EXHIBIT 10.73
EXECUTION COPY
AMENDMENT NO. 3
DATED AS OF AUGUST 7, 2003
TO
RECEIVABLES PURCHASE AND SERVICING AGREEMENT
and
RECEIVABLES SALE AGREEMENT
DATED AS OF JANUARY 8, 2002
THIS AMENDMENT No. 3 (this "Amendment") is entered into as of
August 7, 2003 by and among THE ENTITIES LISTED ON THE SIGNATURE PAGES HEREOF AS
ORIGINATORS (the "Originators"), EAGLEPICHER INCORPORATED (formerly known as
Eagle-Picher Industries, Inc.) (the "Servicer"), EAGLE-PICHER FUNDING
CORPORATION ("EPFC"), and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation, in its separate capacities as a committed purchaser (the "Committed
Purchaser") and as administrative agent (in such capacity, the "Administrative
Agent") under the "Receivables Purchase and Servicing Agreement" referred to
below. All capitalized terms used in this Amendment and not otherwise defined
herein will have the respective meanings set forth in the "Receivables Purchase
and Servicing Agreement".
RECITALS:
WHEREAS, the Originators and EPFC are parties to a Receivables
Sale Agreement dated as of January 8, 2002 (as amended, restated, supplemented
or otherwise modified from time to time, the "Receivables Sale Agreement");
WHEREAS, EPFC, the Servicer, the Committed Purchaser and the
Administrative Agent are parties to a Receivables Purchase and Servicing
Agreement dated as of January 8, 2002 (as amended, restated, supplemented or
otherwise modified from time to time prior to the date hereof, the "Receivables
Purchase and Servicing Agreement");
WHEREAS, the Servicer, the Originators, EPFC, the Committed
Purchaser and the Administrative Agent have agreed to amend the Receivables
Purchase and Servicing Agreement and the Receivables Sale Agreement, as
applicable, on the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and
sufficiency of which are hereby acknowledged, the Originators, the Servicer,
EPFC, the Committed Purchaser and the Administrative Agent hereby agree as
follows.
1. AMENDMENTS TO RECEIVABLES PURCHASE AND SERVICING AGREEMENT.
Effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 3 below, the Receivables Purchase and
Servicing Agreement is hereby amended as follows:
1.1 Section 5.02 of the Receivables Purchase and Servicing
Agreement is hereby amended to include the following subsection 5.02(e):
"(e) The Seller hereby agrees that after July 10, 2006 but on
or before November 30, 2006, the Seller shall furnish to the
Administrative Agent an opinion of counsel (i) stating that in the
opinion of such counsel, such action has been taken with respect to the
filing of all financing statements and continuation statements as
necessary for the Administrative Agent to maintain a first-priority
perfected Lien in the Seller Collateral and (ii) describing all
financing statements amendments and continuation statements that, in
the opinion of such counsel, will be required to maintain the first
priority perfected Lien in the Seller Collateral."
1.2 The definition of the term "Credit Agreement" set forth in
Annex X to the Receivables Purchase and Servicing Agreement shall be amended to
delete such definition in its entirety and to substitute the following therefor:
"`Credit Agreement' shall mean that certain Credit
Agreement dated as of August 7, 2003, among EaglePicher
Incorporated, EaglePicher Holdings Inc., the Persons party
thereto as "lenders" and Harris Trust and Savings Bank as
administrative agent."
1.3 The definition of the term "Final Purchase Date" set forth
in Annex X to the Receivables Purchase and Servicing Agreement is hereby amended
by deleting the date "January 7, 2005" appearing therein and replacing the date
"January 7, 2008" therefor.
1.4 The definition of the term "Maximum Purchase Limit" set
forth in Annex X to the Receivables Purchase and Servicing Agreement shall be
amended to delete such definition in its entirety and to substitute the
following therefor:
"`Maximum Purchase Limit' shall mean $55,000,000, as
such amount may be reduced in accordance with Section 2.02(a)
of the Purchase Agreement."
1.5 Exhibit 2.03(c) of the Receivables Purchase and Servicing
Agreement shall be amended by deleting such Exhibit 2.03(c) in its entirety and
replacing the attached Exhibit 2.03(c) therefor.
1.6 Annex G of the Receivables Purchase and Servicing
Agreement shall be amended by deleting such Annex G in its entirety and
replacing the attached Annex G therefor.
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2. AMENDMENT TO RECEIVABLES SALE AGREEMENT. Effective as of
the date hereof and subject to the satisfaction of the conditions precedent set
forth in Section 3 below, Section 4.02 of the Receivables Sale Agreement is
hereby amended to include the following subsection 4.02(t):
"(t) Each Originator hereby agrees that after July
10, 2006 but on or before November 30, 2006, such Originator
shall furnish to the Administrative Agent an opinion of
counsel (i) stating that in the opinion of such counsel, such
action has been taken with respect to the filing of all
financing statements and continuation statements as necessary
for the Administrative Agent to maintain a first-priority
perfected Lien in the Originator Collateral and (ii)
describing all financing statements amendments and
continuation statements that, in the opinion of such counsel,
will be required to maintain the first priority perfected Lien
in the Originator Collateral."
3. CONDITIONS OF EFFECTIVENESS OF THIS AMENDMENT. This
Amendment shall become effective as of the date hereof (the "Effective Date")
when, and only when, the Administrative Agent shall have received the following:
3.1 counterparts of this Amendment duly executed by each
Originator, the Servicer, EPFC, the Committed Purchaser and the Administrative
Agent;
3.2 a fully executed payoff letter, in form and substance
acceptable to the Administrative Agent, with respect to the obligations under
that certain Credit Agreement dated as of February 19, 1998 by and among the
Servicer, as borrower, the Originators party thereto, as credit parties, the
lenders from time to time party thereto and ABN AMRO N.V. as agent for the
lenders;
3.3 evidence that a certain Intercreditor Agreement dated as
of the date hereof (the "Intercreditor Agreement") has been duly authorized and
executed by each of the Originators, EPFC, the Administrative Agent, the
Collateral Agent and Harris Trust and Savings Bank as agent for the lenders from
time to time party to the Credit Agreement (as defined in Section 1.2 above) and
that the Intercreditor Agreement is enforceable by its terms; and
3.4 an amendment fee in the amount of $187,500 in immediately
available funds, which when paid shall be fully earned by the Administrative
Agent and non-refundable.
4. REPRESENTATIONS AND WARRANTIES.
4.1 Upon the effectiveness of this Amendment, each of the
Servicer, the Originators and EPFC (a) hereby reaffirms all covenants,
representations and warranties made by it in the Receivables Purchase and
Servicing Agreement, the Receivables Sale Agreement and each other Related
Document to the extent the same are not amended hereby and except to the extent
the same expressly relates solely to an earlier date, (b) agrees that all such
covenants, representations and warranties shall be deemed to have been re-made
as of the Effective Date and (c) represents and warrants that, as of the
Effective Date and after giving effect hereto, no Termination Event, Incipient
Termination Event, Event of Servicer Termination or Incipient Servicer
Termination Event has occurred and is continuing.
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4.2 Each Originator, the Servicer and EPFC hereby represents
and warrants that this Amendment, the Receivables Purchase and Servicing
Agreement and the Receivables Sale Agreement, as amended hereby, constitute
legal, valid and binding obligations of such Person and are enforceable against
such Person in accordance with their respective terms.
5. REFERENCE TO AND EFFECT ON RELATED DOCUMENTS.
5.1 Upon the effectiveness of this Amendment pursuant to
Section 3 hereof, on and after the Effective Date, each reference to the
Receivables Purchase and Servicing Agreement, the Receivables Sale Agreement in
any of the Related Documents shall mean and be a reference to the Receivables
Purchase and Servicing Agreement or the Receivables Sale Agreement, as the case
may be, as amended hereby.
5.2 Except as specifically set forth above, the Receivables
Purchase and Servicing Agreement, the Receivables Sale Agreement, and all other
documents, instruments and agreements executed and/or delivered in connection
therewith, shall remain in full force and effect, and are hereby ratified and
confirmed.
5.3 The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of EPFC, the Committed Purchaser or the
Administrative Agent, nor constitute a waiver of any provision of any of the
Related Documents, or any other documents, instruments and agreements executed
and/or delivered in connection therewith.
6. HEADINGS. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
7. COUNTERPARTS. This Amendment may be executed by one or more
of the parties to this Amendment on any number of separate counterparts and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument.
8. ENTIRE AGREEMENT. This Amendment, taken together with the
Receivables Purchase and Servicing Agreement, the Receivables Sale Agreement and
all of the other Related Documents, embodies the entire agreement and
understanding of the parties hereto and supersedes all prior agreements and
understandings, written and oral, relating to the subject matter hereof.
9. GOVERNING LAW. THIS AMENDMENT AND THE OBLIGATIONS ARISING
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK BUT OTHERWISE WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES).
10. NO COURSE OF DEALING. The Committed Purchaser and the
Administrative Agent have entered into this Amendment on the express
understanding with the Originators, EPFC and the Servicer that in entering into
this Amendment the Committed Purchaser and the
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Administrative Agent are not establishing any course of dealing with the
Originators, EPFC or the Servicer. The rights of the Committed Purchaser and the
Administrative Agent to require strict performance with all the terms and
conditions of the Receivables Purchase and Servicing Agreement as amended by
this Amendment and the other Related Documents shall not in any way be impaired
by the execution of this Amendment. Neither the Committed Purchaser nor the
Administrative Agent shall be obligated in any manner to execute any further
amendments or waivers, and if such waivers or amendments are requested in the
future, assuming the terms and conditions thereof are acceptable to them, the
Committed Purchaser and the Administrative Agent may require the payment of fees
in connection therewith.
11. WAIVER OF CLAIMS. In consideration for the execution by
the Committed Purchaser and the Administrative Agent of this Amendment, each
Originator, the Seller and the Servicer hereby waives each and every claim,
defense, demand, action and suit of any kind or nature whatsoever against each
of the Committed Purchaser, the Administrative Agent, the Operating Agent and
each other Affected Party arising on or prior to the date hereof in connection
with the Receivables Purchase and Servicing Agreement, any of the Related
Documents and the transactions contemplated thereby.
12. EXPENSES. In consideration for the execution by the
Committed Purchaser, the Administrative Agent and the Collateral Agent of this
Amendment, each Originator, EPFC and the Servicer jointly and severally agrees
to promptly reimburse each of the Committed Purchaser, the Administrative Agent
and the Collateral Agent for all of the reasonable out-of-pocket expenses,
including, without limitation, attorneys' and paralegals' fees and expenses, it
has heretofore or hereafter incurred or incurs in connection with the
preparation, negotiation and execution of this Waiver.
13. SUCCESSORS AND ASSIGNS. This Amendment shall be binding
upon each Originator, the Servicer, EPFC, the Committed Purchaser, the
Administrative Agent and the Collateral Agent and their respective successors
and assigns and shall inure to the benefit of each such Person.
14. INTEGRATION. This Amendment contains the entire
understanding of the parties hereto with regard to the subject matter contained
herein. This Amendment supercedes all prior or contemporaneous negotiations,
promises, covenants, agreements and representations of every nature whatsoever
with respect to the matters contained in this Amendment, all of which have
become merged and finally integrated into this Amendment. Each of the parties
hereto understands that in the event of any subsequent litigation, controversy
or dispute concerning any of the terms, conditions or provisions of this
Amendment, no party shall be entitled to offer or introduce into evidence any
oral promises or oral agreements among the parties relating to the subject
matter of this Amendment not included or referred to herein and not reflected by
a writing included or referred to herein.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 3 to be
duly executed and delivered by their duly authorized officers as of the date
first above written.
EAGLEPICHER INCORPORATED, as the
Servicer and an Originator
By:_____________________________
Name:
Title:
EAGLE-PICHER FUNDING CORPORATION,
as the Seller
By:______________________________
Name:
Title:
Amendment No. 3
dated as of August __, 2003
to Receivables Purchase and Servicing Agreement
and Receivables Sale Agreement
dated as of January 8, 2002
GENERAL ELECTRIC CAPITAL
CORPORATION, as Committed Purchaser
By:________________________________
Name:
Title: Duly Authorized Signatory
GENERAL ELECTRIC CAPITAL
CORPORATION, as Administrative Agent
and as Collateral Agent
By:_________________________________
Name:
Title: Duly Authorized Signatory
Amendment No. 3
dated as of August __, 2003
to Receivables Purchase and Servicing Agreement
and Receivables Sale Agreement
dated as of January 8, 2002
CARPENTER ENTERPRISES LIMITED, as an
Originator
By:_________________________________
Name:
Title:
EAGLEPICHER AUTOMOTIVE, INC., as an
Originator
By:_________________________________
Name:
Title:
DAISY PARTS, INC., as an Originator
By:_________________________________
Name:
Title:
EAGLEPICHER FILTRATION & MINERALS,
INC., as an Originator
By:_________________________________
Name:
Title:
EAGLEPICHER TECHNOLOGIES, LLC, as an
Originator
By:_________________________________
Name:
Title:
EAGLEPICHER PHARMACEUTICAL SERVICES,
LLC, as an Originator
By:_________________________________
Name:
Title:
Amendment No. 3
dated as of August __, 2003
to Receivables Purchase and Servicing Agreement
and Receivables Sale Agreement
dated as of January 8, 2002
EXHIBIT 2.03(c)
(attached)
ANNEX G
(attached)