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10(m)(3)
THIRD AMENDMENT AGREEMENT
This Third Amendment Agreement is made effective as of the 15th day of
October, 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 has acquired all of the outstanding stock of Global
Stone Filler Products Company ("Filler Products");
WHEREAS, Borrower is redeeming the bonds that secure the Title XI Ship
Mortgage on the Columbia Star;
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 Credit Agreement is hereby amended by deleting the first two
lines of Section 4.2(c) of the Credit Agreement in their entirety and by
substituting in place thereof the following:
(c) GLOBAL STONE PLEDGORS. On or before September 23, 1998,
or, with respect to item (v) below, on or before December 1, 1998,
Borrower shall have delivered to Agent:
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.
(i) On or before September 15, 1998, Borrower shall have
caused to be filed a Preferred Ship Mortgage with respect to the
Wolverine and the Xxxxx X. Xxxxxx.; and
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(ii) with respect to the Columbia Star,
(A) on or before December 9, 1998, Borrower shall
have notified National City Bank, as Indenture Trustee with
respect to the bonds that financed the Columbia Star (the
"MARAD Bonds") of Borrower"s intent to make an optional
redemption of the bonds on January 25, 1999 (the "Redemption
Date");
(B) on or before January 8, 1999, Borrower shall have
made a deposit with the Indenture Trustee of funds in the
amount required to pay all unpaid principal of the MARAD
Bonds, together with interest and other fees and expenses
required to be paid to the Redemption Date;
(C) on or before January 15, 1999, Borrower shall (1)
cause the Indenture Trustee to issue a "Retired or Paid
Certificate" for the MARAD Bonds, (2) provide such certificate
to the United States Agency responsible for the financing of
the Columbia Star ("MARAD"), (3) cause MARAD to execute a
Satisfaction and Discharge of the Title XI Ship Mortgage,
record such Satisfaction and Discharge with the United States
Coast Guard National Vessel Documentation Center, the
Recorder"s Office of Cuyahoga County and the Secretary of
State of Ohio, and (4) obtain an Abstract of Title indicating
that the Columbia Star is free and clear of all liens;
(D) on or before the Redemption Date, Borrower shall
have executed and delivered to Agent a Preferred Ship Mortgage
with respect to the Columbia Star; and
(E) on or before January 31, 1999, Borrower shall
have caused to be filed such Preferred Ship Mortgage with
respect to the Columbia Star with the United States Coast
Guard National Vessel Documentation Center, the Recorder"s
Office of Cuyahoga County and the Secretary of State of Ohio.
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 January 31, 1999, with respect
to the Mortgaged Real Property owned by a Pledgor:
4. The Credit Agreement is hereby amended to delete Schedule 2
(Mortgaged Real Property) and Schedule 3 (Pledgors) therefrom in their entirety
and to substitute a new Schedule 2 and a new Schedule 3, respectively, in the
form of Schedule 2 and Schedule 3 hereof, respectively, in place thereof.
5. On or before January 4, 1999, or, with respect to item (a) (vii)
below, on or before January 15, 1999, Borrower shall:
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(a) deliver to Agent each of the following:
(i) evidence of the name change for Oglebay Norton Limestone
Company;
(ii) UCC Financing Statements reflecting the name change of
Oglebay Norton Limestone Company to Global Stone Port Inland,
Inc.;
(iii) a Guaranty of Payment, a Security Agreement and UCC
Financing Statements from Global Stone Corporation;
(iv) stock certificates for Global Stone Corporation to be
pledged pursuant to the Pledge Agreement executed by ONCO
Investment Company;
(v) UCC Financing Statements reflecting the name change/merger
of Oglebay Norton Acquisition Company with Global Stone
Corporation;
(vi) a Guaranty of Payment, a Security Agreement, UCC
Financing Statements, and such corporate governance documents
as Agent may reasonably request for Global Stone Filler
Products Company; and
(vii) a Mortgage, and such other real estate related documents
as Agent may reasonably request with respect to the Real
Property owned by Global Stone Filler Products Company;
(b) cause each Pledgor to consent and agree to and acknowledge the
terms of this Third Amendment Agreement; and
(c) pay all legal fees and expenses of Agent in connection with this
Third 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 Third
Amendment Agreement; (b) the officers executing this Third 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 Third 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
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obligations or liabilities under the Credit Agreement or any Related Writing;
and (f) this Third 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 Third 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.
9. This Third 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.
[Remainder of Page Intentionally Left Blank]
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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:
---------------------------------
Xxxxxxx X. Xxxxx, Treasurer
KEYBANK NATIONAL ASSOCIATION
as Agent and as a Bank
By:
---------------------------------
Xxxxxxxx X. Xxxx, Senior Vice President
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BANK ONE, NA
By:
---------------------------------
Its:
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THE BANK OF NOVA SCOTIA
By:
---------------------------------
Its:
---------------------------------
COMERICA BANK
By:
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Its:
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THE HUNTINGTON NATIONAL BANK
By:
---------------------------------
Its:
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MELLON BANK, N.A.
By:
---------------------------------
Its:
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:
---------------------------------
Its:
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XXXXXX TRUST AND SAVINGS BANK
By:
---------------------------------
Its:
---------------------------------
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THE CHASE MANHATTAN BANK
By:
---------------------------------
Its:
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STAR BANK NATIONAL ASSOCIATION
By:
---------------------------------
Its:
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FLEET BANK, N.A.
By:
---------------------------------
Its:
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ABN AMRO BANK N.V.,
PITTSBURGH BRANCH
By:
---------------------------------
Its:
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FIFTH THIRD BANK OF NORTHEASTERN
OHIO
By:
---------------------------------
Its:
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Each of the undersigned consents and agrees to and acknowledges the
terms of the foregoing Third 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.
Global Stone Corporation (successor by merger to
Oglebay Norton Acquisition Company)
Global Stone Port Inland, Inc.
Xxxxxxxx Development Company
Western Wisconsin Materials, Inc.
Global Stone (USA) Inc.
Global Stone Tenn Lutrell Company
Global Stone Chemstone Corporation
Global Stone Detroit Lime Company
Global Stone St. Clair, Inc.
Global Stone PenRoc Inc.
Global Stone Filler Products Company
By:
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Xxxxxxx X. Xxxxx as Treasurer of each
of the companies listed above
Texas Mining, LP
By: Oglebay Norton Industrial Sands, Inc.,
General Partner
By:
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Xxxxxxx X. Xxxxx, Treasurer
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SCHEDULE 2
MORTGAGED REAL PROPERTY
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Owner Location
----------------------------------------------------------- --------------------------------------
Oglebay Norton Industrial Sands, Inc. Glenford, Ohio
----------------------------------------------------------- --------------------------------------
Oglebay Norton Industrial Sands, Inc. Millwood, Ohio
----------------------------------------------------------- --------------------------------------
Texas Mining, LP Voca, Texas
----------------------------------------------------------- --------------------------------------
Texas Mining, XX Xxxxx, Texas
----------------------------------------------------------- --------------------------------------
Global Stone Port Inland, Inc. (f.k.a. Oglebay Gulliver, Michigan
Norton Limestone Company)
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Global Stone Tenn Xxxxxxx Company Xxxxxxx, Tennessee
----------------------------------------------------------- --------------------------------------
Global Stone Chemstone Corporation Strasburg, Virginia
----------------------------------------------------------- --------------------------------------
Global Stone PenRoc, Inc. York, Pennsylvania
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Global Stone St. Clair Inc. Marble City, Oklahoma
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Global Stone Chemstone Corporation Xxxxxxxx, Virginia
----------------------------------------------------------- --------------------------------------
Global Stone Chemstone Corporation Middletown, Virginia
----------------------------------------------------------- --------------------------------------
Global Stone Filler Products Company Xxxxxx and Xxxxxx Counties, Georgia
----------------------------------------------------------- --------------------------------------
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SCHEDULE 3
PLEDGORS
1. Oglebay Norton Holding Company
2. ONCO Investment Company
3. Oglebay Norton Industrial Minerals, Inc.
4. Oglebay Norton Management Company
5. Oglebay Norton Industrial Sands, Inc.
6. Texas Mining, LP
7. Colorado Silica Sand, Inc.
8. Oglebay Norton Terminals, Inc.
9. Oglebay Norton Engineered Materials, Inc.
10. Global Stone Corporation (successor by merger to Oglebay Norton
Acquisition Company)
11. Global Stone Port Inland, Inc. (f.k.a. Oglebay Norton Limestone
Company)
12. Global Stone (USA) Inc.
13. Global Stone Tenn Lutrell Company
14. Global Stone Chemstone Corporation
15. Global Stone Detroit Lime Company
16. Global Stone St. Clair, Inc.
17. Global Stone PenRoc Inc.
18. Global Stone Filler Products Company
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