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Exhibit 10(n)(3)
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OGLEBAY NORTON COMPANY
as Borrower
And
THE BANKS NAMED HEREIN
as Banks
And
KEYBANK NATIONAL ASSOCIATION
as Agent
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AMENDMENT NO.3
dated as of
June 3, 1997
to
AMENDED AND RESTATED
LOAN AGREEMENT
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AMENDMENT NO.3
TO
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT NO.3 TO AMENDED AND RESTATED LOAN AGREEMENT, dated as of
June 3,1997 ("this Amendment"), among OGLEBAY NORTON COMPANY, a Delaware
corporation (herein, together with its successors and assigns, the "Borrower"),
the banks listed on the signature pages hereof (the "Banks"), and KEYBANK
NATIONAL ASSOCIATION, a national banking association ("KeyBank") which is the
successor by merger to Society National Bank, as agent (the "Agent") for the
Banks under the Loan Agreement (hereafter defined), as amended hereby:
PRELIMINARY STATEMENTS:
(1) The Borrower, the Banks and the Agent entered into the Amended and
Restated Loan Agreement, originally dated as of December 1, 1990, and amended
and restated as of December 29, 1994, and as further amended by Amendment No.1
thereto, dated as of August 29, 1995 and Amendment No.2 thereto, dated as of
March 1, 1997 (as so amended and restated and further amended and in effect on
the effective date of this Amendment, the "Loan Agreement"; with the terms
defined therein, or the definitions of which are incorporated therein, being
used herein as so defined).
(2) The Borrower has indicated to the Banks that (i) the Borrower
proposes to purchase (directly or through or one or more of its Subsidiaries)
the beneficial interests in certain trusts which own two ships which are
currently leased by the Borrower, namely WOLVERINE and XXXXX X. XXXXXX, for
aggregate consideration of approximately $9.5 million and $7.5 million,
respectively, consisting of cash and assumption of obligations in respect of
approximately $3.6 million principal amount of Title XI U.S. Government
Guaranteed Bonds, the payment of which is secured by mortgages on said vessels,
and (ii) the Borrower may finance such ships by means of secured loans or a
lease financing arrangement (whether in the form of a "true" lease or a
"synthetic" lease), and that if any such financing is effected by a Subsidiary
of the Borrower, that the Borrower may guarantee such financing.
(3) The Borrower has requested the Agent and the Banks to amend certain
of the terms and provisions of the Loan Agreement in order to permit the
Borrower to effect such transactions.
(4) The Banks and the Agent are willing to enter into this Amendment in
order to accommodate such request, all as more fully set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
1. AMENDMENTS.
1.1. INVESTMENTS AND ACQUISITIONS. Clause (v) of Section 7.2.1(a) of the
Loan Agreement is amended to delete references to Eveleth Taconite Company
(which has been sold) and to include reference to the acquisition of interests
in two ships, so that such clause reads in its entirety as follows:
(iv) additional Investments of approximately $17,000,000,
exclusive of fees and expenses associated therewith, related to the
acquisition of two ships (WOLVERINE and XXXXX X. XXXXXX), or beneficial
interests therein;
1.2. LIENS. For the avoidance of doubt, (i) the security interests on
the two ships acquired in 1997 (WOLVERINE and XXXXX X. XXXXXX) which are in
existence on the date of acquisition and secure obligations in the aggregate
principal amount of approximately $3.6 million, shall be considered permitted by
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clause (c) of Section 7.2.2 of the Loan Agreement; and (ii) any security
interests on such vessels which are created within 180 days following the date
of acquisition thereof in connection with the refinancing of such existing
obligations, shall likewise be considered permitted by clause (c) of Section
7.2.2 of the Loan Agreement if such security interests secure obligations with a
principal (or equivalent) amount not in excess of 100% of the full cost of
acquisition of such vessels.
1.3. FIXED OR CAPITAL ASSETS. Section 7.2.4 of the Loan Agreement is
amended by adding the following at the end thereof:
Notwithstanding the foregoing, in the case of the Fiscal Year ended
December 31, 1997, the Maximum Capital Expenditures shall be increased by
the Capital Expenditures made to acquire interests in two ships
(WOLVERINE and XXXXX X. XXXXXX).
2. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants
that: (i) this Amendment has been duly authorized by all necessary corporate
action on the part of the Borrower, has been duly executed and delivered by a
duly authorized officer or officers of the Borrower, and constitutes the valid
and binding agreement of the Borrower, enforceable against the Borrower in
accordance with its terms; (ii) the representations and warranties of the
Borrower contained in the Loan Agreement, as amended hereby, are true and
correct on and as of the date hereof as though made on and as of the date
hereof; (iii) no condition or event has occurred or exists which constitutes or
which, after notice or lapse of time or both, would constitute an Event of
Default under the Loan Agreement, as amended hereby; and (iv) the Borrower is in
full compliance with all covenants and agreements contained in the Loan
Agreement, as amended hereby.
3. RATIFICATIONS. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions set forth in
the Loan Agreement and except as expressly modified and superseded by this
Amendment, the terms and provisions of the Loan Agreement are ratified and
confirmed and shall continue in full force and effect.
4. BINDING EFFECT. This Amendment shall become effective if and when,
(i) this Amendment shall have been executed by the Borrower and the Agent, and
the Consent appended hereto shall have been executed by the Subsidiaries named
therein, (ii) the Agent shall have been notified by the Required Banks that such
Banks have executed this Amendment, and (iii) the Agent shall have notified the
Borrower and each Bank in writing that the conditions specified in the foregoing
clauses (i) and (ii) have been satisfied; and thereafter this Amendment shall be
binding upon and inure to the benefit of the Borrower, the Agent and each Bank
and their respective permitted successors and assigns, except that the Borrower
shall not have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Banks.
5. MISCELLANEOUS.
5.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in this Amendment shall survive the execution and delivery of
this Amendment, and no investigation by the Agent or any Bank or any subsequent
Advance shall affect the representations and warranties or the right of the
Agent or any Bank to rely upon them.
5.2. REFERENCE TO LOAN AGREEMENT. The Loan Agreement and any and all
other agreements, instruments or documentation now or hereafter executed and
delivered pursuant to the terms of the Loan Agreement as amended hereby, are
hereby amended so that any reference therein to the Loan Agreement shall mean a
reference to the Loan Agreement as amended hereby.
5.3. EXPENSES. As provided in the Loan Agreement, the Borrower agrees to
pay on demand all costs and expenses incurred by the Agent in connection with
the preparation, negotiation, and execution of this Amendment, including without
limitation the costs and fees of the Agent's special legal counsel, regardless
of whether this Amendment becomes effective in accordance with section 4 hereof,
and all costs and expenses
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incurred by the Agent or any Bank in connection with the enforcement or
preservation of any rights under the Loan Agreement, as amended hereby.
5.4. SEVERABILITY. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confirmed to the provision so held to be invalid or unenforceable.
5.5. APPLICABLE LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of Ohio.
5.6. COUNTERPARTS. This Amendment may be executed by the parties hereto
separately in one or more counterparts, each of which when so executed shall be
deemed to be an original, but all of which when taken together shall constitute
one and the same agreement.
5.7. HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.8. ENTIRE AGREEMENT. This Amendment and all other instruments,
agreements and documentation executed and delivered in connection with this
Amendment embody the final, entire agreement among the parties hereto with
respect to the subject matter hereof and supersede any and all prior
commitments, agreements, representations and understandings, whether written or
oral, relating to this Amendment, and may not be contradicted or varied by
evidence of prior, contemporaneous or subsequent oral agreements or discussions
of the parties hereto. There are no oral agreements among the parties hereto
relating to the subject matter hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.
OGLEBAY NORTON COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
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Vice President-Finance & Planning
KEYBANK NATIONAL ASSOCIATION
(successor to Society National Bank),
individually and as Agent
By: /s/ Xxxxx X. Xxxxxx
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Vice President
[BALANCE OF SIGNATURES CONTINUED ON FOLLOWING PAGE.]
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XXX XXXX XX XXXX XXXXXX
By: /s/ F. C. H. Xxxxx
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Vice President - Senior Manager Loan Operations
NBD BANK (successor to NBD Bank, N.A.)
By: /s/ signature illegible
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Vice President
COMERICA BANK
By: /s/ Xxxxxxx Judge
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Assistant Vice President
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxx Emutto
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Portfolio Manager
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CONSENT OF GUARANTORS
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which is hereby acknowledged, and in order to induce the Required Banks to enter
into the foregoing Amendment, each of the undersigned hereby (i) acknowledges
receipt of the foregoing Amendment, and (ii) without limiting the intent or
effect of any of the terms or provisions of the Amended and Restated Subsidiary
Guaranty to which the undersigned are a party, consents to all of the terms and
provisions of the foregoing Amendment.
IN WITNESS WHEREOF, each of the undersigned has duly executed and
delivered this instrument as of June 3, 1997.
OGLEBAY NORTON INDUSTRIAL SANDS, INC.
By: /s/ X. X. Xxxxxx
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Vice President
OGLEBAY NORTON ENGINEERED MATERIALS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxxxx
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Vice President
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