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Exhibit 4(b)(iii)
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AND AGENCY AGREEMENT, dated as of July
12, 1996 (this "Amendment"), among EAGLE-PICHER INDUSTRIES, INC., an Ohio
corporation and a debtor and debtor in possession (the "Debtor"), MICHIGAN
AUTOMOTIVE RESEARCH CORP., a Michigan corporation and a debtor and debtor in
possession, EDI, INC., a Michigan corporation and a debtor and debtor in
possession, DAISY PARTS, INC., a Michigan corporation and a debtor and debtor in
possession, HILLSDALE TOOL AND MANUFACTURING CO., a Michigan corporation and a
debtor and debtor in possession, EAGLE-PICHER MINERALS, INC., a Nevada
corporation and a debtor and debtor in possession, and TRANSICOIL INC., a
Pennsylvania corporation and a debtor and debtor in possession (collectively,
the "Guarantors"), the Banks set forth on the signature pages hereof
(collectively, the "Banks" and individually, a "Bank"), and NBD BANK (formerly
known as NBD BANK, N.A.), as agent for the Banks (in such capacity, the
"Agent").
RECITALS
A. The parties hereto have entered into a Credit and Agency Agreement
dated as of November 5, 1992, as amended by a First Amendment to Credit
Agreement dated as of August 29, 1994 (as amended, the "Credit Agreement"),
which is in full force and effect.
B. The Debtor desires to amend the Credit Agreement as herein provided,
and the Banks and the Agent are willing to so amend the Credit Agreement on the
terms and conditions set forth herein.
AGREEMENT
Based upon these recitals, the parties agree as follows:
1. Amendment. Upon the Debtor satisfying the conditions set
forth in paragraph 4 (the date that this occurs being called the
"effective date"), the Credit Agreement shall be amended as
follows:
(a) The definition of "Automatic Termination Date" in
Section 1.1 shall be amended to read as follows:
"'Automatic Termination Date' means the later of December 31,
1998, or any extended date established pursuant to Section
2.9."
(b) Section 2.4(c) shall be amended in its entirety to
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read as follows:
"(c) The Debtor agrees to pay to the Agent an agency
fee for its services as Agent under this Agreement in
the amount of $12,500 per month for each month
through July, 1996, and in the amount of $8,500
thereafter until the Termination Date and thereafter
until all obligations relating to the Revolving
Credit Loans have been paid, and all Letters of
Credit have expired or otherwise been terminated.
Such amount shall be payable in arrears on each
Interest Payment Date and on the Termination Date.
Any agency fee owed for services performed by the
Agent for less than a full month shall be prorated to
an amount of the full monthly fee equivalent to that
portion of the month for which the fee is owed."
(c) Schedule 4.9 - Subsidiaries of Eagle-Picher Industries,
Inc., attached hereto is substituted for the Schedule 4.9 attached to the Credit
Agreement.
2. References to Credit Agreement. From and after the effective date of
this Amendment, references to the Credit Agreement in the Credit Agreement and
all other Loan Documents (as each of the foregoing is amended hereby or pursuant
hereto) shall be deemed to be references to the Credit Agreement as amended
hereby.
3. Representations and Warranties. The Debtor and the Guarantors
jointly and severally represent and warrant to the Banks and the Agent that:
(a) (i) The execution, delivery and performance of this
Amendment and all agreements and documents delivered pursuant hereto by each of
the Debtor and each Guarantor have been duly authorized by all necessary
corporate action and do not and will not violate any provision of any law, rule,
regulation, order, judgment, injunction, or award presently in effect applying
to it, or of its articles of incorporation or By-Laws or Code of Regulations, or
result in a breach of or constitute a default under any material agreement,
lease or instrument to which the Debtor or any Guarantor is a party or by which
it or its properties may be bound or affected; (ii) no authorization, consent,
approval, license, exemption or filing of a registration with any court or
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governmental department, agency or instrumentality is or will be necessary to
the valid execution, delivery or performance by each of the Debtor and each
Guarantor of this Amendment and all agreements and documents delivered pursuant
hereto; and (iii) this Amendment and all agreements and documents delivered
pursuant hereto by each of the Debtor and each Guarantor are the legal, valid
and binding obligations of the Debtor and each Guarantor enforceable against
each in accordance with the terms thereof.
(b) After giving effect to the amendments contained herein,
the representations and warranties contained in Article IV (other than Section
4.5) of the Credit Agreement are true and correct on and as of the effective
date hereof with the same force and effect as if made on and as of such
effective date.
(c) The consolidated balance sheet of the Debtor and its
Subsidiaries and the consolidated statements of income, retained earnings, and
cash flows of the Debtor and its Subsidiaries for the fiscal year ended November
30, 1995, certified by the Debtor's accountants, and the interim consolidated
balance sheet of the Debtor and its Subsidiaries and the interim consolidated
statements of income, retained earnings, and cash flows of the Debtor and its
Subsidiaries for the six-month period ended May 31, 1996, copies of which have
been furnished to the Banks, fairly present the consolidated financial condition
of the Debtor and its Subsidiaries as at the dates thereof, and the consolidated
results of operations of the Debtor and its Subsidiaries for the respective
periods indicated, all in accordance with generally accepted accounting
principles consistently applied (subject in the case of the interim statements
to year-end audit adjustments). There has been no material adverse change in the
business, properties, operations, or condition, financial or otherwise, of the
Debtor and its Subsidiaries, on a consolidated basis, since November 30, 1995.
There are no liabilities of the Debtor or any Subsidiary, fixed or contingent,
which are material but are not reflected in such financial statements or the
notes thereto.
(d) No Event of Default has occurred and is continuing or will
exist under the Credit Agreement as of the effective date hereof.
4. Conditions to Effectiveness. This Amendment shall not become
effective until the Agent has received the following documents and the following
conditions have been satisfied, each in form and substance satisfactory to the
Agent:
(a) Copies, certified as of the effective date hereof, of such
corporate documents of the Debtor and each Guarantor, including articles of
incorporation, bylaws (or certifying as to the copies of the articles of
incorporation and by-laws previously delivered to the Banks), and incumbency
certificates, and such documents evidencing necessary corporate action by the
Debtor and
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each Guarantor with respect to this Amendment and all other agreements or
documents delivered pursuant hereto;
(b) The favorable written opinion of counsel for the Debtor
and the Guarantors, relating to those matters referenced in Section 3(a) of this
Amendment, Section 4.1 of the Credit Agreement, and as to such other matters as
the Banks may reasonably request, such opinion to be in form and substance
satisfactory to the Banks;
(c) A certified copy of an order of the Bankruptcy Court
authorizing and approving this Amendment;
(d) An amendment fee of $100,000 is paid to the Agent for the
account of each Bank, such amount to be distributed by the Agent pro rata to the
Banks based on their respective Commitment Percentages; and
(e) Such additional agreements and documents, fully executed
by the Debtor and its Subsidiaries, reasonably requested by the Agent.
5. Execution by Guarantors. Each of the Guarantors is joining in the
execution of this Amendment for the purpose of acknowledging and agreeing to all
of the terms hereof and confirming the continued effect of the Credit Agreement
and all other obligations to be observed or performed by each such Guarantor
thereunder. Without limiting the foregoing, each Guarantor fully consents to the
terms and provisions of this Amendment and all other agreements and documents
delivered pursuant hereto and the consummation of the transactions contemplated
hereby.
6. Miscellaneous. The terms used but not defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement. Except as
expressly amended hereby, the Credit Agreement and all other Loan Documents are
hereby ratified and confirmed by the Banks, the Agent, the Debtor and the
Guarantors and shall remain in full force and effect, and the Debtor and each
Guarantor hereby acknowledge that they have no defense, offset or counterclaim
with respect thereto.
7. Counterparts. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Amendment by signing
any such counterpart.
8. Governing Law. This Amendment is a contract made under, and shall be
governed by and construed in accordance with, the laws of the State of Michigan
applicable to contracts made and to be performed entirely within such state and
without giving effect to
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the choice law principles of such state.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the date first written above.
EAGLE-PICHER INDUSTRIES, INC.
an Ohio corporation and
Debtor and Debtor in
Possession
By: /s/ Xxxxx X. Xxxx And By: /s/ Xxxxx X. Xxxxx
------------------------------- ---------------------------------
Its: Senior Vice President- Its: Treasurer
Finance
HILLSDALE TOOL AND MICHIGAN AUTOMOTIVE RESEARCH
MANUFACTURING CO. CORP., a Michigan corporation and
a Michigan corporation and Debtor and Debtor in Possession
Debtor and Debtor in Possession
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------- ---------------------------------
Its: Vice President Its: Vice President
EDI, INC. EAGLE-PICHER MINERALS, INC.
a Michigan corporation and a Nevada corporation and
Debtor and Debtor in Possession Debtor and Debtor in Possession
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------- -------------------------------------
Its: Vice President Its: Vice President
DAISY PARTS, INC. TRANSICOIL INC.
a Michigan corporation and a Pennsylvania corporation
Debtor and Debtor in Possession and Debtor and Debtor in
Possession
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------- -------------------------------------
Its: Vice President Its: Vice President
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NBD BANK, Individually and as Agent
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Its: Vice President
------------------------------------
THE BANK OF NOVA SCOTIA STAR BANK, N.A.
By: /s/ F.C.H. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
------------------------------- -------------------------------------
Its: Senior Manager Loan Its: Vice President
Operations
PNC BANK, OHIO,
NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxx
-------------------------------
Its: Vice President
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SCHEDULE 4.9
E-P SUBSIDIARIES: SHAREHOLDER INFORMATION 7/10/1996
Country/
Business or Type State of
Name Operation Incorporated Acquired Incorp. Shareholder
------------------------ ------------------------- ------------ -------- -------- ------------------------
Cincinnati Industrial Branch office of 5/28/1976 Ohio Eagle-Picher Industries
Machinery Sales Company Eagle-Picher Industries, Inc.
Inc. on behalf of
Cincinnati Industrial
Machinery Company in Hong
Kong.
Daisy Parts, Inc. Machining of castings for 3/3/1952 1971 Michigan Eagle-Picher Industries,
automotive industry. Inc.-100%
Xxxxx & Eagle-Picher Marketing services for 5/18/1971 N/A Germany Eagle-Picher Industries,
GMBH*(JV) battery products in Inc.-45% (DM 450.000)
Western Europe. XXXXX GmbH & Co.-55%
(DM 550.000)
Xxxx Xxxx Eagle-Picher Manufacture and sale of 9/2/1993 N/A South Korea Xxxx Xxxx EWHA Industry
Limited*(JV) hardened plastic products Company, Ltd.-51%
and industrial plastic (180,764 shrs)
products; foreign trade Eagle-Picher Industries,
of machinery, equipment, Inc.-49% (173,676
etc. shares)
Eagle-Picher Development Established for the 8/27/1987 N/A Delaware Eagle-Picher Industries,
Company, Inc. purpose of acquiring Inc.-100%
other companies.
Eagle-Picher Espana, Manufacturer of Precision 8/18/1982 N/A Madrid, Spain Eagle-Picher Industries,
S.A.* rubber and rubber to Inc.-100%
metal parts for
automotive market in
Spain.
Eagle-Picher Europe, Inc. Established for the 3/24/1988 N/A Delaware Eagle-Picher Industries,
purpose of acquiring Inc.-100%
other companies.
Eagle-Picher Far East, Automotive products sales 1/11/1988 N/A Delaware Eagle-Picher Industries,
Inc. and business development Inc.-100%
office.
Eagle-Picher Fluid Manufacturer of plastic 6/27/1974 1988 England EP Europe-99.9% (787,287
Systems Ltd* and rubberized auto shares); A.
parts. Wholly owned Ruijssenaars-.1% (1
subsidiary of share in trust for EP
Eagle-Picher Europe, Inc. Europe)
Eagle-Picher Fluid Fluid delivery systems, 12/26/1995 Michigan Eagle-Picher Industries,
Systems, Inc. primarily for automotive Inc.-100%
applications.
* Foreign Subsidiary; (JV) = Joint Venture
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E-P SUBSIDIARIES: SHAREHOLDER INFORMATION
7/10/1996
COUNTRY/
BUSINESS OR TYPE STATE OF
NAME OPERATION INCORPORATED ACQUIRED INCORP. SHAREHOLDER
----------------------- ---------------------- ------------ ---------- ----------------- -----------------------
Eagle-Picher Hillsadale Storm Engine (Isolator 2/5/1996 England and Wales Eagle-Picher UK Limited
Limited Damper for Rover Group)
Eagle-Picher Industries Promotion of Sale, 8/4/1994; Germany Eagle-Picher Industries,
Europe GmbH* Marketing, and Reg. 9/29/1994 Inc.-100%
Distribution of Special
Parts for Industrial
Applications Manufactured
by the Eagle-Picher Group
Eagle-Picher Industries Wholly-owned subsidiary 5/16/1990 N/A Germany Eagle-Picher Industries
Materials GmbH* of Eagle-Picher GmbH GmbH-100%
formed to develop
specialty materials sales
in Europe.
Eagle-Picher Industries Sales Office for 11/22/1967 X/X Xxxxxxx, Xxxxxx Eagle-Picher Industries,
of Diatomite Products. Inc.-100%
Canada Limited*
Eagle-Picher Industries Production and Sales of 12/21/1979 N/A Germany Eagle-Picher Industries,
GmbH* Precision Rubber Parts Inc.--99.9% (Stock
and Insulating Capital 3.8 Million DM)
Products. DM 2000 Capital Interest
held in Trust for EPI by
Andries Roijssenaars
Eagle-Picher Minerals To promote the sale, 5/30/1990 N/A France Eagle-Picher Minerals,
International S.A.R.L.* Import and Export of Inc.-100%
Diatomaceous Earth and
other Mineral products in
France, Europe and
Abroad.
Eagle-Picher Minerals, Producer of Diatomaceous 11/21/1986 N/A Nevada Eagle-Picher Industries,
Inc. Earth Products. Inc.-100%
Eagle-Picher UK Limited Holding Company 2/5/1996 England and Wales Eagle-Picher Industries,
Inc.
Eagle-Picher, Inc.* Foreign Sales Corporation 12/21/1984 N/A Virgin Islands Eagle-Picher Industries,
Inc.-100%
EDI, Inc. Manufacturer of 12/28/1981 1988 Michigan MARCO-100%
Automotive Engine Testing
Equipment and Software,
Wholly-owned Subsidiary
of MARCO.
------------------
* Foreign Subsidiary; (JV) = Joint Venture
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E-P SUBSIDIARIES: SHAREHOLDER INFORMATION
7/10/1996
COUNTRY/
BUSINESS OR TYPE STATE OF
NAME- OPERATION INCORPORATED ACQUIRED INCORP. SHAREHOLDER
--------------------- -------------------------- ---------------- ------------- ---------------- -------------------------
EPTEC, S.A. de C.V.* MANUFACTURE, 9/2/1993 N/A MEXICO EAGLE-PICHER INDUSTTRIES,
DISTRIBUTION, PURCHASE INC. (49,999 shares) &
AND SALE, IMPORT AND HILLSDALE TOOL &
EXPORT & MANUFACTURING CO. (1
COMMERCIALIZATION OF share)
AUTOMOTIVE PRODUCTS, AND
ALL TYPES OF PRODUCTS
PERMITTED BY LAW.
EQUIPOS XX XXXXX, SUPPORT ASSEMBLY WORK FOR 7/23/1986 N/A MEXICO EAGLE-PICHER INDUSTRIES,
S.A. de C.V.* CONSTRUCTION EQUIPMENT INC.-99.9% (EP 999
DIVISION. SHARES & JAR 1 SHARE OF
SERIES A.). EP ALSO OWNS
1,508,248 SHARES OF
SERIES C AND 8,786,549
SHARES OF SERIES B.
HILLSDALE TOOL & MANUFACTURER OF 6/13/1940 1971 MICHIGAN EAGLE-PICHER INDUSTRIES,
MANUFACTURING CO. AUTOMOTIVE PARTS INC.-100%
MICHIGAN AUTOMOTIVE AUTOMOTIVE TEST LAB. 11/18/1977 1988 MICHIGAN E.P. DEVELOPMENT-100%
RESEARCH CORPORATION WHOLLY-OWNED SUBSIDIARY
(MARCO) OF E.P. DEVELOPMENT, INC.
OWNS 49 1/2% OF A REAL
ESTATE PARTNERSHIP.
TRANSICOIL (MALAYSIA) PROVIDES SUB-ASSEMBLY 8/8/1973 0000 XXXXXXXX TRANSICOIL INC.-100%
SDN. BHD.* WORK FOR TRANSICOIL'S
U.S. OPERATIONS.
WHOLLY-OWNED SUBSIDIARY
OF TRANSICOIL, INC.
TRANSICOIL INC. MANUFACTURER OF 6/12/1978 SEPT. 2, 1987 PENNSYLVANIA E-P DEVELOPMENT CO.-100%
ELECTRONIC COMPONENTS.
WHOLY-OWNED SUB. OF E.P.
DEVELOPMENT, INC.
UNITED MINERALS GMBH PRODUCTION OF, TRADING 4/6/1994 N/A GERMANY EAGLE-PICHER MINERALS
& CO. KG*(JV) IN, AND MARKETING OF INTERNATIONAL S.A.R.L.
DIATOMITE PRODUCTS, 75% (DM
PERLITE, AND OTHER 1.500.000);KIESELGUR-
PRODUCTS UND
KALKSANDSTEIN-INDUSTRIE
XXXXXXXX XXXXX-WERKE
BRELOH GMBH & CO. KG 25%
(DM 500.00); AND UNITED
MINERALS VERWALTUNGS-
UND BETEILIGUNGS GMBH
(NO CAPITAL)
*Foreign Subsidiary; (JV) = Joint Venture
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E-P SUBSIDIARIES: SHAREHOLDER INFORMATION 7/10/1996
COUNTRY/
BUSINESS OR TYPE STATE OF
NAME OPERATION INCORPORATED ACQUIRED INCORP. SHAREHOLDER
----------- ---------------- ------------ -------- --------- -----------
UNITED MINERALS HOLDING COMPANY (GENERAL 4/6/1994 N/A GERMANY EAGLE-PICHER MINERALS
VERWALTUNGS - UND PARTNER OF UNITED INTERNATIONAL, S.A.R.L.
BETEILIGUNGS MINERALS GMBH & CO. KG) 75% (DM 37.500) &
GMBH* (JV) KIESELGUR-UND
KALKSANDSTEININDUSTRIE
XXXXXXXX XXXXX-WERKE
BRELOH GMBH & Co. KG 25%
(DM12.500)
YAMANAKA EP PRODUCTION AND SALE OF 5/10/1995 KYOTO, JAPAN EAGLE-PICHER 350 SHARES;
CORPORATION* (JV) EAGLE-PICHER'S SPECIALTY XXXXX XXXXX 550 SHARES;
MATERIAL DIVISION'S YAMANAKA HUTECH
PRODUCTS CORPORATION 100 SHARES
* Foreign Subsidiary: (JV) = Joint Venture
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