Exhibit 10.61
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SUPPLEMENTAL INDENTURE
among
EAGLE-PICHER INDUSTRIES INC.,
as successor to E-P Acquisition, Inc.
and
THE GUARANTORS PARTY HERETO
and
THE BANK OF NEW YORK,
as Trustee
Dated as of
December 14, 2001
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supplementing that certain
INDENTURE
dated as of February 24, 1998
securing
9-3/8% SENIOR SUBORDINATED NOTES DUE 2008
of
E-P ACQUISITION, INC.
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SUPPLEMENTAL INDENTURE
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THIS SUPPLEMENTAL INDENTURE, dated as of December 14, 2001, is entered
into by and among EAGLE-PICHER INDUSTRIES, INC., an Ohio corporation, as
successor to E-P Acquisition, Inc. (the "COMPANY"), the GUARANTORS party hereto
and THE BANK OF NEW YORK, a New York banking corporation (the "TRUSTEE").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed thereto in the Indenture dated as of February 24, 1998 (the
"INDENTURE") among E-P Acquisition, Inc, the Guarantors named therein and the
Trustee.
W I T N E S S E T H:
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WHEREAS, pursuant to the Indenture, the Company heretofore issued and
currently has outstanding its 9-3/8% Senior Subordinated Notes due March 1, 2008
in the principal amount of $220,000,000 (the "NOTES");
WHEREAS, the scope and lack of clarity of certain of the defined terms
in the Indenture, and the possibility of differing interpretations of such
defined terms, could hinder the Company's flexibility to engage in the
securitization of all or a portion of its accounts receivable through an asset
securitization (the "A/R SECURITIZATION"), which the Company believes is an
efficient method of financing its accounts receivables;;
WHEREAS, the Company desires to amend the Indenture to clarify that the
Company is permitted to engage in an A/R Securitization;
WHEREAS, the Company has complied with the requirements of Article 9 of
the Indenture with respect to the execution of this Supplemental Indenture,
including obtaining the written consent of the Holders of at least a majority in
aggregate principal amount of the Notes outstanding;
WHEREAS, all acts and proceedings required by law to make this
Supplemental Indenture in the form hereof a valid, binding and legal instrument,
in accordance with its terms and for the purposes herein expressed, have been
done and performed, and the execution and delivery hereof have been in all
respects duly authorized;
WHEREAS, this Supplemental Indenture shall, upon execution, become an
effective, valid, binding and legal instrument, in accordance with its terms and
for the purposes herein expressed;
WHEREAS, in accordance with the terms of this Supplemental Indenture,
the Indenture is being amended and restated to reflect the amendments set forth
herein;
NOW, THEREFORE, in consideration of the foregoing recitals and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Company and the Guarantors represent, covenant and
agree with the Trustee, for the equal and proportionate benefit of the Holders
of the Notes:
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SECTION 1. AMENDMENTS TO INDENTURE. The Indenture is hereby amended as
follows:
(a) The following definitions contained in Section 1.1 of the Indenture
are hereby amended and restated in their entirety as follows:
"ASSET SALE" means any sale, issuance, conveyance, transfer,
lease, assignment or other disposition to any Person other than the
Company or any of its Restricted Subsidiaries (including, without
limitation, by means of a Sale and Leaseback Transaction or a merger or
consolidation)(collectively, for purposes of this definition, a
"transfer"), directly or indirectly, in one transaction or a series of
related transactions, of (a) any Capital Stock of any Subsidiary or (b)
any other properties or assets of the Company or any of its
Subsidiaries other than transfers of cash, Cash Equivalents, accounts
receivable, inventory or other properties or assets in the ordinary
course of business or transfers in connection with the securitization
or financing of accounts receivable or other property or assets. For
the purposes of this definition, the term "Asset Sale" shall not
include any of the following: (i) any transfer of properties or assets
(including Capital Stock) that is governed by, and made in accordance
with, the provisions of Article 5; (ii) any transfer of properties or
assets to an Unrestricted Subsidiary, if permitted under Section 4.05
or to a special purpose Affiliate or an Unrestricted Subsidiary as part
of a securitization of the Company's or a Restricted Subsidiary's
accounts receivable or other property; (iii) sales of damaged, worn-out
or obsolete equipment or assets that, in the Company's reasonable
judgment, are either no longer used or useful in the business of the
Company or its Subsidiaries, provided that the proceeds thereof are
used to purchase replacement or similar assets for use in the business
of the Company and its Subsidiaries; and (iv) any transfers that, but
for this clause (iv), would be Asset Sales, if after giving effect to
such transfers, the aggregate Fair Market Value of the properties or
assets transferred in such transaction or any such series of related
transactions does not exceed $500,000.
"INDEBTEDNESS" of any Person at any date means, without
duplication: (i) all liabilities, contingent or otherwise, of such
Person for borrowed money (whether or not the recourse of the lender is
to the whole of the assets of such person or only to a portion
thereof); (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments; (iii) all obligations
of such Person in respect of letters of credit or other similar
instruments (or reimbursement obligations with respect thereto); (iv)
all obligations of such Person to pay the deferred and unpaid purchase
price of property or services, except that any deferred purchase price
to be paid to the Company or any Restricted Subsidiary by any special
purpose Affiliate or an Unrestricted Subsidiary or other third party in
connection with the transfer of the Company's or such Restricted
Subsidiary's accounts receivable or other property in an asset
securitization shall not be considered Indebtedness and except trade
payables and accrued expenses incurred by such Person in the ordinary
course of business in
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connection with obtaining goods, materials or services, which payable
is not overdue by more than 60 days according to the original terms of
sale unless such payable is being contested in good faith; (v) the
maximum fixed redemption or repurchase price of all Disqualified
Capital Stock of such Person; (vi) all Capitalized Lease Obligations of
such Person; (vii) all Indebtedness of others secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by
such Person; (viii) all Indebtedness of others guaranteed by such
Person to the extent of such guarantee; provided that Indebtedness of
the Company or its Subsidiaries that is guaranteed by the Company or
the Company's Subsidiaries shall only be counted once in the
calculation of the amount of Indebtedness of the Company and its
Subsidiaries on a consolidated basis; (ix) all Attributable
Indebtedness; and (x) to the extent not otherwise included in this
definition, Hedging Obligations of such Person. The amount of
Indebtedness of any Person at any date shall be the outstanding balance
at such date of all unconditional obligations as described above, the
maximum liability of such Person for any such contingent obligations at
such date and, in the case of clause (vii), the lesser of (A) the Fair
Market Value of any asset subject to a Lien securing the Indebtedness
of others on the date that the Lien attaches and (B) the amount of the
Indebtedness secured. For purposes of the preceding sentence, the
"maximum fixed redemption or repurchase price" of any Disqualified
Capital Stock that does not have a fixed redemption or repurchase price
shall be calculated in accordance with the terms of such Disqualified
Capital Stock as if such Disqualified Capital Stock were purchased or
redeemed on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based upon,
or measured by, the fair market value of such Disqualified Capital
Stock (or any equity security for which it may be exchanged or
converted), such fair market value shall be determined in good faith by
the Board of Directors of such Person, which determination shall be
evidenced by a Board Resolution.
"INVESTMENTS" of any Person means (i) all investments by such
Person in any other Person in the form of loans, advances or capital
contributions (excluding commission, travel and similar advances to
officers and employees made in the ordinary course of business and
excluding the deferred purchase price to be paid to the Company or any
Restricted Subsidiary by any special purpose Affiliate including an
Unrestricted Subsidiary or other third party in connection with the
transfer of the Company's or such Restricted Subsidiary's accounts
receivable or other property in an asset securitization) or similar
credit extensions constituting Indebtedness of such Person, and any
guarantee of Indebtedness of any other Person, (ii) all purchases (or
other acquisitions for consideration) by such Person of Indebtedness,
Capital Stock or other securities of any other Person and (iii) all
other items that would be classified as investments (including without
limitation purchases of assets outside the ordinary course of business)
on a balance sheet of such Person prepared in accordance with GAAP.
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"LIEN" means, with respect to any asset or property, any
mortgage, deed of trust, lien (statutory or other), pledge, lease,
easement, restriction, covenant, charge, security interest or other
encumbrance of any kind or nature in respect of such asset or property,
whether or not filed, recorded or otherwise perfected under applicable
law, including without limitation any conditional sale or other title
retention agreement, and any lease in the nature thereof, any option or
other agreement to sell, and any filing of, or agreement to give, any
financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction (other than cautionary filings in respect
of operating leases or filings of any financing statement under the
Uniform Commercial Code to evidence the transfer of accounts receivable
or other property to a special purpose Affiliate or an Unrestricted
Subsidiary in an asset securitization).
(b) Section 4.16(a) of the Indenture is hereby amended and restated in
its entirety as follows:
SECTION 4.16. Limitations on Asset Sales. (a) The Company will
not, and will not permit any of its Restricted Subsidiaries to,
consummate any Asset Sale unless (i) the Company or such Restricted
Subsidiary receives consideration at the time of such Asset Sale at
least equal to the Fair Market Value of the assets included in such
Asset Sale (evidenced by the delivery by the Company to the Trustee of
an Officers' Certificate certifying that such Asset Sale complies with
this clause (i)), (ii) immediately before and immediately giving effect
to such Asset Sale, no Default or Event of Default shall have occurred
and be continuing, and (iii) at least 80% of the consideration received
by the Company or such Restricted Subsidiary therefor is in the form of
cash paid at the closing thereof. The amount (without duplication) of
any (x) Indebtedness (other than Subordinated Indebtedness) of the
Company or such Restricted Subsidiary that is expressly assumed by the
transferee in such Asset Sale and with respect to which the Company or
such Restricted Subsidiary, as the case may be, is unconditionally
released by the holder of such Indebtedness, and (y) any Cash
Equivalents, or other notes, securities or items of property received
from such transferee that are promptly (but in any event within 15
days) converted by the Company or such Restricted Subsidiary to cash
(to the extent of the cash actually so received), shall be deemed to be
cash for purposes of clause (ii) and, in the case of clause (x) above,
shall also be deemed to constitute a repayment of, and a permanent
reduction in, the amount of such Indebtedness for purposes of the
following paragraph (b). If at any time any non-cash consideration
received by the Company or any Restricted Subsidiary of the Company, as
the case may be, in connection with any Asset Sale is converted into or
sold or otherwise disposed of for cash (other than interest received
with respect to any such non-cash consideration), then the date of such
conversion or disposition shall be deemed to constitute the date of an
Asset Sale hereunder and the Net Available Proceeds thereof shall be
applied in accordance with this Section 4.16. A transfer of assets by
the Company to a Restricted Subsidiary or by a Restricted Subsidiary to
the Company or to a Restricted Subsidiary will not be deemed to be an
Asset Sale, a
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transfer of assets that constitutes a Restricted Investment and that is
permitted under Section 4.05 will not be deemed to be an Asset Sale and
a transfer of accounts receivable or other property of the Company or a
Restricted Subsidiary to a special purpose Affiliate or an Unrestricted
Subsidiary or other third party in an asset securitization will not be
deemed to be an Asset Sale.
SECTION 2. INTERPRETATION OF AMENDED INDENTURE. The Indenture shall be
deemed to be modified and amended in accordance herewith and the respective
rights, limitations of rights, obligations, duties and immunities under the
Indenture of the Trustee, the Company, the Guarantors and the Holders of
outstanding Notes shall, as of the date hereof, be determined, exercised and
enforced under the Indenture, subject in all respects to such modifications and
amendments made by this Supplemental Indenture, and all the terms and conditions
of this Supplemental Indenture shall be deemed to be part of the terms and
conditions of the Indenture for any and all purposes.
SECTION 3. DUTIES AND RESPONSIBILITIES OF TRUSTEE. The Trustee accepts
the amendments of the Indenture effected by this Supplemental Indenture and
agrees to execute the trust created by the Indenture as hereby amended, but only
upon the terms and conditions set forth in the Indenture, including the terms
and provisions defining and limiting the liabilities and responsibilities of the
Trustee, which terms and provisions define and limit its liabilities and
responsibilities in the performance of the trust created by the Indenture as
hereby amended, and, without limiting the generality of the foregoing, the
Trustee makes no representation as to (i) the proper authorization hereof by the
Company and the Guarantors by corporate action or otherwise, (ii) the due
execution hereof by the Company and the Guarantors or (iii) the validity,
accuracy or sufficiency of this Supplemental Indenture. The recitals contained
herein shall be taken as the statements of the Company and the Trustee assumes
no responsibility for their correctness.
SECTION 4. COUNTERPARTS. This Supplemental Indenture may be executed in
any number of counterparts, each of which when so executed shall be deemed to be
an original, and all of such counterparts shall together constitute one and the
same instrument.
SECTION 5. RATIFICATION AND CONFIRMATION OF INDENTURE. Except as hereby
expressly supplemented and amended, the Indenture and the Notes issued
thereunder are in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect.
SECTION 6. GOVERNING LAW. This Supplemental Indenture shall be deemed
to be a contract made under the laws of the State of New York and for all
purposes shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the conflict of laws provisions thereof.
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IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture
to be duly executed, as of the date and year first above written.
EAGLE-PICHER INDUSTRIES, INC.,
as successor to E-P Acquisition, Inc,
By:
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Name:
Title:
DAISY PARTS, INC.
By:
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Name:
Title:
EAGLE-PICHER DEVELOPMENT
COMPANY, INC.
By:
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Name:
Title:
EAGLE-PICHER HOLDINGS, INC.
By:
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Name:
Title:
EAGLE-PICHER FAR EAST, INC.
By:
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Name:
Title:
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EAGLE-PICHER MINERALS, INC.
By:
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Name:
Title:
EAGLE-PICHER TECHNOLOGIES, INC.
By:
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Name:
Title:
HILLSDALE TOOL & MANUFACTURING
CO.
By:
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Name:
Title:
EPMR CORPORATION
By:
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Name:
Title:
XXXXXXXXX ENTERPRISES LIMITED
By:
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Name:
Title:
THE BANK OF NEW YORK,
as Trustee
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By:
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Name:
Title:
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