidenced by an instrument, each Debtor shall cause such instrument to be
pledged and delivered to the Agent; provided, however, that, prior to the
existence of a Default or Event of Default and thereafter until otherwise
required by the Agent or the Required Lenders, a Debtor shall not be required to
deliver any such instrument if and only so long as the aggregate fair market
value of all such instruments held by the Debtors and not delivered to the Agent
under the Security Documents is less than $5,000,000 at any one time
outstanding.
(c) Unless and until an Event of Default hereunder occurs and is
continuing, any merchandise or other goods which are returned by a customer or
account debtor or otherwise recovered may be resold by the relevant Debtor in
the ordinary course of its business as presently conducted in accordance with
Section 6(b) hereof; upon the occurrence and during the continuation of any
Event of Default hereunder, such merchandise and other goods shall be set aside
at the request of the Agent and held by such Debtor as trustee for the Secured
Creditors and shall remain part of the Collateral. Unless and until an Event of
Default hereunder occurs and is continuing, the relevant Debtor may settle and
adjust disputes and claims with its customers and account debtors, handle
returns and recoveries and grant discounts, credits and allowances in the
ordinary course of its business as presently conducted for amounts and on terms
which such Debtor in good faith considers advisable. Upon the occurrence and
during the continuation of any Event of Default hereunder, unless the Agent
requests otherwise, each Debtor shall notify the Agent promptly of all returns
and recoveries and, on the Agent's request, deliver any such merchandise or
other goods to the Agent. Upon the occurrence and during the continuation of any
Event of Default hereunder, unless the Agent requests otherwise, each Debtor
shall also notify the Agent promptly of all disputes and claims and settle or
adjust them at no expense to the Secured Creditors hereunder, but no discount,
credit or allowance other than on normal trade terms in the ordinary course of
business as presently conducted shall be granted to any customer or account
debtor and no returns of merchandise or other goods shall be accepted by any
Debtor without the Agent's consent. The Agent may, at all times upon the
occurrence and during the continuation of any Event of Default hereunder, settle
or adjust disputes and claims directly with customers or account debtors for
amounts and upon terms which the Agent considers advisable.
Section 5. Collection of Receivables. (a) Except as otherwise provided
in this Agreement, each Debtor shall make collection of all of its Receivables
and may use the same to carry on its business in accordance with sound business
practice and otherwise subject to the terms hereof.
(b) Upon the occurrence and during the continuation of any Default or
Event of Default hereunder, whether or not the Agent has exercised any or all of
its rights under other provisions of this Section 5, in the event the Agent
requests any Debtor to do so:
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(i) all instruments and chattel paper at any time constituting
part of the Receivables (including any postdated checks) shall, upon
receipt by such Debtor, be immediately endorsed to and deposited with
Agent; and/or
(ii) such Debtor shall instruct all of its customers and account
debtors to remit all payments in respect of its Receivables to a lockbox
or lockboxes under the sole custody and control of Agent and which are
maintained at post offices selected by the Agent.
(c) Upon the occurrence and during the continuation of any Default or
Event of Default hereunder, whether or not the Agent has exercised any or all of
its rights under other provisions of this Section 5, the Agent or its designee
may notify the relevant Debtor's customers and account debtors at any time that
Receivables have been assigned to the Agent or of the Agent's security interest
therein, and either in its own name, or such Debtor's name, or both, demand,
collect (including, without limitation, through a lockbox analogous to that
described in Section 5(b)(ii) hereof), receive, receipt for, sue for, compound
and give acquittance for any or all amounts due or to become due on Receivables,
and in the Agent's discretion file any claim or take any other action or
proceeding which the Agent may deem reasonably necessary or appropriate to
protect and realize upon the security interest of the Agent in the Receivables.
(d) Any proceeds of Receivables or other Collateral transmitted to or
otherwise received by the Agent pursuant to any of the provisions of Sections
5(b) or 5(c) hereof may be handled and administered by the Agent in and through
a remittance account or accounts maintained at the Agent or by the Agent at a
commercial bank or banks selected by the Agent (collectively the "Depositary
Banks" and individually a "Depositary Bank"), and each Debtor acknowledges that
the maintenance of such remittance accounts by the Agent is solely for the
Agent's convenience and that the Debtors do not have any right, title or
interest in such remittance accounts or any amounts at any time standing to the
credit thereof. Subject to Section 4.05 of the Credit Agreement, the Agent may
apply all or any part of any proceeds of Receivables or other Collateral
received by it from any source to the payment of the Obligations (whether or not
then due and payable). The Agent need not apply or give credit for any item
included in proceeds of Receivables or other Collateral until the Depositary
Bank has received final payment therefor at its office in cash or final solvent
credits current at the site of deposit acceptable to the Agent and the
Depositary Bank as such. However, if the Agent does permit credit to be given
for any item prior to a Depositary Bank receiving final payment therefor and
such Depositary Bank fails to receive such final payment or an item is charged
back to the Agent or any Depositary Bank for any reason, the Agent may at its
election in either instance charge the amount of such item back against any such
remittance accounts or any depository account of any Debtor maintained with the
Agent, together with interest thereon at the rate then applicable to the Loan as
to which such item was applied. Concurrently with each transmission of any
proceeds of Receivables or other Collateral to any remittance account, upon the
Agent's request, the relevant Debtor shall furnish the Agent with a report in
such form as Agent shall reasonably require identifying the particular
Receivable or such other Collateral from which the same arises or relates. Each
Debtor hereby indemnifies the Secured Creditors from and against all
-11-
liabilities, damages, losses, actions, claims, judgments, and all reasonable
costs, expenses, charges and attorneys' fees suffered or incurred by any Secured
Creditor because of the maintenance of the foregoing arrangements; provided,
however, that no Debtor shall be required to indemnify any Secured Creditor for
any of the foregoing to the extent they arise solely from the gross negligence
or willful misconduct of the person seeking to be indemnified. The Secured
Creditors shall have no liability or responsibility to any Debtor for the Agent
or any other Depositary Bank accepting any check, draft or other order for
payment of money bearing the legend "payment in full" or words of similar import
or any other restrictive legend or endorsement whatsoever or be responsible for
determining the correctness of any remittance.
Section 6. Special Provisions Re: Inventory and Equipment. (a) Each
Debtor shall at its own cost and expense maintain, keep and preserve its
Inventory in good and merchantable condition and keep and preserve its Equipment
in good repair, working order and condition, ordinary wear and tear excepted,
and, without limiting the foregoing, make all necessary and proper repairs,
replacements and additions to its Equipment so that the operation thereof shall
be fully preserved and maintained.
(b) Each Debtor may, until an Event of Default has occurred and is
continuing and thereafter until otherwise notified by the Agent, use, consume
and sell the Inventory in the ordinary course of its business, but a sale in the
ordinary course of business shall not under any circumstance include any
transfer or sale in satisfaction, partial or complete, of a debt owing by such
Debtor.
(c) Each Debtor may, until an Event of Default has occurred and is
continuing and thereafter until otherwise notified by the Agent, sell (x)
obsolete, worn out or unusable Equipment which is concurrently replaced with
similar Equipment at least equal in quality and condition to that sold and owned
by such Debtor free of any lien, charge or encumbrance other than the security
interest granted hereby and (y) Equipment to the extent permitted by Section
8.02 of the Credit Agreement.
(d) As of the time any Inventory or Equipment of a Debtor becomes
subject to the security interest provided for hereby and at all times
thereafter, such Debtor shall be deemed to have warranted as to any and all of
such Inventory and Equipment that all warranties of such Debtor set forth in
this Agreement are true and correct with respect to such Inventory and
Equipment; that all of such Inventory and Equipment is located at a location set
forth pursuant to Section 3(b) hereof. Each Debtor warrants and agrees that none
of its Inventory is or will be consigned to any other person or entity without
the Agent's prior written consent.
(e) Upon the Agent's or the Required Lenders' request, each Debtor shall
at its own cost and expense cause the lien of the Agent in and to any portion of
its Collateral subject to a certificate of title law to be duly noted on such
certificate of title or to be otherwise filed in such manner as is prescribed by
law in order to perfect such lien and will cause all such certificates of title
and evidences of lien to be deposited with the Agent.
-12-
(f) Except for Equipment from time to time located on the real estate
described on Schedule C attached hereto or as otherwise hereafter disclosed to
the Secured Creditors in writing, none of the Equipment is or will be attached
to real estate in such a manner that the same may become a fixture.
(g) If any of the Inventory is at any time evidenced by a document of
title, such document shall be promptly delivered by the relevant Debtor to the
Agent.
Section 7. Special Provisions Re: Investment Property. (a) Unless and
until an Event of Default has occurred and is continuing and thereafter until
notified to the contrary by the Agent pursuant to Section 9(d) hereof:
(i) Each Debtor shall be entitled to exercise all voting and/or
consensual powers pertaining to its Investment Property or any part
thereof, for all purposes not inconsistent with the terms of this
Agreement, the Credit Agreement or any other document evidencing or
otherwise relating to any Obligations; and
(ii) Each Debtor shall be entitled to receive and retain all cash
dividends paid upon or in respect of its Investment Property.
(b) Certificates for all securities now or at any time constituting
Investment Property and part of the Collateral hereunder shall be promptly
delivered by the relevant Debtor to the Agent duly endorsed in blank for
transfer or accompanied by an appropriate assignment or assignments or an
appropriate undated stock power or powers, in every case sufficient to transfer
title thereto, including, without limitation, all stock received in respect of a
stock dividend or resulting from a split-up, revision or reclassification of the
Investment Property or any part thereof or received in addition to, in
substitution of or in exchange for the Investment Property or any part thereof
as a result of a merger, consolidation or otherwise. With respect to any
Investment Property held by a securities intermediary, commodity intermediary,
or other financial intermediary of any kind, the relevant Debtor shall execute
and deliver, and shall cause any such intermediary to execute and deliver, an
agreement among such Debtor, the Agent, and such intermediary in form and
substance satisfactory to the Agent which provides, among other things, for the
intermediary's agreement that it will comply with such entitlement orders, and
apply any value distributed on account of any Investment Property maintained in
an account with such intermediary, as directed by the Agent without further
consent by such Debtor. The Agent may at any time after the occurrence and
during the continuation of an Event of Default cause to be transferred into its
name or the name of its nominee or nominees any and all of the Investment
Property hereunder.
(c) Unless and until an Event of Default has occurred and is continuing,
each Debtor may sell or otherwise dispose of any of its Investment Property to
the extent permitted by the Credit Agreement, provided that except to the extent
permitted by Section 8.02 of the Credit Agreement, no Debtor shall sell or
otherwise dispose of any capital stock or other equity interest in any direct or
indirect Subsidiary without the prior written consent of the Agent. During the
existence of any Event of Default, no Debtor shall
-13-
sell all or any part of the Investment Property without the prior written
consent of the Agent.
(d) Each Debtor represents that on the date of this Agreement, none of
its Investment Property consists of margin stock (as such term is defined in
Regulation U of the Board of Governors of the Federal Reserve System) except to
the extent such Debtor has delivered to the Agent a duly executed and completed
Form U-1 with respect to such stock. If at any time the Investment Property or
any part thereof consists of margin stock, the relevant Debtor shall promptly so
notify the Agent and deliver to the Agent a duly executed and completed Form U-1
and such other instruments and documents reasonably requested by the Agent in
form and substance satisfactory to the Agent.
Section 8. Power of Attorney. In addition to any other powers of
attorney contained herein, each Debtor hereby appoints the Agent, its nominee,
or any other person whom the Agent may designate as such Debtor's
attorney-in-fact, with full power to sign such Debtor's name on verifications of
accounts and other Collateral; to send requests for verification of Collateral
to such Debtor's customers, account debtors and other obligors; to endorse such
Debtor's name on any checks, notes, acceptances, money orders, drafts and any
other forms of payment or security that may come into the Agent's possession; to
endorse the Collateral in blank or to the order of the Agent or its nominee; to
sign such Debtor's name on any invoice or bill of lading relating to any
Collateral, on claims to enforce collection of any Collateral, on notices to and
drafts against customers and account debtors and other obligors, on schedules
and assignments of Collateral, on notices of assignment and on public records;
to notify the post office authorities to change the address for delivery of such
Debtor's mail to an address designated by the Agent; to receive, open and
dispose of all mail addressed to such Debtor; and to do all things necessary to
carry out this Agreement. Each Debtor hereby ratifies and approves all acts of
any such attorney and agrees that neither the Agent nor any such attorney will
be liable for any acts or omissions nor for any error of judgment or mistake of
fact or law other than such person's gross negligence or willful misconduct. The
Agent may file one or more financing statements disclosing its security interest
in any or all of the Collateral without any Debtor's signature appearing
thereon, and each Debtor also hereby grants the Agent a power of attorney to
execute any such financing statements, or amendments and supplements to
financing statements, on behalf of such Debtor without notice thereof to any
Debtor. The foregoing powers of attorney, being coupled with an interest, are
irrevocable until the Obligations have been fully paid and satisfied and the
commitments of the Lenders to extend credit to or for the account of the
Borrower have expired or otherwise been terminated.
Section 9. Defaults and Remedies. (a) The occurrence of any event or
the existence of any condition which is specified as an "Event of Default" under
the Credit Agreement shall constitute an "Event of Default" hereunder.
(b) Upon the occurrence and during the continuation of any Event of
Default, the Agent shall have, in addition to all other rights provided herein
or by law, the rights and remedies of a secured party under the UCC
(regardless of whether the UCC is the law of the jurisdiction where the rights
or remedies are asserted and regardless of whether the UCC
-14-
applies to the affected Collateral), and further the Agent may, without demand
and without advertisement, notice, hearing or process of law, all of which each
Debtor hereby waives to the extent permitted by applicable law, at any time or
times, sell and deliver any or all Collateral held by or for it at public or
private sale, for cash, upon credit or otherwise, at such prices and upon such
terms as the Agent deems advisable, in its sole discretion. In the exercise of
any such remedies, the Agent may sell the Collateral as a unit even though the
sales price thereof may be in excess of the amount remaining unpaid on the
Obligations. Also, if less than all the Collateral is sold, the Agent shall have
no duty to marshal or apportion the part of the Collateral so sold as between
the Debtors, or any of them, but may sell and deliver any or all of the
Collateral without regard to which of the Debtors are the owners thereof. In
addition to all other sums due any Secured Creditor hereunder, each Debtor shall
pay the Secured Creditors all costs and expenses incurred by the Secured
Creditors, including reasonable attorneys' fees and court costs, in obtaining,
liquidating or enforcing payment of Collateral or the Obligations or in the
prosecution or defense of any action or proceeding by or against any Secured
Creditor or any Debtor concerning any matter arising out of or connected with
this Agreement or the Collateral or the Obligations, including, without
limitation, any of the foregoing arising in, arising under or related to a case
under the United States Bankruptcy Code (or any successor statute). Any
requirement of reasonable notice shall be met if such notice is personally
served on or mailed, postage prepaid, to the Debtors in accordance with Section
13(b) hereof at least 10 days before the time of sale or other event giving rise
to the requirement of such notice; provided, however, no notification need be
given to a Debtor if such Debtor has signed, after an Event of Default hereunder
has occurred, a statement renouncing any right to notification of sale or other
intended disposition. The Agent shall not be obligated to make any sale or other
disposition of the Collateral regardless of notice having been given. Any
Secured Creditor may be the purchaser at any such sale. Each Debtor hereby
waives all of its rights of redemption from any such sale. The Agent may
postpone or cause the postponement of the sale of all or any portion of the
Collateral by announcement at the time and place of such sale, and such sale
may, without further notice, be made at the time and place to which the sale was
postponed or the Agent may further postpone such sale by announcement made at
such time and place. In the event any of the Collateral shall constitute
restricted securities within the meaning of any applicable securities laws, any
disposition thereof in compliance with such laws shall not render the
disposition commercially unreasonable.
(c) Without in any way limiting the foregoing, upon the occurrence and
during the continuation of any Event of Default hereunder, the Agent shall have
the right, in addition to all other rights provided herein or by law, to take
physical possession of any and all of the Collateral and anything found therein,
the right for that purpose to enter without legal process any premises where the
Collateral may be found (provided such entry be done lawfully), and the right to
maintain such possession on the relevant Debtor's premises (each Debtor hereby
agreeing, to the extent it may lawfully do so, to lease such premises without
cost or expense to the Agent or its designee if the Agent so requests) or to
remove the Collateral or any part thereof to such other places as the Agent may
desire. Upon the occurrence and during the continuation of any Event of Default
hereunder, the Agent shall have the right to exercise any and all rights with
respect to deposit accounts of each Debtor maintained with any Secured Creditor,
including, without limitation, the right to collect,
-15-
withdraw and receive all amounts due or to become due or payable under each such
deposit account. Upon the occurrence and during the continuation of any Event of
Default hereunder, each Debtor shall, upon the Agent's demand, assemble the
Collateral and make it available to the Agent at a place designated by the
Agent. If the Agent exercises its right to take possession of the Collateral,
each Debtor shall also at its expense perform any and all other steps requested
by the Agent to preserve and protect the security interest hereby granted in the
Collateral, such as placing and maintaining signs indicating the security
interest of the Agent, appointing overseers for the Collateral and maintaining
Collateral records.
(d) Without in any way limiting the foregoing, upon the occurrence and
during the continuation of any Event of Default, all rights of a Debtor to
exercise the voting and/or consensual powers which it is entitled to exercise
pursuant to Section 7(a)(i) hereof and/or to receive and retain the
distributions which it is entitled to receive and retain pursuant to Section
7(a)(ii) hereof, shall, at the option of the Agent, cease and thereupon become
vested in the Agent, which, in addition to all other rights provided herein or
by law, shall then be entitled solely and exclusively to exercise all voting and
other consensual powers pertaining to the Investment Property and/or to receive
and retain the distributions which such Debtor would otherwise have been
authorized to retain pursuant to Section 7(a)(ii) hereof and shall then be
entitled solely and exclusively to exercise any and all rights of conversion,
exchange or subscription or any other rights, privileges or options pertaining
to any Investment Property as if the Agent were the absolute owner thereof
including, without limitation, the rights to exchange, at its discretion, any
and all of the Investment Property upon the merger, consolidation,
reorganization, recapitalization or other readjustment of the respective issuer
thereof or upon the exercise by or on behalf of any such issuer or the Agent of
any right, privilege or option pertaining to any Investment Property and, in
connection therewith, to deposit and deliver any and all of the Investment
Property with any committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as the Agent may determine.
(e) Without in any way limiting the foregoing, each Debtor hereby grants
to the Secured Creditors a royalty-free irrevocable license and right to use all
of such Debtor's patents, patent applications, patent licenses, trademarks,
trademark registrations, trademark licenses, trade names, trade styles, and
similar intangibles in connection with any foreclosure or other realization by
the Agent or the Secured Creditors on all or any part of the Collateral to the
extent permitted by law.
(f) Failure by the Agent to exercise any right, remedy or option under
this Agreement or any other agreement between any Debtor and the Agent or
provided by law, or delay by the Agent in exercising the same, shall not operate
as a waiver; and no waiver shall be effective unless it is in writing, signed by
the party against whom such waiver is sought to be enforced and then only to the
extent specifically stated. Neither any Secured Creditor, nor any party acting
as attorney for any Secured Creditor, shall be liable hereunder for any acts or
omissions or for any error of judgment or mistake of fact or law other than
their gross negligence or willful misconduct. The rights and remedies of the
Secured Creditors under this Agreement shall be cumulative and not exclusive of
any other
-16-
right or remedy which any Secured Creditor may have. For purposes of this
Agreement, an Event of Default shall be construed as continuing after its
occurrence until the same is waived in writing by the Lenders or the Required
Lenders or cured, as the case may be, in accordance with the Credit Agreement.
Section 10. Application of Proceeds. The proceeds and avails of the
Collateral at any time received by the Agent upon the occurrence and during the
continuation of any Event of Default shall, when received by the Agent in cash
or its equivalent, be applied by the Agent in reduction of, or held as
collateral security for, the Obligations in accordance with the terms of the
Credit Agreement. The Debtors shall remain liable to the Secured Creditors for
any deficiency. Any surplus remaining after the full payment and satisfaction of
the Obligations shall be returned to the Borrower, as agent for the Debtors, or
to whomsoever the Agent reasonably determines is lawfully entitled thereto.
Section 11. Continuing Agreement. This Agreement shall be a continuing
agreement in every respect and shall remain in full force and effect until all
of the Obligations, both for principal and interest, have been fully paid and
satisfied and the commitments of the Lenders to extend credit to or for the
account of the Borrower under the Credit Agreement have expired or otherwise
terminated. Upon such termination of this Agreement, the Agent shall, upon the
request and at the expense of the Debtors, forthwith release its security
interest hereunder and file appropriate termination statements with appropriate
offices (including, The United States Patent and Trademark Office and The United
States Copyright Office) or take other actions to evidence such termination.
Section 12. The Agent. In acting under or by virtue of this Agreement,
the Agent shall be entitled to all the rights, authority, privileges and
immunities provided in Section 11 of the Credit Agreement, all of which
provisions of said Section 11 are incorporated by reference herein with the same
force and effect as if set forth herein in their entirety. The Agent hereby
disclaims any representation or warranty to the other Secured Creditors or any
other holders of the Obligations concerning the perfection of the liens and
security interests granted hereunder or in the value of any of the Collateral.
Section 13. Miscellaneous. (a) This Agreement cannot be changed or
terminated orally. This Agreement shall create a continuing lien on and security
interest in the Collateral and shall be binding upon each Debtor, its successors
and assigns and shall inure, together with the rights and remedies of the
Secured Creditors hereunder, to the benefit of the Secured Creditors and their
successors and permitted assigns; provided, however, that no Debtor may assign
its rights or delegate its duties hereunder without the Agent's prior written
consent. Without limiting the generality of the foregoing, and subject to the
provisions of the Credit Agreement, any Lender may assign or otherwise transfer
any indebtedness held by it secured by this Agreement to any other person, and
such other person shall thereupon become vested with all the benefits in respect
thereof granted to such Lender herein or otherwise.
-17-
(b) All communications provided for herein shall be in writing, except
as otherwise specifically provided for hereinabove, and shall be deemed to have
been given or made, when given in accordance with Section 12.03 of the Credit
Agreement.
(c) No Secured Creditor (other than the Agent) shall have the right to
institute any suit, action or proceeding in equity or at law for the foreclosure
or other realization upon any Collateral subject to this Agreement or for the
execution of any trust or power hereof or for the appointment of a receiver, or
for the enforcement of any other remedy under or upon this Agreement; it being
understood and intended that no one or more of the Secured Creditors (other than
the Agent) shall have any right in any manner whatsoever to affect, disturb or
prejudice the lien and security interest of this Agreement by its or their
action or to enforce any right hereunder, and that all proceedings at law or in
equity shall be instituted, had and maintained by the Agent in the manner herein
provided for the benefit of the Secured Creditors.
(d) In the event that any provision hereof shall be deemed to be invalid
or unenforceable by reason of the operation of any law or by reason of the
interpretation placed thereon by any court, this Agreement shall be construed as
not containing such provision, but only as to such jurisdictions where such law
or interpretation is operative, and the invalidity or unenforceability of such
provision shall not affect the validity of any remaining provisions hereof, and
any and all other provisions hereof which are otherwise lawful and valid shall
remain in full force and effect. Without limiting the generality of the
foregoing, in the event that this Agreement shall be deemed to be invalid or
otherwise unenforceable with respect to any Debtor, such invalidity or
unenforceability shall not affect the validity of this Agreement with respect to
the other Debtors.
(e) The lien and security interest herein created and provided for stand
as direct and primary security for the Obligations of the Borrower arising under
or otherwise relating to the Credit Agreement as well as for any of the other
Obligations secured hereby. No application of any sums received by the Secured
Creditors in respect of the Collateral or any disposition thereof to the
reduction of the Obligations or any part thereof shall in any manner entitle any
Debtor to any right, title or interest in or to the Obligations or any
collateral or security therefor, whether by subrogation or otherwise, unless and
until all Obligations have been fully paid and satisfied and all agreements of
the Secured Creditors to extend credit to or for the account of each Debtor and
to or for the account of the Borrower have expired or otherwise have been
terminated. Each Debtor acknowledges that the lien and security interest hereby
created and provided are absolute and unconditional and shall not in any manner
be affected or impaired by any acts of omissions whatsoever of any Secured
Creditor or any other holder of any Obligations, and without limiting the
generality of the foregoing, the lien and security interest hereof shall not be
impaired by any acceptance by the Secured Creditors or any other holder of any
Obligations of any other security for or guarantors upon any of the Obligations
or by any failure, neglect or omission on the part of any Secured Creditor or
any other holder of any Obligations to realize upon or protect any of the
Obligations or any collateral or security therefor (including, without
limitation, impairment of collateral or failure to perfect security interest in
collateral). The lien and security interest hereof shall not in any manner be
impaired or affected by (and the
-18-
Secured Creditors, without notice to anyone, are hereby authorized to make from
time to time) any sale, pledge, surrender, compromise, settlement, release,
renewal, extension, indulgence, alteration, substitution, exchange, change in,
modification or disposition of any of the Obligations or of any collateral or
security therefor, or of any guaranty thereof, or of any instrument or agreement
setting forth the terms and conditions pertaining to any of the foregoing. The
Secured Creditors may at their discretion at any time grant credit to the
Borrower without notice to the other Debtors in such amounts and on such terms
as the Secured Creditors may elect (all of such to constitute additional
Obligations hereby secured) without in any manner impairing the lien and
security interest created and provided for herein. In order to realize hereon
and to exercise the rights granted the Secured Creditors hereunder and under
applicable law, there shall be no obligation on the part of any Secured Creditor
or any other holder of any Obligations at any time to first resort for payment
to the Borrower or to any other Debtor or to any guaranty of the Obligations or
any portion thereof or to resort to any other collateral, security, property,
liens or any other rights or remedies whatsoever, and the Secured Creditors
shall have the right to enforce this Agreement against any Debtor or any of its
Collateral irrespective of whether or not other proceedings or steps seeking
resort to or realization upon or from any of the foregoing are pending.
(f) In the event the Secured Creditors shall at any time in their
discretion permit a substitution of Debtors hereunder or a party shall wish to
become a Debtor hereunder, such substituted or additional Debtor shall, upon
executing an agreement in the form attached hereto as Schedule D, become a party
hereto and be bound by all the terms and conditions hereof to the same extent as
though such Debtor had originally executed this Agreement and, in the case of a
substitution, in lieu of the Debtor being replaced. Any such agreement shall
contain information as to such Debtor necessary to update Schedules A, B and C
hereto with respect to it. No such substitution shall be effective absent the
written consent of Agent nor shall it in any manner affect the obligations of
the other Debtors hereunder.
(g) This Agreement shall be deemed to have been made in the State of New
York and shall be governed by, and construed in accordance with, the laws of the
State of New York. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning of any
provision hereof.
(h) Each Debtor hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York state court sitting in the New York City for purposes of all legal
proceedings arising out of or relating to this Agreement, the other Loan
Documents or the transactions contemplated hereby or thereby. Each Debtor
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient form. EACH DEBTOR AND EACH SECURED
CREDITOR HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER CREDIT
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
-19-
(i) This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterpart signature pages, each
constituting an original, but all together one and the same agreement.
[SIGNATURE PAGES TO FOLLOW]
-20-
IN WITNESS WHEREOF, each Debtor has caused this Agreement to be duly
executed and delivered in New York, New York as of the date first above written.
"DEBTORS"
EAGLE-PICHER INDUSTRIES, INC.
By /s/ ANDRIES RUIJSSENAARS
---------------------------------------
Name Andries Ruijssenaars
----------------------------------
Title President
---------------------------------
DAISY PARTS, INC.
By /s/ ANDRIES RUIJSSENAARS
---------------------------------------
Name Andries Ruijssenaars
----------------------------------
Title Authorized Person
---------------------------------
EAGLE-PICHER DEVELOPMENT COMPANY, INC.
By /s/ ANDRIES RUIJSSENAARS
---------------------------------------
Name Andries Ruijssenaars
----------------------------------
Title President
---------------------------------
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EAGLE-PICHER FAR EAST, INC.
By /s/ ANDRIES RUIJSSENAARS
---------------------------------------
Name Andries Ruijssenaars
----------------------------------
Title Authorized Person
---------------------------------
EAGLE-PICHER FLUID SYSTEMS, INC.
By /s/ ANDRIES RUIJSSENAARS
---------------------------------------
Name Andries Ruijssenaars
----------------------------------
Title Authorized Person
---------------------------------
EAGLE-PICHER MINERALS, INC.
By /s/ ANDRIES RUIJSSENAARS
---------------------------------------
Name Andries Ruijssenaars
----------------------------------
Title Authorized Person
---------------------------------
-22-
HILLSDALE TOOL & MANUFACTURING CO.
By /s/ ANDRIES RUIJSSENAARS
---------------------------------------
Name Andries Ruijssenaars
----------------------------------
Title Authorized Person
---------------------------------
MICHIGAN AUTOMOTIVE RESEARCH CORPORATION
By /s/ ANDRIES RUIJSSENAARS
---------------------------------------
Name Andries Ruijssenaars
----------------------------------
Title Authorized Person
---------------------------------
EAGLE-PICHER TECHNOLOGIES, LLC
By /s/ ANDRIES RUIJSSENAARS
---------------------------------------
Name Andries Ruijssenaars
----------------------------------
Title Director-Manager
---------------------------------
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Accepted and agreed to in New York, New York as of the date first above written.
ABN AMRO BANK N.V., as Agent as
aforesaid for the Secured Creditors
By /s/ GREGORY D. AMOROSO
--------------------------------------
Its Group Vice President
-----------------------------------
By /s/ PAUL WIDUCH
--------------------------------------
Its Group Vice President
-----------------------------------
-24-
SCHEDULE A
LOCATIONS
Name of Debtor
(and Federal Tax I.D. Number) Chief Executive Office Additional Places of Business
- ----------------------------- ---------------------- -----------------------------
EAGLE-PICHER INDUSTRIES, INC. 250 East Fifth Street 2424 John Daly Road (Building 11)
(after merger with E-P Suite 500 Inkster, MI 48141-2453
Acquisition, Inc.) Cincinnati, OH 45202 (Offices)
Tax ID# 31-0268670
13323 IL Highway 133
Paris, IL 61944
(Plant)
1802 East 50th Street
Lubbock, TX 79404
(Plant)
1311 East 40th Street
Lubbock, TX 79412-1801
(Warehouse)
3280 Hageman Street
Sharonville, OH 45242
(Plant)
9036 Goldpark Drive
Hamilton, OH 45011-9764
(Plant)
250 East Fifth Street
Suite 500
Cincinnati, OH 45202
1500 Highway I-35 West
Denton, TX 76202
(Vacant Plant)
815 North Oak Avenue
Sidney, OH 45365
(Plant)
2500 Schenk Road
Sidney, OH 45365
(Plant)
2322 Schenk Road
Sidney, OH 45365
(Warehouse)
Name of Debtor
(and Federal Tax I.D. Number) Chief Executive Office Additional Places of Business
- ----------------------------- ---------------------- -----------------------------
19 Ohio Avenue
Norwich, CT 06360
(Plant)
382-384 Seymour Street
Stratford, CT 06497
(Plant)
5320 Industrial Drive South
Pine Bluff, AR 71602
(Plant)
7555-8 Tyler Boulevard
Mentor, OH 44060-4866
(Repackaging & Shipping)
829 U.S. 131 NW
Kalkaska, MI 49646
(Plant)
201 Industrial Park Road
Blacksburg, VA 24060
(Plant)
2638 Princess Street
Inkster, MI 48141
(Plant)
10825 CR 44
Leesburg, FL 34788
(Plant)
3175 State Street
Blacksburg, VA 24060
(Plant)
Vacant land located in
Harris County, TX
CINCINNATI INDUSTRIAL
MACHINERY SALES COMPANY
Block 26, 18D,
555 Victoria Road
Hong Kong
A-2
Name of Debtor
(and Federal Tax I.D. Number) Chief Executive Office Additional Places of Business
- ----------------------------- ---------------------- -----------------------------
EQUIPOS DE ACUNA
S.A. De C.V.
Parque Industrial Modelo
km 8.5 Presa de Amistad
CD Acuna, Coahuila Mexico
EAGLE-PICHER ESPANA S.A.
Poligono Las Casas
Apartado de Correos, 32
42080 Soria, Espana
EPTEC, S.A. De C.V.
Calle Avenida Libertad S/N
Zona Industrial C.P. 78090
San Luis Potosi, S.L.P.
Mexico
EAGLE-PICHER INDUSTRIES
OF CANADA LIMITED
(Mike Belec Office)
9680 Saint Laurent
Montreal, PQ, Canada
EAGLE-PICHER WOLVERINE GmbH
Verrenberger Weg 20
P. O. Box 1549
D-74605 Ohringen, Germany
EAGLE-PICHER INDUSTRIES EUROPE B.V.
Randwycksingel 20
P. O. Box 1376
NL-6201 BJ Maastricht
Netherlands
EAGLE-PICHER AUTOMOTIVE GmbH
Technologiepark
Friedrich-Ebert-Strasse
D-51429 Bergisch-Gladbach
Germany
(EP AUTOMOTIVE GmbH) WOLFSBURG OFFICE
Gerta-Overbeck-Ring, 9
D-38446 Wolfsburg
EAGLE-PICHER MATERIALS GmbH
An der Lehgrrube 14
P.O. Box 1549
D-74605 Ohringen, Germany
A-3
Name of Debtor
(and Federal Tax I.D. Number) Chief Executive Office Additional Places of Business
- ----------------------------- ---------------------- -----------------------------
EAGLE-PICHER HILLSDALE LIMITED
301, Relay Drive
GB - Tamworth
B77 5PT Staffordshire
United Kingdom
EAGLE-PICHER FLUID SYSTEMS LTD.
Taith House
Rockingham Road
Market Harborough
Leicestershire LE16 7QE
United Kingdom
Residential Properties near Inkster, MI
- -----------------------------------------------------------------------------------------------------------
EAGLE-PICHER TECHNOLOGIES, LLC "C" and Porter Streets 737 Highway 69A
Tax ID# 31-1587660 Joplin, MO 64801 Quapaw, OK 74363
(EOM Plant)
200 B.J. Tunnel Boulevard East
Miami, OK 74354
(ESAT Plant)
36 B.J. Tunnel Boulevard East
Miami, OK 74354
(ESAT Plant)
520 North Main Street
Miami, OK 74354-4850
(ESAT Shipping Facility)
1001 "A" Street N.W.
Miami, OK 74354-3206
(ESAT Plant)
510 North Main Street
Miami, OK 74354-4850
(ESAT Plant)
410 Adele Avenue
Joplin, MO 64801-3279
(Plant)
"F" & Schifferdecker Avenue
Joplin, MO 64801(Plant)
3970 Clearview Frontage Road
Colorado Springs, CO 80911-1220
(Warehouse & Plant)
A-4
Name of Debtor
(and Federal Tax I.D. Number) Chief Executive Office Additional Places of Business
- ----------------------------- ---------------------- -----------------------------
2850 Janitell Road
Colorado Springs, CO 80906-4141
(Plant)
Highway I-25, Exit 152
Socorro, NM 87801
(Vacant Plant)
425 North Main Street
Miami, OK 74354-4809
(ESAT Plant)
1927 West 4th Street
Joplin, MO 64801
(Plant)
3220 Industrial Road
Joplin, MO 64801-6137
(Plant)
Highway 10 & Industrial Park Road
Grove, OK 74344
(Plant)
798 Highway 69A
Quapaw, OK 74363
(Boron Plant)
3820 South Hancock Expressway
Colorado Springs, CO 80911-1231
(Plant)
13605 West 96th Terrace
Lenexa, KS 66215-1297
(Plant)
1701 South Vine Street
Harrisonville, MO 64701
(Plant)
Old Highway 66 -
East Clark Avenue
Galena, KS 66739
(Plant)
North Bethel Road
Seneca, MO 64865
(Plant)
A-5
Name of Debtor
(and Federal Tax I.D. Number) Chief Executive Office Additional Places of Business
- ----------------------------- ---------------------- -----------------------------
Northeast Edge of City
Stella, MO 64867
(Plant)
1215 West "B" Street
Joplin, MO 64801
(Plant)
20th & Irongate
Joplin, MO 64804
(Plant)
- ---------------------------------------------------------------------------------------------------------
EAGLE-PICHER DEVELOPMENT 250 East Fifth Street None
COMPANY, INC. Suite 500
Tax ID# 31-1215706 Cincinnati, OH 45202
- -----------------------------------------------------------------------------------------------------------
EAGLE-PICHER FAR EAST, INC. 250 East Fifth Street EAGLE-PICHER FAR EAST, INC.
Tax ID# 31-1235685 Suite 500 Nagoya Chogin Bldg. 4F
Cincinnati, OH 45202 1-17-19 Marunouchi
Naka-ku, Nagoya, 460
Japan
(EP FAR EAST) TOKYO OFFICE
Nihonseimei Sakuragi-cho AN Building 3F
6-113, Aioi-cho, Naka-ku
Yokohama, 231-0012
Japan
- ----------------------------------------------------------------------------------------------------------
EAGLE-PICHER FLUID SYSTEMS, INC. 7854 Lochlin Drive None
Tax ID# 31-1452637 Brighton, MI 48116
(Plant)
- ----------------------------------------------------------------------------------------------------------
EAGLE-PICHER MINERALS, INC. 6110 Plumas Street Highway I-80, 18 miles east of Reno
Tax ID# 31-1188662 Reno, NV 89509-6060 Clark Station, NV 89431 (Plant)
(Division HQ)
2630 Graham Boulevard
Vale, OR 97918
(Plant)
150 Coal Canyon Road
Lovelock, NV 89419
(Plant)
Colado Mining & Hauling Shop
Corner of Sixth & Dartmouth
Lovelock, NV 89419
(Mining Support)
A-6
Name of Debtor
(and Federal Tax I.D. Number) Chief Executive Office Additional Places of Business
- ----------------------------- ---------------------- -----------------------------
Intermodal
1382 Ipsen Road
Belvidere, IL 61008
Raw Materials
3860 W. 11th Street, #B
Houston, TX 77055
Mehaffey & Daigle
1200 Sams Avenue
Harahan, LA 70123
Advanced Distribution
1140 Commerce Road
Morrow, GA 30260
Oostdyk/Gerard Express
10 Industrial Road
Carlstadt, NJ 07072
Peerless
1440 Miami Chapel Road
Dayton, OH 4540
Burnham
9300 Van Horne Way
Richmond, BC V6X-1W2
Kiki & Sons
585 Michel Creek Road
Sparwood, BC V0B-2GO
Kindersley Transport
350 Third Ave. S.
Saskatoon, SK S7K-4J2
Burnham
2030 Notre-Dame Ave
Winnipeg, MB R3H-0JB
Groupe Robert
321 Orenda Road
Brampton, ON L6T-1G5
Transit Industriel
1775 Mary Victorin
St. Bruno, PQ J3V-6B7
Shoreline Fuels
Shediac, NB E1E-3Y8
A-7
Name of Debtor
(and Federal Tax I.D. Number) Chief Executive Office Additional Places of Business
- ----------------------------- ---------------------- -----------------------------
Labon
1250 Newton Street
Boucherville, PQ J4B-5H2
UNITED MINERALS GmbH & CO. KG
Breloher Strasse 85-101
D-29633 Munster, Germany
EAGLE-PICHER MINERAL INTERNATIONAL S.A.R.L.
9 Rue Auguste Buisson
92250 La Grareene Colombes
France
Mineral rights
owned or Mining
conducted in the
following
counties:
Pershing County, NV
Washoe County, NV
Storey County, NV
Churchill County, NV
Siskiyou County, CA
Harney County, OR
Malheur County, OR
- ---------------------------------------------------------------------------------------------------------
HILLSDALE TOOL & MANUFACTURING 135 E. South Street 651 Beck Road
CO. Tax ID# 38-0946293 Hillsdale, MI 49242 Jonesville, MI 49250
(Plant) (Plant)
215 Industrial Drive
Hillsdale, MI 49242
(Plant)
54 Willow Street
Hillsdale, MI
(Vacant Plant)
52 Willow Street
Hillsdale, MI
(Vacant Plant)
A-8
Name of Debtor
(and Federal Tax I.D. Number) Chief Executive Office Additional Places of Business
- ----------------------------- ---------------------- -----------------------------
221 Industrial Drive
(a/k/a 210 Uran Drive)
Hillsdale, MI 49242
(Plant)
263 Industrial Drive
Hillsdale, MI 49242
(Tech Center)
7790 South Homestead Drive
Hamilton, IN 46742
(Plant)
760 E. Huron Street
Vassar, MI 48768
(Plant)
Coffee County Interstate Industrial Park
285 Park Tower Drive
Manchester, TN 37355
(Plant)
- ---------------------------------- ---------------------------- ---------------------------------------------
MICHIGAN AUTOMOTIVE RESEARCH 1254 North Main Street None
CORPORATION Ann Arbor, MI 48104
Tax ID# 38-2185909 (Plant)
- ---------------------------------- ---------------------------- ---------------------------------------------
DAISY PARTS, INC. 135 E. South Street
Tax ID# 38-1406772 Hillsdale, MI 49242 None
(Plant)
- ---------------------------------- ---------------------------- ---------------------------------------------
A-9
SCHEDULE B
TRADE NAMES
NAME OF DEBTOR TRADE NAMES OF SUCH DEBTOR
- -----------------------------------------------------------------------------------------------
Eagle-Picher Industries, Inc. Eagle-Picher
Eagle-Picher Industries
Cincinnati Industrial Machinery
Construction Equipment
Ross Aluminum
Rubber Molding
Technologies
Trim
Wolverine
Eagle-Picher Automotive
Ross Aluminum Foundries
Chemsyn Science Laboratories
Eagle-Picher Espana
Eagle-Picher Far East
Eagle-Picher Industries Europe
Eagle-Picher Industries Materials
EPTEC
Eagle-Picher Rubber Molding
Equipos de ACUNA
Wolverine Gasket
Wolverine Gasket & Manufacturing
- ------------------------------------------------------------------------------------------------
Daisy Parts, Inc. Eagle-Picher
Eagle-Picher Industries
- ------------------------------------------------------------------------------------------------
Eagle-Picher Development Company, Inc Eagle-Picher
Eagle-Picher Industries
- ------------------------------------------------------------------------------------------------
Eagle-Picher Far East, Inc Eagle-Picher
Eagle-Picher Industries
- ------------------------------------------------------------------------------------------------
NAME OF DEBTOR TRADE NAMES OF SUCH DEBTOR
Eagle-Picher Fluid Systems, Inc. Eagle-Picher
Eagle-Picher Industries
Eagle-Picher Automotive
Eagle-Picher Fluid Systems
- ------------------------------------------------------------------------------------------------
Eagle-Picher Minerals, Inc. Eagle-Picher
Eagle-Picher Industries
Eagle-Picher Minerals
Eagle-Picher Minerals International
Eagle-Picher Minerals of Canada
United Minerals (Europe only)
- ------------------------------------------------------------------------------------------------
Hillsdale Tool & Manufacturing Co. Eagle-Picher
Eagle-Picher Industries
Eagle-Picher Automotive
Daisy Parts
Hillsdale Tool
Hillsdale Tool & Manufacturing
- ------------------------------------------------------------------------------------------------
Michigan Automotive Research Corporation Eagle-Picher
Eagle-Picher Industries
Eagle-Picher Automotive
MARCO
Michigan Automotive Research Corporation
- ------------------------------------------------------------------------------------------------
Eagle-Picher Technologies, LLC Eagle-Picher
Eagle-Picher Industries
Technologies
Chemsyn Science Laboratories
- ------------------------------------------------------------------------------------------------
SCHEDULE C
REAL ESTATE LEGAL DESCRIPTIONS
2424 John Daly Road (Building 11) Coffee County Interstate Industrial Park
Inkster, MI 48141-2453 285 Park Tower Drive
Manchester, TN 37355
1802 East 50th Street 829 U.S. 131 NW
Lubbock, TX 79404 Kalkaska, MI 49646
3280 Hageman Street 1311 East 40th Street
Sharonville, OH 45242 Lubbock, TX
1721 West Pleasant Avenue 9036 Goldpark Drive
River Rouge, MI 48218 Hamilton, OH
1401 North American Street 7854 Lochlin Drive
Philadelphia, PA 19140 Brighton, MI 48116
135 E. South Street 580 Walnut Street
Hillsdale, MI 49242 Cincinnati, OH 45202-3175
651 Beck Road 250 East Fifth Street
Johnsville, MI 49250 Suite 500
Cincinnati, OH 45202
215 Industrial Drive 760 E. Huron Street
Hillsdale, MI 49242 Vassar, MI 48768
51 Willow Street 6110 Plumas Street
Hillsdale, MI Reno, NV 89509-6060
52 Willow Street 1254 North Main Street
Hillsdale, MI Ann Arbor, MI 48104
221 Industrial Drive 5320 Industrial Drive South
Hillsdale, MI 49242 Pine Bluff, AR 71602
263 Industrial Drive 7555-8 Tyler Boulevard
Hillsdale, MI 49242 Mentor, OH
7790 South Homestead Drive 410 Adele Avenue
Hamilton, IN 46742 Joplin, MO 64802
C-1
150 Coal Canyon Road "F" & Schifferdecker Avenue
Lovelock, NV 89419 Joplin, MO
Highway I-80, 18 miles east of Reno 3970 Clearview Frontage Road
Clark Station, NV 89431 Colorado Springs, CO
2630 Graham Boulevard 2850 Janitell Road
Vale, OR 97918 Colorado Springs, CO 80906-4141
Colado Mining & Hauling Shop Highway I-25, Exit 152
Corner of Sixth & Dartmouth Socorro, NM 87801
Lovelock, NV 89419
1500 Highway I-35 West 520 North Main Street
Denton, TX Miami, OK
815 North Oak Avenue 1001 "A" Street N.W.
Sidney, OH 45365 Miami, OK
2500 Schenk Road 510 North Main Street
Sidney, OH 45365 Miami, OK
2322 Schenk Road 425 North Main Street
Sidney, OH 45365 Miami, OK
19 Ohio Avenue 3062/3064 Scott Blvd.
Norwich, CT 06360 Santa Clara, CA
382-384 Seymour Street Approximately 153 acres acquired 12/16/85
Stratford, CT 06497 from Turner at Book 85, Page 809.
737 Highway 69A Approximately 83 acres acquired 4/26/88
Quapaw, OK 74363 from State of Oregon at Book 88, Page 17742.
1927 West 4th Street Approximately 142 acres acquired 4/18/89
Joplin, MO 64801 from Schneider at Book 89, Page 31466.
"C" and Porter Streets Approximately 5.76 acres acquired 7/6/89
Joplin, MO 64810 from Bixby at Book 89, Page 35507.
3220 Industrial Road Approximately 5.52 acres acquired 10/16/90
Joplin, MO from Tolman at Book 93, Page 886.
Highway 10 & Industrial Park Road Approximately 5.75 acres acquired 10/16/90
Grove, OK 74344 from Tolman at Book 93, Page 884.
C-2
3820 South Hancock Expressway Approximately 266 acres acquired 12/10/90
Colorado Springs, CO 80911-1231 from Tolman at Book 93, Page 888, and from
Torrey on 10/26/90 at Book 93, Page 889.
13605 West 96th Terrace Properties located in Seneca City
Lenexa, KS 66215-1297
200 B.J. Tunnel Boulevard East Eagle-Picher Espana S.A.
Miami, OK 74354 Poligono Las Casas
Apartado de Correos, 32
42080 Soria, Espana
1701 South Vine Street Eagle-Picher Fluid Systems Ltd.
Harrisonville, MO 64701 Taith House
Rockingham Road
Market Harborough
Leicestershier LE16 7QE
United Kingdom
Old Highway 66 - East Clark Avenue Eagle-Picher Hillsdale Limited
Galena, KS 66739 301, Relay Drive
GB - Tamworth
B77 5PT Staffordshire
United Kingdom
North Bethel Road Eagle-Picher Materials GmbH
Seneca, MO 64865 An der Lehmgrube 14
D-74605 Ohringen, Germany
Northeast Edge of City Eagle-Picher Wolverine GmbH
Stella, MO 64867 Verrenberger Weg 20
D-74605 Ohringen, Germany
1215 West "B" Street EPTEC, S.A. de C.V.
Joplin, MO 64801 Calle Avenida Libertad S/N
Zona Industrial C.P. 78090
San Luis Potosi, S.L.P
Mexico
20th & Irongate Equipos de Acuna S.A. de C.V.
Joplin, MO Parque Industrial Modelo
km 8.5 Presa de Amistad
CD Acuna, Coahuila Mexico
1915 Irongate (EP Automotive GmbH) Wolfsburg Office
Joplin, MO Gerta-Overbeck-Ring, 9
D-38446 Wolfsburg
Germany
C-3
36 B.J. Tunnel Boulevard East Tokyo Office
Miami, OK Nihonseimei Sakuragi-cho
AN Building 3F, 6-113
Aioi-cho, Naka-ku
Yokohama, 231-0012
Japan
798 Highway 69A France Sales Office
Quapaw, OK 74363 9 Rue Auguste Buisson
92250 La Gareene Colombes
France
Couples Plant Centronic Limited
"C" and Porter Streets Centronic House
Joplin, MO 64802 King Henry's Drive
New Addington, Croydon CR9 OBG
England
201 Industrial Park Road Cincinnati Industrial Machinery Sales
Blacksburg, VA 24060 Company
Block 26, 18D, 555 Victoria Road
Hong Kong
2638 Princess Street Eagle-Picher Automotive GmbH
Inkster, MI 48141 Technologiepark
Friedrich-Ebert-Strasse
D-51429 Bergisch-Gladbach Germany
10825 CR 44 Eagle-Picher Far East, Inc.
Leesburg, FL 34788 Nagoya Chogin Bldg. 4F
1-17-19 Marunouchi
Naka-ku, Nagoya, 460
Japan
3175 State Street Eagle-Picher Industries Europe B.V.
Blacksburg, VA 24060 Randwycksingel 20
NL-6201 BJ Maastricht
Netherlands
3950 South Clear View Loop Eagle-Picher Industries of Canada Limited
Security, CO 9680 Saint Laurent
Montreal, PQ, Canada
Cherokee County United Minerals GmbH & Co. KG
Lenexa, KS Breloher Strasse 85-101
D-29633 Munster, Germany
C-4
Cherokee County Yamanaka EP Corporation
Lenexa, KS 20 Toderacho Ohara
Sakyo-ku Kyoto Japan
211 Industrial Drive South of "C", North of "B"
Hillsdale, MI Joplin, MO
Wayne County C&A, Between Porter & Empire, Joplin, MO
Inkster, MI
26731 Trowbridge & North of "C", West of Porter
26737 Trowbridge Joplin, MO
Inkster, MI
Kalkaska County North of "C", West of Harlem
Kalkaska, MI Joplin, MO
Kalkaska County North of Porter, East of Harlem
Kalkaska, MI Joplin, MO
2418 John Dale Properties located in Ottawa County
(Lots 94 & 95) OK
Inkster, MI
Lots on Trowbridge Approximately 80 acres acquired 2/17/94
in Wayne County from Asamera Minerals (US) Inc. at Book
Inkster, MI 99, Page 344.
Mineral rights acquired 7/27/95 from Donan Approximately 640 acres acquired 12/14/93
Baird & Marie Fancher at Book 291, Page 566. from Asamera Minerals (US) Inc. at Book
98, Page 993.
Perlite mining rights leased from Walter M. Approximately 1.4 acres leased from So.
Fisk from 7/1/87 to 6/30/2047. Pacific Transportation Co., Lease No. 65202
Approximately 3,718 acres leased from the Rights leased 9/1/45 from Thomas Copeland
So. Pacific RR on 12/1/66. and James Knight d/b/a Nevada Celatom Co.,
recorded at Book 103, Page 370.
Approximately 5 acres acquired 6/30/70 from Approximately 120 acres acquired 3/12/75
C.W. Malone, Treas. at Book 467, Page 88. from Wight at Book 83, Page 103.
Approximately 5 acres acquired 6/30/70 from Rights on approximately 1,604 acres leased
C.W. Malone, Treas. at Book 467, Page 91. from So. Pacific Land Co., recorded at
Book 39, Page 113
C-5
Approximately 2.5 acres leased from So. Rights on approximately 1.38 acres leased
Pacific Transportation Co., Lease No. from So. Pacific Transportation Co., Lease
173087, expired 10/10/93, now month to No. 190259
month.
Approximately 516 acres acquired 12/18/85 Rights leased on approximately 480 acres
C-W Nevada Inc. at Book 51, Page 514. in Lyon and Churchill Counties from
Approximately 0.04 acres of this parcel now Catherine Tweedt, J.H. and Emma Chatelle
leased to Airtouch Cellular until 3/31/01.
Approximately 480 acres acquired 12/16/85 Rights on approximately 1,040 acres leased from
Trner at Book 85, Page 809, presently Miles, et al.
from under farming leases.
Rights on approximately 640 acres leased Rights on approximately 1,480 acres leased
from State of Oregon from Diatomite Products Co.
C-6
SCHEDULE D
ASSUMPTION AND SUPPLEMENTAL SECURITY AGREEMENT
THIS AGREEMENT dated as of this _____ day of ______________, ____ from
[NEW DEBTOR], a __________ corporation (the "New Debtor"), to ABN AMRO Bank N.V.
("ABN AMRO"), as agent for the Secured Creditors (defined in the Security
Agreement hereinafter identified and defined) (ABN AMRO acting as such agent and
any successor or successors to ABN AMRO in such capacity being hereinafter
referred to as the "Agent");
WITNESSETH THAT:
WHEREAS, E-P Acquisition, Inc. (the "Borrower") and certain other
parties have executed and delivered to the Agent that certain Security Agreement
dated as of February __, 1998 (such Security Agreement, as the same may from
time to time be modified or amended, including supplements thereto which add
additional parties as Debtors thereunder, being hereinafter referred to as the
"Security Agreement") pursuant to which such parties (the "Existing Debtors")
have granted to the Agent for the benefit of the Secured Creditors a lien on and
security interest in each such Existing Debtor's Collateral (as such term is
defined in the Security Agreement) to secure the Obligations (as such term is
defined in the Security Agreement); and
WHEREAS, the Borrower provides the New Debtor with substantial
financial, managerial, administrative, and technical support and the New Debtor
will directly and substantially benefit from credit and other financial
accommodations extended and to be extended by the Secured Creditors to the
Borrower;
NOW, THEREFORE, FOR VALUE RECEIVED, and in consideration of advances
made or to be made, or credit accommodations given or to be given, to the
Borrower by the Secured Creditors from time to time, the New Debtor hereby
agrees as follows:
1. The New Debtor acknowledges and agrees that it shall become a
"Debtor" party to the Security Agreement effective upon the date the New
Debtor's execution of this Agreement and the delivery of this Agreement to the
Agent, and that upon such execution and delivery, all references in the Security
Agreement to the terms "Debtor" or "Debtors" shall be deemed to include the New
Debtor. Without limiting the generality of the foregoing, the New Debtor hereby
repeats and reaffirms all grants (including the grant of a lien and security
interest), covenants, agreements, representations and warranties contained in
the Security Agreement as amended hereby, each and all of which are and shall
remain applicable to the Collateral from time to time owned by the New Debtor or
in which the New Debtor from time to time has any rights. Without limiting the
foregoing, in order to secure payment of the Obligations, whether now existing
or hereafter arising, the New Debtor does hereby grant to the Agent for the
benefit of itself and the other Secured Creditors, and hereby agrees that the
Agent has and shall continue to have for the benefit of itself and the other
Secured Creditors a continuing lien on and security interest in, among
other things, all of the New Debtor's Collateral (as such term is defined in the
Security Agreement), including, without limitation, all of the New Debtor's
Receivables, General Intangibles, Inventory, Equipment, Investment Property, and
all of the other Collateral described in Section 2 of the Security Agreement,
each and all of such granting clauses being incorporated herein by reference
with the same force and effect as if set forth in their entirety except that all
references in such clauses to the Existing Debtors or any of them shall be
deemed to include references to the New Debtor. Nothing contained herein shall
in any manner impair the priority of the liens and security interests heretofore
granted in favor of the Agent under the Security Agreement.
2. Schedules A (Locations), B (Trade Names) and C (Real Estate) to the
Security Agreement shall be supplemented by the information stated below with
respect to the New Debtor:
SUPPLEMENT TO SCHEDULE A
NAME OF DEBTOR CHIEF
(AND FEDERAL TAX EXECUTIVE ADDITIONAL PLACES
I.D. NUMBER) OFFICE OF BUSINESS
- ---------------------------- ------------------------ ----------------------
- ----------------------------- ------------------------ ---------------------
SUPPLEMENT TO SCHEDULE B
TRADE NAMES OF
NAME OF DEBTOR SUCH DEBTOR
- ------------------------------- -----------------------------
SUPPLEMENT TO SCHEDULE C
REAL ESTATE LEGAL DESCRIPTIONS
-----------------------------------
-----------------------------------
3. The New Debtor hereby acknowledges and agrees that the Obligations
are secured by all of the Collateral according to, and otherwise on and subject
to, the terms and conditions of the Security Agreement to the same extent and
with the same force and effect
-2-
as if the New Debtor had originally been one of the Existing Debtors under the
Security Agreement and had originally executed the same as such an Existing
Debtor.
4. All capitalized terms used in this Agreement without definition
shall have the same meaning herein as such terms have in the Security Agreement,
except that any reference to the term "Debtor" or "Debtors" and any provision of
the Security Agreement providing meaning to such term shall be deemed a
reference to the Existing Debtors and the New Debtor. Except as specifically
modified hereby, all of the terms and conditions of the Security Agreement shall
stand and remain unchanged and in full force and effect.
5. The New Debtor agrees to execute and deliver such further
instruments and documents and do such further acts and things as the Agent may
reasonably deem necessary or proper to carry out more effectively the purposes
of this Agreement.
6. No reference to this Agreement need be made in the Security
Agreement or in any other document or instrument making reference to the
Security Agreement, any reference to the Security Agreement in any of such to be
deemed a reference to the Security Agreement as modified hereby.
7. This Agreement shall be governed by and construed in accordance with
the State of New York (without regard to principles of conflicts of law).
[NEW DEBTOR]
By
---------------------------------
Its
------------------------------
Accepted and agreed to as of the date first above written.
ABN AMRO BANK N.V., as Agent
By
---------------------------------
Its
------------------------------
By
---------------------------------
Its
------------------------------
-3-