HOLDINGS PLEDGE AGREEMENT
This Pledge Agreement (the "Agreement") is dated as of February 24, 1998
by and between Eagle-Picher Holdings, Inc., a Delaware corporation (the
"Pledgor"), with its mailing address as set forth on its signature page hereto
and ABN AMRO Bank N.V., a bank organized under the laws of the Netherlands ("ABN
AMRO"), with its mailing address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, acting as collateral agent hereunder for the Secured Creditors
hereinafter identified and defined (ABN AMRO acting as such agent and any
successor or successors to ABN AMRO acting in such capacity being hereinafter
referred to as the "Agent").
PRELIMINARY STATEMENTS
A. E-P Acquisition, Inc., a Delaware corporation (which has merged with
and into Eagle-Picher Industries, Inc.) (as further defined in the Credit
Agreement referred to below, the "Borrower"), and ABN AMRO, individually and as
agent, have entered into a Credit Agreement dated as of February 19, 1998 (such
Agreement as the same may be amended, modified or restated from time to time
being hereinafter referred to as the "Credit Agreement"), pursuant to which ABN
AMRO and other banks and financial institutions and letter of credit issuers
from time to time party to the Credit Agreement (ABN AMRO, in its individual
capacity, and such other banks and financial institutions which from time to
time become party to the Credit Agreement being hereinafter referred to
collectively as the "Lenders" and individually as a "Lender" and such letter of
credit issuers being hereinafter referred to collectively as the "Letter of
Credit Issuers" and individually as a "Letter of Credit Issuer") have agreed,
subject to certain terms and conditions, to extend credit and make certain other
financial accommodations available to the Borrower.
B. The Borrower may from time to time enter into one or more Interest
Rate Protection Agreements with one or more of the Lenders party to the Credit
Agreement or affiliates thereof for the purpose of hedging or otherwise
protecting the Borrower against changes in interest rates (the liability of the
Borrower in respect of such agreements with such Lenders or affiliates being
hereinafter referred to as the "Hedging Liability") (the Agent, the Lenders, the
Letter of Credit Issuers and such affiliates party to Interest Rate Protection
Agreements being hereinafter referred to collectively as the "Secured Creditors"
and individually as a "Secured Creditor").
C. As a condition to extending credit to the Borrower under the Credit
Agreement, the Secured Creditors have required, among other things, that the
Pledgor grant to the Agent for the benefit of the Secured Creditors a security
interest in certain personal property of such Pledgor described herein subject
to the terms and conditions hereof.
D. The Pledgor owns all of the issued and outstanding capital
stock of the Borrower.
E. The Pledgor will benefit, directly and substantially, from
credit and other financial accommodations extended by the Secured Creditors to
the Borrower.
NOW, THEREFORE, for and in consideration of the execution and delivery
by the Secured Creditors of the Credit Agreement, and other good and valuable
consideration, receipt whereof is hereby acknowledged, the parties hereto hereby
agree as follows:
Section 1. Terms Defined in Credit Agreement. All capitalized terms
used herein without definition shall have the same meanings herein as such terms
have in the Credit Agreement.
Section 2. Grant of Security Interest in the Collateral. The Pledgor
hereby grants to the Agent for the benefit of the Secured Creditors a lien on
and security interest in, and acknowledges and agrees that the Agent has and
shall continue to have for the benefit of the Secured Creditors a continuing
lien on and security interest in, any and all right, title and interest of the
Pledgor in and to the following, whether now owned or existing or hereafter
created, acquired or arising, and in whatever form:
(a) Pledged Securities. All of the issued and outstanding shares
of capital stock owned by the Pledgor of the Borrower (as set forth on
Schedule A attached hereto), together with the certificates (or other
agreements or instruments), if any, representing such shares, and all
options and other rights, contractual or otherwise, with respect thereto
(collectively, together with the shares of capital stock described in
Section 2(b) and 2(c) below and the rights and privileges described
hereunder with respect thereto, the "Pledged Securities"), including,
but not limited to, the following:
(x) all shares of securities representing a dividend on
any of the Pledged Securities, or representing a distribution or
return of capital upon or in respect of the Pledged Securities,
or resulting from a stock split, revision, reclassification or
other exchange therefor, and any subscriptions, warrants, rights
or options issued to the holder of, or otherwise in respect of,
the Pledged Securities; and
(y) without affecting the obligations of the Pledgor
under any provision prohibiting such action hereunder, in the
event of any consolidation or merger in which the Borrower is not
the surviving corporation, all shares of each class of the
capital stock of the successor corporation formed by or resulting
from such consolidation or merger.
(b) Other Equity Interests. Any and all other equity interests of
the Pledgor in the Borrower.
(c) Proceeds. All proceeds and products of the foregoing, however
and whenever acquired and in whatever form.
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all of the foregoing being herein sometimes referred to as the "Collateral." All
terms which are used in this Agreement which are defined in the Uniform
Commercial Code of the State of New York ("UCC") shall have the same meanings
herein as such terms are defined in the UCC, unless this Agreement shall
otherwise specifically provide.
Section 3. Obligations Hereby Secured. This Agreement is made and
given to secure, and shall secure, the prompt payment and performance of (i) any
and all indebtedness, obligations and liabilities of the Borrower to the Secured
Creditors, and to any of them individually, under or in connection with or
evidenced by the Credit Agreement, the Notes of the Borrower heretofore or
hereafter issued under the Credit Agreement and the obligations of the Borrower
to reimburse the Secured Creditors for the amount of all drawings on all Letters
of Credit issued pursuant to the Credit Agreement, and all other obligations of
the Borrower under any and all applications for Letters of Credit, and any and
all liability of the Borrower arising under or in connection with or otherwise
evidenced by agreements with any one or more of the Secured Creditors with
respect to any Hedging Liability, and any and all liabilities of the Pledgor
arising under the Guaranty Agreement of even date herewith (the "Holdings
Guaranty") executed by the Pledgor relating to the foregoing or any part
thereof, in each case whether now existing or hereafter arising (and whether
arising before or after the filing of a petition in bankruptcy and including all
interest accrued after the petition date), due or to become due, direct or
indirect, absolute or contingent, and howsoever evidenced, held or acquired and
(ii) any and all expenses and charges, legal or otherwise, suffered or incurred
by the Secured Creditors, and any of them individually, in collecting or
enforcing any of such indebtedness, obligations and liabilities or in realizing
on or protecting or preserving any security therefor, including, without
limitation, the lien and security interest granted hereby (all of the
indebtedness, obligations, liabilities, expenses and charges described above
being hereinafter referred to as the "Obligations").
Section 4. Covenants, Agreements, Representations and Warranties. The
Pledgor hereby covenants and agrees with, and represents and warrants to, the
Secured Creditors that:
(a) The Pledgor is and shall be the sole and lawful legal, record
and beneficial owner of its Collateral. The Pledgor's chief executive
office is at the address listed under the Pledgor's name on Schedule A.
The Pledgor agrees that it will not change any location set forth on the
applicable Schedule hereto without at least 30 days' prior written
notice to the Agent. The Pledgor shall not, without the Agent's prior
written consent, sell, assign, or otherwise dispose of the Collateral or
any interest therein. The Collateral, and every part thereof, is and
shall be free and clear of all security interests, liens, rights,
claims, attachments, levies and encumbrances of every kind, nature and
description and whether voluntary or involuntary, except for the
security interest of the Agent hereunder. The Pledgor shall warrant and
defend the Collateral against any claims and demands of all persons at
any time claiming the same or any interest in the Collateral adverse to
any Secured Creditor.
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(b) The Pledgor agrees to execute and deliver to the Agent such
further agreements, assignments, instruments and documents and to do all
such other things as the Agent may deem reasonably necessary or
appropriate to assure the Agent its lien and security interest
hereunder, including such assignments, acknowledgments, stock powers,
financing statements, instruments and documents as the Agent may from
time to time require in order to comply with the UCC. The Pledgor hereby
agrees that a carbon, photographic or other reproduction of this
Agreement or any such financing statement is sufficient for filing as a
financing statement by the Agent without prior notice thereof to the
Pledgor wherever the Agent in its discretion desires to file the same.
In the event for any reason the law of any jurisdiction other than New
York becomes or is applicable to the Collateral or any part thereof, or
to any of the Obligations, the Pledgor agrees to execute and deliver all
such agreements, assignments, instruments and documents and to do all
such other things as the Agent in its discretion deems necessary or
appropriate to preserve, protect and enforce the lien and security
interest of the Agent under the law of such other jurisdiction.
(c) If, as and when the Pledgor delivers any securities for
pledge hereunder in addition to those listed on Schedule A hereto, the
Pledgor shall furnish to the Agent a duly completed and executed
amendment to such Schedule in substantially the form (with appropriate
insertions) of Schedule B hereto reflecting the additional securities
pledged hereunder after giving effect to such addition.
(d) None of the Collateral constitutes margin stock (within the
meaning of Regulation U of the Board of Governors of the Federal Reserve
System).
(e) On failure of the Pledgor to perform any of the agreements
and covenants herein contained, the Agent may, at its option, perform
the same and in so doing may expend such sums as the Agent deems
advisable in the performance thereof, including, without limitation, the
payment of any taxes, liens and encumbrances, expenditures made in
defending against any adverse claim, and all other expenditures which
the Agent may be compelled to make by operation of law or which Agent
may make by agreement or otherwise for the protection of the security
hereof. All such sums and amounts so expended shall be repayable by the
Pledgor immediately without notice or demand, shall constitute
additional Obligations secured hereunder and shall bear interest from
the date said amounts are expended at the rate per annum (computed on
the basis of a year of 360 days, for the actual number of days elapsed)
determined by adding 2% to the Base Rate from time to time in effect
plus the Applicable Base Rate Margin for Revolving Loans, with any
change in such rate per annum as so determined by reason of a change in
such Base Rate to be effective on the date of such change in said Base
Rate (such rate per annum as so determined being hereinafter referred to
as the "Default Rate"). No such performance of any covenant or agreement
by the Agent on behalf of the Pledgor, and no such advancement or
expenditure therefor, shall relieve the Pledgor of any default under the
terms of this Agreement or in any way obligate any Secured Creditor to
take any further or future action with respect thereto. The Agent, in
making any payment hereby authorized, may do so according to any ▇▇▇▇,
statement or estimate
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procured from the appropriate public office or
holder of the claim to be discharged without inquiry into the accuracy
of such ▇▇▇▇, statement or estimate, or into the validity of any tax
assessment, sale, forfeiture, tax lien or title or claim. The Agent, in
performing any act hereunder, shall be the sole judge of whether the
Pledgor is required to perform the same under the terms of this
Agreement. The Agent is hereby authorized to charge any depository or
other account of the Pledgor maintained with the Agent for the amount of
such sums and amounts so expended.
Section 5. Special Provisions Re: Pledged Securities.
(a) The Pledgor has the right to vote the Pledged Securities and
there are no restrictions upon the voting rights associated therewith,
or the transfer of, any of the Pledged Securities, except as provided by
federal and state laws applicable to the sale of securities generally
and the terms of this Agreement.
(b) The certificates for all shares of the Pledged Securities
shall be delivered by the Pledgor to the Agent duly endorsed in blank
for transfer or accompanied by an appropriate assignment or assignments
or an appropriate undated stock power or powers, in every case
sufficient to transfer title thereto. The Agent may at any time after
the occurrence of an Event of Default cause to be transferred into its
name or into the name of its nominee or nominees any and all of the
Pledged Securities. The Agent shall at all times have the right to
exchange the certificates representing the Pledged Securities for
certificates of smaller or larger denominations.
(c) The Pledged Securities have been validly issued and, except
as described on Schedule A, are fully paid and non-assessable. Except as
set forth on Schedule A, there are no outstanding commitments or other
obligations of the issuers of any of the Pledged Securities to issue,
and no options, warrants or other rights of any individual or entity to
acquire, any share of any class or series of capital stock of such
issuers. The Pledged Securities listed and described on Schedule A
attached hereto constitute all of the issued and outstanding capital
stock of each series and class of the Borrower. The Pledgor further
agrees that in the event the Borrower shall issue any additional capital
stock of any series or class (whether or not entitled to vote) to the
Pledgor or otherwise on account of its ownership interest therein, the
Pledgor will forthwith pledge and deposit hereunder, or cause to be
pledged and deposited hereunder, all such additional shares of such
capital stock.
Section 6. Voting Rights and Dividends. Unless and until an Event of
Default hereunder has occurred and is continuing and thereafter until notified
by the Agent pursuant to Section 8(b) hereof:
(a) The Pledgor shall be entitled to exercise all voting and/or
consensual powers pertaining to the Collateral of the Pledgor, or any
part thereof, for all purposes not inconsistent with the terms of this
Agreement or any other document evidencing or otherwise relating to any
of the Obligations.
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(b) The Pledgor shall be entitled to receive and retain all
dividends and distributions in respect of the Collateral which are paid
in cash of whatsoever nature; provided, however, that such dividends and
distributions representing stock or liquidating dividends or a
distribution or return of capital upon or in respect of the Pledged
Securities or any part thereof or resulting from a split-up, revision or
reclassification of the Pledged Securities or any part thereof or
received in addition to, in substitution of or in exchange for the
Pledged Securities or any part thereof as a result of a merger,
consolidation or otherwise shall be paid, delivered or transferred, as
appropriate, directly to the Agent immediately upon the receipt thereof
by the Pledgor and may, in the case of cash, be applied by the Agent to
the Obligations, whether or not the same may then be due or otherwise
adequately secured and shall, in the case of all other property,
together with any cash received by the Agent and not applied as
aforesaid, be held by the Agent pursuant hereto as part of the
Collateral pledged under and subject to the terms of this Agreement.
(c) In order to permit the Pledgor to exercise such voting and/or
consensual powers which it is entitled to exercise under subsection (a)
above and to receive such distributions which the Pledgor is entitled to
receive and retain under subsection (b) above, the Agent will, if
necessary, upon the written request of the Pledgor, from time to time
execute and deliver to the Pledgor appropriate proxies and dividend
orders.
Section 7. Power of Attorney. The Pledgor hereby appoints the Agent,
its nominee, or any other person whom the Agent may designate as the Pledgor's
attorney-in-fact, with full power and authority to ask, demand, collect,
receive, receipt for, ▇▇▇ for, compound and give acquittance for any and all
sums or properties which may be or become due, payable or distributable in
respect of the Collateral or any part thereof, with full power to settle, adjust
or compromise any claim thereunder or therefor as fully as the Pledgor could
itself do, to endorse or sign the Pledgor's name on any assignments, stock
powers, or other instruments of transfer and on any checks, notes, acceptances,
money orders, drafts, and any other forms of payment or security that may come
into the Agent's possession and on all documents of satisfaction, discharge or
receipt required or requested in connection therewith, and, in its discretion,
to file any claim or take any other action or proceeding, either in its own name
or in the name of the Pledgor, or otherwise, which the Agent deems necessary or
appropriate to collect or otherwise realize upon all or any part of the
Collateral, or effect a transfer thereof, or which may be necessary or
appropriate to protect and preserve the right, title and interest of the Agent
in and to such Collateral and the security intended to be afforded hereby. The
Pledgor hereby ratifies and approves all acts of any such attorney and agrees
that neither the Agent nor any such attorney will be liable for any such acts or
omissions nor for any error of judgment or mistake of fact or law other than
such person's gross negligence or willful misconduct. The Agent may file one or
more financing statements disclosing its security interest in all or any part of
the Collateral without the Pledgor's signature appearing thereon, and the
Pledgor also hereby grants the Agent a power of attorney to execute any such
financing statements, and any amendments or supplements thereto, on behalf of
the Pledgor without notice thereof to the Pledgor. The foregoing powers of
attorney, being coupled with an interest, are irrevocable until the
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Obligations have been fully satisfied and all commitments of the Secured
Creditors to extend credit to or for the account of the Borrower have expired
or otherwise been terminated.
Section 8. Defaults and Remedies. (a) The occurrence of any event or
the existence of any condition which is specified as an "Event of Default" under
the Credit Agreement or the occurrence of any default by the Pledgor in respect
to any of its obligations under the Holdings Guaranty shall constitute an "Event
of Default" hereunder.
(b) Upon the occurrence and during the continuation of any Event of
Default, all rights of the Pledgor to receive and retain the distributions which
they are entitled to receive and retain pursuant to Section 6(b) hereof shall,
at the option of the Agent cease and thereupon become vested in the Agent which,
in addition to all other rights provided herein or by law, shall then be
entitled solely and exclusively to receive and retain the distributions which
the Pledgor would otherwise have been authorized to retain pursuant to Section
6(b) hereof and all rights of the Pledgor to exercise the voting and/or
consensual powers which they are entitled to exercise pursuant to Section 6(a)
hereof shall, at the option of the Agent, cease and thereupon become vested in
the Agent which, in addition to all other rights provided herein or by law,
shall then be entitled solely and exclusively to exercise all voting and other
consensual powers pertaining to the Collateral and to exercise any and all
rights of conversion, exchange or subscription and any other rights, privileges
or options pertaining thereto as if the Agent were the absolute owner thereof
including, without limitation, the right to exchange, at its discretion, the
Collateral or any part thereof upon the merger, consolidation, reorganization,
recapitalization or other readjustment of the respective issuer thereof or upon
the exercise by or on behalf of any such issuer or the Agent of any right,
privilege or option pertaining to the Collateral or any part thereof and, in
connection therewith, to deposit and deliver the Collateral or any part thereof
with any committee, depositary, transfer agent, registrar or other designated
agency upon such terms and conditions as the Agent may determine. In the event
the Agent in good faith believes any of the Collateral constitutes restricted
securities within the meaning of any applicable securities law, any disposition
thereof in compliance with such laws shall not render the disposition
commercially unreasonable.
(c) Upon the occurrence and during the continuation of any Event of
Default, the Agent shall have, in addition to all other rights provided herein
or by law, the rights and remedies of a secured party under the UCC (regardless
of whether the UCC is the law of the jurisdiction where the rights or remedies
are asserted and regardless of whether the UCC applies to the affected
Collateral), and further the Agent may, without demand and without
advertisement, notice, hearing or process of law, all of which the Pledgor
hereby waives to the extent permitted by applicable law, at any time or times,
sell and deliver any or all of the Collateral held by or for it at public or
private sale, at any securities exchange or broker's board or at any of the
Agent's offices or elsewhere, for cash, upon credit or otherwise, at such prices
and upon such terms as the Agent deems advisable, in its sole discretion. In the
exercise of any such remedies, the Agent may sell the Collateral as a unit even
though the sales price thereof may be in excess of the amount remaining unpaid
on the Obligations. In addition to all other sums due any Secured Creditor
hereunder, the Pledgor shall pay the Secured Creditors all costs and expenses
incurred by the Secured Creditors, including
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reasonable attorneys' fees and court costs, in obtaining, liquidating or
enforcing payment of Collateral or the Obligations or in the prosecution or
defense of any action or proceeding by or against any Secured Creditor or the
Pledgor concerning any matter arising out of or connected with this Agreement or
the Collateral or the Obligations including, without limitation, any of the
foregoing arising in, arising under or related to a case under the United States
Bankruptcy Code (or any successor statute). Any requirement of reasonable notice
shall be met if such notice is personally served on or mailed, postage prepaid,
to the Pledgor in accordance with Section 13(b) hereof at least 10 days before
the time of sale or other event giving rise to the requirement of such notice;
provided, however, no notification need be given to the Pledgor if the Pledgor
has signed, after an Event of Default has occurred, a statement renouncing any
right to notification of sale or other intended disposition. The Agent shall not
be obligated to make any sale or other disposition of the Collateral regardless
of notice having been given. Any Secured Creditor may be the purchaser at any
such sale. The Pledgor hereby waives all of its rights of redemption from any
such sale. The Agent may postpone or cause the postponement of the sale of all
or any portion of the Collateral by announcement at the time and place of such
sale, and such sale may, without further notice, be made at the time and place
to which the sale was postponed or the Agent may further postpone such sale by
announcement made at such time and place.
THE PLEDGOR AGREES THAT IF ANY PART OF THE COLLATERAL IS SOLD AT ANY
PUBLIC OR PRIVATE SALE, THE AGENT MAY ELECT TO SELL ONLY TO A BUYER WHO WILL
GIVE FURTHER ASSURANCES, SATISFACTORY IN FORM AND SUBSTANCE TO THE AGENT,
RESPECTING COMPLIANCE WITH THE REQUIREMENTS OF THE FEDERAL SECURITIES ACT OF
1933, AS AMENDED, AND A SALE SUBJECT TO SUCH CONDITION SHALL BE DEEMED
COMMERCIALLY REASONABLE.
THE PLEDGOR FURTHER AGREES THAT IN ANY SALE OF ANY PART OF THE
COLLATERAL, THE AGENT IS HEREBY AUTHORIZED TO COMPLY WITH ANY LIMITATION OR
RESTRICTION IN CONNECTION WITH SUCH SALE AS IT MAY BE ADVISED BY COUNSEL IS
NECESSARY IN ORDER TO AVOID ANY VIOLATION OF APPLICABLE LAW (INCLUDING, WITHOUT
LIMITATION, COMPLIANCE WITH SUCH PROCEDURES AS MAY RESTRICT THE NUMBER OF
PROSPECTIVE BIDDERS AND PURCHASERS AND/OR FURTHER RESTRICT SUCH PROSPECTIVE
BIDDERS OR PURCHASERS TO PERSONS WHO WILL REPRESENT AND AGREE THAT THEY ARE
PURCHASING FOR THEIR OWN ACCOUNT FOR INVESTMENT AND NOT WITH A VIEW TO THE
DISTRIBUTION OR RESALE OF SUCH COLLATERAL), OR IN ORDER TO OBTAIN ANY REQUIRED
APPROVAL OF THE SALE OR OF THE PURCHASER BY ANY GOVERNMENTAL REGULATORY
AUTHORITY OR OFFICIAL, AND THE PLEDGOR FURTHER AGREES THAT SUCH COMPLIANCE SHALL
NOT RESULT IN SUCH SALE BEING CONSIDERED OR DEEMED NOT TO HAVE BEEN MADE IN A
COMMERCIALLY REASONABLE MANNER, NOR SHALL THE AGENT BE LIABLE OR ACCOUNTABLE TO
THE PLEDGOR FOR ANY DISCOUNT ALLOWED BY REASON OF THE FACT THAT SUCH COLLATERAL
IS SOLD IN COMPLIANCE WITH ANY SUCH LIMITATION OR RESTRICTION.
(d) The powers conferred upon the Agent hereunder are solely to protect
its interest in the Collateral and shall not impose on it any duties to exercise
such powers. The Agent shall be deemed to have exercised reasonable care in the
custody and preservation of
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the Collateral in its possession if the Collateral is accorded treatment
substantially equivalent to that which the Agent accords its own property,
consisting of similar types securities, it being understood, however, that the
Agent shall have no responsibility for (i) ascertaining or taking any action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relating to any Collateral, whether or not the Agent has or is deemed
to have knowledge of such matters, (ii) taking any necessary steps to preserve
rights against any parties with respect to any Collateral, or (iii) initiating
any action to protect the Collateral or any part thereof against the possibility
of a decline in market value. This Agreement constitutes an assignment of rights
only and not an assignment of any duties or obligations of the Pledgor in any
way related to the Collateral, and the Agent shall have no duty or obligation
to discharge any such duty or obligation. By its acceptance hereof, the Agent
does not undertake to perform or discharge and shall not be responsible or
liable for the performance or discharge of any such duties or responsibilities.
Neither any Secured Creditor, nor any party acting as attorney for any Secured
Creditor, shall be liable hereunder for any acts or omissions or for any error
of judgment or mistake of fact or law other than such person's gross negligence
or willful misconduct.
(e) Failure by the Agent to exercise any right, remedy or option under
this Agreement or any other agreement between the Pledgor and the Agent or
provided by law, or delay by the Agent in exercising the same, shall not operate
as a waiver; and no waiver shall be effective unless it is in writing, signed by
the party against whom such waiver is sought to be enforced and then only to the
extent specifically stated. The rights and remedies of the Secured Creditors
under this Agreement shall be cumulative and not exclusive of any other right or
remedy which any Secured Creditor may have. For purposes of this Agreement, an
Event of Default shall be construed as continuing after its occurrence until the
same is waived in writing by the Lenders or the Required Lenders, as the case
may be, in accordance with the Credit Agreement.
Section 9. Application of Proceeds. The proceeds and avails of the
Collateral at any time received by the Agent upon the occurrence and during the
continuation of any Event of Default shall, when received by the Agent in cash
or its equivalent, be applied by the Agent in reduction of, or held as
collateral security for, the Obligations in accordance with the terms of Section
4.05 the Credit Agreement. The Pledgor shall remain liable to the Secured
Creditors for any deficiency. Any surplus remaining after the full payment and
satisfaction of the Obligations shall be returned to the Borrower, as agent for
the Pledgor, or to whomsoever the Agent reasonably determines is lawfully
entitled thereto.
Section 10. Continuing Agreement. This Agreement shall be a continuing
agreement in every respect and shall remain in full force and effect until the
earlier to occur of the following: (i) all of the Obligations, both for
principal and interest, have been fully paid and satisfied and the commitments
of the Secured Creditors to extend credit to or for the account of the Borrower
shall have expired or otherwise terminated or (ii) the Borrower Stock Release
Date, provided that no Event of Default has occurred and is continuing on such
date. Upon such termination of this Agreement, the Agent shall, upon the request
and at the expense of the Pledgor, forthwith release all its liens and security
interests hereunder.
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Section 11. Primary Security; Obligations Absolute. The lien and
security herein created and provided for stand as direct and primary security
for the Obligations. No application of any sums received by the Agent in respect
of the Collateral or any disposition thereof to the reduction of the Obligations
or any portion thereof shall in any manner entitle the Pledgor to any right,
title or interest in or to the Obligations or any collateral security therefor,
whether by subrogation or otherwise, unless and until all Obligations have been
fully paid and satisfied and all commitments to extend credit constituting
Obligations to the Borrower shall have expired or otherwise terminated. The
Pledgor acknowledges and agrees that the lien and security hereby created and
provided for are absolute and unconditional and shall not in any manner be
affected or impaired by any acts or omissions whatsoever of any Secured Creditor
or any other holder of any of the Obligations, and without limiting the
generality of the foregoing, the lien and security hereof shall not be impaired
by any acceptance by any Secured Creditor or any other holder of any of the
Obligations of any other security for or guarantors upon any Obligations or by
any failure, neglect or omission on the part of any Secured Creditor or any
other holder of any of the Obligations to realize upon or protect any of the
Obligations or any collateral security therefor (including, without limitation,
impairment of collateral or failure to perfect security interest in collateral).
The lien and security hereof shall not in any manner be impaired or affected by
(and the Secured Creditors, without notice to anyone, are hereby authorized to
make from time to time) any sale, pledge, surrender, compromise, settlement,
release, renewal, extension, indulgence, alteration, substitution, exchange,
change in, modification or disposition of any of the Obligations, or of any
collateral security therefor, or of any guaranty thereof, or of any instrument
or agreement setting forth the terms and conditions pertaining to any of the
foregoing. The Secured Creditors may at their discretion at any time grant
credit to the Borrower without notice to the Pledgor in such amounts and on such
terms as the Secured Creditors may elect without in any manner impairing the
lien and security hereby created and provided for. In order to realize hereon
and to exercise the rights granted the Secured Creditors hereunder and under
applicable law, there shall be no obligation on the part of any Secured Creditor
or any other holder of any of the Obligations at any time to first resort for
payment to the Borrower or any other pledgor or to any guaranty of the
Obligations or any portion thereof or to resort to any other collateral
security, property, liens or any other rights or remedies whatsoever, and the
Secured Creditors shall have the right to enforce this Agreement as against the
Pledgor or any of its Collateral irrespective of whether or not other
proceedings or steps seeking resort to or realization upon or from any of the
foregoing are pending.
Section 12. The Agent. In acting under or by virtue of this Agreement,
the Agent shall be entitled to all the rights, authority, privileges and
immunities provided in Section 11 of the Credit Agreement, all of which
provisions of said Section 11 are incorporated by reference herein with the same
force and effect as if set forth herein in their entirety. The Agent hereby
disclaims any representation or warranty to the other Secured Creditors or any
other holders of the Obligations concerning the perfection of the liens and
security interests granted hereunder or in the value of the Collateral.
Section 13. Miscellaneous. (a) This Agreement cannot be changed or
terminated orally. This Agreement shall create a continuing lien on and security
interest in the
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Collateral and shall be binding upon the Pledgor, its successors and permitted
assigns, and shall inure, together with the rights and remedies of the Secured
Creditors hereunder, to the benefit of the Secured Creditors, and their
successors and assigns; provided, however, that the Pledgor may not assign its
rights or delegate its duties hereunder without the Agent's prior written
consent. Without limiting the generality of the foregoing, and subject to the
provisions of the Credit Agreement, any Secured Creditor may assign or otherwise
transfer any indebtedness held by it secured by this Agreement to any other
person, and such other person shall thereupon become vested with all the
benefits in respect thereof granted to such Secured Creditor herein or
otherwise.
(b) All communications provided for herein shall be in writing, except
as otherwise specifically provided for hereinabove, and shall be deemed to have
been given or made, if to the Pledgor when given to the Borrower in accordance
with Section 12.03 of the Credit Agreement, or if to any Secured Creditor, when
given to such party in accordance with Section 12.03 of the Credit Agreement.
(c) No Secured Creditor (other than the Agent) shall have the right to
institute any suit, action or proceeding in equity or at law for the foreclosure
or other realization upon any Collateral subject to this Agreement or for the
execution of any trust or power hereof or for the appointment of a receiver, or
for the enforcement of any other remedy under or upon this Agreement; it being
understood and intended that no one or more of the Secured Creditors (other than
the Agent) shall have any right in any manner whatsoever to affect, disturb or
prejudice the lien and security interest of this Agreement by its or their
action or to enforce any right hereunder, and that all proceedings at law or in
equity shall be instituted, had and maintained by the Agent in the manner herein
provided for the benefit of the Secured Creditors.
(d) In the event that any provision hereof shall be deemed to be invalid
or unenforceable by reason of the operation of any law or by reason of the
interpretation placed thereon by any court, this Agreement shall be construed as
not containing such provision, but only as to such jurisdictions where such law
or interpretation is operative, and the invalidity or unenforceability of such
provision shall not affect the validity of any remaining provision hereof, and
any and all other provisions hereof which are otherwise lawful and valid shall
remain in full force and effect.
(e) The Pledgor hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York state court sitting in New York City for purposes of all legal
proceedings arising out of or relating to this Agreement, the other Credit
Documents or the transactions contemplated hereby or thereby. The Pledgor
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient form. EACH OF THE PLEDGOR AND THE
SECURED CREDITORS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER
CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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(f) This Agreement shall be deemed to have been made in the State of New
York and shall be governed by, and construed in accordance with, the laws of the
State of New York. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning of any
provision hereof.
(g) This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterpart signature pages, each
constituting an original, but all together one and the same instrument.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be duly
executed and delivered as of the date first above written.
"PLEDGOR"
EAGLE-PICHER HOLDINGS, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
________________________
Name ▇▇▇▇ ▇. ▇▇▇▇▇
____________________
Title President
____________________
Acknowledged and agreed to in New York, New York as of the date first
above written.
ABN AMRO BANK N.V., as Agent as
aforesaid for the Secured Creditors
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Its ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Group Vice President
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Its ▇▇▇▇ ▇▇▇▇▇▇
------------------------
Group Vice President
-13-
SCHEDULE A TO HOLDINGS PLEDGE AGREEMENT
THE PLEDGED SECURITIES
NAME AND PERCENTAGE
LOCATION OF NAME OF ISSUER JURISDICTION OF NO. OF CERTIFICATE OF ISSUER'S
PLEDGOR INCORPORATION SHARES CLASS NO. STOCK
Eagle-Picher
Holdings, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ Eagle-Picher Common
Industries, Inc. Ohio 100 Stock 1 100%
SCHEDULE B TO HOLDINGS PLEDGE AGREEMENT
AMENDMENT TO HOLDINGS PLEDGE AGREEMENT
Reference is hereby made to that certain Holdings Pledge Agreement dated
as of February 24, 1998 (as the same may be amended, the "Pledge Agreement"),
from the Pledgor to ABN AMRO Bank N.V., as Agent. Capitalized terms not
otherwise defined herein shall have the meaning set forth in the Pledge
Agreement.
Subsequent to the Pledgor's delivery of the Pledge Agreement, certain
shares of stock or equity interests have been added as Collateral under the
Pledge Agreement. As a result of such addition, Schedule A of the Pledge
Agreement does not accurately describe the shares of capital stock or other
equity interest currently held by the Agent as collateral under the Pledge
Agreement.
The Pledgor now desires to amend Schedule A to the Pledge Agreement to
reflect such addition, and this instrument shall constitute an agreement between
the Pledgor and the Agent amending the Pledge Agreement in the respects, but
only in the respects, hereinafter set forth:
1. Schedule A of the Pledge Agreement shall be and hereby is
amended and as so amended shall be restated in its entirety to read as
Annex A attached hereto.
2. As collateral security for the Obligations, the Pledgor
hereby grants to the Agent a continuing lien on and security interest
in, and acknowledges and agrees that the Agent has and shall continue to
have a continuing lien on and security interest in, all the shares of
capital stock or other equity interest of each issuer listed and
described on Annex A attached hereto and all the other properties,
rights, interests and privileges comprising the Collateral (as such term
is defined in the Pledge Agreement after giving effect to this
Amendment), to the same extent and with the same force and effect as if
the shares of stock or other equity interest described on Annex A had
originally been included on Schedule A to the Pledge Agreement. The
foregoing granting clause is in addition to and supplemental of and not
in substitution for the granting clause contained in the Pledge
Agreement. Neither the Pledgor nor the Agent intends by this Amendment
to in any way impair or otherwise affect the lien of the Pledge
Agreement on such of the Collateral which was subject to the Pledge
Agreement prior to giving effect to this Amendment.
3. The Pledgor hereby repeats and reaffirms all of its
covenants, agreements, representations and warranties contained in the
Pledge Agreement, each and all of which shall be applicable to all of
the properties, rights, interests and privileges subject to the lien of
the Pledge Agreement after giving effect to this Amendment. The Pledgor
hereby certifies that no Event of Default or event which, with notice or
lapse of time or both, would constitute an Event of Default exists under
the Pledge Agreement after giving effect to this Amendment.
4. No reference to this Amendment need be made in any note,
instrument or other document at any time referring to the Pledge
Agreement, any reference in any of such to the Pledge Agreement to be
deemed to reference to the Pledge Agreement as modified hereby.
5. Except as specifically modified hereby, all the terms and
conditions of the Pledge Agreement shall stand and remain unchanged and
in full force and effect.
PLEDGOR:
EAGLE-PICHER HOLDINGS, INC.
By
________________________________
Its____________________________
Acknowledged and agreed to as of the date first above written.
ABN AMRO BANK N.V., as Agent
By
________________________________
Its____________________________
By
________________________________
Its____________________________
-2-
ANNEX A
TO AMENDMENT TO HOLDINGS PLEDGE AGREEMENT
THE PLEDGED SECURITIES
NAME AND PERCENTAGE
LOCATION OF NAME OF JURISDICTION OF NO. OF CERTIFICATE OF ISSUER'S
PLEDGOR ISSUER INCORPORATION SHARES CLASS NO. STOCK