EX-10.65 3 l94567aex10-65.txt EXHIBIT 10.65 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. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] - 2 - 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:____________________________________ - 3 - 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:____________________________________ - 4 - 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:_________________________________ - 5 - 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:___________________________________ - 6 -