1
Exhibit 10.2
SECOND AMENDMENT AGREEMENT
This Second Amendment Agreement is made effective as of the 15th day of
August, 1998, by and among OGLEBAY NORTON COMPANY, a Delaware corporation
("Borrower"), the banking institutions listed on Schedule 1 to the Credit
Agreement, as hereinafter defined ("Banks"), and KEYBANK NATIONAL ASSOCIATION,
as agent for the Banks ("Agent"):
WHEREAS, Borrower, Agent and the Banks are parties to a certain Credit
Agreement dated as of May 15, 1998, as amended, and as it may from time to time
be further amended, restated or otherwise modified, which provides, among other
things, for loans, letters of credit, and other financial accommodations
aggregating Two Hundred Fifteen Million Dollars ($215,000,000), all upon certain
terms and conditions stated therein ("Credit Agreement");
WHEREAS, Borrower, Agent and the Banks desire to amend the Credit
Agreement to modify certain provisions thereof; and
WHEREAS, each term used herein shall be defined in accordance with the
Credit Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other valuable considerations, Borrower,
Agent and the Banks hereby agree as follows:
1. The first two lines of Section 4.2(c) of the Credit Agreement are
hereby amended by deleting the date "September 15, 1998" and inserting in place
thereof the date "October 15, 1998".
2. The Credit Agreement is hereby amended by deleting Section 4.2(g)
thereof in its entirety and by substituting in place thereof the following:
(g) PREFERRED SHIP MORTGAGE. On or before (i) October 31, 1998,
Borrower shall have executed and delivered to Agent a Preferred Ship
Mortgage with respect to the Columbia Star, and (ii) September 15, 1998,
Borrower shall have caused to be filed a Preferred Ship Mortgage with
respect to the Wolverine and the Xxxxx X. Xxxxxx.
3. The Credit Agreement is hereby amended by deleting the first four
lines of Section 4.2(j) thereof in their entirety and by inserting in place
thereof the following:
(j) REAL ESTATE MATTERS. Borrower shall have delivered to Agent
all of the following on or before October 31, 1998, with respect to the
Mortgaged Real Property owned by a Pledgor:
2
4. The Credit Agreement is hereby amended by deleting Schedule 1 thereto
in its entirety and by substituting in place thereof the Schedule 1 attached to
this Second Amendment Agreement as EXHIBIT A and made a part hereof
5. Concurrently with the execution of this Second Amendment Agreement,
Borrower shall:
(a) cause each Pledgor to consent and agree to and acknowledge the terms
of this Second Amendment Agreement; and
(b) pay all legal fees and expenses of Agent in connection with this
Second Amendment Agreement.
6. Borrower hereby represents and warrants to Agent and the Banks that
(a) Borrower has the legal power and authority to execute and deliver this
Second Amendment Agreement; (b) the officers executing this Second Amendment
Agreement have been duly authorized to execute and deliver the same and bind
Borrower with respect to the provisions hereof; (c) the execution and delivery
hereof by Borrower and the performance and observance by Borrower of the
provisions hereof do not violate or conflict with the organizational agreements
of Borrower or any law applicable to Borrower or result in a breach of any
provision of or constitute a default under any other agreement, instrument or
document binding upon or enforceable against Borrower; (d) no Unmatured Event of
Default or Event of Default exists under the Credit Agreement, nor will any
occur immediately after the execution and delivery of the Second Amendment
Agreement or by the performance or observance of any provision hereof; (e)
neither Borrower nor any Pledgor is aware of any claim or offset against, or
defense or counterclaim to, any of Borrower's or any Pledgor's obligations or
liabilities under the Credit Agreement or any Related Writing; and (f) this
Second Amendment Agreement constitutes a valid and binding obligation of
Borrower in every respect, enforceable in accordance with its terms.
7. Each reference that is made in the Credit Agreement or any other
writing to the Credit Agreement shall hereafter be construed as a reference to
the Credit Agreement as amended hereby. Except as herein otherwise specifically
provided, all provisions of the Credit Agreement shall remain in full force and
effect and be unaffected hereby. This Second Amendment Agreement is a Related
Writing as defined in the Credit Agreement.
8. Borrower and each Pledgor, by signing below, hereby waives and
releases Agent and each of the Banks and their respective directors, officers,
employees, attorneys, affiliates and subsidiaries from any and all such claims,
offsets, defenses and counterclaims of which Borrower and any Pledgor is aware,
such waiver and release being with full knowledge and understanding of the
circumstances and effect thereof and after having consulted legal counsel with
respect thereto.
2
3
9. This Second Amendment Agreement may be executed in any number of
counterparts, by different parties hereto in separate counterparts and by
facsimile signature, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
10. The rights and obligations of all parties hereto shall be governed
by the laws of the State of Ohio, without regard to principles of conflicts of
laws.
11. JURY TRIAL WAIVER. BORROWER, PLEDGORS, AGENT AND EACH OF THE BANKS
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT AND THE BANKS, OR
ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
OGLEBAY NORTON COMPANY
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx, Treasurer
KEYBANK NATIONAL ASSOCIATION
as Agent and as a Bank
By: /s/ Xxxxxxxx X. Xxxx
--------------------------------
Xxxxxxxx X. Xxxx, Senior Vice President
3
4
BANK ONE, NA
By:_______________________________________
Its:______________________________________
THE BANK OF NOVA SCOTIA
By:_______________________________________
Its:______________________________________
COMERICA BANK
By:_______________________________________
Its:______________________________________
THE HUNTINGTON NATIONAL BANK
By:_______________________________________
Its:______________________________________
MELLON BANK, N A.
By:_______________________________________
Its:______________________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:_______________________________________
Its:______________________________________
XXXXXX TRUST AND SAVINGS BANK
By:_______________________________________
Its:______________________________________
4
5
THE CHASE MANHATTAN BANK
By:_______________________________________
Its:______________________________________
STAR BANK NATIONAL ASSOCIATION
By:_______________________________________
Its:______________________________________
FLEET BANK, N.A.
By:_______________________________________
Its:______________________________________
ABN AMRO BANK N.V.,
PITTSBURGH BRANCH
By:_______________________________________
Its:______________________________________
FIFTH THIRD BANK OF NORTHEASTERN
OHIO
By:_______________________________________
Its:______________________________________
5
6
Each of the undersigned consents and agrees to and acknowledges the
terms of the foregoing Second Amendment Agreement. Each of the undersigned
further agrees that the obligations of each of the undersigned pursuant to the
Guaranty of Payment executed by each of the undersigned shall remain in full
force and effect and be unaffected hereby.
Oglebay Norton Holding Company
ONCO Investment Company
Oglebay Norton Industrial Minerals, Inc.
Oglebay Norton Management Company
Oglebay Norton Industrial Sands, Inc.
Colorado Silica Sand, Inc.
Oglebay Norton Terminals, Inc.
Oglebay Norton Engineered Materials, Inc.
Oglebay Norton Acquisition Company
Global Stone Port Inland, Inc.
Xxxxxxxx Development Company
Western Wisconsin Materials, Inc.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxx as Treasurer of each of
the companies listed above
Texas Mining, LP
By: Oglebay Norton Industrial Sands, Inc.,
General Partner
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx, Treasurer
6
7
Exhibit A
SCHEDULE I
-------------------------------------------------------------------------------------------------------------
REVOLVING
CREDIT
BANKING INSTITUTION COMMITMENT COMMITMENT MAXIMUM
PERCENTAGE AMOUNT AMOUNT
-------------------------------------------------------------------------------------------------------------
KeyBank National Association 13.953488% $ 30,000,000 $ 30,000,000
-------------------------------------------------------------------------------------------------------------
The Bank of Nova Scotia 11.000000% $ 25,000,000 $ 25,000,000
-------------------------------------------------------------------------------------------------------------
Bank of America National Trust and Savings Association 5.581395% $ 12,000,000 $ 12,000,000
-------------------------------------------------------------------------------------------------------------
Mellon Bank, N.A 7.906977% $ 17,000,000 $ 17,000,000
-------------------------------------------------------------------------------------------------------------
Xxxxxx Trust and Savings Bank 5.581395% $ 12,000,000 $ 12,000,000
-------------------------------------------------------------------------------------------------------------
Comerica Bank 7.906977% $ 17,000,000 $ 17,000,000
-------------------------------------------------------------------------------------------------------------
The Huntington National Bank 7.906977% $ 17,000,000 $ 17,000,000
-------------------------------------------------------------------------------------------------------------
Bank One, NA 11.627907% $ 25,000,000 $ 25,000,000
-------------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank 5.581395% $ 12,000,000 $ 12,000,000
-------------------------------------------------------------------------------------------------------------
Star Bank, National Association 5.581395% $ 12,000,000 $ 12,000,000
-------------------------------------------------------------------------------------------------------------
Fleet Bank, N.A 5.581395% $ 12,000,000 $ 12,000,000
-------------------------------------------------------------------------------------------------------------
ABN AMRO Bank N.V., Pittsburgh Branch 5.581395% $ 12,000,000 $ 12,000,000
-------------------------------------------------------------------------------------------------------------
Fifth Third Bank of Northeastern Ohio 5.581395% $ 12,000,000 $ 12,000,000
-------------------------------------------------------------------------------------------------------------
Total Commitment Amount: 100% $215,000,000 $215,000,000
-------------------------------------------------------------------------------------------------------------
7
