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Exhibit 10.57
FIFTH AMENDMENT TO RECEIVABLES LOAN AGREEMENT
THIS FIFTH AMENDMENT (the "Amendment"), dated as of June 29, 2001, is
entered into among Eagle-Picher Acceptance Corporation (the "Borrower"),
Eagle-Picher Industries, Inc. (the "Initial Collection Agent"), Amsterdam
Funding Corporation, as a Conduit Lender and as the administrative agent for the
Lenders (the "Administrative Agent"), ABN AMRO Bank N.V., as the Amsterdam
Lender Agent (the "Amsterdam Lender Agent"), Market Street Funding Corporation,
as a Conduit Lender ("Market Street"), PNC Bank, National Association, as the
Market Lender Agent (the "Market Lender Agent") and the Related Bank Lenders
party hereto.
WITNESSETH:
WHEREAS, the Borrower, Initial Collection Agent, the Administrative
Agent, the Amsterdam Lender Agent, the Lender Agents from time to time party
thereto, Amsterdam, the Related Bank Lenders from time to time party thereto and
the Conduit Lenders from time to time party thereto have heretofore executed and
delivered a Receivables Loan Agreement, dated as of May 18, 1999 (as amended,
supplemented or otherwise modified through the date hereof, the "Loan
Agreement"),
WHEREAS, the Borrower, ABN Amro Bank N.V., as the Amsterdam Group
Lender Agent and Amsterdam have heretofore executed and delivered a Fee Letter,
dated May 18, 1999 (the "Fee Letter");
WHEREAS, the parties hereto desire to amend the Loan Agreement as
provided herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree that
the Loan Agreement shall be and is hereby amended as follows:
Section 1. Subsection (d) of the defined term "Termination Date"
appearing in Schedule I to the Loan Agreement is hereby amended by deleting the
date "June 29, 2001" and inserting in its place "May 15, 2002".
Section 2. The Subsection (a)(i) of the defined term "Receivables
Turnover Days" is hereby amended by inserting the words "beginning of" between
the words "the" and "most" in the third line thereof.
Section 3. The phrase "75 basis points (0.75%)" appearing in the
fourth line of the paragraph entitled "Program Fee" in the Fee Letter is hereby
deleted and replaced with the phrase "125 basis points (1.25%)".
Section 4. This Amendment shall become effective on the date the
Administrative Agent has received counterparts hereof executed by the Borrower
and the Instructing Group.
Section 5. To induce the Administrative Agent, the Lender Agents,
Amsterdam, the Conduit Lenders and the Related Bank Lenders to enter into this
Amendment, the Borrower and Initial Collection Agent represent and warrant to
the Administrative Agent and the Related Bank Lenders that: (a) the
representations and warranties contained in the Transaction Documents, are true
and correct in all material respects as of the date hereof with the same effect
as though made on the date hereof (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date); (b) no Potential Termination Event exists; (c) this
Amendment has been duly authorized by all necessary corporate proceedings and
duly
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executed and delivered by each of the Borrower and the Initial Collection Agent,
and the Loan Agreement, as amended by this Amendment, and each of the other
Transaction Documents are the legal, valid and binding obligations of the
Borrower and the Initial Collection Agent, enforceable against the Borrower and
the Initial Collection Agent in accordance with their respective terms, except
as enforceability may be limited by bankruptcy, insolvency or other similar laws
of general application affecting the enforcement of creditors' rights or by
general principles of equity; and (d) no consent, approval, authorization,
order, registration or qualification with any governmental authority is required
for, and in the absence of which would adversely effect, the legal and valid
execution and delivery or performance by the Borrower or the Initial Collection
Agent of this Amendment or the performance by the Borrower or the Initial
Collection Agent of the Loan Agreement, as amended by this Amendment, or any
other Transaction Document to which they are a party.
Section 6. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts and each such
counterpart shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Amendment.
Section 7. Except as specifically provided above, the Loan Agreement
and the other Transaction Documents shall remain in full force and effect and
are hereby ratified and confirmed in all respects. The execution, delivery, and
effectiveness of this Amendment shall not operate as a waiver of any right,
power, or remedy of any Administrative Agent or any Purchaser under the Loan
Agreement or any of the other Transaction Documents, nor constitute a waiver or
modification of any provision of any of the other Transaction Documents. All
defined terms used herein and not defined herein shall have the same meaning
herein as in the Loan Agreement. The Borrower agrees to pay on demand all costs
and expenses (including reasonable fees and expenses of counsel) of or incurred
by the Administrative Agent and each Purchaser Agent in connection with the
negotiation, preparation, execution and delivery of this Amendment.
Section 8. This Amendment and the rights and obligations of the
parties hereunder shall be construed in accordance with and be governed by the
law of the State of New York.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered by their duly authorized officers as of the date first
above written.
ABN AMRO BANK N.V., as the Administrative
Agent, as a Related Bank Lender and as the
Amsterdam Lender Agent
By:
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Title:
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By:
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Title:
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AMSTERDAM FUNDING CORPORATION
By:
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Title:
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MARKET STREET FUNDING CORPORATION, as a
Conduit Lender
By:
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Title:
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PNC BANK, NATIONAL ASSOCIATION, as a Related
Bank Lender and as the Market Lender Agent
By:
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Title:
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EAGLE-PICHER ACCEPTANCE CORPORATION
By:
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Title:
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EAGLE-PICHER INDUSTRIES, INC.
By:
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Title:
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