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Exhibit 10.40
AMENDMENT TO CREDIT AGREEMENT
AND CONSENT
AMENDMENT TO CREDIT AGREEMENT AND CONSENT, dated as of May 18, 1999,
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"), PNC BANK, NATIONAL ASSOCIATION, as Documentation Agent
(in such capacity, the "Documentation Agent") and NBD BANK, N.A., as Syndication
Agent (in such capacity, the "Syndication Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Agent, the Documentation Agent
and the Syndication 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 and (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,
(together the "Credit Agreement"); and
WHEREAS, the Borrower has requested that 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. Increase in Total Revolving Credit Commitment. Section 1.01.01(d)
of the Credit Agreement shall be and is hereby amended by deleting the amount of
"$160,000,000" appearing in the last sentence thereof and inserting in its place
the amount of "$220,000,000." Furthermore, Annex I to the Credit Agreement shall
be and is hereby deleted and the Annex I (Amended) attached hereto shall be
inserted in its place.
3. Interest. With respect to the rate of interest provided under
Section 1.08 and the Applicable Base Rate Margin and Applicable Eurodollar Rate
Margin as determined pursuant to the Pricing Grid, Annex II to the Credit
Agreement shall be and is hereby amended by adding
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".25" to each amount set forth in such Annex II under the headings "Applicable
Eurodollar Rate Margin" and "Applicable Base Rate Margin."
4. Letter of Credit. Section 2.01(b) of the Credit Agreement shall be
and is hereby amended by inserting after the words "identified on Schedule 2.01"
in line 10 the following wording:
"(or as determined by the Agent with respect to future standby
Letters of Credit)"
5. Mandatory Prepayments and Repayments.
(a) Section 4.02.01(c) of the Credit Agreement shall be and is
hereby amended by (i) deleting the amount of "$25,000,000" appearing
therein and inserting in its place the amount of "$50,000,000," and
(ii) by deleting the phrases "270 days" and "270 day" wherever they
appear therein and inserting in their place, the phrases "360 days" and
"360 day", respectively.
(b) Section 4.02.01(f) of the Credit Agreement shall be and is
hereby amended by (i) deleting the percentage "60%" appearing therein
and inserting in its place, the percentage "50%" and (ii) by deleting
the period at the end thereof and inserting the following language in
its place:
", provided, however, that should the Borrower maintain a
Leverage Ratio of not more than 3.50 to 1.00 on the last day
of four consecutive fiscal quarters of the Borrower, the
requirements of this Section shall thereupon no longer be in
effect as to any Excess Cash Payment Date thereafter
occurring."
6. Use of Proceeds. Section 6.08(a) of the Credit Agreement shall be
and is hereby amended by deleting the following wording in lines 5 and 6
thereof: "(excluding acquisitions)".
7. Year 2000. Section 6 of the Credit Agreement shall be and is hereby
amended by adding a new Section 6.25 reading as follows:
"Section 6.25. Year 2000. The Borrower and its Subsidiaries
have reviewed the areas within their business and operations
which could be adversely affected by, and have developed or
are developing a program to address on a timely basis, the
"Year 2000 Problem" (that is, the risk that computer
applications used by the Borrower and its Subsidiaries may be
unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date after
December 31, 1999), and have made related appropriate inquiry
of material suppliers and vendors. Based on such review and
program, the Borrower believes that the
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"Year 2000 Problem" will not have a material adverse effect on
the business, operations, property or financial or other
condition of the Borrower and its Subsidiaries taken as a
whole."
8. Information Covenants. Section 7.01 of the Credit Agreement shall
be and is hereby amended by (i) deleting from line 6 and 7 of Subsection 7.01(a)
the phrase "and comparable budgeted figures for such fiscal month", (ii)
inserting in line 8 of Subsection 7.01(b) after the word "year" and before the
comma the phrase "and comparable budgeted figures for such quarterly accounting
periods,", (iii) deleting from line 5 and 6 of Subsection 7.01(d) the phrase
"income, and sources and uses of cash and balance sheets" and inserting in its
place the phrase "net sales, Consolidated EBITDA and operating income", (iv)
inserting in line 6 of Subsection 7.01(d) after the word "whole" and before the
parenthesis the phrase "in the format as currently prepared by the Borrower",
(v) deleting from line 12 of Subsection 7.01(d) the reference "(a),", (vi)
adding to line two of Subsection 7.01(e) the words "or other Authorized Officer"
after the words "chief financial officer", (vii) deleting from line 10 of
Subsection 7.01(e) the reference to parens "(i)" and deleting all wording
appearing after the words "fiscal year" in line 12 of Subsection 7.01(e) and
inserting an ending period in place thereof, and (viii) by adding a new
subsection 7.01(l) reading as follows:
"(l) Year 2000. Statements of financial performance and
compliance certificates required to be provided by the Company
and/or its Subsidiaries to the Bank herein shall: (i) include
a statement as to whether the Year 2000 remediation efforts of
the Company and its Subsidiaries are proceeding as scheduled
and (ii) indicate whether an auditor, regulator, or third
party consultant has issued a management letter or other
communication regarding the Year 2000 exposure, program or
progress of the Borrower and/or its Subsidiaries."
9. Maintenance of Property, Insurance, Environmental Matters, etc.
Section 7.03(b) of the Credit Agreement shall be and is hereby amended by
inserting the following wording in line 11 thereof after the words "as set forth
in Schedule 6.13" and before the semi-colon:
"and except for landfills or dumps operated by the Borrower or
its Subsidiaries on their own properties solely for the
disposal of waste filter materials which are not Hazardous
Materials and which are used in the operations of the Borrower
or its Subsidiaries and which landfills or dumps are not used
for the disposal of any waste or materials from Persons other
than the Borrower or its Subsidiaries"
10. Consolidation, Merger, Sale of Assets. Section 8.02 of the Credit
Agreement shall be and is hereby amended by (a) deleting the amount of
"$25,000,000" appearing in clause (iv) thereof and inserting in its place, the
amount of "$50,000,000" and (b) deleting the word "and" at
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the end of clause (vi) and (c) deleting the period after clause (vii) thereof
and replacing it with a semi-colon and (d) adding the following additional
clauses to Section 8.02:
"(viii) transactions permitted by Section 8.05 of this
Agreement; (ix) reinvestments of the proceeds of Asset Sales
pursuant to Section 4.02.01(c), and (x) the sale of
receivables in connection with the Permitted Securitization."
11. Indebtedness. Section 8.04 of the Credit Agreement shall be and is
hereby amended by (i) inserting after the words "Senior Subordinated Note
Indenture" appearing in clause (vi), line 12, the words "or other Senior
Subordinated Note Indentures meeting the requirements of (A) above," (ii)
deleting the amount of "$220,000,000" appearing in such line 12 and inserting in
its place the amount of "$295,000,000", (iii) inserting in front of the word
"Indebtedness" appearing in clause (vii) thereof, the word "unsecured" and by
deleting the amount of "$25,000,000" appearing therein and inserting in its
place, the amount of "$35,000,000" and (iv) deleting the word "and" at the end
of clause (vii) and by deleting the period after clause (viii) thereof and by
replacing it with a semi-colon and by adding the following additional clauses to
Section 8.04:
"(ix) the Permitted Securitization; and
(x) unsecured Indebtedness assumed in connection with
Permitted Acquisitions."
12. Advances, Investments and Loans. Section 8.05 of the Credit
Agreement shall be and is hereby amended by (i) deleting the word "and" after
clause (vii) thereof, by (ii) deleting the period at the end of clause (viii)
thereof and by replacing it with "; and" and (iii) by adding a new clause (ix)
reading as follows:
"(ix) Permitted Acquisitions, Permitted Investments and
Permitted Minority Investments."
13. Capital Expenditures. Section 8.07 shall be and is hereby amended
by deleting the amount of "$40,000,000" set forth in Subsection 8.07(a) and
inserting in its place the amount of "$50,000,000."
14. Limitation on Voluntary Payments and Modifications of Indebtedness;
Modifications of Certificate of Incorporation, By-laws and Certain Other
Agreements; Issuances of Capital Stock, etc. Section 8.11 of the Credit
Agreement shall be and is hereby amended by striking the period at the end
thereof and inserting the following language in its place:
"; provided, however, that, so long as the Leverage Ratio on
the last day of the fiscal quarter most recently ending prior
to each payment or purchase shall be not more than 3.50 to
1.00 and there shall not then exist any Default or Event of
Default hereunder, the
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Borrower may pay or purchase the Senior Subordinated Notes up
to an aggregate principal amount for all such payments and
purchases not exceeding $25,000,000."
15. Limitation on Issuances of Capital Stock by Subsidiaries. Section
8.13 of the Credit Agreement shall be and is hereby amended by deleting the
period at the end thereof and inserting the following language in its place:
"and except that any Subsidiary that is not a Subsidiary
Guarantor may issue shares of capital stock, provided that
such issuance shall be deemed an Asset Sale for purposes of
Section 4.02.01(c) and Section 8.02(iv)."
16. Limitation on the Creation of Subsidiaries. Section 8.14 of the
Credit Agreement shall be and is hereby amended by (i) inserting after the words
"provided that" in line four thereof, the following "(A)" and (ii) deleting the
period at the end of the first sentence of Section 8.14 and adding in its place
the following:
", and (B) the Borrower and its Wholly-Owned Subsidiaries
shall be permitted to create, establish or acquire
Subsidiaries that are not Wholly-Owned Subsidiaries, provided
that any purchase of capital stock of or capital contribution
or loan to any such Subsidiary shall be subject to the
restrictions contained in Section 8.05."
17. Events of Default. Section 9.03 of the Credit Agreement shall be
and is hereby amended by deleting the present wording thereof and inserting in
its place the following:
"Section 9.03. Covenants. The Borrower shall (i)
default in the due performance or observance by it of any
term, covenant or agreement contained in Sections 7.02,
7.09(h), 8.02, 8.03, 8.08 through, and including, 8.13 and
8.16, (ii) default in the due performance or observance by it
of any term, covenant or agreement contained in Sections 7.01,
7.10 or 8.06 and such default shall continue unremedied for a
period of 10 days after written notice to the Borrower by the
Agent or the Required Lenders or (iii) default in the due
performance or observance by it of any term, covenant or
agreement (other than those covered by Sections 9.01 and 9.02
and clauses (i) and (ii) of this Section 9.03) contained in
this Agreement and such default shall continue unremedied for
a period of 30 days after written notice to the Borrower by
the Agent or the Required Lenders; or"
18. Definitions. Section 10.01 of the Credit Agreement shall be and is
hereby amended as follows:
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(a) There shall be added the following new definitions to be
inserted in proper alphabetical order reading as follows:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date hereof, by
which the Borrower or any of its Subsidiaries (i) acquires any
going business or all or substantially all of the assets of
any firm, corporation or division thereof, whether through
purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority
(in number of votes) of the securities of a corporation which
have ordinary voting power for the election of directors
(other than securities have such power only by reason of the
happening of a contingency) or a majority (by percentage of
voting power) of the outstanding equity, partnership or
membership interests of another Person.
"Permitted Acquisition" means Acquisitions by the Borrower or
any of its Subsidiaries, provided that (A) the total
consideration payable in connection therewith, whether in the
form of cash, notes or indebtedness assumed, together with the
amount of any Permitted Investments, shall not exceed the
aggregate amount of $75,000,000 in any fiscal year of the
Borrower, (B) no Default or Event of Default has occurred and
is continuing or would result therefrom, (C) the Acquisition
shall be consummated pursuant to a negotiated acquisition
agreement on a non-hostile basis, (D) the Borrower can
demonstrate that, on a pro forma basis, after giving effect to
such Acquisition, it will continue to comply with all the
terms and conditions of the Credit Agreement and (E) the
property acquired shall become collateral in accordance with
Section 7.09 hereof, provided further, however, that should
the Borrower maintain a Leverage Ratio of not more than 3.50
to 1.00 on the last day of four consecutive fiscal quarters of
the Borrower, the foregoing proviso (A) shall no longer be in
effect as to any Acquisition occurring thereafter, and the
Borrower need comply only with provisos (B), (C), (D) and (E)
as to any such Acquisition.
"Permitted Investments" means any equity investment in or
capital contribution or loan to any Subsidiary other than a
Wholly-Owned Subsidiary, provided that the aggregate amount of
such equity investments, contributions or loans, together with
the amount of any Permitted Acquisitions, shall not exceed the
aggregate amount of $75,000,000 in any fiscal year of
Borrower.
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"Permitted Joint Ventures" means (A) any joint venture
interests described on Schedule 8.05, and (B) any Subsidiaries
other than Wholly-owned Subsidiaries that are formed or
acquired in accordance with Sections 8.02, 8.05 and 8.14.
"Permitted Minority Investment" means any equity investment in
or capital contribution or loan to any Person not a Subsidiary
so long as the aggregate amount of such equity investments and
capital contributions does not exceed $15,000,000 and any loan
shall be on terms requiring the cash payment of interest at
least annually.
"Permitted Securitization" means any sales from time to time
by the Borrower or its Subsidiaries of its receivables, taking
the form of a "true sale" to a special purpose vehicle ("SPV")
to be formed by the Borrower and a subsequent sale and/or
financing by the SPV to, or with, a Person or Persons who are
not Affiliates of Borrower, provided that the terms and
provisions relative thereto, including, without limitation,
the advance rates against such receivables, shall be
reasonably acceptable to the Agent.
b) The definition of "Asset Sale" shall be and is hereby
amended by (i) deleting the word "and" appearing in front of clause
(ii) thereof, replacing it with a comma, and (ii) by deleting the
period at the end of such definition and inserting in its place the
following:
"and (iii) any sale of receivables pursuant to the Permitted
Securitization."
(c) The definition of "Consolidated EBIT" shall be and is
hereby amended by adding the following language at the end thereof:
"If any Person or assets were acquired during a Test Period in
an Acquisition permitted by Section 8.05, then the
consolidated net income of such Person or attributable to such
assets (adjusted for the foregoing items (i) through (v)) for
the period beginning on the beginning of the Test Period and
ending on the date of the Acquisition shall be included in
Consolidated EBIT, but only to the extent that such items of
such Person or attributable to such assets would have been
available to the Borrower or its Subsidiary had the Borrower
or such Subsidiary acquired such Person or such assets at the
beginning of such period."
(d) The definition of "Consolidated EBITDA" shall be amended
by deleting the period at the end thereof and adding the following
language:
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", in computing Consolidated EBITDA, any of the foregoing
items realized or accrued for any Test Period and which
occurred prior to the date of any acquisition permitted by
Section 8.05(ix) by the Person so acquired, or attributable to
the assets so acquired shall be included in Consolidated
EBITDA, but only to the extent that such items of such Person
or attributable to such assets would have been available to
the Borrower or its Subsidiary had the Borrower or such
Subsidiary acquired such Person or such assets at the
beginning of such period. There shall also be included in
Consolidated EBITDA any cash interest and dividends received
by the Borrower or its Subsidiaries during any Test Period
with respect to investments and loans made by the Borrower or
its subsidiaries to joint ventures permitted by Section 8.05
hereof."
(e) The definition of "Consolidated Interest Expense" shall be
amended by inserting in line 5 thereof after the words "including,
without limitation," the following language:
"all such interest expense, amortization of debt discount,
fees and all debt issuance costs incurred in connection with
the Permitted Securitization and"
(f) The definition of "Indebtedness" shall be and is hereby
amended by (i) deleting the word "and" in front of clause (vii),
inserting in its place a comma and (ii) by deleting the period at the
end thereof and inserting in its place the following wording:
"and (viii) the aggregate face value of outstanding commercial
paper or other obligations issued in respect of the Permitted
Securitization or, in the event of any funding by Persons
providing liquidity support in the form of loans or asset
purchase arrangements, the aggregate principal amount of such
funding."
(g) The definition of "Subsidiary" shall be and is hereby
amended by deleting the period at the end thereof and inserting in its
place the following wording:
"provided, however, that any Permitted Joint Venture described
on Schedule 8.05 or formed or acquired in accordance with
Sections 8.02, 8.05 and 8.14 shall not be included within the
term Subsidiary."
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19. Syndication Agent.
All references in the Credit Agreement to "DLJ Capital Funding, Inc.,
as Syndication Agent" shall be and is hereby deleted and amended and deemed to
be "NBD BANK, N.A., as Syndication Agent".
20. Payment of B and C Lenders and Adjustment of Revolving Loans.
(a) Upon the Effective Date, as hereinafter defined, of this
Amendment, the Borrower shall prepay the B and C Term Loans in full
together with all accrued interest thereon to the date of prepayment
and all other amounts due and payable in respect of the B and C Term
Loans hereunder. The Lenders with outstanding A Term Loans hereby
consent to such prepayment and waive, as to such prepayment, the
requirement of Section 4.01 that prepayments of Term Loans shall be
made pro-rata among the A Term Loans, B Term Loans and C Term Loans.
(b) Upon the Effective Date of this Amendment, the Revolving
Credit Commitment shall be increased as provided in Annex I attached
hereto provided each such new Lender shall execute and deliver to the
Agent a joinder to the Credit Agreement in the form of Exhibit I hereto
(and by such execution and delivery, each such new Lender shall be
deemed to have agreed with the matters set forth in the Credit
Agreement as amended hereby). Such new Lender shall become a Lender
hereunder, and the Agent shall, promptly following the effective date
thereof, provide to the Borrower and the Lenders the revised Revolving
Percentage giving effect to Annex I (Amended) attached hereto. The
Borrower agrees that it shall execute and deliver to Lenders whose
Revolving Credit Commitment has changed, a Revolving Note evidencing
such Lender's revised Revolving Credit Commitment.
(c) If, after giving effect to the Revolving Credit Commitment
Increase, any Lender's revised Revolving Percentage of the Revolving
Credit Commitment is different than its share of the Revolving Loans,
the Revolving Loans shall be reallocated among the Lenders as follows.
On the Effective Date, the Borrower shall be deemed to have prepaid all
outstanding Revolving Loans in accordance with Section 4.01 of the
Credit Agreement and reborrowed all Revolving Credit Loans in
accordance with Section 1.01.01(d) of the Credit Agreement from all
Lenders ratably in accordance with their revised Revolving Percentage.
Each Lender having a decreased Revolving Percentage (a "Selling
Lender") agrees to sell and assign to each other Lender (each a "Buying
Lender"), and each Buying Lender hereby agrees to ratably purchase and
assume, without recourse, from each Selling Lender, a ratable portion
of each Selling Lender's Revolving Loans such that, after giving effect
to such assignments, each Lender's share of all Revolving Loans equals
its revised Revolving Percentage. The Agent shall distribute to each
Selling Lender an amount equal to the difference between its Revolving
Loans so prepaid and the new Revolving Loans deemed to have been made
by it. Such payments shall be deemed to be a payment of the Revolving
Loans by the Borrower on the date such payment is received. With
respect to each portion of the
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Revolving Loans and Letter of Credit Obligations reapportioned as
described above, interest and fees accruing thereon for the period
prior to the date hereof shall be for the account of each Selling
Lender, and interest and fees accruing thereon for the period from and
after the date hereof shall be for the account of each Buying Lender.
The Borrower shall compensate each Lender for any loss, cost or expense
caused by such prepayment in accordance with Section 1.11 of the Credit
Agreement.
21. Technologies Consent. The undersigned Lenders do hereby consent to
(i) the ground lease of a portion of the vacant land owned by Eagle-Picher
Technologies, LLC ("Technologies") in the Joplin Industrial Park, Joplin,
Missouri to Joplin Design & Management, Inc. ("Joplin"), (ii) the lease by
Technologies from Joplin of a building to be constructed on such land and (iii)
the subordination of the mortgage lien on such land in favor of the Agent to the
ground lease, all as described in the Information Memorandum circulated in
connection with this Amendment and Consent and do hereby waive any Default or
Event of Default that may arise under Sections 8.01, 8.02 or 8.04 of the Credit
Agreement as a result thereof.
22. Waiver of Mandatory Repayment. The undersigned Lenders hereby waive
the mandatory repayment requirements of Section 4.02.01(d) of the Credit
Agreement as it relates to the incurrence of additional Indebtedness under the
other Senior Subordinated Note Indentures permitted by this Amendment and
Consent.
23. Conditions. The Effective Date of this Amendment shall be subject
to the satisfaction of the following conditions precedent:
(i) This Amendment shall have been executed by each Credit
Party, each of the Agents and each of the Lenders with outstanding A
Term Loans.
(ii) The Agent shall have received an opinion of counsel
addressed to the Agent and each of the Lenders from Howard, Smith &
Levin relative to the power and authority of the Borrower to enter into
this Amendment and the legal validity thereof.
(iii) A certified copy of resolutions of the Borrower
authorizing this Amendment, together with a certified officer
incumbency and specimen signature certificate.
(iv) The payment of all fees and expenses (including, without
limitation, all legal fees and expenses) due to the Agent and the Banks
and special legal counsel to the Agent.
(v) The Permitted Securitization shall be closed.
(vi) The conditions to each Credit Event as set forth in
Section 5.02 of the Credit Agreement shall have been met.
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24. Effectiveness. Subject to Section 23 hereof, this Amendment shall
become effective on the date on which each Credit Party and each of the Lenders
with outstanding A Term Loans shall have signed a counterpart hereof and shall
have delivered the same to the Agent (herein, the "Effective Date"), provided,
however, that upon the Effective Date of this Amendment, the amendment to the
definition of Consolidated EBIT as provided herein shall be deemed effective as
of the date of the Credit Agreement. The Agent shall give the Borrower and each
Lender prompt written notice of the effective date. 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 consent and waiver provided in
paragraphs 21 and 22 hereof shall be limited specifically as provided for
therein and this Amendment and Consent shall not constitute a consent to any
other transaction or waiver of the application of the Sections of the Credit
Agreement referred to in paragraphs 21 and 22 hereof to any other transaction
nor shall it be a waiver or modification of any other term, provision or
condition of the Credit Agreement or waiver of any Default or Event of Default
except as expressly set forth herein and shall not prejudice or be deemed to
prejudice any right that the Agent or any Lender may now have or may have in the
future under the Credit Agreement.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment and Consent as of the
date first above written.
Address:
250 East Fifth Street, 5th Floor EAGLE-PICHER INDUSTRIES, INC.
Cincinnati, Ohio 45202
Attention: David Krall By /s/ Gary Freytag
------------------------------------
Tel. (513) 629-2417 Name: Gary Freytag
Fax (513) 629-2572 Title: Treasurer
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Address:
One PPG Place, Suite 2950 ABN AMRO BANK N.V., individually and as Agent
Pittsburgh, PA 15222-5401
Attention: Mr. Gregory D. Amoroso By /s/ Gregory D. Illegible
-------------------------------------------
Tel. (412) 566-0983 Name: Gregory D. Illegible
Fax (412) 566-2266 Title:Senior Vice President
By /s/ Illegible
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Name: RIZZI
Title: SVP
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Address:
201 East Fifth Street, 3rd Floor PNC BANK, NATIONAL ASSOCIATION
Cincinnati, OH 45202
Attention: David F. Knuth/Bruce A. Kintner By /s/ David F. Knuth
Tel. (513) 651-8675 -------------------------
Fax (513) 651-8952 Name: David F. Knuth
Title: Vice President
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Address:
425 Walnut Street, Mailbox 8160 FIRSTAR BANK, N.A.
Cincinnati, OH 45202
Attention: Mr. Derek S. Roudebush By /s/ Derek Roudelbush
Tel. (513) 632-4010 -------------------------
Fax (513) 632-2068 Name: Derek Roudelbush
Title: Vice President
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Address:
277 Park Avenue, 32nd Floor ARAB BANKING CORPORATION
New York, NY 10172-3299
Attention: Ms. Louise Bilbro By /s/ Louise Bibro
Tel. (212) 583-4758 -------------------------
Fax (212) 583-0935 Name: Louise Bibro
Title: Vice President
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Address:
600 Peachtree Street NE, Suite 2700 THE BANK OF NOVA SCOTIA
Atlanta, Georgia 30308
Attention: Ms. Shannon Dancila By /s/ F.C.H. Ashby
Tel. (404) 877-1561 -------------------------
Fax (404) 888-8998 Name: F.C.H. Ashby
Title: Senior Manager Loan Officer
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Address:
BANK OF TOKYO-MITSUBISHI TRUST
1251 Avenue of the Americas, 12th Floor COMPANY
New York, NY 10020-1104
Attention: Mr. Peter Stearn By /s/ Peter Stearn
Tel. (212) 782-4397 -------------------------
Fax (212) 782-4981 Name: Peter Stearn
Title: Vice President
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Address:
55 E. Monroe Street, Suite 4700 CREDIT AGRICOLE INDOSUEZ
Chicago, IL 60603
Attention: Mr. Jerome Leblond By /s/ Sarah U. Johnson
Tel. (312) 917-7569 --------------------------------
Fax (312) 372-9329 Name: Sarah U. Johnson
Title: Senior Relationship Manager
By /s/ Ernest V. Hodge
Ernest V. Hodge
Senior Relationship Manager
-19-
20
NBD BANK, N.A.
Address:
One Indiana Square, Suite 7034 By /s/ Scott A. Dvornik
Indianapolis, IN 46266 -------------------------
Attention: Mr. Ed Hathaway Name: Scott A. Dvornik
Tel. (317) 266-6702
Fax (317) 266-6042 Title: Vice President
-20-
21
Address:
BANK AUSTRIA CREDITANSTALT
Two Greenwich Plaza CORPORATE FINANCE, INC.
Greenwich, CT 06830
Attention: Ms. Maura Connor By /s/ Maura Connor
Tel. (203) 861-6432 ----------------------------------
Fax (203) 861-1475 Maura Connor
Vice President
By /s/ Catherine K. MacDonald
----------------------------------
Catherine K. MacDonald
Vice President
-21-
22
Address:
One East 4th Street, 5th Floor PROVIDENT BANK
Cincinnati, OH 45202
Attention: Mr. Richard E. Wirthlin By /s/ Richard E. Wirthlin
Tel. (513) 579-2022 -------------------------
Fax (513) 579-2201 Name: Richard E. Wirthlin
Title: Vice President
-22-
23
Address:
38 Fountain Square Plaza (MD#109054) FIFTH THIRD BANK
Cincinnati, Ohio 45263
Attention: Mr. Thomas G. Welch, Jr. By /s/ Thomas G. Welch, Jr.
Tel. (513) 744-7757 -------------------------
Fax (513) 579-5226 Name: Thomas G. Welch, Jr.
Title: AVP
-23-
24
Address:
One Wall Street, 22nd Floor THE BANK OF NEW YORK
New York, NY 10286
Attention: Mr. Edward J. Dougherty By /s/ Edward J. Dougherty
Tel. (212) 635-7842 -------------------------
Fax (212) 635-6434 Name: Edward J. Dougherty
Title: Vice President
U.S. Commercial Banking
-24-
25
Address:
520 Madison Avenue, 37th Floor COMPAGNIE FINANCIERE DE CIC ET DE
New York, NY 10022 L'UNION EUROPEENNE
Attention: Mr. Anthony Rock
Tel. (212) 715-4422 By /s/ Anthony Rock /s/ Brian O'Leary
Fax (212) 715-4535 -----------------------------------
Name: Anthony Rock Brian O'Leary
Title: Vice Presidents
-25-
26
Address:
500 Woodward Avenue COMERICA BANK
Mail Code 3265
Detroit, MI 48226 By /s/ Nicholas G. Mester
Attention: Mr. Nicholas G. Mester -------------------------
Tel. (313) 222-9168 Name: Nicholas G. Mester
Title: Account Officer
Fax (313) 222-3776
-26-
27
Address:
9920 South LaCienega Blvd., 14th Floor IMPERIAL BANK
Inglewood, CA 90301
Attention: Mr. Mark Campbell By /s/ Mark Campbell
Tel. (310) 417-5886 -------------------------
Fax (310) 417-5997 Name: Mark Campbell
Title: Senior Vice President
-27-
28
Address:
520 Madison Avenue, 26th Floor THE MITSUBISHI TRUST AND BANKING
New York, NY 10022 CORPORATION
Attention: Mr. Paul Arzouian
Tel. (212) 891-8425 By /s/ Illegible Mayashi
Fax (212) 644-6825 -------------------------
Name: Illegible Mayashi
Title: Senior Vice President
-28-
29
Address:
111 W. Monroe Street, Fl. 10W HARRIS TRUST AND SAVINGS BANK
Chicago, IL 60603
Attention: Mr. Peter Krawchuk By /s/ Peter Krawchuk
Tel. (312) 461-2783 -------------------------
Fax (312) 461-5225 Name: Peter Krawchuk
Title: Vice President
-29-
30
Address:
233 South Wacker Drive THE SUMITOMO BANK, LIMITED, CHICAGO
Sears Tower BRANCH
Chicago, IL 60606
Attention: Mr. Dan Casey
Tel. (312) 879-7672 By /s/
Fax (312) 876-6436 -------------------------
Name:
----------------------
Title:
---------------------
-30-
31
May 18, 1999
ANNEX 1 (AMENDED)
COMMITMENT
EXISTING NEW
TERM LOAN A REVOLVER TOTAL TERM LOAN A REVOLVER TOTAL
ABN AMRO Bank N.V $ 6,609,962.49 $ 12,307,692.38 $ 18,917,654.87 $ 13,024,543.05 $ 56,070,514.37 $ 69,095,057.42
PNC Bank $ 6,609,962.49 $ 12,307,692.31 $ 18,917,654.80 $ 3,370,000.00 $ 8,630,000.00 $ 12,000,000.00
Bank of Nova $ 4,693,073.34 $ 8,738,461.54 $ 13,431,534.88 $ 4,693,073.34 $ 15,306,926.66 $ 20,000,000.00
Scotia
Bank of $ 4,693,073.34 $ 8,738,461.54 $ 13,431,534.88 $ 4,823,436.50 $ 15,176,563.50 $ 20,000,000.00
Tokyo-Mitsubishi
NBD Bank One $ 9,386,146.68 $ 17,476,923.08 $ 26,863,069.76 $ 9,386,146.68 $ 15,353,127.02 $ 24,739,273.70
Comerica $ 4,693,073.34 $ 8,738,461.54 $ 13,431,534.88 $ 4,693,073.34 $ 8,738,461.54 $ 13,431,534.88
Credit Agricole $ 6,609,962.43 $ 12,307,692.26 $ 18,917,654.69 $ 6,609,962.43 $ 12,307,692.26 $ 18,917,654.69
Indosuez
Creditanstalt $ 4,693,073.34 $ 8,738,461.54 $ 13,431,534.88 $ 4,693,073.34 $ 10,306,926.66 $ 15,000,000.00
Provident $ 4,693,073.34 $ 8,738,461.54 $ 13,431,534.88 $ 4,693,073.34 $ 8,738,461.54 $ 13,431,534.88
Arab Banking $ 4,957,471.84 $ 9,230,769.23 $ 14,188,241.07 $ 4,957,471.84 $ 9,230,769.23 $ 14,188,241.07
Corporation
Bank of New York $ 3,304,981.23 $ 6,153,846.15 $ 9,458,827.38 $ 3,304,981.23 $ 11,153,000.00 $ 14,457,981.23
CIC Union $ 3,304,981.23 $ 6,153,846.15 $ 9,458,827.38 $ 3,304,981.23 $ 6,153,846.15 $ 9,458,827.38
Fifth Third $ 3,304,981.23 $ 6,153,846.15 $ 9,458,827.38 $ 3,304,981.23 $ 9,231,000.00 $ 12,535,981.23
Bank
Harris $ 3,304,981.23 $ 6,153,846.15 $ 9,458,827.38 $ 3,304,981.23 $ 11,695,018.77 $ 15,000,000.00
Imperial $ 3,304,981.23 $ 6,153,846.15 $ 9,458,827.38 $ 3,304,981.23 $ 6,153,846.15 $ 9,458,827.38
Mitsubishi $ 3,304,981.23 $ 6,153,846.15 $ 9,458,827.38 $ 3,304,981.23 $ 6,153,846.15 $ 9,458,827.38
Trust
Firstar $ 5,155,770.73 $ 9,599,999.99 $ 14,755,770.72 $ 5,155,770.73 $ 9,600,000.00 $ 14,755,770.73
Sumitomo $ 3,304,981.23 $ 6,153,846.15 $ 9,458,827.38
$ 85,929,511.97 $160,000,000.00 $245,929,511.97 $ 85,929,511.97 $220,000,000.00 $305,929,511.97
32
EXHIBIT I
JOINDER TO REVOLVING CREDIT AGREEMENT
Dated as of
------, ----
ABN AMRO Bank N.V., as
Administrative Agent for
the Lenders party to the
Credit Agreement dated as
of February 19, 1998, as
amended, among
Eagle-Picher Industries,
Inc. (the "Borrower"), the
Lenders party thereto from
time to time, and ABN AMRO
Bank N.V., as
Administrative Agent, PNC
Bank, National
Association, as
Documentation Agent and
NBD Bank, N.A. as
Syndication Agent (the
"Credit Agreement")
Ladies and Gentlemen:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meaning provided therein.
Pursuant to that certain Amendment to Credit Agreement dated as of May
___, 1999, the undersigned hereby joins in the Credit Agreement for the purposes
of becoming a party thereto as one of the "Lenders" and agrees to comply with
all of the terms and conditions of the Credit Agreement. The undersigned agrees
(i) to undertake all of the obligations of a Revolving Lender under the Credit
Agreement and (ii) to provide the Revolving Credit Commitment in the amount set
forth below under the terms and conditions in the Credit Agreement. The
undersigned hereby irrevocably appoints the Administrative Agent to act as
Administrative Agent for the undersigned under the Credit Agreement and the
other Credit Documents, all in accordance with Section 11 of the Credit
Agreement and the other provisions of the Credit Agreement and the other Credit
Documents.
33
IN WITNESS WHEREOF, the undersigned has executed this Joinder as of the
date first above written.
---------------------------------------,
as Lender
By:
-------------------------------------
Title:
-------------------------------
Revolving Credit
Commitment Amount: $
--------------------
Address for Notices:
--------------------------------------
--------------------------------------
--------------------------------------
Attention:
----------------------------
Telephone:
----------------------------
Telecopier:
--------------------------