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Exhibit 10(p)(1)
OGLEBAY NORTON COMPANY
Borrower
And
THE BANKS NAMED HEREIN
Banks
And
SOCIETY NATIONAL BANK
Agent
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AMENDMENT NO. 1
dated as of
August 29, 1995
to
AMENDED AND RESTATED
LOAN AGREEMENT
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AMENDMENT NO. 1
TO
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED LOAN AGREEMENT (this
"AMENDMENT"), dated as of August 29, 1995, 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
SOCIETY NATIONAL BANK, a national banking association ("SOCIETY"), 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 (as so amended and restated 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 a case under the
federal Bankruptcy Code, Title 11 of the United States Code (11 U.S.C.
Section 101 ET SEQ.) may be commenced involving an 80% owned Subsidiary of the
Borrower, namely Laxare Inc., a West Virginia corporation (herein, together
with its successors and assigns, "LAXARE"), and the Borrower has requested the
Agent and the Banks to amend certain of the terms and provisions of the Loan
Agreement to, among other things, modify or eliminate the application thereof
to the acts and circumstances involving Laxaire.
(3) 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:
1. DEFINITIONS. Section 1.1 of the Loan Agreement is hereby
amended to add the following definition in the appropriate alpabetical order:
"LAXARE" means Laxaire, Inc., a West Virginia corporation,
and its successors and assigns.
2. DISCLOSURE OF CERTAIN LITIGATION AND PROCEEDINGS. Without
admitting that any litigation or proceeding described below might, if adversely
determined, have a Material Adverse Effect, the Borrower hereby discloses the
following pursuant to section 7.1.6 of the Loan Agreement:
(i) the possibility that Laxare might be the subject of a
case commenced under the federal Bankruptcy Code, Title 11 of the United States
Code (11 U.S.C. section 101 ET SEQ.); and
(ii) the possibility of an adverse decision in the proceedings
before the Circuit Court of Kanawha, West Virginia, involving
litigation by certain coal lessors against Laxare and others relative
to mining activities and royalty payments for periods commencing as
early as 1968.
3. INVESTMENTS; BUSINESS ACTIVITIES.
3.1. INVESTMENTS. Section 7.2.1(a) of the Loan Agreement is
hereby amended by adding the following at the end thereof:
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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.
3.2. BUSINESS ACTIVITIES. Section 7.2.1(b) is hereby amended by
adding the following at the end thereof in place of the period:
;PROVIDED, that nothing in this sentence shall apply to the operation
by Laxare of its business or to Laxare engaging in any type of
business.
4. LIENS. Section 7.2.2 of the Loan Agreement is hereby
amended to add after the phrase "any Subsidiary" in the first line thereof
and prior to the words "to, create, incur, assume" the following: "(other than
Laxare, so long as it is a Subsidiary of the Borrower)".
5. CONSOLIDATION, MERGER, ETC. Section 7.2.6 of the Loan
Agreement is hereby amended by adding at the end thereof the following:
Notwithstanding the foregoing, the Borrower will not permit Laxare to
merge with or into the Borrower or any other Subsidiary of the
Borrower.
6. CERTAIN OTHER RESTRICTIONS. Each of the following sections
of the Loan Agreement, namely section 7.2.8 [Transactions with Affiliates],
7.2.9 [Sale or Discount of Receivables], and 7.2.10 [Negative Pledges] is
amended to add at the end thereof the following:
The foregoing covenant shall not apply to any such actions solely by or
solely involving Laxare, so long as it is a Subsidiary of the Borrower.
7. CERTAIN EVENTS OF DEFAULT INVOLVING LAXARE.
7.1. BANKRUPTCY, INSOLVENCY, ETC. Section 8.1.4 [Bankruptcy,
Insolvency, etc.] of the Loan Agreement is hereby amended by adding at the end
thereof the following:
Solely for purposes of this section 8.1.4, Laxare shall not be
considered a Subsidiary of the Borrower.
7.2. JUDGMENTS. Section 8.1.9 [Judgments] of the Loan Agreement is
hereby amended by adding at the end thereof the following:
No judgment rendered against Laxare and not rendered against the
Borrower or any other Subsidiary shall be considered for purposes of
this section 8.1.9.
8. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants
that: (i) the Borrower has delivered to the Agent and each Bank prior to the
execution of this Amendment true, correct and complete copies of the
consolidated financial statements of the Borrower and its consolidated
subsidiaries for the fiscal year ended December 31, 1994 and for the six months
ended June 30, 1995, such consolidated financial have been prepared in
accordance with generally accepted accounting principles, consistently applied
(except as noted therein), and fairly present the consolidated financial
condition of the Borrower and its consolidated subsidiaries at such dates and
the consolidated results of their operations and cash flows for the periods then
ended; (ii) 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; (iii) 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; (iv) no condition or event has occurred or exists which constitutes or
which, after notice or lapse of time or both,
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would constitute an Event of Default under the Loan Agreement, as amended
hereby; and (v) the Borrower is in full compliance with all covenants and
agreements contained in the Loan Agreement, as amended hereby.
9. 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.
10. 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.
11. MISCELLANEOUS.
11.1. 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.
11.2. 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.
11.3. 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 10
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.
11.4. 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.
11.5. APPLICABLE LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of Ohio.
11.6. 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.
11.7. HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
11.8. 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
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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: ________________________________
TITLE:____________________________
SOCIETY NATIONAL BANK, INDIVIDUALLY
AND AS AGENT
BY: ________________________________
VICE PRESIDENT
[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: ________________________________
TITLE:____________________________
COMERICA BANK
BY: ________________________________
TITLE:____________________________
THE HUNTINGTON NATIONAL BANK
BY:________________________________
TITLE:____________________________
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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 August 29, 1995.
OGLEBAY NORTON INDUSTRIAL SANDS, INC.
BY: _______________________________________
VICE PRESIDENT
OGLEBAY NORTON REFRACTORIES
& MINERALS, INC.
BY: _______________________________________
VICE PRESIDENT
