EXHIBIT 10.65
FIFTH AMENDMENT TO CREDIT AGREEMENT
FIFTH AMENDMENT TO CREDIT AGREEMENT, dated as of May 3, 2002 (the
"Amendment"), among EAGLE-PICHER INDUSTRIES, INC., a Delaware corporation and
successor by merger to E-P ACQUISITION, INC., a Delaware corporation (together
herein collectively referred to as the "Borrower"), the lenders party hereto
(each a "Lender" and collectively, the "Lenders"), ABN AMRO BANK N.V., as Agent
(in such capacity, the "Agent") and PNC BANK, NATIONAL ASSOCIATION, as
Documentation Agent (in such capacity, the "Documentation Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Agent, and the Documentation
Agent are parties to that certain Credit Agreement, dated as of February 19,
1998, as modified by (i) that certain Eagle-Picher Industries, Inc. Credit
Agreement Consent and Waiver among the Borrower, the Agent and the Lenders party
thereto, dated as of November 18, 1998, (ii) that certain Eagle-Picher
Industries, Inc. Credit Agreement Amendment and Consent among the Borrower, the
Agent and the Lenders party thereto, dated as of December 14, 1998, (iii) that
certain Amendment to Credit Agreement and Consent among the Borrower, the Agent
and the Lenders party thereto, dated as of May 18, 1999, (iv) that certain
Credit Agreement Consent among the Borrower, the Agent and the Lenders party
thereto, dated as of May 26, 2000, (v) that certain Amendment to Credit
Agreement and Consent among the Borrower, the Agent and the Lenders party
thereto, dated as of August 1, 2000 and (vi) that certain Fourth Amendment to
Credit Agreement and Consent among the Borrower, the Agent and the Lenders party
thereto, dated as of May 31, 2001 (together, the "Credit Agreement"); and
WHEREAS, the Borrower has requested that the Leverage Ratio as set
forth in the Credit Agreement be further amended in certain respects; and
WHEREAS, the Lenders and the Agents party hereto, are willing to so
further amend the Credit Agreement, subject to the terms and conditions
hereinafter set forth;
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
thereby, covenant and agree as follows:
1. General. All terms used herein which are not otherwise specifically
defined herein shall have the same meaning herein as defined in the Credit
Agreement as further amended hereby.
2. Leverage Ratio. Section 8.09 of the Credit Agreement shall be and is
hereby amended by deleting the table set forth therein and inserting the
following table in its place:
"PERIOD RATIO
May 31, 2001 5.00:1.00
August 31, 2001 5.25:1.00
November 30, 2001 5.25:1.00
February 28, 2002 5.25:1.00
May 31, 2002 5.25:1.00
August 31, 2002 5.00:1.00
November 30, 2002 4.75:1.00
February 28, 2003 4.75:1.00
May 31, 2003 4.50:1.00
Thereafter 4.25:1.00"
3. Effectiveness. This Amendment shall become effective as of the date
hereof on the condition that the Borrower and the Required Lenders shall have
signed a counterpart hereof and shall have delivered the same to the Agent (the
"Effective Condition"). Upon the satisfaction of the Effective Condition, the
Borrower agrees to pay to each Lender who executes this Amendment on or before
the date hereof an amendment fee equal to 0.125% of such Lender's respective
Commitment as of the date hereof, and such Lenders agree that such fee shall not
be included in Consolidated Interest Expense. This Amendment may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Agent. 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. Except as herein specifically amended, the Credit
Agreement shall be and remain in full force and effect and wherever reference is
made in any note, document, letter or other communication to the Credit
Agreement, such reference shall, without more, be deemed to refer to the Credit
Agreement as amended hereby. The amendment provided for herein shall be limited
specifically as provided for herein and this Amendment shall not constitute a
waiver or modification of any other term, provision or condition of the Credit
Agreement except as expressly set forth herein and shall not prejudice or be
deemed to prejudice any right that the Agent or the Lenders may now have or may
have in the future under the Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
EAGLE-PICHER INDUSTRIES, INC.
By __________________________________________
Name:_____________________________________
Title:____________________________________
ABN AMRO BANK N.V., individually and as Agent
By __________________________________________
Name:_____________________________________
Title:____________________________________
By __________________________________________
Name:_____________________________________
Title:____________________________________
PNC BANK, NATIONAL ASSOCIATION
By __________________________________________
Name:_____________________________________
Title:____________________________________
FIRSTAR BANK, N.A.
By __________________________________________
Name:_____________________________________
Title:____________________________________
ARAB BANKING CORPORATION
By __________________________________________
Name:_____________________________________
Title:____________________________________
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THE BANK OF NOVA SCOTIA
By __________________________________________
Name:_____________________________________
Title:____________________________________
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By __________________________________________
Name:_____________________________________
Title:____________________________________
CREDIT AGRICOLE INDOSUEZ
By __________________________________________
Name:_____________________________________
Title:____________________________________
BANK ONE, INDIANA, N.A., formerly known as
NBD Bank, N.A.
By __________________________________________
Name:_____________________________________
Title:____________________________________
CREDITANSTALT CORPORATE FINANCE
By __________________________________________
Name:_____________________________________
Title:____________________________________
By __________________________________________
Name:_____________________________________
Title:____________________________________
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PROVIDENT BANK
By ________________________________________
Name:___________________________________
Title:__________________________________
FIFTH THIRD BANK
By ________________________________________
Name:___________________________________
Title:__________________________________
THE BANK OF NEW YORK
By _______________________________________
Name:__________________________________
Title:_________________________________
CREDIT INDUSTRIAL ET COMMERCIAL,
formerly known as Compagnie Financiere de
CIC et de l'Union Europeenne
By _______________________________________
Name:__________________________________
Title:_________________________________
COMERICA BANK
By _______________________________________
Name:__________________________________
Title:_________________________________
IMPERIAL BANK
By _______________________________________
Name:__________________________________
Title:_________________________________
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THE MITSUBISHI TRUST AND BANKING
CORPORATION
By _________________________________________
Name:____________________________________
Title:___________________________________
HARRIS TRUST AND SAVINGS BANK
By _________________________________________
Name:____________________________________
Title:___________________________________
CREDIT SUISSE FIRST BOSTON
By _________________________________________
Name:____________________________________
Title:___________________________________
By _________________________________________
Name:____________________________________
Title:___________________________________
TRANSAMERICA BUSINESS CAPITAL
CORPORATION (as successor in interest to
Transamerica Business Credit Corporation)
By _________________________________________
Name:____________________________________
Title:___________________________________
By _________________________________________
Name:____________________________________
Title:___________________________________
MIZUHO CORPORATE BANKING, LTD., formerly
known as The Fuji Bank, Limited
By _________________________________________
Name:____________________________________
Title:___________________________________
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