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Exhibit 10(p)(2)
OGLEBAY NORTON COMPANY
as Borrower
And
THE BANKS NAMED HEREIN
as Banks
And
KEYBANK NATIONAL ASSOCIATION
as Agent
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AMENDMENT NO. 2
dated as of
March 1, 1997
to
AMENDED AND RESTATED
LOAN AGREEMENT
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AMENDMENT NO. 2
TO
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED LOAN AGREEMENT (this
"AMENDMENT"), dated as of March 1, 1997, 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, orginially 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 (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 one of its
Subsidiaries proposes to enter into a lease with Cleveland-Cuyahoga County Port
Authority and that the Borrower proposes to guaranty the obligations of such
Subsidiary under such lease.
(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 guaranty such obligations.
(4) The Banks and the Agent are willing to enter into this
Amendment in order to accomodate such request, all as more fully set forth
below.
NOW, THEREFORE, the parties hereby agree as follows:
2. AMENDMENTS.
2.1. INVESTMENTS AND ACQUISITIONS. The word "and" at the
end of clause (vii) of Section 7.2.1(a) of the Loan Agreement, and all
provisions of Section 7.2.1(a) which follow such word, are hereby deleted and
replaced with the following:
(viii) any Guaranty by the Borrower of lease and
related obligations of a Subsidiary under a lease and
operating agreement with Cleveland-Cuyahoga County Port
Authority covering the property commonly known as the C&P
Docks, located in Cleveland, Ohio, and any related
improvements and related property; PROVIDED that the base rent
payable thereunder (exclusive of any rent based on tonnage or
other usage) does not exceed $750,000 in any period of 12
consecutive months,
(ix) any Guaranty of principal, interest and other
payments and obligations in respect of up to $6,500,000
aggregate original principal amount of Cleveland-Cuyahoga
County Port Authority Port Development Revenue Bonds, Series
1997-1 (C&P Docks Project), issued in connection with the
lease arrangement referred to in the preceding clause (viii),
including any Bonds issued in connection with any refinancing
thereof not involving an increase in the aggregate principal
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amount thereof (exclusive of any portion of such increase
intended to cover refinancing costs and expenses), and
(x) any other Guaranty which is not prohibited by
Section 7.2.5 and which does not involve any violation of
Section 7.2.3.
Notwithstanding the foregoing, the Borrower will not, and will not
permit any Subsidiary to, make any Investment in Laxare at any time
after August 1, 1995, except that after such date the Borrower or any
Subsidiary may make Investments in Laxare, not in excess of $500,000 in
the aggregate.
2.2. LEASE OBLIGATIONS. Section 7.2.14 of the Loan Agreement
is hereby amended by adding the following at the end thereof:
For purposes of this Section 7.2.14, rental obligations which are based
on usage (such as tonnage) or a percentage of revenues derived from the
operation of the leased property, shall be excluded from any such
computations.
3. 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.
4. 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.
5. 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.
6. MISCELLANEOUS.
6.1. 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.
6.2. 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.
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6.3. 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 incurred by the Agent or any
Bank in connection with the enforcement or preservation of any rights under the
Loan Agreement, as amended hereby.
6.4. 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
confined to the provision so held to be invalid or unenforceable.
6.5. APPLICABLE LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Ohio.
6.6. 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.
6.7. HEADINGS. The headings, captions and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
6.8. 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: ________________________________________
TREASURER AND DIRECTOR OF FINANCE
KEYBANK NATIONAL ASSOCIATION
(SUCCESSOR TO SOCIETY NATIONAL BANK),
INDIVIDUALLY AND AS AGENT
BY: ________________________________________
VICE PRESIDENT
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[Balance of signatures continued on following page.]
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XXX XXXX XX XXXX XXXXXX
BY: ________________________________________
VICE PRESIDENT
NBD BANK (SUCCESSOR TO NBD BANK, N.A.)
BY: ________________________________________
VICE PRESIDENT
COMERICA BANK
BY: ________________________________________
VICE PRESIDENT
THE HUNTINGTON NATIONAL BANK
BY:________________________________________
VICE PRESIDENT
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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 March 1, 1997.
OGLEBAY NORTON INDUSTRIAL SANDS, INC.
BY: _______________________________________
VICE PRESIDENT
OGLEBAY NORTON ENGINEERED MATERIALS, INC.
BY: _______________________________________
VICE PRESIDENT
