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Exhibit 10(p)
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U.S. $90,000,000
AMENDED AND RESTATED LOAN AGREEMENT
originally dated as of December 1, 1990
and amended and restated as of December 29, 1994
among
OGLEBAY NORTON COMPANY
as the Borrower,
and
VARIOUS COMMERCIAL BANKING INSTITUTIONS
as the Banks
and
SOCIETY NATIONAL BANK,
as the Agent for the Banks
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Providing for
U.S.$25,000,000 Tranche A Revolving Credit Loans
U.S.$15,000,000 Tranche B Revolving Credit Loans
U.S.$50,000,000 Term Loans
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS............................................................................................................ 2
1.1. Defined Terms........................................................................................... 2
1.2. Use of Defined Terms.................................................................................... 16
1.3. Accounting and Financial Determinations................................................................. 16
ARTICLE II
COMMITMENTS............................................................................................................ 17
2.1. Commitments............................................................................................. 17
2.2. Total Revolving Credit Commitment Amount................................................................ 18
2.3. Fees.................................................................................................... 18
2.3.1. Revolving Credit Commitment..................................................................... 18
2.3.2. Facility........................................................................................ 19
2.3.3. Other........................................................................................... 19
2.4. Increased Capital Costs................................................................................. 19
2.5. Termination............................................................................................. 19
2.6. Master Vessel Trust Agreement........................................................................... 20
ARTICLE III
LOANS AND NOTES........................................................................................................ 20
3.1. Borrowing Procedure..................................................................................... 20
3.2. Notes................................................................................................... 20
3.3. Principal Payments and Prepayments...................................................................... 20
3.4. Interest................................................................................................ 22
3.5. Post-Maturity Rates..................................................................................... 24
3.6. Payment Dates........................................................................................... 25
3.7. Payments, Computations, etc............................................................................. 25
3.8. Proration of Payments................................................................................... 25
3.9. Setoff.................................................................................................. 26
3.10. Taxes................................................................................................... 26
ARTICLE IV
BASE RATE, CD RATE AND LIBO RATE
OPTIONS FOR THE LOANS.................................................................................................. 26
4.1. Elections............................................................................................... 26
4.2. Fixed Rate Lending Unlawful............................................................................. 28
4.3. Deposits Unavailable.................................................................................... 28
4.4. Increased Fixed Rate Loan Costs, etc.................................................................... 28
4.5. FDIC Assessment Cost.................................................................................... 29
4.6. Funding Losses.......................................................................................... 29
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ARTICLE V
CONDITIONS PRECEDENT................................................................................................... 30
5.1. Initial Borrowing....................................................................................... 30
5.1.1. Resolutions, etc................................................................................ 30
5.1.2. Delivery of Notes............................................................................... 30
5.1.3. Opinion of Counsel.............................................................................. 30
5.1.4. Closing Fees, Expenses, etc..................................................................... 30
5.1.5. Indebtedness Discharged......................................................................... 31
5.1.6. Subsidiary Guaranty............................................................................. 31
5.1.7. Valuations...................................................................................... 31
5.1.8. Ship Mortgages, etc............................................................................. 31
5.1.9. Opinion of Maritime Counsel..................................................................... 31
5.2. All Loans............................................................................................... 31
5.2.1. Compliance with Warranties, non-Default, etc.................................................... 31
5.2.2. Absence of Litigation, etc...................................................................... 31
5.2.3. Loan Request.................................................................................... 32
5.2.4. Satisfactory Legal Form......................................................................... 32
ARTICLE VI
WARRANTIES, ETC........................................................................................................ 32
6.1. Organization, Power, Authority, etc..................................................................... 32
6.2. Due Authorization....................................................................................... 32
6.3. Validity, etc........................................................................................... 32
6.4. Financial Information................................................................................... 33
6.5. Absence of Certain Default.............................................................................. 33
6.6. Litigation, etc......................................................................................... 33
6.7. Regulation U............................................................................................ 33
6.8. Government Regulation................................................................................... 33
6.9. Certain Contractual Obligations or Organic Documents.................................................... 33
6.10. Taxes................................................................................................... 34
6.11. Employee Benefit Plans.................................................................................. 34
6.12. Labor Controversies..................................................................................... 34
6.13. Subsidiaries............................................................................................ 34
6.14. Patents, Trademarks, etc................................................................................ 34
6.15. Ownership of Properties; Liens.......................................................................... 34
6.16. Licenses, etc........................................................................................... 34
6.17. Compliance with Laws.................................................................................... 34
6.18. Accuracy of Information................................................................................. 35
ARTICLE VII
COVENANTS.............................................................................................................. 35
7.1. Certain Affirmative Covenants........................................................................... 35
7.1.1. Financial Information, etc...................................................................... 35
7.1.2. Maintenance of Corporate Existences, etc........................................................ 36
7.1.3. Foreign Qualification........................................................................... 36
7.1.4. Payment of Taxes, etc........................................................................... 36
7.1.5. Insurance....................................................................................... 36
7.1.6. Notice of Default, Litigation, etc.............................................................. 36
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7.1.7. Performance of Loan Documents................................................................... 37
7.1.8. Books and Records............................................................................... 37
7.2. Certain Negative Covenants.............................................................................. 37
7.2.1. Investments and Acquisitions; Business Activities............................................... 37
7.2.2. Liens........................................................................................... 38
7.2.3. Financial Condition............................................................................. 39
7.2.4. Fixed or Capital Assets, etc.................................................................... 39
7.2.5. Take or Pay Contracts........................................................................... 39
7.2.6. Consolidation, Merger, etc...................................................................... 39
7.2.7. Modification, etc. of Subordinated Debt......................................................... 40
7.2.8. Transactions with Affiliates.................................................................... 40
7.2.9. Sale or Discount of Receivables................................................................. 40
7.2.10. Negative Pledges................................................................................ 40
7.2.11. Inconsistent Agreements......................................................................... 40
7.2.12. Interest Rate Protection Agreements............................................................. 40
7.2.13. Dividends, Stock Purchases, etc................................................................. 40
7.2.14. Lease Obligations............................................................................... 41
ARTICLE VIII
EVENTS OF DEFAULT...................................................................................................... 41
8.1. Events of Default....................................................................................... 41
8.1.1. Non-Payment of Liabilities...................................................................... 41
8.1.2. Non-Performance of Certain Covenants............................................................ 41
8.1.3. Certain Defaults on Other Indebtedness.......................................................... 41
8.1.4. Bankruptcy, Insolvency, etc..................................................................... 42
8.1.5. Control of the Borrower......................................................................... 42
8.1.6. Non-Performance of Other Obligations............................................................ 42
8.1.7. Breach of Warranty.............................................................................. 42
8.1.8. ERISA........................................................................................... 42
8.1.9. Judgments....................................................................................... 42
8.2. Action if Bankruptcy.................................................................................... 43
8.3. Action if Other Event of Default........................................................................ 43
ARTICLE IX
THE AGENT.............................................................................................................. 43
9.1. Actions................................................................................................. 43
9.2. Funding Reliance, etc................................................................................... 43
9.3. Exculpation............................................................................................. 44
9.4. Successor............................................................................................... 44
9.5. Loans by the Agent...................................................................................... 44
9.6. Credit Decisions........................................................................................ 44
9.7. Copies, etc............................................................................................. 44
ARTICLE X
MISCELLANEOUS.......................................................................................................... 44
10.1. Waivers, Amendments, etc................................................................................ 44
10.2. Notices................................................................................................. 45
10.3. Costs and Expenses...................................................................................... 45
10.4. Indemnification......................................................................................... 45
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10.5. Survival................................................................................................ 46
10.6. Severability............................................................................................ 46
10.7. Headings................................................................................................ 46
10.8. Counterparts, Effectiveness, etc........................................................................ 46
10.9. Governing Law; Entire Agreement......................................................................... 47
10.10. Successors and Assigns.................................................................................. 47
10.11. Sale and Transfers, etc., of Loans and Notes; Participations in Loans and Notes......................... 47
10.12. Other Transactions...................................................................................... 48
10.13. Waiver of Jury Trial.................................................................................... 49
10.14. Disposition of Margin Stock............................................................................. 49
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EXHIBIT A-1 - Form of Tranche A Revolving Credit Note
EXHIBIT A-2 - Form of Tranche B Revolving Credit Note
EXHIBIT A-3 - Form of Term Loan Note
EXHIBIT B - Form of Loan Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Compliance Certificate
EXHIBIT E - Disclosure Schedule
EXHIBIT F-1 - Form of Opinion of Counsel
EXHIBIT F-2 - Form of Opinion of Maritime Counsel
EXHIBIT G-1 - Form of Subsidiary Guaranty
EXHIBIT G-2 - Form of Amendment to Ship Mortgage
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AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT, originally dated as of
December 1, 1990, and amended and restated as of December 29, 1994, among
OGLEBAY NORTON COMPANY, a Delaware corporation (the "BORROWER"), SOCIETY
NATIONAL BANK, a national banking association ("SOCIETY"), and the various other
commercial banking institutions signatories hereto (together with Society, the
"BANKS", and each such banking institution and Society being sometimes referred
to herein as a "BANK") and Society, as Agent (the "AGENT") for the Banks:
W I T N E S S E T H:
WHEREAS, the Borrower and its Subsidiaries are engaged in the raw
materials and Great Lakes marine transportation business with industry segments
in industrial sands, iron ore, transportation, refractories and minerals,
serving the steel, ceramic, chemical, electric utility and oil and gas well
service industries with industrial minerals and supplying manufactured products
used for hot metal processing; and
WHEREAS, Term Loans in the aggregate principal amount of U.S.
$58,500,000 were made pursuant to the Original Loan Agreement on December 20,
1990, installment payments in the aggregate principal amount of U.S.$17,250,000
have been made on such Term Loans, with the result that Term Loans in the
aggregate principal amount of U.S.$41,250,000 will continue to remain
outstanding under this Agreement;
WHEREAS, subject to the terms and conditions of this Agreement, the
Banks will make Additional Term Loans to the Borrower on the Term Loan Closing
Date in the aggregate principal amount of U.S.$8,750,000, with the result that
Term Loans in the aggregate principal amount of U.S.$50,000,000 will be
outstanding under this Agreement;
WHEREAS, any Revolving Credit Loans outstanding under the Original Loan
Agreement on the Restatement Effective Date shall continue outstanding under
this Agreement as Tranche A Revolving Credit Loans;
WHEREAS, the Borrower desires to obtain Revolving Credit Commitments
from the Banks pursuant to which Tranche A Revolving Credit Loans, in a maximum
aggregate principal amount at any one time outstanding not to exceed
U.S.$25,000,000, and Tranche B Revolving Credit Loans, in a maximum aggregate
principal amount at any one time outstanding not to exceed U.S.$15,000,000, will
be made to the Borrower from time to time prior to the Tranche A Commitment
Termination Date or the Tranche B Commitment Termination Date, as the case may
be; and
WHEREAS, the Banks are willing, on the terms and conditions hereinafter
set forth (including Article V), to extend such Additional Term Loan Commitments
and Revolving Credit Commitments and make such Additional Term Loans and such
Revolving Credit Loans to the Borrower;
WHEREAS, the proceeds of such Loans have been and will be used (a) to
finance the acquisition of two Great Lakes self-unloading vessels, the OGLEBAY
NORTON, and the BUCKEYE, pursuant to the Vessel Sale Agreement, (b) to repay all
Indebtedness evidenced by the Existing Credit Agreement, and (c) for general
corporate purposes and working capital purposes of the Borrower and
Subsidiaries; and
WHEREAS, this Agreement amends and restates in its entirety the
Original Loan Agreement;
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NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1. DEFINED TERMS. The following terms (whether or not underscored)
when used in this Agreement, including its preamble and recitals, shall, except
where the context otherwise requires, have the following meanings (such
definitions to be equally applicable to the singular and plural forms thereof):
"ADDITIONAL TERM LOANS" is defined in Section 2.1(b).
"ADDITIONAL TERM LOAN COMMITMENTS" means the several commitments of the
Banks pursuant to Section 2.1(b) to make Additional Term Loans on the Term Loan
Closing Date.
"ADDITIONAL TERM LOAN COMMITMENT TERMINATION DATE" means December 31,
1994.
"AFFILIATE" of any Person means any other Person which, directly or
indirectly, controls or is controlled by or under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "CONTROLLED BY" any
other Person if such other Person possesses, directly or indirectly, power: (a)
to vote 10% or more of the securities having ordinary voting power for the
election of directors of such Person; or (b) to direct or cause the direction of
the management and policies of such Person whether by contract or otherwise.
"AGREEMENT" means, at any date, this loan agreement as originally in
effect on the Effective Date under the Original Loan Agreement, and as
thereafter from time to time amended, supplemented, amended and restated or
otherwise modified and in effect on such date.
"APPROVAL" means each and every approval, consent, filing and
registration by or with any Federal, state or other regulatory authority
necessary to authorize or permit the execution, delivery or performance of this
Agreement, the Notes or any other Loan Document or for the validity or
enforceability hereof or thereof.
"ARMCO" means the 767 foot Great Lakes self-unloading vessel, official
number 265621, owned by the Borrower and documented in its name under the laws
of the United States of America.
"AUTHORIZED OFFICER" means, relative to any Loan Party, those of its
officers whose signatures and incumbency shall have been certified to the Banks
pursuant to Section 5.1.1.
"BANK" is defined in the preamble.
"BASE RATE" means at any time the rate of interest most recently
announced by Society in Cleveland, Ohio as its base rate (of which announcements
the Agent shall give notice promptly to the Banks and to the Borrower). The Base
Rate is not necessarily intended to be the lowest rate of interest charged by
Society in connection with extensions of credit. Changes in the rate of interest
on Loans maintained as a Base Rate Loan shall take effect simultaneously with
each announced change in the Base Rate.
"BASE RATE LOAN" is defined in Section 4.1.
"BNS INTEREST RATE SWAP AGREEMENT" means the Interest Rate Swap
Agreement, dated as of August 3, 1988, between The Bank of Nova Scotia, through
its New York Agency ("BNS"), and the Borrower, the Confirmation dated August 3,
1988, between BNS and the Borrower entered into pursuant thereto with a Trade
Date of August 5, 1988 and
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in an original Notational Amount of $15,463,920 (amortizing as per the Schedule
attached), and the Amended and Restated Supplemental Agreement and Guaranty,
dated as of the date hereof, among BNS, the Borrower and the Subsidiary
Guarantors, related thereto.
"BORROWER" is defined in the PREAMBLE.
"BORROWING" means the Revolving Credit Loans made by all Banks on any
Business Day in accordance with Section 3.1.
"BUCKEYE" means the 698 foot Great Lakes self-unloading vessel (formerly
"SPARROWS POINT"), official number 264391, built in 1952, identified in the
Vessel Sale Agreement.
"BUSINESS DAY" means:
(a) any day which is neither a Saturday or Sunday nor a legal
holiday in the State of New York or Ohio on which Banks are authorized
or required to be closed in New York City or Cleveland; and
(b) relative to the date of
(i) making or continuing any portion of any Loans as,
or converting any portion of any Loans from or into LIBO
Rate Loans,
(ii) making any payment or prepayment of principal of
or payment of interest on the portion of the principal amount of
the Loans being maintained as LIBO Rate Loans, and
(iii) the Borrower's giving any notice (or the number
of Business Days to elapse prior to the effectiveness thereof)
in connection with any matter referred to in clause (b)(i) or
(b)(ii),
a banking business day of the Agent at, and on which dealings in Dollars
are carried on in the interbank eurodollar market of, the Agent's LIBOR
Office.
"CAPITAL EXPENDITURES" means for any period the sum of the aggregate
gross amount recorded on the books and records of the Borrower for: (a)
additions during such period to property, plant and equipment of the Borrower
and Consolidated Subsidiaries; PLUS (b) lease obligations incurred during such
period by the Borrower and Consolidated Subsidiaries on capital leases
(excluding the portion of any obligation under capital leases allocable to
Interest Expense). The term Capital Expenditures shall not include the cost of
acquisitions pursuant to Section 7.2.1 as such.
"CD RATE (RESERVE ADJUSTED)" means a rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) determined pursuant to the following
formula:
CDR(RA) = (CDR + 0.0005)
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(1.00 - CDRR)
where,
CDR(RA) = CD Rate (Reserve Adjusted)
CDR = CD Rate
CDRR = CD Reserve Requirement
"CD RATE" means, relative to an Interest Period, the rate (expressed as
a decimal) of interest determined by Agent to be the average (rounded upwards,
if necessary, to the nearest 1/16 of 1%) of the bid rates quoted to Agent in the
secondary market at approximately 10:00 a.m. New York City time (or as soon
thereafter as practicable) on the first day of such Interest Period by two
certificate of deposit dealers of recognized standing selected by Agent in its
sole discretion for the purchase from Agent at face value of certificates issued
by Agent in an amount approximately equal or
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comparable to the amount of Agent's CD Rate Loan to be outstanding during such
Interest Period and for the number of days comprised therein.
"CD RATE LOAN" is defined in Section 4.1.
"CD RESERVE REQUIREMENT" means, relative to each Interest Period, a
percentage (expressed as a decimal) equal to the aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves and taking into
account any transitional adjustments or other scheduled changes in reserve
requirements during such Interest Period) on the first day of such Interest
Period, as specified under Regulation D of the F.R.S. Board, or any other
regulation of the F.R.S. Board which prescribes reserve requirements applicable
to non-personal time deposits as presently defined in Regulation D, as then
applicable to the class of banks of which the Agent is a member, on deposits of
the type used as a reference in determining the CD Rate and having a maturity
approximately equal to such Interest Period.
"CHANGE IN CONTROL" means the acquisition by any Person or two or more
Persons acting in concert of beneficial ownership (within the meaning of Rule
l3d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of more than 24% of the outstanding shares of voting stock of the
Borrower, unless such acquisition has been approved by the Board of Directors of
the Borrower consisting at the time of such approval of persons a majority of
whom have been Directors of the Borrower for a period of at least 24 consecutive
months.
"CODE" means the Internal Revenue Code of 1986, and the regulations
thereunder, as amended from time to time.
"COLLATERAL TRUSTEE" means Bank One, Columbus, NA, a national banking
association, in its capacity as the trustee under the Master Vessel Trust
Agreement and as the mortgagee under the Ship Mortgages, and its successors and
assigns in such capacity.
"COMMITMENT" means, relative to any Bank, such Bank's Tranche A
Revolving Credit Commitment or its Tranche B Revolving Credit Commitment, or
both, as the context may require.
"COMPLIANCE CERTIFICATE" means a certificate duly executed by the chief
executive or financial Authorized Officer of the Borrower in the form of Exhibit
D attached hereto, with appropriate insertions, together with such changes as
the Required Banks may from time to time request for purposes of monitoring the
Borrower's compliance herewith.
"CONSOLIDATED SUBSIDIARY" means, at any time, every Subsidiary which is
included as a consolidated subsidiary of the Borrower in the financial
statements contained in the then most recent annual or periodic report filed by
the Borrower with the Securities and Exchange Commission (or any governmental
body or agency succeeding to the functions of such Commission) on Form 10-K,
10-Q or 8-K pursuant to the Securities Exchange Act of 1934, as then in effect
(or any comparable forms or under similar Federal statutes then in force), and
in the Borrower's most recent financial statements furnished to its stockholders
and certified by the Borrower's independent certified public accountants.
"CONTINUATION/CONVERSION NOTICE" means a notice of continuation or
conversion and certificate duly executed by the chief executive or financial
Authorized Officer of the Borrower substantially in the form of Exhibit C
attached hereto.
"CONTRACTUAL OBLIGATION" means, relative to any Person, any provision of
any security issued by such Person or of any Instrument or undertaking to which
such Person is a party or by which it or any of its property is bound.
"CONTROLLED GROUP" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414(b) or 414(c) of the Code.
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"CURRENT ASSETS" means at any time all assets of the Borrower and its
Consolidated Subsidiaries classified on the consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries at such date as current assets
(excluding Intangible Assets so classified as current assets), in accordance
with generally accepted accounting principles.
"CURRENT LIABILITIES" means at any time all liabilities of the Borrower
and its Consolidated Subsidiaries classified on the consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries at such date as current
liabilities, including the then outstanding principal amount of the Notes due
and to become due within the next 12 months, in accordance with generally
accepted accounting principles.
"DEBT TO TOTAL CAPITAL RATIO" means, at any date, the ratio of: (a) all
Indebtedness of the Borrower and its Consolidated Subsidiaries (excluding
intercompany obligations) described in clauses (a) through (d) of the definition
of the term "INDEBTEDNESS" and all Indebtedness of Persons other than the
Borrower and its Consolidated Subsidiaries of the nature described in clauses
(a) and (b) of the definition of the term "INDEBTEDNESS" as to which the
Borrower or a Consolidated Subsidiary has issued a Guaranty; to (b) the sum of
(i) the amount determined pursuant to the preceding clause (a), PLUS (ii) the
Net Worth of the Borrower and its Consolidated Subsidiaries on a consolidated
basis.
"DEBT SERVICE COVERAGE RATIO" means, as of any date of determination,
the ratio of the Borrower's EBITDA, on a consolidated basis, for its most
recently completed four Fiscal Quarters (whether or not such fiscal quarters are
in the same Fiscal Year), to the Borrower's Debt Service Requirements, on a
consolidated basis, for such period, where "EBITDA" means, for any period and
for any Person, on a consolidated basis, such Person's Net Income, PLUS the sum
of (i) such Person's Interest Expense (including for such purpose the Interest
Expense of any Person which is not a Consolidated Subsidiary in respect of
Indebtedness as to which the Borrower or a Consolidated Subsidiary has issued a
Guaranty), (ii) such Person's income tax expense, (iii) such Person's
depreciation expense, and (iv) such Person's amortization expense; and "DEBT
SERVICE REQUIREMENTS" means, for any period and for any Person, on a
consolidated basis, the sum of such Person's (i) Interest Expense (determined as
provided in clause (i) of the definition of EBITDA), PLUS (ii) regularly
scheduled principal payments in respect of all Indebtedness of the nature
described in clauses (a) and (b) of the definition of the term Indebtedness (and
all Indebtedness of Persons other than the Borrower and its Consolidated
Subsidiaries of the nature described in such clauses (a) and (b) with respect to
which the Borrower or any Consolidated Subsidiary has issued a Guaranty).
"DEFAULT" means any Event of Default or any condition or event which,
after notice or lapse of time or both, would constitute an Event of Default.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached hereto as
Exhibit E as it may be amended, supplemented, or otherwise modified from time to
time by the Borrower with the consent of the Required Banks.
"DOLLAR" and the sign "$" mean lawful money of the United States of
America.
"DOMESTIC OFFICE" means, relative to the Agent or any Person, the office
of such Person designated as such below its signature hereto or such other
office of such Person (or any successor or assign of such Person) within the
United States of America as may be designated from time to time by notice from
such Person to each other Person party hereto.
"ENVIRONMENTAL LAW" means any past, present or future Federal, state,
local or foreign statutory or common law, or any regulation, code, plan, order,
decree, judgment, permit, grant, franchise, concession, restriction, agreement
or injunction issued, entered, promulgated or approved thereunder, relating to
(a) the environment, human health or safety, including, without limitation, any
law relating to emissions, discharges, releases or threatened releases of
Hazardous Substances into the environment (including, without limitation, air,
surface water, groundwater or land), or (b) the manufacture, generation,
refining, processing, distribution, use, sale, treatment, recycling, receipt,
storage, disposal, transport, arranging for transport, or handling of Hazardous
Substances.
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"ERISA" is defined in Section 6.11.
"EVENT OF DEFAULT" is defined in Section 8.1.
"EXISTING CREDIT AGREEMENT" means the Loan Agreement, dated as of July
11, 1988, among the Borrower, various commercial banking institutions named
therein, and The Bank of Nova Scotia, as Agent, as amended.
"FISCAL QUARTER" means any quarter of a Fiscal Year.
"FISCAL YEAR" means any period of twelve consecutive calendar months
ending on December 31.
"FIXED RATE LOAN" is defined in Section 4.1.
"▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇." means the 635 foot Great Lakes self-unloading
vessel, official number 606421, built in 1979, owned by the Borrower and
documented in its name under the laws of the United States of America.
"F.R.S. BOARD" means the Board of Governors of the Federal Reserve
System (or any successor).
"GUARANTY" means any agreement, undertaking or arrangement by which any
Person guarantees, endorses or otherwise becomes or is contingently liable upon
(by direct or indirect agreement, contingent or otherwise, to provide funds for
payment, to supply funds to, or otherwise to invest in, a debtor, or otherwise
to assure a creditor against loss) the debt, obligation or other liability of
any other Person (other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other distributions upon
the shares of any other Person. The amount of the obligor's obligation under any
Guaranty shall (subject to any limitation set forth therein) be deemed to be the
outstanding principal amount (or maximum outstanding principal amount, if
larger) of the debt, obligation or other liability thereby guaranteed.
"HAZARDOUS SUBSTANCES" means collectively, contaminants; pollutants;
toxic or hazardous chemicals, substances, materials, wastes and constituents;
petroleum products; polychlorinated biphenyls; medical wastes; infectious
wastes; asbestos; paint containing lead; and urea formaldehyde.
"HEREOF", "HERETO", "HEREUNDER" and similar terms refer to this
Agreement and not to any particular Section or provision of this Agreement.
"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion by
independent public accountants as to any financial statement of the Borrower,
any qualification or exception to such opinion: (a) which is of a "going
concern" or similar nature; (b) which relates to the limited scope of
examination of matters relevant to such financial information; or (c) which
relates to the treatment or classification of any item in such financial
statement and which, as a condition to its removal, would require an adjustment
to such item the effect of which would be to cause the Borrower to be in default
of any of its obligations under Section 7.2.3.
"INCLUDING" means including without limiting the generality of any
description preceding such term.
"INDEBTEDNESS" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money (including
all notes payable and drafts accepted representing extensions of credit
and all obligations evidenced by bonds, debentures, notes or other
similar instruments) or on which interest charges are customarily paid;
(b) all unpaid reimbursement obligations in respect of the face
amount of all letters of credit, whether or not drawn, issued for the
account of such Person, but only to the extent such obligations are in
excess of $1,750,000 in the aggregate at any one time outstanding for
such Person and its Consolidated Subsidiaries;
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(c) capitalized leases;
(d) to the extent not included under the foregoing clauses, all
indebtedness for borrowed money or represented by notes, bonds,
debentures or similar instruments (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements) whether or not such indebtedness shall have been
assumed by such Person; and
(e) all Guaranties issued by such Person with respect to any
Indebtedness of any other Person of the nature described in the
foregoing clauses.
"INSTRUMENT" means any document or writing (whether by formal agreement,
letter or otherwise) under which any obligation is evidenced, assumed or
undertaken, or any right to any Lien is granted or perfected.
"INTANGIBLE ASSETS" of any Person means all licenses, franchises,
patents, patent applications, trademarks, program rights, goodwill and research
and development expense or other like intangibles shown on a balance sheet of
such Person.
"INTEREST COVERAGE RATIO" means, as of any date of determination, the
ratio of (a) the Borrower's EBIT, on a consolidated basis, for its most recently
completed four Fiscal Quarters (whether or not such fiscal quarters are in the
same Fiscal Year), to (b) the Borrower's Interest Expense (including for such
purpose the Interest Expense of any Person which is not a Consolidated
Subsidiary in respect of Indebtedness as to which the Borrower or a Consolidated
Subsidiary has issued a Guaranty), on a consolidated basis, for such period,
where "EBIT" means, for any period and for any Person, on a consolidated basis,
such Person's Net Income, exclusive of (1) gains or losses from the sale of
assets, (2) gains or losses from items treated as extraordinary or unusual items
under generally accepted accounting principles, and (3) gains and losses from
operations treated as discontinued operations in accordance with generally
accepted accounting principles, for such period, PLUS the sum of (i) such
Person's Interest Expense (determined as provided above) for such period, and
(ii) such Person's income tax expense for such period.
"INTEREST EXPENSE" means, for any Person and for any period, the
aggregate amount of interest in respect of Indebtedness (including amortization
of original issue discount on Indebtedness and the interest portion of any
deferred payment obligation which constitutes Indebtedness, calculated in
accordance with the effective interest method of accounting, and the net costs
associated with Interest Rate Protection Agreements) and all but the principal
component of rentals in respect of capitalized leases, paid, accrued and/or
scheduled to be paid or accrued by such person during such period, all
determined in accordance with generally accepted accounting principles.
"INTEREST PERIOD" means, relative to any Fixed Rate Loan, the period
which shall begin on (and include) the date on which such Fixed Rate Loan is
made or continued as, or converted into, a Fixed Rate Loan pursuant to Section
4.1, and, unless the final maturity of such Fixed Rate Loan is accelerated,
shall end on (but exclude) the day which is, in the case of a CD Rate Loan 30,
60, 90, 180 or 360 days thereafter, or which, in the case of a LIBO Rate Loan,
numerically corresponds to such date one, two, three or six months thereafter,
in either case as the Borrower may select in its relevant notice pursuant to
Section 4.1; PROVIDED, HOWEVER, that:
(a) the Interest Period applicable to any portion of the
principal amount of the Loans made or continued as, or converted into,
Fixed Rate Loans whenever any other portion of the principal amount of
the Loans being maintained as a Fixed Rate Loan of the same type has a
remaining Interest Period of one month or 30 days, as the case may be,
or less shall end on the same day as the Interest Period applicable to
such other portion;
(b) the Borrower shall not be permitted to select Interest
Periods to be in effect at any one time which have expiration dates
occurring on more than eight different dates;
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(c) absent such selection, the Borrower shall be deemed to have
selected an Interest Period of one month or 30 days, as the case may be,
or such other duration as shall be required in order to comply with
clause (a) and clause (b);
(d) if such Interest Period applies to LIBO Rate Loans and there
exists no numerically corresponding day in such month, such Interest
Period shall end on the last Business Day of such month;
(e) if such Interest Period applies to LIBO Rate Loans and such
Interest Period would otherwise end on a day which is not a Business
Day, such Interest Period shall end on the Business Day next following
such numerically corresponding day (unless such next following Business
Day is the first Business Day of a calendar month, in which case such
Interest Period shall end on the preceding Business Day); and
(f) no Interest Period shall end later than December 31, 2001.
"INTEREST RATE PROTECTION AGREEMENT" means any and all agreements and
instruments governing any interest rate swap, cap or collar arrangement
providing for the transfer or mitigation of interest rates either generally or
under specific circumstances.
"INVESTMENT" means, relative to any Person: (a) any loan or advance made
by it to any other Person (excluding commission, travel and similar advances to
officers and employees made in the ordinary course of business); (b) any
Guaranty by it of Indebtedness of any other Person; and (c) any ownership or
similar interest by it in any other Person; and the amount of any Investment
shall be the original principal or capital amount thereof less all returns of
principal or equity thereon (and without adjustment by reason of the financial
condition of such other Person).
"LIABILITIES" means all monetary obligations of the Borrower under this
Agreement, the Notes and each other Loan Document.
"LIBO RATE" means, relative to each Interest Period applicable to any
LIBO Rate Loans comprising all or any part of any Borrowing, conversion or
continuation, the rate per annum determined by the Agent at which dollar
deposits in immediately available funds are offered to the Agent's LIBOR Office
two Business Days prior to the beginning of such Interest Period by prime banks
in the interbank eurodollar market as at or about the relevant local time of
such LIBOR Office, for delivery on the first day of such Interest Period, for
the number of days comprised therein and in an amount equal to the amount of the
Agent's LIBO Rate Loan to be outstanding during such Interest Period. "Relevant
local time" shall mean 11:00 a.m., local time, in London, England, when the
LIBOR Office selected by the Agent to determine the LIBO Rate is located in
Europe, or 10:00 a.m., Nassau, Bahamas time, when such LIBOR Office is located
in North America.
"LIBO RATE LOAN" is defined in Section 4.1.
"LIBO RATE (RESERVE ADJUSTED)" means, relative to any portion of a Loan
to be made, continued or maintained as, or converted into, a LIBO Rate Loan for
any Interest Period, a rate per annum (rounded upwards, if necessary, to the
nearest 1/16 of 1%) determined pursuant to the following formula:
LIBO Rate = LIBO RATE
---------------------------
(Reserve Adjusted) 1 - LIBOR Reserve Percentage
The Agent shall determine the LIBO Rate (Reserve Adjusted) for each Interest
Period, applicable to LIBO Rate Loans comprising all or part of any Borrowing,
conversion or continuation and promptly notify the Borrower thereof (which
determination shall, in the absence of manifest error, be conclusive on the
Borrower) and, if requested by the Borrower, deliver a statement showing the
computation used by the Agent in determining any such Rate.
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"LIBOR OFFICE" means, relative to any Bank, the office of such Bank
designated as such below its signature hereto or such other domestic or foreign
office or offices of such Bank (as designated from time to time by notice from
such Bank to the Borrower and the Agent).
"LIBOR RESERVE PERCENTAGE" means, relative to each Interest Period, a
percentage (expressed as a decimal) equal to the daily average during such
Interest Period of the percentages in effect on each day of such Interest
Period, as prescribed by the F.R.S. Board, for determining reserve requirements
applicable to "Eurocurrency Liabilities" pursuant to Regulation D or any other
applicable regulation of the F.R.S. Board which prescribes reserve requirements
applicable to "Eurocurrency Liabilities" as presently defined in Regulation D as
applicable to any Bank or any participant of such Bank with respect to such
participation.
"LIEN" means any mortgage, pledge, hypothecation, charge, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever securing Indebtedness (including any conditional sale or other
title retention agreement, any financing lease involving substantially the same
economic effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction).
"LOANS" is defined in Section 2.1.
"LOAN DOCUMENT" means this Agreement and each Instrument from time to
time executed and delivered to the Agent or any Bank pursuant hereto, whether or
not mentioned herein, including the Notes, the Ship Mortgages and the Subsidiary
Guaranty.
"LOAN PARTY" means any of the Borrower or any of the Subsidiary
Guarantors, and their respective successors and assigns.
"LOAN REQUEST" means a loan request and certificate duly executed by the
chief executive or financial Authorized Officer of the Borrower substantially in
the form of Exhibit B attached hereto.
"MASTER VESSEL TRUST AGREEMENT" means the Master Vessel Trust Agreement,
dated as of December 1, 1990, between (a) the Banks, (b) the Agent, and (c) the
Collateral Trustee, substantially in the form of Exhibit G-3 attached to the
Original Loan Agreement (as such may be amended, supplemented, restated or
otherwise modified and in effect from time to time).
"MATERIALLY ADVERSE EFFECT" means, relative to any occurrence of
whatever nature (including any adverse determination in any litigation,
arbitration or governmental investigation or proceeding), a materially adverse
effect, on a consolidated basis for the Borrower and its Subsidiaries in
accordance with generally accepted accounting principles, on: (a) the
consolidated financial condition, operations or prospects of the Borrower and
Subsidiaries; or (b) the ability of the Borrower or any other Loan Party to
perform any of its payment or other material obligations under this Agreement or
any Loan Document. Notwithstanding the foregoing, a Materially Adverse Effect
shall not be considered to have occurred solely by reason of the asset
write-offs and early recognition of expenses, in the approximate aggregate
pre-tax amount of $47,912,000, adjustments required by reason of the Coal
Industry Retiree Health Benefits Act of 1992, in the approximate aggregate
pre-tax amount of $15,117,900, and adjustments required by reason of the
adoption of Statement No. 106 of the Financial Accounting Standards Board, in
the approximate aggregate pre-tax amount of $26,577,000, effective December 31,
1992.
"MATURITY" means, relative to any Loan, the date on which such Loan is
stated to be due and payable, in whole or in part (in accordance with the Note
evidencing such Loan, this Agreement, or otherwise), or such earlier date when
such Loan (or any portion thereof) shall be or become due and payable, in whole
or in part, in accordance with the terms of this Agreement, whether by required
prepayment, declaration, or otherwise.
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"NET CASUALTY OR REQUISITION PROCEEDS" means the net proceeds received
by the Collateral Trustee pursuant to Sections 12, 17 or 18 of any of the Ship
Mortgages which are to be applied as provided in Section 30 of the Ship
Mortgages and are turned over to the Agent to be so applied.
"NET INCOME" means, for any Person and for any period, the net income
(loss) of such Person for such period, determined in accordance with generally
accepted accounting principles, PROVIDED that: (a) all gains and all losses
realized by such Person and its Subsidiaries arising from the revaluation of
assets or upon the sale or other disposition (including, without limitation,
pursuant to sale and leaseback transactions) or property or assets which are not
sold or otherwise disposed of in the ordinary course of business, or pursuant to
the sale of any capital stock of such Person or any Subsidiary, shall be
excluded, (b) net income or net loss of any Person combined with such Person on
a "pooling of interests" basis attributable to any period prior to the date of
such combination shall be excluded, and (c) net income of any Person which is
not a Subsidiary of such Person and which is consolidated with such Person or is
accounted for by such Person by the equity method of accounting shall be
included only to the extent of the amount of dividends or distributions paid to
such Person or a Subsidiary.
"NET PROCEEDS" means, for each merger, consolidation, conveyance,
transfer, lease, mortgage or other disposition or encumbrance of, or granting of
any license with respect to, any asset (each such disposition, encumbrance and
license being herein called a "TRANSACTION") by the Borrower or any of its
Consolidated Subsidiaries and as of the date on which such Transaction is
consummated, (a) the aggregate amount of all consideration received or to be
received by the Borrower or any such Consolidated Subsidiary in connection
therewith, including, without limitation, (i) all cash, (ii) the present value
of all unpaid lease payments (calculated using as the discount rate the average
interest rate for all Loans outstanding at the time of calculation, weighted by
amounts outstanding), (iii) the unpaid principal amount of (A) each note or
other evidence of Indebtedness received by the Borrower or any such Consolidated
Subsidiary and (B) all Indebtedness of the Borrower or any such Consolidated
Subsidiary which is cancelled or assumed by another party in connection with
such Transaction, and (iv) the fair market value of all other non-cash
consideration, MINUS (b) all income taxes payable by the Borrower or such
Consolidated Subsidiary by reason of such Transaction and all reasonable
brokerage commissions and other fees and expenses incurred by the Borrower or
any such Consolidated Subsidiary in such Transaction.
"NET TANGIBLE ASSETS" means at any time: (a) the total assets of the
Borrower and Consolidated Subsidiaries as shown on a consolidated balance sheet
of the Borrower and Consolidated Subsidiaries prepared at such date, REDUCED BY
(b) Intangible Assets.
"NET WORTH" means at any time the sum of capital stock, additional
paid-in capital, unrealized gains or losses, and retained earnings (minus
accumulated deficits) of the Borrower and its Consolidated Subsidiaries, all as
shown on a consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries prepared at such date.
"NOTE" means any promissory note of the Borrower, substantially in the
form of Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ or Exhibit A-3 attached hereto (as such
promissory note may be amended, endorsed, or otherwise modified from time to
time), evidencing, respectively Tranche A Revolving Credit Loans, Tranche B
Revolving Credit Loans or a Term Loan, made pursuant to this Agreement, and all
other promissory notes accepted from time to time in substitution, replacement,
or renewal therefor.
"OGLEBAY NORTON" means the 1,000 foot Great Lakes self-unloading vessel
(formerly "▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇"), official number 592377, built in 1978, identified
in the Vessel Sale Agreement.
"ORGANIC DOCUMENT" means, relative to any corporation, its certificate
of incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements applicable to any of its authorized shares of capital
stock.
"ORIGINAL LOAN AGREEMENT" means the Loan Agreement, dated as of December
1, 1990, among the Borrower, the Banks named therein, and the Agent, as amended
as of December 7, 1992 and as of April 8, 1993.
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"PBGC" means the Pension Benefit Guaranty Corporation, a United States
corporation.
"PERCENTAGE" means, relative to any Bank, the percentage set forth
opposite its signature hereto.
"PERMITTED INVESTMENTS" means:
(a) direct obligations of or obligations guaranteed by the
United States of America;
(b) obligations issued or guaranteed by an agency or
instrumentality of the United States of America or obligations of the
Federal National Mortgage Association, the Student Loan Marketing
Association, the Federal home Loan Banks or the Federal Farm Credit
Bank;
(c) bankers' acceptances drawn on and accepted by banks (which
may include the Agent, the Collateral Trustee or any Bank), and
certificates of deposit or commercial paper of banks (which may include
the Agent, the Collateral Trustee or any Bank), with a combined capital
and surplus aggregating at least $100,000,000 and if such acceptances
are drawn on, or such certificates of deposits or commercial paper are
issued by, any bank other than the Banks, the unsecured deposits or
securities of such bank shall be, at the time of acquisition, rated
within one of the two highest rating categories assigned by either
Rating Agency;
(d) interest-bearing demand or time deposits or certificates of
deposit of a bank (which may include the Agent, the Collateral Trustee
or any Bank) or trust company continuously secured and collateralized by
obligations of the type described in paragraph (a) hereof, or by
obligations of the type described in paragraph (k) hereof, having a
market value determined not less than daily equal at all times to at
least the amount of such deposit or certificate, to the extent such
deposit or certificate is not insured by the Federal Deposit Insurance
Corporation or the Federal Savings and Loan Insurance Corporation, or
any successors thereto;
(e) interest-bearing notes or commercial paper of any of the
Banks, or interest-bearing notes or commercial paper rated within one of
the three highest rating categories assigned by either Rating Agency,
issued by a bank or bank holding company which has a combined capital
and surplus aggregating at least $100,000,000, or commercial paper rated
within rating category A1+, A1, A2, P1 or P2, as assigned by the
applicable Rating Agency, issued by any other entity;
(f) repurchase agreements and investment agreements issued by
banks (which may include the Agent, the Collateral Trustee or any Bank)
with a combined capital and surplus aggregating at least $100,000,000 or
by any other entity whose debt or unsecured securities are, at the time
of acquisition, rated within one of the two highest rating categories
assigned by either Rating Agency, or continuously secured and
collateralized by obligations referred to in paragraphs (a) through (e)
above or (g) through (j) below having a market value, determined not
less frequently than daily, at least equal at the time of each such
determination to the principal balance collectible pursuant thereto plus
accrued interest thereon;
(g) interest-bearing notes or investment agreements secured by a
letter of credit issued by banks (which may include the Agent, the
Collateral Trustee or any Bank) with a combined capital and surplus
aggregating at least $100,000,000, or by a surety issued by an insurance
company, in each case (other than in the case of a letter of credit
issued by a Bank) the unsecured securities or deposits of either of
which are rated at the time of acquisition within one of the two highest
rating categories assigned by either Rating Agency;
(h) securities with a remaining term of maturity of, or which
are payable at par upon demand by the holder thereof within 90 days or
less, the interest on which is exempt from federal income taxation,
rated by either Rating Agency in its highest note or commercial paper
rating category;
(i) any other securities or obligations selected by the
Borrower and approved in writing by the Required Banks;
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(j) shares redeemable on demand at par of, or an investment
agreement with, an Investment Company (as defined in the Investment
Company Act of 1940, as amended) which invests in, or collateralizes
such investment agreement with, obligations of the type described as
Permitted Investments in any other paragraph of this definition; and
(k) tax-free money market funds which invest principally in
obligations rated in the highest rating category whether rated as
short-term or long-term obligations by a Rating Agency.
"PERSON" means any natural person, corporation, firm, association,
government, governmental agency or any other entity, whether acting in an
individual, fiduciary or other capacity.
"PLAN" is defined in Section 6.11.
"QUARTERLY PAYMENT DATE" means the last day of any Fiscal Quarter or, if
such day is not a Business Day, the next succeeding Business Day.
"RATING AGENCY" means ▇▇▇▇▇'▇ Investors Service or Standard & Poor's
Corporation or the successor of either or, if both no longer exist and have no
successors, than any other rating agency approved by the Required Banks.
"REGULATORY CHANGE" means, relative to any Bank, any change after the
date hereof in any (or the adoption after the date hereof of any new):
(a) United States Federal or state law or foreign law
applicable to such Bank; or
(b) rule, regulation, interpretation, directive or request
(whether or not having the force of law) applying to such Bank of any
court or governmental authority charged with the interpretation or
administration of any law referred to in clause (a) or of any fiscal,
monetary or other authority having jurisdiction over such Bank.
"REPORTABLE EVENT" is defined in Section 6.11.
"REQUIRED BANKS" means, at any time, Banks having, in the aggregate, (a)
a Percentage of 66-2/3% or more of the Total Revolving Credit Commitment Amount,
and (b) Term Loans representing 66-2/3% or more of the aggregate Term Loans
outstanding.
"RESTATEMENT EFFECTIVE DATE" means the date this Agreement becomes
effective pursuant to Section 10.8.
"REVOLVING CREDIT COMMITMENT" means, relative to any Bank, such Bank's
obligation to make Revolving Credit Loans pursuant to Section 2.1(a).
"REVOLVING CREDIT LOANS" is defined in Section 2.1(a).
"SHIP MORTGAGE" means each of those certain First Preferred Ship
Mortgages, executed by the Borrower, substantially in the form of Exhibit G-2
attached to this Agreement as originally executed and delivered as of December
1, 1990 (as such may be amended, supplemented, restated or otherwise modified
and in effect from time to time), covering, respectively, the OGLEBAY NORTON,
the BUCKEYE, the ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. and the ARMCO.
"SUBORDINATED DEBT" means all unsecured Indebtedness of the Borrower for
money borrowed which is subject to, and is only entitled to the benefits of,
terms and provisions (including acceleration, interest rate, sinking fund,
covenant, default, and subordination provisions) satisfactory in form and
substance to the Required Banks and which has terms of payment and holders
satisfactory to the Required Banks, in each case as evidenced by their written
approval thereof.
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"SUBSIDIARY" of any corporation means any other corporation 51% of the
outstanding shares of capital stock of which having ordinary voting power for
the election of directors is owned directly or indirectly by such corporation,
and, except as otherwise indicated herein, references to Subsidiaries shall
refer to Subsidiaries of the Borrower.
"SUBSIDIARY GUARANTOR" means each of Oglebay Norton Industrial Sands,
Inc. and Oglebay Norton Refractories & Minerals, Inc.
"SUBSIDIARY GUARANTY" means that certain guaranty, executed by each
Subsidiary Guarantor, substantially in the form of Exhibit G-1 attached hereto
(as such may be amended, supplemented, restated or otherwise modified and in
effect from time to time).
"TANGIBLE NET WORTH" means at any time: (a) the sum of capital stock,
additional paid-in capital, unrealized gains or losses, and retained earnings
(minus accumulated deficits) of the Borrower and its Consolidated Subsidiaries,
all as shown on a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries prepared at such date, REDUCED BY (b) to the extent
reflected as an asset in such consolidated balance sheet at such date,
Intangible Assets.
"TAXES" is defined in Section 3.10.
"TERM LOAN" is defined in Section 2.1(b).
"TERM LOAN CLOSING DATE" means the Restatement Effective Date or such
later Business Day on or before the Additional Term Loans Termination Date on
which the Additional Term Loans are to be made as provided in Section 2.1(b).
"TOTAL REVOLVING CREDIT COMMITMENT AMOUNT" is defined in Section 2.2.
"TOTAL TRANCHE A REVOLVING CREDIT COMMITMENT AMOUNT" is defined in
Section 2.2.
"TOTAL TRANCHE B REVOLVING CREDIT COMMITMENT AMOUNT" is defined in
Section 2.2.
"TRANCHE A COMMITMENT TERMINATION DATE" means the earliest of
(a) December 31, 1997, unless the Tranche A
Commitment Date is extended as provided in clause (c) below;
(b) five Business Days after notice is given by the
Borrower to the Agent for purposes of designating a Tranche A
Commitment Termination Date pursuant to this clause, PROVIDED
that, on such designated Tranche A Commitment Termination Date,
no Loans are outstanding;
(c) each of the Tranche A Commitment Termination Dates
specified below, if during the renewal period (if any) specified
below for such Tranche A Commitment Termination Date the
Borrower and the Banks shall not have elected in writing to
extend the Tranche A Commitment Termination Date to the next
succeeding Tranche A Commitment Termination Date (if any):
RENEWAL PERIOD TRANCHE A COMMITMENT TERMINATION DATE
Three months ended
May 31, 1996 December 31, 1998
Three months ended
May 31, 1997 December 31, 1999
Three months ended
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May 31, 1998 December 31, 2000
Three months ended
May 31, 1999 December 31, 2001
December 31, 2001
; PROVIDED, HOWEVER, that in the event less than all of the
Banks shall have elected during any such renewal period to
extend the Tranche A Commitment Termination Date as provided
above, such Tranche A Commitment Termination Date shall
nevertheless be so extended if either (i)(A) the Borrower
arranges for another commercial banking institution (a
"REPLACEMENT BANK"), satisfactory to the Agent, to replace each
Bank which has failed to so elect to extend such Tranche A
Commitment Termination Date (a "TERMINATING BANK"), (B) on such
Tranche A Commitment Termination Date, the Tranche A Revolving
Credit Commitment of each Terminating Bank is terminated and the
Tranche A Revolving Credit Loans of such Terminating Bank are
paid in full, together with accrued interest thereon and the fee
payable with respect thereto through such Tranche A Commitment
Termination Date pursuant to Section 2.3.1, and (C) prior to
such Tranche A Commitment Termination Date each Replacement Bank
enters into an amendment to this Agreement, the Master Vessel
Trust Agreement and each of the other Loan Documents, in form
and substance satisfactory to the Agent and the Banks, pursuant
to which such Replacement Bank agrees to undertake the Tranche A
Revolving Credit Commitment of the Terminating Bank; or (ii)(A)
the electing Banks shall agree to change their Percentages as
applied to the Tranche A Revolving Credit Commitments so that
they aggregate 100% for such purpose, (B) prior to such Tranche
A Commitment Termination Date the Agent and the Banks shall have
entered into an amendment to this Agreement, the Master Vessel
Trust Agreement and each of the other Loan Documents which gives
effect to such change, and (C) on such Tranche A Commitment
Termination Date the Tranche A Revolving Credit Commitment of
each Terminating Bank is Terminated and the Tranche A Revolving
Credit Loans of such Terminating Bank are paid in full, together
with accrued interest thereon and the fee payable with respect
thereto through such Tranche A Commitment Termination Date
pursuant to Section 2.3.1;
(d) immediately and without further action upon the
occurrence of any Default described in Section 8.1.4 with
respect to the Borrower or any Subsidiary; and
(e) immediately when any other Event of Default shall
have occurred and be continuing and either
(i) the Loans shall be declared to be due and
payable pursuant to Section 8.3, or
(ii) in the absence of such declaration, the
Agent, acting at the direction of the Required Banks,
shall give notice to the Borrower pursuant to this
clause that the Tranche A Revolving Credit Commitments
have been terminated.
"TRANCHE B COMMITMENT TERMINATION DATE" means the earliest of
(a) December 31, 1997, unless the Tranche B
Commitment Date is extended as provided in clause (c) below;
(b) five Business Days after notice is given by the
Borrower to the Agent for purposes of designating a Tranche B
Commitment Termination Date pursuant to this clause, PROVIDED
that, on such designated Tranche B Commitment Termination Date,
no Loans are outstanding;
(c) each of the Tranche B Commitment Termination Dates
specified below, if during the renewal period (if any) specified
below for such Tranche B Commitment Termination Date the
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Borrower and the Banks shall not have elected in writing to
extend the Tranche B Commitment Termination Date to the next
succeeding Tranche B Commitment Termination Date (if any):
RENEWAL PERIOD TRANCHE B COMMITMENT TERMINATION DATE
Three months ended
May 31, 1996 December 31, 1998
Three months ended
May 31, 1997 December 31, 1999
Three months ended
May 31, 1998 December 31, 2000
Three months ended
May 31, 1999 December 31, 2001
December 31, 2001
; PROVIDED, HOWEVER, that in the event less than all of the
Banks shall have elected during any such renewal period to
extend the Tranche B Commitment Termination Date as provided
above, such Tranche B Commitment Termination Date shall
nevertheless be so extended if either (i)(A) the Borrower
arranges for another commercial banking institution (a
"REPLACEMENT BANK"), satisfactory to the Agent, to replace each
Bank which has failed to so elect to extend such Tranche B
Commitment Termination Date (a "TERMINATING BANK"), (B) on such
Tranche B Commitment Termination Date, the Tranche B Revolving
Credit Commitment of each Terminating Bank is terminated and the
Tranche B Revolving Credit Loans of such Terminating Bank are
paid in full, together with accrued interest thereon and the fee
payable with respect thereto through such Tranche B Commitment
Termination Date pursuant to Section 2.3.1, and (C) prior to
such Tranche B Commitment Termination Date each Replacement Bank
enters into an amendment to this Agreement, the Master Vessel
Trust Agreement and each of the other Loan Documents, in form
and substance satisfactory to the Agent and the Banks, pursuant
to which such Replacement Bank agrees to undertake the Tranche B
Revolving Credit Commitment of the Terminating Bank; or (ii)(A)
the electing Banks shall agree to change their Percentages as
applied to the Tranche B Revolving Credit Commitments so that
they aggregate 100% for such purpose, (B) prior to such Tranche
B Commitment Termination Date the Agent and the Banks shall have
entered into an amendment to this Agreement, the Master Vessel
Trust Agreement and each of the other Loan Documents which gives
effect to such change, and (C) on such Tranche B Commitment
Termination Date the Tranche B Revolving Credit Commitment of
each Terminating Bank is Terminated and the Tranche B Revolving
Credit Loans of such Terminating Bank are paid in full, together
with accrued interest thereon and the fee payable with respect
thereto through such Tranche B Commitment Termination Date
pursuant to Section 2.3.1;
(d) immediately and without further action upon the
occurrence of any Default described in Section 8.1.4 with
respect to the Borrower or any Subsidiary; and
(e) immediately when any other Event of Default shall
have occurred and be continuing and either
(i) the Loans shall be declared to be due and
payable pursuant to Section 8.3, or
(ii) in the absence of such declaration, the
Agent, acting at the direction of the Required Banks,
shall give notice to the Borrower pursuant to this
clause that the Tranche B Revolving Credit Commitments
have been terminated.
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"TRANCHE A REVOLVING CREDIT LOANS" is defined in Section 2.1(a).
"TRANCHE B REVOLVING CREDIT LOANS" is defined in Section 2.1(a).
"TYPE" means, relative to the outstanding principal amount of all or any
portion of a Loan, the portion thereof, if any, being maintained as a Base Rate
Loan, a CD Rate Loan or a LIBO Rate Loan.
"UNFUNDED VESTED OBLIGATIONS" means, relative to any Plan, at any time,
the amount (if any) by which:(a) the present value of all vested nonforfeitable
benefits under such Plan; EXCEEDS (b) the fair market value of all Plan assets
allocable to such benefits; all determined as of the then most recent valuation
date for such Plan, but only to the extent that such excess represents a
potential liability of the Borrower or any member of the Controlled Group to the
PBGC or the Plan under Title IV of ERISA.
"UNITED STATES" or "U.S." means the United States of America, its 50
States and the District of Columbia.
"VESSEL SALE AGREEMENT" means the Vessel Sale Agreement dated as of
December 20, 1990, between the Borrower, as purchaser, and Bethlehem Steel
Corporation, as seller, relating to the purchase by the Borrower of the OGLEBAY
NORTON and the BUCKEYE, together with all exhibits and schedules thereto and all
Instruments executed in connection therewith, as originally executed and
delivered (as the same may be amended, supplemented, restated or otherwise
modified, as permitted by this Agreement, and in effect from time to time).
1.2. USE OF DEFINED TERMS. Terms for which meanings are provided in this
Agreement shall, unless otherwise defined or the context otherwise requires,
have such meanings when used in Exhibit E attached hereto, each Loan Request,
Continuation/Conversion Notice, Compliance Certificate, notice and other
communication delivered from time to time in connection with this Agreement or
any Loan Document.
1.3. ACCOUNTING AND FINANCIAL DETERMINATIONS. Where the character or
amount of any asset or liability or item of income or expense is required to be
determined, or any accounting computation is required to be made, for the
purpose of this Agreement (including Section 7.2.3), such determination or
calculation shall, to the extent applicable and except as otherwise specified in
this Agreement, be made in accordance with the generally accepted accounting
principles used in, and consistently applied with, the financial statements
referred to in Section 6.4.
ARTICLE II
COMMITMENTS
2.1. COMMITMENTS. (a) REVOLVING CREDIT COMMITMENTS. (i) TRANCHE A
REVOLVING CREDIT COMMITMENTS. Subject to the terms and conditions of this
Agreement (including Article V), each Bank severally and for itself alone agrees
that it will, from time to time on any Business Day occurring during the period
commencing on the Restatement Effective Date and continuing to (but not
including) the Tranche A Commitment Termination Date, make revolving credit
loans (relative to each Bank, its "TRANCHE A REVOLVING CREDIT LOANS") to the
Borrower equal to its Percentage of the aggregate amount of the Borrowing
requested from all Banks on each such Business Day; PROVIDED, HOWEVER, that no
Bank shall be permitted (in the case of clause (a) below) or required to make
any Tranche A Revolving Credit Loan if, after giving effect thereto, the
aggregate principal amount of all Tranche A Revolving Credit Loans outstanding
at any one time from
(a) all Banks would exceed the Total Tranche A Revolving Credit
Commitment Amount; or
(b) such Bank would exceed its Percentage of the aggregate
principal amount of Tranche A Revolving Credit Loans then outstanding
from all Banks.
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Subject to the terms hereof, the Borrower may from time to time prior to the
Tranche A Commitment Termination Date borrow, prepay, and reborrow amounts
pursuant to the Tranche A Revolving Credit Commitments.
(i) TRANCHE B REVOLVING CREDIT COMMITMENTS. Subject to the terms and
conditions of this Agreement (including Article V), each Bank severally and for
itself alone agrees that it will, from time to time on any Business Day
occurring during the period commencing on the Restatement Effective Date and
continuing to (but not including) the Tranche B Commitment Termination Date,
make revolving credit loans (relative to each Bank, its "TRANCHE B REVOLVING
CREDIT LOANS") to the Borrower equal to its Percentage of the aggregate amount
of the Borrowing requested from all Banks on each such Business Day; PROVIDED,
HOWEVER, that no Bank shall be permitted (in the case of clause (a) below) or
required to make any Tranche B Revolving Credit Loan if, after giving effect
thereto, the aggregate principal amount of all Tranche B Revolving Credit Loans
outstanding at any one time from
(a) all Banks would exceed the Total Tranche B Revolving
Credit Commitment Amount; or
(b) such Bank would exceed its Percentage of the aggregate
principal amount of Tranche B Revolving Credit Loans then outstanding
from all Banks.
Subject to the terms hereof, the Borrower may from time to time prior to the
Tranche B Commitment Termination Date borrow, prepay, and reborrow amounts
pursuant to the Tranche B Revolving Credit Commitments; PROVIDED, that no
amounts may be reborrowed pursuant to the Tranche B Revolving Credit Commitments
unless at time of any such reborrowing, without giving effect thereto, the
Borrower's Debt to Capital Ratio is equal to or less than .45 to 1.00.
(b) TERM LOAN COMMITMENTS. Subject to the terms and conditions of the
Original Loan Agreement (including Article V thereof), each Bank severally and
for itself alone made on December 20, 1990 a term loan (relative to each Bank, a
"TERM LOAN") to the Borrower. The aggregate original principal amount of the
Term Loans made pursuant to the Original Agreement was U.S. $58,500,000. Subject
to the terms and conditions of this Agreement (including Article V), each Bank
severally and for itself alone agrees to make an additional Term Loan (relative
to each Bank, an "ADDITIONAL TERM LOAN"; and together with the Term Loans made
previously, the "TERM LOANS") to the Borrower on the Term Loan Closing Date
equal to its Percentage of U.S,$8,750,000. The Additional Term Loans shall be
made pursuant to a Loan Request delivered to the Agent on not less than one (or
not less than three in the case of a LIBO Rate or a CD Rate Loan) Business Days'
notice. The Borrower shall not have any right to reborrow any principal payments
made on any Term Loan. As of December 26, 1994, the aggregate unpaid principal
amount of the Term Loans was U.S. $41,250,000, with Term Loans payable to the
Banks as shown below, and after giving effect to the additional Term Loans to be
made on the Term Loan Closing Date, the aggregate Term Loans payable to the
Banks will be as shown below:
AMOUNT OF TERM LOANS OUTSTANDING
------------------------------------------------
AFTER GIVING EFFECT TO
ADDITIONAL TERM LOANS MADE
NAME OF BANK DECEMBER 26, 1994 ON TERM LOAN CLOSING DATE
Society National Bank $11,148,637.50 $13,513,500.00
The Bank of Nova Scotia $10,033,650.00 $12,162,000.00
NBD Bank, N. A. $10,033,650.00 $12,162,000.00
Comerica Bank
(successor by merger
to Manufacturers National
Bank of Detroit) $ 5,574,525.00 $ 6,757,000.00
The Huntington National Bank $ 4,459,537.50 $ 5,405,500.00
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(c) DEFINITIONS OF LOANS. As used herein, the term "LOANS" refers
collectively to the Revolving Credit Loans and the Term Loans, unless the
context otherwise requires.
(d) INITIAL BORROWING TO INCLUDE TERM LOAN. The initial Borrowing under
the Original Loan Agreement included the Term Loans. The initial Borrowing under
this Agreement shall include the Additional Term Loans to be made on the Term
Loan Closing Date.
2.2. TOTAL REVOLVING CREDIT COMMITMENT AMOUNT. The aggregate amount (the
"TOTAL TRANCHE A REVOLVING CREDIT COMMITMENT AMOUNT") of all Tranche A Revolving
Credit Commitments on any date on or prior to the Tranche A Commitment
Termination Date shall be U.S. $25,000,000 less all voluntary reductions to such
amount made by the Borrower and (without duplication of any such reductions)
less any mandatory prepayment of the Tranche A Revolving Credit Loans as
required pursuant to Section 3.3; PROVIDED, HOWEVER, that all such reductions
shall require at least three Business Days' prior notice to the Agent and be
permanent, and all partial reductions of such amount, in the case of any
voluntary reduction, shall be in minimum amounts of $2,500,000 and in integral
multiples of $1,000,000 in excess thereof. The aggregate amount (the "TOTAL
TRANCHE B REVOLVING CREDIT COMMITMENT AMOUNT") of all Tranche B Revolving Credit
Commitments on any date on or prior to the Tranche B Commitment Termination Date
shall be U.S. $15,000,000 less all voluntary reductions to such amount made by
the Borrower and (without duplication of any such reductions) less any mandatory
prepayment of the Tranche B Revolving Credit Loans as required pursuant to
Section 3.3; PROVIDED, HOWEVER, that all such reductions shall require at least
three Business Days' prior notice to the Agent and be permanent, and all partial
reductions of such amount, in the case of any voluntary reduction, shall be in
minimum amounts of $1,500,000 and in integral multiples of $1,000,000 in excess
thereof. The Tranche A Revolving Credit Commitments and the Tranche B Revolving
Credit Commitments are herein referred to as the "REVOLVING CREDIT COMMITMENTS".
The aggregate amount (the "TOTAL REVOLVING CREDIT COMMITMENT AMOUNT") of all
Revolving Credit Commitments on any date shall be the sum of the Total Tranche A
Revolving Credit Commitment Amount and the Total Tranche B Revolving Credit
Commitment Amount on such date.
2.3. FEES. The Borrower agrees to pay the fees set forth in this Section
2.3:
2.3.1. REVOLVING CREDIT COMMITMENT. (a) TRANCHE A REVOLVING CREDIT
COMMITMENT. To the Agent for the account of each Bank, for the period (including
any portion thereof when its Commitment is suspended by reason of the Borrower's
inability to satisfy any condition of Article V) commencing on the Restatement
Effective Date and continuing through the Tranche A Commitment Termination Date,
a commitment fee at the rate of 1/4 of 1% per annum on the average daily excess
of such Bank's Percentage of the Total Tranche A Revolving Credit Commitment
Amount over the outstanding amount of such Bank's Tranche A Revolving Credit
Loans. Such commitment fees shall be payable by the Borrower in arrears to the
Agent for the account of each Bank for the period ending on each Quarterly
Payment Date, commencing with the first such day following the Restatement
Effective Date, and on the Tranche A Commitment Termination Date.
(b) TRANCHE B REVOLVING CREDIT COMMITMENT. To the Agent for the account
of each Bank, for the period (including any portion thereof when its Commitment
is suspended by reason of the Borrower's inability to satisfy any condition of
Article V) commencing on the Restatement Effective Date and continuing through
the Tranche B Commitment Termination Date, a commitment fee at the rate of 1/4
of 1% per annum on the average daily excess of such Bank's Percentage of the
Total Tranche B Revolving Credit Commitment Amount over the outstanding amount
of such Bank's Tranche B Revolving Credit Loans. Such commitment fees shall be
payable by the Borrower in arrears to the Agent for the account of each Bank for
the period ending on each Quarterly Payment Date, commencing with the first such
day following the Restatement Effective Date, and on the Tranche B Commitment
Termination Date.
(c) COMMITMENT FEES ON REVOLVING CREDIT COMMITMENT PRIOR TO RESTATEMENT
EFFECTIVE DATE. Commitment fees payable with respect to Revolving Credit
Commitments as in effect immediately prior to the Restatement Effective Date
shall cease to accrue on the Restatement Effective Date. Any such fees shall be
payable on the Restatement Effective Date.
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2.3.2. FACILITY. To the Agent for the account of each Bank, in the event
of any Borrowing consisting of Tranche B Revolving Credit Loans, a
non-refundable facility fee in the amount of its Percentage of 3/4 of 1% of the
Tranche B Revolving Credit Loans made as part of such Borrowing, payable on the
date of any such Borrowing, PROVIDED that the aggregate facility fees payable
pursuant to this Section 2.3.2 shall in no event exceed $75,000.
2.3.3. OTHER. To the Agent for its individual account, an initial fee
and an annual fee in accordance with the terms of the confidential letter, dated
December 19, 1990, from the Agent to the Borrower. To the Agent for the account
of the Collateral Trustee, an initial fee and annual fee in accordance with
Article X of the Master Vessel Trust Agreement. To the Investment Banking
Division of the Agent for its own account, an advisory fee in connection with
the transactions contemplated hereby in accordance with the terms of a
confidential letter dated November 9, 1990.
2.4. INCREASED CAPITAL COSTS. If any Bank determines that compliance
with any law or regulation or any guideline or request from any central bank or
other governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by such
Bank or any corporation controlling such Bank such that the amount of such
capital is increased by or based upon the existence of such Bank's Commitment
hereunder and other commitments of this type and as a result thereof, in the
opinion of such Bank, the rate of return on such Bank's capital as a consequence
of its Commitment hereunder is reduced to a level below that which such Bank
could have achieved but for such circumstances, then, upon demand by such Bank
(with a copy of such demand to the Agent), the Borrower shall immediately pay to
the Agent for the account of such Bank, from time to time as specified by such
Bank, additional amounts sufficient to compensate such Bank or such corporation
in the light of such circumstances, for such reduction in rate of return. A
statement of any Bank as to any such additional amount or amounts (including
calculations thereof in reasonable detail) shall, in the absence of manifest
error, be conclusive and binding on the Borrower. In determining such amount,
any Bank may use any method of averaging and attribution that it shall, in the
absence of manifest error, deem applicable.
2.5. TERMINATION. The Tranche A Revolving Credit Commitments shall
terminate and each Bank shall be relieved of its obligations to make any Tranche
A Revolving Credit Loan on the Tranche A Commitment Termination Date. The
Tranche B Revolving Credit Commitments shall terminate and each Bank shall be
relieved of its obligations to make any Tranche B Revolving Credit Loan on the
Tranche B Commitment Termination Date. The Additional Term Loan Commitments
shall terminate and each Bank shall be relieved of its obligations to make any
Additional Term Loan pursuant to Section 2.1(b) on the Additional Term Loans
Commitment Termination Date.
2.6. MASTER VESSEL TRUST AGREEMENT. The Banks agreed in the Original
Loan Agreement to enter into the Master Vessel Trust Agreement in order, among
other things, that the Collateral Trustee shall be wholly and irrevocably
substituted for the Banks as the holder of any security interest or other
interest in any Vessel (as defined in the Ship Mortgages) in connection
herewith, all as more specifically provided in the Master Vessel Trust
Agreement.
ARTICLE III
LOANS AND NOTES
3.1. BORROWING PROCEDURE. By delivering to the Agent on or before 10:00
a.m., Cleveland time, a Loan Request, the Borrower may from time to time
request, on not less than one (or not less than three in the case of a LIBO Rate
Loan or a CD Rate Loan) nor more than five Business Days' notice, that a
Borrowing consisting of Tranche A Revolving Credit Loans or Tranche B Revolving
Credit Loans, as the case may be, be made from all Banks in the aggregate in a
minimum amount of $1,000,000 and an integral multiple of $250,000 in excess
thereof. Subject to the terms and conditions of this Agreement, each Borrowing
shall be made on the Business Day specified in the Loan Request therefor. On
such Business Day and subject to such terms and conditions, each Bank shall
provide the Agent with funds, on or before 11:00 a.m., Cleveland time, in an
amount equal to such Bank's Percentage of the requested Borrowing by
transferring same day or immediately available funds to such account as the
Agent shall specify from
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time to time by notice to the Banks. The proceeds of each Borrowing shall be
made available to the Borrower (albeit in the case of a Loan by any other Bank,
the Agent shall be required to make the proceeds thereof available only to the
extent received by it in same day funds from such other Bank) by wire transfer
of such proceeds to such transferees, or to such accounts of the Borrower, as
the Borrower shall have specified in the Loan Request therefor. No Bank's
obligation to make any Loan shall be affected by any other Bank's failure to
make any Loan.
3.2. NOTES. All Revolving Credit Loans made by each Bank shall be
evidenced by a Note payable to the order of such Bank in a maximum principal
amount equal to such Bank's Percentage of the original Total Tranche A Revolving
Credit Commitment Amount or Total Tranche B Revolving Credit Commitment Amount,
as the case may be. The Term Loan made by each Bank shall be evidenced by a Note
payable to the order of such Bank in a principal amount equal to the amount
specified in Section 2.1(b). The Borrower shall duly execute and deliver the
Notes on or prior to the Restatement Effective Date. The Borrower hereby
irrevocably authorizes each Bank to make (or cause to be made) appropriate
notations on the grid attached to such Bank's Notes (or on a continuation of
such grid attached to any such Note and made a part thereof), which notations,
if made, shall evidence, INTER ALIA, the date of, the outstanding principal of,
and the interest rate (including any conversions thereof pursuant to Section
4.2) and Interest Period applicable to, the Loans evidenced thereby. Any such
notations on any such grid (and on any such continuation) indicating the
outstanding principal amount of such Bank's Loans shall be rebuttable
presumptive evidence of the principal amount thereof owing and unpaid, but the
failure to record any such amount on such grid (or on such continuation) shall
not limit or otherwise affect the obligations of the Borrower hereunder or under
such Notes to make payments of principal of or interest on such Loans when due.
3.3. PRINCIPAL PAYMENTS AND PREPAYMENTS. The Borrower will repay the
outstanding principal amount of the Tranche A Revolving Credit Loans on or
before the Tranche A Commitment Termination Date. The Borrower will repay the
outstanding principal amount of the Tranche B Revolving Credit Loans on or
before the Tranche B Commitment Termination Date. The Borrower shall make
mandatory installment payments on the Term Loans on the following dates and in
the aggregate amounts specified:
DATE AGGREGATE AMOUNT
December 31, 1994 $2,750,000
June 30, 1995 2,750,000
December 31, 1995 2,750,000
June 30, 1996 2,750,000
December 31, 1996 2,750,000
June 30, 1997 2,750,000
December 31, 1997 2,750,000
June 30, 1998 2,750,000
December 31, 1998 2,750,000
June 30, 1999 2,750,000
December 31, 1999 2,750,000
June 30, 2000 2,750,000
December 31, 2000 2,750,000
June 30, 2001 2,750,000
December 31, 2001 11,500,000
The Agent shall be entitled to apply any Net Casualty or Requisition Proceeds
received by it to reimbursement of any costs and expenses incurred by the Agent
or the Collateral Trustee in connection therewith, and the balance thereof shall
be applied as a mandatory prepayment of the Loans (such prepayment to be
applied, FIRST, to the Term Loans, and, SECOND, to the outstanding Tranche A
Revolving Credit Loans, if any, and, THIRD, to the outstanding Tranche B
Revolving Credit Loans, if any). In addition, the Borrower:
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(a) may make a voluntary prepayment in part in an aggregate
principal amount of not less than $500,000 and an integral multiple of
$100,000 in excess thereof, or in full of the outstanding principal
amount of, the Tranche A Revolving Credit Loans, the Tranche B Revolving
Credit Loans or the Term Loans, as the case may be, from time to time at
any time upon at least three Business Days' prior notice to the Agent
(in the case of a LIBO Rate Loan or a CD Rate Loan) and one Business
Days' prior notice to the Agent (in the case of a Base Rate Loan),
PROVIDED that no such partial prepayment of any Tranche B Revolving
Credit Loans shall be made if after giving effect thereto any Tranche A
Revolving Credit Loans would remain outstanding;
(b) shall, on each date when any reduction in the Total Tranche
A Revolving Credit Commitment Amount or Total Tranche B Revolving Credit
Commitment Amount shall become effective pursuant to Section 2.2, make a
mandatory prepayment of the Tranche A Revolving Credit Loans or Tranche
B Revolving Credit Loans, as the case may be, equal to the excess, if
any, of the outstanding principal amount of all Tranche A Revolving
Credit Loans over the Total Tranche A Revolving Credit Commitment Amount
as so reduced, or of the outstanding principal amount of all Tranche B
Revolving Credit Loans over the Total Tranche B Revolving Credit
Commitment Amount as so reduced, as the case may be;
(c) shall, on each date after December 1, 1994 when the Borrower
or any of its Subsidiaries becomes entitled to receive Net Proceeds of
any sale, lease, transfer or other disposition (including, without
limitation, by means of merger) of assets (whether in one transaction or
a series of transactions), other than dispositions of inventory in the
ordinary course of business and other than dispositions of non-material
assets in the ordinary course of business having a fair market value not
in excess of $100,000 in any Fiscal Year, which, together with all other
Net Proceeds from such dispositions which the Borrower or any of its
Subsidiaries becomes entitled to receive after December 1, 1994, exceed
$35,000,000, make a mandatory prepayment of the outstanding principal
amount of the Loans (such prepayment to be applied, FIRST, to the Term
Loans, and, SECOND, to the outstanding Tranche A Revolving Credit Loans,
if any, and THIRD, to the outstanding Tranche B Revolving Credit Loans,
if any), in an amount equal to at least 75% of such Net Proceeds in
excess of $35,000,000 from all such dispositions; and
(d) shall, on each date upon the receipt thereof, make a
mandatory prepayment of the outstanding principal amount of the Loans
(such prepayment to be applied, FIRST, to the Term Loans, and SECOND, to
the outstanding Tranche A Revolving Credit Loans, if any, and THIRD, to
the outstanding Tranche B Revolving Credit Loans, if any) in an amount
equal to the lesser of (i) the amount of the net proceeds from the sale
(whether in a private sale or public offering) by the Borrower of any
equity securities for cash (other than any such sale to an employee
stock plan or employee benefit plan or to employees pursuant to an
employee stock plan or employee benefit plan) or (ii) the excess, if
any, of the aggregate principal amount of the Revolving Credit Loans
outstanding hereunder at the time of such sale over $25,000,000;
PROVIDED, that the aggregate amount of mandatory prepayments under this
clause (d) shall not exceed $5,000,000.
Each prepayment of a Loan made pursuant to this Section shall be without premium
or penalty, except as may be required by Section 4.6. In the case of any
prepayment of the Revolving Loans made pursuant to the fourth sentence of this
Section 3.3 or clause (c) or (d) of the preceding sentence, the Borrower shall
permanently reduce the amount of the Tranche A Revolving Credit Commitments or
Tranche B Revolving Credit Commitments, as the case may be, by an amount not
less than the amount of such prepayment. All interest accrued on the principal
amount of Loans prepaid shall be paid on the date of such prepayment. Each
prepayment of the Term Loans otherwise than pursuant to the third sentence of
this Section 3.3 shall be applied to the installment payments specified in such
sentence in inverse order of maturity. The Borrower shall notify the Agent at
the time of any prepayment of any of the Loans of the amount of such prepayment
which is to be applied to the Term Loans and/or the Revolving Credit Loans
(specifying amounts for the Tranche A Revolving Credit Loans and the Tranche B
Revolving Credit Loans, as the case may be). Each prepayment of the Term Loans
or the Revolving Credit Loans, as the case may be, shall, except as the Borrower
may otherwise have notified the Agent, be applied, to the extent of such
prepayment:
(x) FIRST, to the principal amount thereof being maintained as a
Base Rate Loan;
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(y) SECOND, to the principal amount thereof being maintained as
a CD Rate Loan; and
(z) THIRD, to the principal amount thereof being maintained as a
LIBO Rate Loan.
3.4. INTEREST. The Borrower agrees to pay interest on the principal
amount of the Loans from time to time unpaid prior to and at Maturity (whether
by required prepayment, declaration or otherwise) at a rate per annum:
(a) on that portion of the outstanding principal amount thereof
maintained from time to time as a Base Rate Loan, equal to the sum of
the Base Rate from time to time most recently announced per annum,
(b) on that portion of the outstanding principal amount thereof
maintained from time to time as one or more CD Rate Loans during each
applicable Interest Period, equal to the sum of the CD Rate (Reserve
Adjusted) for such Interest Period plus the Applicable Margin per annum,
and
(c) on that portion of the outstanding principal amount thereof
maintained from time to time as one or more LIBO Rate Loans during each
applicable Interest Period, equal to the sum of the LIBO Rate (Reserve
Adjusted) for such Interest Period plus the Applicable Margin per annum.
As used herein, the term "APPLICABLE MARGIN" means for any Loan which is a LIBO
Rate Loan or a CD Rate Loan, and for any Interest Period or other period or
time, the interest rate per annum specified in the applicable table below based
on (i) the Borrower's Interest Coverage Ratio and (ii) the Borrower's Funded
Debt to Capital Ratio, in each case as of the end of the Borrower's fiscal
quarter most recently ended prior thereto for which financial statements have
been delivered as herein provided, as determined on the basis of the financial
statements for such fiscal quarter (or the fiscal year ended with such fiscal
quarter) delivered pursuant to Section 7.1.1(a) or 7.1.1(b) prior to the
commencement of such Interest Period or other period or time (it being
understood that such interest rate per annum shall be the highest rate per annum
determined in accordance with the applicable table below until the Borrower
delivers financial statements demonstrating that a lower rate should be
applicable for any Interest Period, or other period or time, commencing on any
date thereafter, as provided above):
PRICING MATRIX FOR TRANCHE A REVOLVING CREDIT LOANS
WHICH ARE LIBO RATE LOANS
Interest Coverage
Ratio Tier 1 Tier 2 Tier 3 Tier 4
(Equal to or
Greater Than)
3.50 to 1.00 3.00 to 1.00 2.50 to 1.00 2.00 to 1.00
Debt to Total .40 to 1.00 .50% .625% .75% .875%
Capital Ratio .45 to 1.00 .625% .75% .875% 1.00%
(Equal to or Less .50 to 1.00 .75% .875% 1.00% 1.125%
Than) .55 to 1.00 .875% 1.00% 1.125% 1.250%
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PRICING MATRIX FOR TRANCHE A REVOLVING CREDIT LOANS
WHICH ARE CD RATE LOANS
Interest Coverage
Ratio Tier 1 Tier 2 Tier 3 Tier 4
(Equal to or
Greater Than)
3.50 to 1.00 3.00 to 1.00 2.50 to 1.00 2.00 to 1.00
Debt to Total .40 to 1.00 .625% .75% .875% 1.00%
Capital Ratio .45 to 1.00 .75% .875% 1.00% 1.125%
(Equal to or Less .50 to 1.00 .875% 1.00% 1.125% 1.25%
Than) .55 to 1.00 1.00% 1.125% 1.250% 1.375%
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PRICING MATRIX FOR TRANCHE B REVOLVING CREDIT LOANS
AND TERM LOANS WHICH ARE LIBO RATE LOANS
Interest Coverage
Ratio Tier 1 Tier 2 Tier 3 Tier 4
(Equal to or
Greater Than)
3.50 to 1.00 3.00 to 1.00 2.50 to 1.00 2.00 to 1.00
Debt to Total .40 to 1.00 .625% .75% .875% 1.00%
Capital Ratio .45 to 1.00 .75% .875% 1.00% 1.125%
(Equal to or Less .50 to 1.00 .875% 1.00% 1.1250% 1.250%
Than) .55 to 1.00 1.00% 1.125% 1.250% 1.375%
PRICING MATRIX FOR TRANCHE B REVOLVING CREDIT LOANS
AND TERM LOANS WHICH ARE CD RATE LOANS
Interest Coverage
Ratio Tier 1 Tier 2 Tier 3 Tier 4
(Equal to or
Greater Than)
3.50 to 1.00 3.00 to 1.00 2.50 to 1.00 2.00 to 1.00
Debt to Total .40 to 1.00 .75% .875% 1.00% 1.125%
Capital Ratio .45 to 1.00 .875% 1.00% 1.125% 1.25%
(Equal to or Less .50 to 1.00 1.00% 1.125% 1.25% 1.375%
Than) .55 to 1.00 1.125% 1.25% 1.375% 1.50%
The effective date of any change in the Applicable Margin for any LIBO Rate Loan
or CD Rate Loan shall be the first day of the calendar month immediately next
succeeding the date of delivery to the Banks of the financial statements
demonstrating that a different Applicable Margin is applicable in accordance
with the above tables and provisions. The Agent shall promptly notify the
Borrower and the Banks of each change in the Applicable Margin and the effective
date of such change. The interest rate or rates applicable to Revolving Credit
Loans outstanding under the Original Loan Agreement, which Revolving Credit
Loans shall continue hereunder as Tranche A Revolving Credit Loans, and Term
Loans outstanding under the Original Loan Agreement (all of which Term Loans
continue outstanding hereunder), shall as of the Restatement Effective Date
reflect the Applicable Margins provided for in this Agreement.
3.5. POST-MATURITY RATES. After the Maturity of all or any portion of
the principal amount of the Loans or after any other monetary Liabilities shall
have become due, the Borrower shall pay interest (after as well as before
judgment) on the principal amount of all types of Loans so matured or on such
other monetary Liabilities, as the case may be, at a rate per annum which is
determined by increasing each of the Applicable Margins referred to in clauses
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(a), (b) and (c) of Section 3.4 by 2% per annum for Loans so matured and, to the
extent permitted by applicable law, at a rate per annum equal to the Base Rate
plus 2-3/8% for such other monetary Liabilities.
3.6. PAYMENT DATES. Interest accrued on the Loans prior to Maturity (as
aforesaid) shall be payable, without duplication:
(a) on that portion of the outstanding principal amount of each
thereof maintained as a Base Rate Loan, on each Quarterly Payment Date,
commencing with the first such day following the date of the Notes
evidencing such Loans;
(b) on that portion of the outstanding principal amount thereof
maintained as one or more Fixed Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, on the day in each third succeeding month numerically
corresponding to the commencement date of such Interest Period); and
(c) on that portion of the outstanding principal amount thereof
converted into a Base Rate Loan or a Fixed Rate Loan on a day when
interest would not otherwise have been payable pursuant to clause (a) or
(b), on the date of such conversion.
Interest on the Loans shall be payable at Maturity (as aforesaid) and,
thereafter, on demand.
3.7. PAYMENTS, COMPUTATIONS, ETC. All payments by the Borrower pursuant
to this Agreement, the Notes, or any other Loan Document, whether in respect of
principal or interest, shall be made by the Borrower to the Agent for the
account of the holders of Notes PRO RATA according to their respective unpaid
principal amounts. The payment of all fees referred to in Section 2.3.1 and
SECTION 2.3.2 shall be made by the Borrower to the Agent for the account of the
Banks entitled thereto PRO RATA according to their Percentages. All other
amounts payable to the Agent or any Bank under this Agreement or any other Loan
Document shall be paid to the Agent for the account of the Person entitled
thereto. All such payments required to be made to the Agent shall be made,
without set-off, deduction, or counterclaim, not later than 11:00 a.m.,
Cleveland time, on the date due, in same day or immediately available funds, to
such account as the Agent shall specify from time to time by notice to the
Borrower. Funds received after that time shall be deemed to have been received
by the Agent on the next following Business Day. The Agent shall promptly remit
in same day or immediately available funds to each Bank, or other holder of a
Note notified to the Agent, its share, if any, of such payments received by the
Agent for the account of such Bank or holder. All interest and fees shall be
computed on the basis of the actual number of days (including the first day but
excluding the last day) occurring during the period for which such interest or
fee is payable over a year comprised of 360 days. Whenever any payment to be
made shall otherwise be due on a day which is not a Business Day, such payment
shall (except as otherwise required by clause (d) of the definition of the term
"INTEREST PERIOD" with respect to payments then due of principal of or interest
on any Notes being maintained as LIBO Rate Loans) be made on the next succeeding
Business Day and such extension of time shall be included in computing interest,
if any, in connection with such payment.
3.8. PRORATION OF PAYMENTS. If any Bank or other holder of a Note shall
obtain any payment or other recovery (whether voluntary, involuntary, by
application of setoff, or otherwise) on account of principal of or interest on
any Loan in excess of its PRO RATA share of payments then or therewith obtained
by all holders upon principal of and interest on all Loans, such Bank or other
holder shall purchase from the other Banks or holders such participations in
Loans held by them as shall be necessary to cause such purchasing Bank or other
holder to share the excess payment or other recovery ratably with each of them;
PROVIDED, HOWEVER, that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing holder, the purchase shall
be rescinded and the purchase price restored to the extent of such recovery, but
without interest. The Borrower agrees that any Bank or other holder so
purchasing a participation from another Bank or holder pursuant to this Section
may, to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 3.9) with respect to such participation as fully
as if such Bank or holder were the direct creditor of the Borrower in the amount
of such participation. If under any applicable bankruptcy, insolvency or other
similar law, any Bank receives a secured claim in lieu of a setoff to which this
Section applies, such Bank shall, to the extent practicable, exercise its rights
in respect of such secured claim in a
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manner consistent with the rights of the Banks entitled under this Section to
share in the benefits of any recovery on such secured claim.
3.9. SETOFF. In addition to and not in limitation of any rights of any
Bank or other holder of any Note under applicable law, each Bank and each other
such holder shall, upon the occurrence of any Default described in Section 8.1.4
or, with the consent of the Required Banks, upon the occurrence of any other
Event of Default, have the right to appropriate and apply to the payment of the
Liabilities owing to it (whether or not then due), and (as security for such
Liabilities) the Borrower hereby grants to each Bank and each such other holder
a continuing security interest in, any and all balances, credits, deposits,
accounts, or moneys of the Borrower then or thereafter maintained with such Bank
or other holder; PROVIDED, HOWEVER, that any such appropriation and application
shall be subject to the provisions of Section 3.8.
3.10. TAXES. All payments by the Borrower of principal of, and interest
on, the Loans and all other amounts payable hereunder shall be made free and
clear of and without deduction for any present or future income, stamp, or other
taxes, fees, duties, withholding or other charges of any nature whatsoever
imposed by any taxing authority, other than taxes imposed on or measured by any
Bank's net income or receipts (such non-excluded items being hereinafter
referred to as "TAXES"). In the event that any withholding or deduction from any
payment to be made by the Borrower hereunder is required in respect of any Taxes
pursuant to any applicable law, rule, or regulation, then the Borrower will:
(a) pay to the relevant authority the full amount required to
be so withheld or deducted;
(b) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to such
authority; and
(c) pay to the Agent for the account of the Banks or the holders
of the Notes such additional amount or amounts as is necessary to ensure
that the net amount actually received by each Bank or the holder of each
Note, after giving effect to any credit against Taxes received by each
such Bank or holder as a result of such withholding or deduction, will
equal the full amount such Bank or such holder would have received had
no such withholding or deduction been required. Each such Bank and
holder shall determine such additional amount or amounts payable to it
(which determination shall, in the absence of manifest error, be
conclusive and binding on the Borrower).
Upon the request of the Borrower, each Bank and each subsequent holder of any
Note that is organized under the laws of a jurisdiction other than the United
States or any state thereof shall, prior to the due date of any payments under
the Notes, execute and deliver to the Borrower, on or about the first scheduled
payment date in each Fiscal Year, a United States Internal Revenue Service Form
4224 (or any successor form ), appropriately completed.
ARTICLE IV
BASE RATE, CD RATE AND LIBO RATE
OPTIONS FOR THE LOANS
4.1. ELECTIONS. The Loans comprising any Borrowing may be made as a loan
having a fluctuating rate of interest determined by reference to the Base Rate
("BASE RATE LOANS") or, at the Borrower's election made in accordance with this
Section, as a loan (a "FIXED RATE LOAN") having for each particular Interest
Period a fixed rate of interest determined by reference to either the LIBO Rate
(Reserve Adjusted) (a "LIBO RATE LOAN") or the CD Rate (Reserve Adjusted) (a "CD
RATE LOAN"), as specified in the Loan Request for such Loan. The Borrower may
from time to time by delivering to the Agent a Continuation/Conversion Notice
request, on not less than one (or not less than three if a Loan is to be
continued as, or converted into, a LIBO Rate Loan or CD Rate Loan) nor more than
five Business Days' notice:
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(a) that all, or any portion in a minimum amount of $1,000,000
or an integral multiple of $250,000 in excess thereof, of the
outstanding principal amount of any Borrowing be converted from Base
Rate Loans into Fixed Rate Loans of either type or, subject to Section
4.6, from either type of Fixed Rate Loans into Base Rate Loans or Fixed
Rate Loans of the other type; and
(b) on the expiration of the Interest Period applicable to any
Fixed Rate Loans, that all, or any portion in a minimum amount of
$1,000,000 or an integral multiple of $250,000 in excess thereof, of the
outstanding principal amount of such Fixed Rate Loans be continued as
Fixed Rate Loans of such type or be converted into Base Rate Loans or
Fixed Rate Loans of the other type (in the absence of the delivery of a
Continuation/Conversion Notice pursuant to this clause, the Borrower
will be deemed to have requested that such Fixed Rate Loans be converted
into Base Rate Loans);
PROVIDED, HOWEVER, that:
(c) no portion of the outstanding principal amount of any Loans
may be continued as, or be converted into, Fixed Rate Loans if, after
giving effect to such action, the Interest Period applicable thereto
shall extend beyond the date of any prepayment required by Section 3.3,
unless a sufficient principal amount of other Loans are being maintained
as Base Rate Loans to permit such prepayment to be applied in full to
such Base Rate Loans;
(d) no portion of the outstanding principal amount of any Loans
may be continued as, or be converted into, a Fixed Rate Loan when any
Default has occurred and is continuing; and
(e) no portion of the outstanding principal amount of any Loans
may be made or continued as, or be converted into, Base Rate Loans or
Fixed Rate Loans unless, after giving effect to such action, the
principal amount of Loans of each type outstanding from each Bank then
being so made, continued or converted shall be equal to such Bank's
Percentage of the outstanding principal amount of all Loans then being
so made, continued or converted.
Each Continuation/Conversion Notice requesting that all, or any portion, of the
principal amount of the Loans be continued as, or be converted into, Fixed Rate
Loans shall specify the duration of the Interest Period commencing upon such
continuation or conversion.
Each Bank may, if it so elects, fulfill its commitment to make or
continue any portion of the principal amount of a Loan as, or to convert any
portion of the principal amount of a Loan into, one or more Fixed Rate Loans by
causing a foreign branch or Affiliate of such Bank to make any such Fixed Rate
Loan; PROVIDED, HOWEVER, that in such event such Fixed Rate Loan shall be deemed
to have been made by such Bank, and the obligation of the Borrower to repay such
Fixed Rate Loan shall nevertheless be to such Bank and shall be deemed to be
held by it, to the extent of such Fixed Rate Loan, for the account of such
foreign branch or Affiliate.
Whenever any Bank makes any notations pursuant to Section 3.2 on the
grid attached to any of its Notes (or on the continuation of such grid) and
whenever such Bank converts a Loan into a Base Rate Loan or a Fixed Rate Loan,
such Bank will make further notations on the grid attached to such Note (or on
such continuation) reflecting the portions of the outstanding principal amounts
thereof being maintained as a Base Rate Loan and Fixed Rate Loans.
The Borrower understands that, if it elects that any portion of the
principal amount of a Borrowing be made, continued as, or be converted into, a
Fixed Rate Loan, each Bank may (while being entitled to fund all or any portion
of such Fixed Rate Loan as it may see fit) wish to be able to fund such Fixed
Rate Loan by purchasing, as the case may be, Dollar certificates of deposit in
New York City or Dollar deposits in its LIBOR Office's interbank eurodollar
market. Accordingly, in connection with any determination to be made for
purposes of Section 4.2, 4.3, 4.4, 4.5 or 4.6, it shall be conclusively assumed
that such Bank has elected to fund all Fixed Rate Loans by purchasing, as the
case may be, Dollar certificates of deposit in New York City or Dollar deposits
in such interbank eurodollar market.
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4.2. FIXED RATE LENDING UNLAWFUL. If as the result of any Regulatory
Change any Bank (the "AFFECTED BANK") shall determine (which determination
shall, in the absence of manifest error, be conclusive and binding on the
Borrower) that it is unlawful for the Affected Bank to make, continue or
maintain a Loan as, or to convert a Loan into, one or more Fixed Rate Loans of a
certain type, the obligation of the Affected Bank under Section 4.1 to make,
continue or maintain any portion of the principal amount of a Loan as, or to
convert such Loan into, one or more Fixed Rate Loans of such type shall, upon
such determination (and telephonic notice thereof confirmed in writing to the
Agent and the Borrower), forthwith terminate, and the Agent shall, by telephonic
notice confirmed in writing to the Borrower and each Bank, declare that such
obligation has so terminated, and any portion of the principal amount of a Loan
then maintained as one or more Fixed Rate Loans of such type by the Affected
Bank shall automatically convert into a Base Rate Loan. If circumstances
subsequently change so that the Affected Bank shall determine that it is no
longer so affected, the obligation of the Affected Bank under Section 4.1 to
make or continue Loans as, or to convert Loans into, Fixed Rate Loans shall,
upon such determination (and telephonic notice thereof confirmed in writing to
the Agent and the Borrower), forthwith be reinstated, and the Agent shall, by
notice to the Borrower and each Bank, declare that such obligation has been so
reinstated.
4.3. DEPOSITS UNAVAILABLE. If prior to the date on which all or any
portion of the principal amount of any Loan is to be made, continued as, or be
converted into, a Fixed Rate Loan, any Bank (the "AFFECTED BANK") or the Agent
shall determine for any reason whatsoever (which determination shall, in the
absence of manifest error, be conclusive and binding on the Borrower) that:
(a) Dollar certificates of deposit or Dollar deposits, as the
case may be, in the relevant amount and for the relevant Interest Period
are not available to the Affected Bank in its relevant market; or
(b) by reason of circumstances affecting the Agent in its
relevant market, adequate means do not exist for ascertaining the
interest rate applicable hereunder to Fixed Rate Loans of such type;
the Agent (after receipt of notice from the Affected Bank, in the case of clause
(a) above) shall promptly give telephonic notice of such determination confirmed
in writing to each Bank and the Borrower, and:
(c) the obligation under Section 4.1 of the Affected Bank (in
the case of clause (a) above) or all Banks (in the case of clause (b)
above) to make, continue any portion of the principal amount of a Loan
as, or to convert a Loan into, one or more Fixed Rate Loans of such type
shall, upon such notification, forthwith terminate; and
(d) the portion of all Loans then maintained as Fixed Rate Loans
of such type by the Affected Bank (in the case of clause (a) above) or
all Banks (in the case of clause (b) above) shall on the expiration of
the Interest Period applicable thereto automatically convert into a Base
Rate Loan.
If circumstances subsequently change so that the Agent or the Affected Bank, as
the case may be, shall no longer be so affected, the Agent shall promptly give
telephonic notice thereof confirmed in writing to the Borrower and each of the
Banks, and the obligations of the Affected Bank or all Banks, as the case may
be, under Section 4.1 to make or continue Loans as, or convert Loans into, LIBO
Rate Loans shall be reinstated, and the Agent shall, by notice to the Borrower
and each Bank, declare that such obligations have been so reinstated.
4.4. INCREASED FIXED RATE LOAN COSTS, ETC. The Borrower further agrees
to reimburse each Bank for any increase in the cost to such Bank of making,
continuing, or maintaining (or of its obligation to make, continue, or maintain)
any portion of the principal amount of any of its Loans as, or of converting (or
of its obligation to convert) any portion of the principal amount of any of its
Loans into, Fixed Rate Loans and for any reduction in the amount of any sum
receivable by such Bank hereunder in respect of making, continuing, or
maintaining any portion of the principal amount of any of its Loans as, or
converting any portion of the principal amount of any Loans into, Fixed Rate
Loans, in either case, from time to time by reason of:
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(a) to the extent not included in the calculation of the LIBO
Rate (Reserve Adjusted), any reserve, special deposit, or similar
requirement against assets of, deposits with or for the account of, or
credit extended by, such Bank, under or pursuant to any law, treaty,
rule, regulation (including any F.R.S. Board Regulation), or requirement
in effect on the date hereof, or as the result of any Regulatory Change;
or
(b) any Regulatory Change which shall subject such Bank to any
tax (other than taxes on net income), levy, impost, charge, fee, duty,
deduction, or withholding of any kind whatsoever or change the taxation
of any Loan made or maintained as a Fixed Rate Loan and the interest
thereon (other than any change which affects, and to the extent that it
affects, the taxation of net income).
In any such event, such Bank shall promptly notify the Agent and the Borrower
thereof stating the reasons therefor and the additional amount required fully to
compensate such Bank for such increased cost or reduced amount. Such additional
amounts shall be payable on demand after receipt of such notice. A statement as
to any such increased cost or reduced amount or any change therein (including
calculations thereof in reasonable detail) shall be submitted by such Bank to
the Agent and the Borrower and shall, in the absence of manifest error, be
conclusive and binding on the Borrower.
4.5. FDIC ASSESSMENT COST. In the event that the Federal Deposit
Insurance Corporation shall levy any assessment on any Bank on its deposits
insured under the Federal Deposit Insurance Act, the Borrower agrees to
reimburse such Bank an amount with respect to any Loan which is maintained by
such Bank as a CD Rate Loan which shall be determined by multiplying the
principal amount thereof by the annualized amount of the most recent such
assessment (after giving effect to the most recent rebate granted to such Bank
by the Federal Deposit Insurance Corporation with respect to deposit insurance
as well as the loss to such Bank of the use of such rebate prior to the date a
credit is taken by such Bank with respect to such rebate). A certificate as to
any such reimbursement (including calculations thereof in reasonable detail)
shall be submitted by such Bank to the Agent and the Borrower and shall, in the
absence of demonstrable error, be conclusive on the Borrower.
4.6. FUNDING LOSSES. In the event any Bank shall incur any loss or
expense (including any loss or expense incurred by reason of the liquidation, or
reemployment of deposits or other funds acquired by such Bank to make, continue
or maintain any portion of the principal amount of any Loan as, or to convert
any portion of the principal amount of any Loan into, a Fixed Rate Loan) as a
result of:
(a) payment or prepayment of the principal amount of any Fixed
Rate Loan on a date other than the scheduled last day of the Interest
Period applicable thereto, whether pursuant to Section 3.3 or otherwise;
(b) any conversion of all or any portion of the outstanding
principal amount of any Fixed Rate Loan to a Base Rate Loan pursuant to
Section 4.1 prior to the expiration of the Interest Period then
applicable thereto (but excluding in each case any loss or expense
resulting therefrom to the extent the Bank is reimbursed therefor by
interest payable pursuant to clause (c) of Section 3.6); or
(c) a Loan not being made, continued as, or converted into, a
Fixed Rate Loan in accordance with a Loan Request or the
Continuation/Conversion Notice given therefor (other than as the result
of a default by such Bank in complying with such Loan Request or such
Continuation/Conversion Notice);
then, upon the request of such Bank (with copies to the Agent), the Borrower
shall pay directly to such Bank such amount as will (in the reasonable
determination of such Bank) reimburse such Bank for such loss or expense. A
certificate as to any such loss or expense (including calculations thereof in
reasonable detail) shall be submitted by the Bank to the Agent and the Borrower
and shall, in the absence of demonstrable error, be conclusive on the Borrower.
ARTICLE V
CONDITIONS PRECEDENT
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5.1. INITIAL BORROWING. The obligations of the Banks to fund the
Additional Term Loans on the Term Loan Closing Date and any initial Borrowing
occurring on or after the Restatement Effective Date shall be subject to the
prior or concurrent satisfaction of each of the following conditions precedent:
5.1.1. RESOLUTIONS, ETC. The Agent shall have received:
(a) a certificate, dated the Restatement Effective Date, of
the Secretary or an Assistant Secretary of the Borrower as to
(i) resolutions of its Board of Directors then in full
force and effect authorizing the execution, delivery and
performance of the Vessel Sale Agreement and the Loan Documents
to be executed by it hereunder, and
(ii) the incumbency and signatures of those of its
officers authorized to act with respect to the Vessel Sale
Agreement and this Agreement and each Loan Document executed by
it, upon which certificate each Bank may conclusively rely until
it shall have received a further certificate of the Secretary or
an Assistant Secretary of the Borrower cancelling or amending
such prior certificate;
(b) a certificate, dated the Restatement Effective Date, of
the Secretary or any Assistant Secretary of each Subsidiary
Guarantor as to
(i) resolutions of its Board of Directors then in full
force and effect authorizing the execution, delivery and
performance by such Subsidiary Guarantor of the Loan Documents
to be executed and delivered by it hereunder, and
(ii) the incumbency and signatures of those of its
officers authorized to act with respect to such Loan Documents
upon which certificate each Bank may conclusively rely until it
shall have received a further certificate of such Subsidiary
Guarantor cancelling or amending such prior certificate;
(c) such other documents (certified if requested) as the Agent
or the Required Banks may reasonably request, as soon as practicable
after the execution of this Agreement, with respect to any Organic
Document, Contractual Obligation or Approval.
5.1.2. DELIVERY OF NOTES. The Borrower shall have delivered to the
Agent, for the account of each Bank, Notes evidencing any Revolving Credit Loan
and/or Term Loan, duly executed and delivered and conforming to the requirements
of Section 3.2, against receipt by the Borrower of the Notes issued by the
Borrower to the Banks as in effect immediately prior to the Restatement
Effective Date.
5.1.3. OPINION OF COUNSEL. The Agent shall have received an opinion,
dated the Restatement Effective Date, addressed to all Banks from ▇▇▇▇▇▇▇▇, ▇▇▇▇
and ▇▇▇▇▇, counsel to the Borrower, substantially in the form of Exhibit F-1
attached hereto.
5.1.4. CLOSING FEES, EXPENSES, ETC. The Agent shall have received for
its own account, or for the account of each Bank, as the case may be, all fees
due and payable pursuant to Section 2.3, if then invoiced.
5.1.5. INDEBTEDNESS DISCHARGED. All Indebtedness identified in Item 1
("INDEBTEDNESS TO BE PAID") of Exhibit E attached hereto, if any, together with
all interest accrued thereon and all prepayment premium and other amounts
payable in connection therewith, shall have been paid in full (including, to the
extent necessary, from the proceeds of the initial Borrowing) and all security
therefor shall have been released.
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5.1.6. SUBSIDIARY GUARANTY. The Agent shall have received the Subsidiary
Guaranty duly executed by each Subsidiary Guarantor.
5.1.7. VALUATIONS. The Banks shall have received (a) a true and correct
copy of the Valuation Study dated October 12, 1990, prepared by Marine
Consultants & Designers, Inc., containing a valuation estimate of the ▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇. on a replacement cost less depreciation basis of $26.9 million, (b) a
written valuation estimate, dated as of approximately October 1990, prepared by
a responsible officer of the Borrower on the same basis as the Valuation Study
referred to above, demonstrating an estimated replacement cost less depreciation
value for the ARMCO of at least $11,250,000, and (c) a certificate of a
responsible Authorized Officer of the Borrower, dated the Restatement Effective
Date, to the effect that since October 1, 1990, nothing has come to the
attention of the Borrower which has caused the Borrower to believe that either
of the estimates contained in the documents referred to in the preceding clauses
(a) and (b) was materially incorrect when made.
5.1.8. SHIP MORTGAGES, ETC. The vessels covered by the Ship Mortgages
shall have been duly documented in the name of the Borrower under the laws and
regulations and flag of the United States; the Borrower shall have good and
valid title to such vessels, free and clear of all Liens, whatsoever, except the
Liens of the Ship Mortgages and Liens permitted under Section 1(d) of the Ship
Mortgages; each Ship Mortgage shall have been duly filed with and recorded by
the United States Coast Guard at the Port of Philadelphia, Pennsylvania pursuant
to Chapter 313 of 46 U.S.C. so as to constitute such Ship Mortgage a "FIRST
PREFERRED" mortgage as defined in such Chapter; Amendments to each of the Ship
Mortgages, substantially in the form of Exhibit G-2 hereto, shall have been duly
executed and delivered by the parties thereto and shall have been duly filed
with and recorded by the United States Coast Guard at the Port of Philadelphia,
Pennsylvania pursuant to such Chapter so as to continue such Ship Mortgage, as
so amended by the Amendment thereto, as a "FIRST PREFERRED" mortgage as defined
in such Chapter; and the Collateral Trustee shall have a legal, valid and
perfected first Lien on and security interest in all of the right, title and
interest of the Borrower in such vessels, as created by the Ship Mortgages, as
so amended by such Amendments.
5.1.9. OPINION OF MARITIME COUNSEL. The Agent shall have received an
opinion, dated the Restatement Effective Date or a later date on or prior to the
date of the initial Borrowing, addressed to all Banks from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
maritime counsel to the Borrower, substantially in the form of Exhibit F-2
attached hereto.
5.2. ALL LOANS. The obligation of the Banks to make any Loan (including
the initial Loans) shall also be subject to the satisfaction of each of the
conditions precedent set forth in Sections 5.2.1 through 5.2.4:
5.2.1. COMPLIANCE WITH WARRANTIES, NON-DEFAULT, ETC. The representations
and warranties set forth in Article VI shall have been true and correct as of
the date initially made, and on the date (and after giving effect to the
incurrence) of such Loan:
(a) such representations and warranties (excluding, however,
Section 6.6) shall be true and correct with the same effect as if then
made; and
(b) no Default shall have then occurred and be continuing.
5.2.2. ABSENCE OF LITIGATION, ETC. No litigation, arbitration or
governmental investigation or proceeding shall be pending or, to the knowledge
of the Borrower, threatened against the Borrower or any Subsidiary or shall
affect the business, operations or prospects of any thereof which was not
disclosed by the Borrower to the Banks pursuant to Section 6.6 (or prior to the
date of the Loans most recently made hereunder, if any, pursuant to Section
7.1.6), and no development not so disclosed shall have occurred in any
litigation, arbitration or governmental investigation or proceeding so
disclosed, which, in either event, in the informed opinion of the Required
Banks, might have a Materially Adverse Effect.
5.2.3. LOAN REQUEST. The Agent shall have received a Loan Request for
such Borrowing.
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5.2.4. SATISFACTORY LEGAL FORM. All documents executed or submitted
pursuant hereto by or on behalf of the Borrower or any Subsidiary shall be
satisfactory in form and substance to the Agent and its counsel; the Agent and
its counsel shall have received all information, and such counterpart originals
or such certified or other copies of such materials, as the Agent or its counsel
may request; and all legal matters incident to the transactions contemplated by
this Agreement shall be satisfactory to counsel to the Agent.
ARTICLE VI
WARRANTIES, ETC.
In order to induce the Banks and the Agent to enter into this Agreement
and to make Loans hereunder, the Borrower represents and warrants to the Agent
and each Bank as follows:
6.1. ORGANIZATION, POWER, AUTHORITY, ETC. Each of the Borrower and each
Subsidiary is a corporation validly organized and existing and in good standing
under the laws of the state of its incorporation, is duly qualified to do
business and in good standing as a foreign corporation in each jurisdiction
where the nature of its business makes such qualification necessary and where
the failure to so qualify would have a Materially Adverse Effect and has full
power and authority to own and hold under lease its property and conduct its
business substantially as presently conducted by it. The Borrower has full power
and authority to enter into and to perform its obligations under this Agreement
and each Loan Document and to obtain the Loans hereunder. The Borrower is a
"citizen of the United States" within the meaning of Section 2 of the Shipping
Act, 1916, as amended.
6.2. DUE AUTHORIZATION. The execution and delivery by the Borrower of
the Vessel Sale Agreement, this Agreement and each Loan Document executed by it
and the performance by the Borrower of its obligations hereunder and thereunder
and the borrowings hereunder by the Borrower have been duly authorized by all
necessary corporate action, do not require any Approval, do not and will not
conflict with, result in any violation of, or constitute any default under, any
provision of any Organic Document or material Contractual Obligation (except as
disclosed in Item 2 ("CONTRACTUAL OBLIGATIONS") of Exhibit E attached hereto) of
the Borrower known to it (or any other material Contractual Obligation) or any
present law or governmental regulation or court decree or order applicable to it
and will not result in or require the creation or imposition of any Lien (other
than the Lien of the Ship Mortgage) in any of their properties pursuant to the
provisions of any Contractual Obligation.
6.3. VALIDITY, ETC. This Agreement is, and each Loan Document executed
by the Borrower will on the due execution and delivery thereof be, the legal,
valid and binding obligation of the Borrower enforceable in accordance with its
terms, subject, as to enforcement, only to bankruptcy, insolvency,
reorganization, moratorium or other similar laws at the time in effect affecting
the enforceability of the rights of creditors generally, and by general
equitable principles which may limit the right to obtain the remedy of specific
performance of executory covenants. The Vessel Sale Agreement is in full force
and effect, is a valid and binding agreement of the respective parties thereto,
is enforceable in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting the rights of creditors generally, and by
principles of equity, does not violate or result in any violation of any
license, permit or other authorization, judgment, decree, order, law, statute,
ordinance or governmental rule or regulation, and does not require the consent
or authorization, as a condition to its valid execution, delivery or
performance, pursuant to any law, statute, rule, regulation or ordinance, of the
United States of America or any State or political subdivision or agency. The
Borrower has delivered to each Bank a true, correct and complete copy of the
Vessel Sale Agreement.
6.4. FINANCIAL INFORMATION. All balance sheets, the statements of
operations, of cash flows and of shareholders' equity and other financial
information of the Borrower and Consolidated Subsidiaries which have been or
shall hereafter be furnished by or on behalf of the Borrower to the Banks for
the purposes of or in connection with this Agreement or any transaction
contemplated hereby (including the financial information referred to below) have
been or will be prepared in accordance with generally accepted accounting
principles consistently applied throughout the
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periods involved (except as disclosed therein) and do or will present fairly the
consolidated financial condition of the corporations covered thereby as at the
dates thereof and the results of their operations and cash flows for the periods
then ended including the consolidated balance sheets at December 31, 1987,
December 31, 1988, December 31, 1989, December 31, 1990, December 31, 1991,
December 31, 1992 and December 31, 1993 and the consolidated statements of
operations, of cash flows and of shareholders' equity, for each of the twelve
month periods then ended, of the Borrower and its Consolidated Subsidiaries.
Since December 31, 1989, there has been no occurrence which, individually or in
the aggregate, comprises a Materially Adverse Effect. On the date of each Loan
made after the Restatement Effective Date, there will have been no such
Materially Adverse Effect.
6.5. ABSENCE OF CERTAIN DEFAULT. Neither the Borrower nor any Subsidiary
is in default, except as described in Item 3 ("LAW, GOVERNMENTAL REGULATION,
COURT DECREE OR ORDER") of Exhibit E attached hereto:
(a) in the payment of (or in the performance of any
obligation applicable to) any Indebtedness outstanding in a
principal amount exceeding $1,000,000; or
(b) under any law or governmental regulation or court decree or
order which might have a Materially Adverse Effect.
6.6. LITIGATION, ETC. Except as described in Item 4 ("LITIGATION") of
Exhibit E attached hereto, no litigation, arbitration or governmental
investigation or proceeding against the Borrower or any Subsidiary or to which
any of the properties of any thereof is subject is pending or, to the knowledge
of the Borrower, threatened which, if adversely determined, might have a
Materially Adverse Effect.
6.7. REGULATION U. The Borrower is not engaged principally, or as one of
its important activities, in the business of extending credit for the purpose of
purchasing or carrying margin stock, and less than 25% of the assets of the
Borrower consists of margin stock. Terms for which meanings are provided in
Regulation U of the F.R.S. Board or any regulations substituted therefor, as
from time to time in effect, are used in this Section with such meanings. The
proceeds of the Tranche A Revolving Credit Loans will be used by the Borrower
for working capital and any other lawful purpose not inconsistent with the
requirements of this Agreement. The proceeds of the Tranche B Revolving Credit
Loans will be used by the Borrower to finance acquisitions permitted pursuant to
Section 7.2.1. The proceeds of the Term Loans have been and will be used by the
Borrower to finance the acquisition of the OGLEBAY NORTON and the BUCKEYE and to
refinance other Indebtedness.
6.8. GOVERNMENT REGULATION. Neither the Borrower nor any Subsidiary is
an "investment company" within the meaning of the Investment Company Act of
1940, as amended, or a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
6.9. CERTAIN CONTRACTUAL OBLIGATIONS OR ORGANIC DOCUMENTS. Except as
described in Item 5 ("CERTAIN CONTRACTUAL OBLIGATIONS OR ORGANIC DOCUMENTS") of
Exhibit E attached hereto, neither the Borrower nor any Subsidiary is a party or
subject to any Contractual Obligation or Organic Document which has a Materially
Adverse Effect.
6.10. TAXES. The Borrower and all Subsidiaries have filed all tax
returns and reports required by law to have been filed by them and have paid all
taxes and governmental charges thereby shown to be owing, except any such taxes
or charges which are being contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with generally accepted accounting
principles shall have been set aside on its books.
6.11. EMPLOYEE BENEFIT PLANS. Each employee benefit plan as to which the
Borrower or any Subsidiary may have any liability and that is subject to Title
IV of ERISA (a "PLAN") complies in all material respects with all applicable
requirements of law and regulations, and, except as set forth in Item 6
("ERISA") of Exhibit E attached hereto, no "REPORTABLE EVENT", such term being
used herein with the meaning provided for it in the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), has occurred with respect to any
Plan which might
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give rise to an Event of Default of the type described in Section 8.1.8. No
steps have been taken to terminate any Plan, and neither the Borrower nor any
Subsidiary has withdrawn from any Plan or initiated steps to do so.
6.12. LABOR CONTROVERSIES. There are no labor controversies pending or,
to the best of the Borrower's knowledge, threatened against the Borrower or any
Subsidiary, which, if adversely determined, would have a Materially Adverse
Effect.
6.13. SUBSIDIARIES. The Borrower has no Subsidiaries except those
identified in Item 7 ("EXISTING SUBSIDIARIES") of Exhibit E attached hereto or
those permitted to have been acquired in accordance with Section 7.2.6 or those
created subsequent to the date hereof.
6.14. PATENTS, TRADEMARKS, ETC. The Borrower owns and possesses all such
patents, patent rights, trademarks, trademark rights, trade names, trade name
rights, service marks, service ▇▇▇▇ rights and copyrights as the Borrower
considers necessary for the conduct of the businesses of the Borrower and
Subsidiaries as now conducted without any infringement upon rights of others
which might have a Materially Adverse Effect. There is no individual patent or
patent license used by the Borrower in the conduct of its business the loss of
which would have a Materially Adverse Effect except as may be disclosed in Item
8 ("MATERIAL PATENTS AND TRADEMARKS") of the Disclosure Schedule.
6.15. OWNERSHIP OF PROPERTIES; LIENS. Each of the Borrower and each
Subsidiary has good and marketable title to or good leasehold interests in all
of its material properties and assets (such materiality to be determined on a
consolidated basis for the Borrower and its Subsidiaries), real and personal, of
any nature whatsoever, free and clear of all Liens except as permitted pursuant
to Section 7.2.2.
6.16. LICENSES, ETC. The certificate of documentation of each vessel
subject to a Ship Mortgage is endorsed with a Great Lakes endorsement pursuant
to 46 U.S.C. ss. 12107, and each such vessel is qualified under the laws of the
United States to be employed in the coastwise trade. In addition to and without
limitation of the preceding sentence, all material licenses, permits and other
authorizations, and all material bonds, plans, consents to enter upon leased
property and other filings, required by applicable law, rule, regulation or
ordinance or any effective restrictive covenant to be obtained or made in order
to permit the operation and conduct of the businesses of the Borrower and its
Subsidiaries as now operated and conducted and as proposed to be operated and
conducted have been obtained or made, except for any such authorizations or
filings (a) which are not currently so required and which, in the judgment of
the Borrower, can be obtained or made without difficulty prior to the time so
required, or (b) the absence of which would not have a Materially Adverse
Effect.
6.17. COMPLIANCE WITH LAWS. Neither the Borrower nor any Subsidiary is
in violation of any existing law, governmental rule or regulation or order of
any governmental body applicable to it or any of its properties (including,
without limitation, any Environmental Law, and any law, rule, regulation or
order relating to occupational health and safety standards, consumer protection
and equal employment practice requirements), the consequence of which violation,
either in any one case or in the aggregate, might reasonably be expected to have
a Materially Adverse Effect.
6.18. ACCURACY OF INFORMATION. All factual information heretofore or
contemporaneously furnished by the Borrower to the Agent and the Banks in
connection with execution and delivery of this Agreement and the various
transactions contemplated hereby, to the best of the Borrower's knowledge, has
been, and all other such factual information hereafter furnished by the Borrower
to the Agent and the Banks will be, true and accurate in every material respect
on the date as of which such information is dated or certified and as of the
date of execution and delivery of this Agreement and not incomplete by omitting
to state any material fact necessary to make such information not misleading.
All projections and pro forma financial information contained in any materials
furnished by the Borrower or any of its Subsidiaries to the Agent and the Banks
are based on good faith estimates and assumptions by the management of the
Borrower or the applicable Subsidiary, it being recognized by the Agent and the
Banks, however, that projections and statements as to future events are not to
be viewed as fact and that actual results during the period or periods covered
by any such projections or statements may differ from the projected results and
that the differences may be material.
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ARTICLE VII
COVENANTS
7.1. CERTAIN AFFIRMATIVE COVENANTS. The Borrower agrees with the Agent
and the Banks that, until the Commitments shall have terminated and all of the
Liabilities have been paid and performed in full, the Borrower will perform the
obligations set forth in this Section 7.1:
7.1.1. FINANCIAL INFORMATION, ETC. The Borrower will furnish, or will
cause to be furnished, to the Agent and each Bank copies of the following
financial statements, reports and information:
(a) promptly when available and in any event within 90 days
after the close of each Fiscal Year
(i) a balance sheet at the close of such Fiscal Year,
and statements of operations, of cash flows and of shareholders'
equity for such Fiscal Year, of the Borrower and its
Consolidated Subsidiaries (as to which such balance sheet and
statements shall be consolidated) certified without
Impermissible Qualification by Ernst & Young LLP or other
independent public accountants of recognized standing selected
by the Borrower and acceptable to the Required Banks,
(ii) a letter report of such accountants at the close
of such Fiscal Year to the effect that they have reviewed the
provisions of this Agreement and the Compliance Certificate then
being furnished pursuant to clause (a)(iii), and are not aware
of any miscalculation in such Compliance Certificate of the
financial tests contained in Section 7.2.3 or of any Default
hereunder continuing at the end of such Fiscal Year, except such
miscalculation or Default, if any, as may be disclosed in such
statement, and
(iii) a Compliance Certificate calculated as of the
computation date at the close of such Fiscal Year;
(b) promptly when available and in any event within 45 days
after the close of each of the first three Fiscal Quarters of each
Fiscal Year
(i) a balance sheet at the close of such Fiscal Quarter
and statements of operations, of cash flows, and of
shareholders' equity for the period commencing at the close of
the previous Fiscal Year and ending with the close of such
Fiscal Quarter, of the Borrower and its Consolidated
Subsidiaries (as to which such balance sheet and statements
shall be consolidated) certified by the chief accounting or
financial Authorized Officer of the Borrower, and
(ii) a Compliance Certificate calculated as of the
computation date at the close of such Fiscal Quarter;
(c) promptly and in any event within five Business Days
following the filing thereof by the Borrower with the Securities and
Exchange Commission (or any successor agency) under the Securities
Exchange Act of 1934, as amended (or any successor statute), copies of
its Reports on Form 10-K, 10-Q and 8-K (or any successor forms);
(d) promptly upon receipt thereof and upon request of the Agent
or any Bank, copies of all detailed financial and management reports
submitted to the Borrower by independent public accountants in
connection with each annual or interim audit made by such accountants of
the books of the Borrower or any Subsidiary;
(e) promptly upon the incorporation thereof, information
regarding the creation of any new Subsidiary; and
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(f) such other information with respect to the financial
condition, business, property, assets, revenues, and operations of the
Borrower and Subsidiaries as any Bank may from time to time reasonably
request.
7.1.2. MAINTENANCE OF CORPORATE EXISTENCES, ETC. Except as permitted by
Section 7.2.6, the Borrower will cause to be done at all times all things
necessary to maintain and preserve the corporate existences of the Borrower and
each Subsidiary, and to comply in all material respects with all applicable
laws, rules, regulations and orders. Except as permitted by Section 7.2.6, the
Borrower will continue to own and hold directly, free and clear of all Liens
(except as permitted by Section 7.2.2), all of the outstanding shares of capital
stock of each Subsidiary now owned or hereafter acquired. The Borrower shall
continue to be a "citizen of the United States" within the meaning of Section 2
of the Shipping Act, 1916, as amended.
7.1.3. FOREIGN QUALIFICATION. The Borrower will, and will cause each
Subsidiary to, cause to be done at all times all things necessary to be duly
qualified to do business and in good standing as a foreign corporation in each
jurisdiction where the nature of its business makes such qualification necessary
and where the failure to so qualify would have a Materially Adverse Effect, and
to comply in all material respects with all applicable laws, rules, regulations
and orders.
7.1.4. PAYMENT OF TAXES, ETC. The Borrower will, and will cause each
Subsidiary to, pay and discharge, as the same may become due and payable, all
federal, state and local taxes, assessments and other governmental charges or
levies against or on any of its property, as well as claims of any kind which,
if unpaid, might become a material Lien upon any one of its properties;
PROVIDED, HOWEVER, that the foregoing shall not require the Borrower or any
Subsidiary to pay or discharge any such tax, assessment, charge, levy or lien so
long as it shall contest the validity thereof in good faith by appropriate
proceedings and shall set aside on its books adequate reserves in accordance
with generally accepted accounting principles with respect thereto.
7.1.5. INSURANCE. Except as described in Item 9 ("INSURANCE") of Exhibit
E attached hereto, the Borrower will, and will cause each Subsidiary to,
maintain or cause to be maintained with responsible insurance companies
insurance with respect to its properties and business against such casualties
and contingencies and of such types and in such amounts as is customary in the
case of similar businesses and will, upon request of the Agent, furnish to the
Agent at reasonable intervals a certificate of an Authorized Officer setting
forth the nature and extent of all insurance maintained by the Borrower and
Subsidiaries in accordance with this Section.
7.1.6. NOTICE OF DEFAULT, LITIGATION, ETC. The Borrower will give prompt
notice (with a description in reasonable detail) to each Bank of:
(a) the occurrence of any Default;
(b) the occurrence of any litigation, arbitration or
governmental investigation or proceeding previously not disclosed by the
Borrower to the Banks which has been instituted or, to the knowledge of
the Borrower, is threatened against the Borrower or any Subsidiary or to
which any of its properties is subject which if adversely determined
might have a Materially Adverse Effect;
(c) any material development which shall occur in any
litigation, arbitration or governmental investigation or proceeding
previously disclosed by the Borrower to the Banks;
(d) the occurrence of any event which might have a Materially
Adverse Effect; and
(e) the occurrence of a Reportable Event under, or the
institution of steps by the Borrower or any Subsidiary to withdraw from,
or the institution of any steps to terminate, any Plan.
7.1.7. PERFORMANCE OF LOAN DOCUMENTS. The Borrower will, and will cause
each Subsidiary to, perform promptly and faithfully all of its obligations under
each Loan Document executed by it.
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7.1.8. BOOKS AND RECORDS. The Borrower will, and will cause each
Subsidiary to, keep books and records reflecting all of its business affairs and
transactions in accordance with generally accepted accounting principles and
permit each Bank or any of its representatives, at reasonable times and
intervals and as arranged through the chief financial officer or chief legal
officer of the Borrower, to visit all of its offices, discuss its financial
matters with its officers and independent accountants, examine (and, at the
expense of the Borrower, photocopy extracts from) any of its books or other
corporate records. The Borrower shall pay any fees of such accountants incurred
in connection with each Bank's exercise of its rights pursuant to this Section.
7.2. CERTAIN NEGATIVE COVENANTS. The Borrower agrees with the Agent and
the Banks that, until the Commitments shall have terminated and all of the
Liabilities have been paid and performed in full:
7.2.1. INVESTMENTS AND ACQUISITIONS; BUSINESS ACTIVITIES. (a)
INVESTMENTS AND ACQUISITIONS. The Borrower will not, and will not permit any
Subsidiary to, make any Investments, or acquire by purchase, merger, lease or
otherwise ("ACQUISITIONS"), all or a substantial part of the assets of any
Person, other than
(i) Permitted Investments,
(ii) Investments in a wholly-owned Subsidiary of the Borrower,
PROVIDED (A) no Default has occurred and is continuing, (B) any such
Investment consisting of advances shall be payable by such Subsidiary
upon demand, and (C) upon the occurrence of a Default, the Borrower
shall demand payment of all such Investments consisting of advances then
outstanding,
(iii) Investments consisting of advances by a wholly-owned
Subsidiary of the Borrower to the Borrower or another wholly-owned
Subsidiary of the Borrower, PROVIDED (A) no Default has occurred and is
continuing, and (B) any such Investment consisting of advances to the
Borrower constitute Subordinated Debt,
(iv) its existing Investments at the Restatement Effective Date,
(v) additional Investments in Eveleth Taconite Company and
Eveleth Expansion Company not involving a material expansion of the
operating capacity of either Eveleth Taconite Company or Eveleth
Expansion Company,
(vi) acquisitions of all or a substantial part of the assets of
any Person, PROVIDED (A) no Default has occurred and is continuing, and
(B) any such acquisition would not cause the Borrower to be in violation
of the requirements of Section 7.2.1(b) or (taking into account any
Capital Expenditures to be made during the Borrower's then current
Fiscal Year and after the date of acquisition by the Borrower which
relate to the assets acquired ) Section 7.2.4,
(vii) any Guaranty issued with respect to the BNS Interest Rate
Swap Agreement or any Interest Rate Protection Agreement entered into as
contemplated by Section 7.2.12, and
(viii) any other Guaranty which is not prohibited by Section
7.2.5 and which does not involve any violation of Section 7.2.3(b), (c)
or (e).
(B) BUSINESS ACTIVITIES. The Borrower will not, and will not permit any
Subsidiary to: (i) operate its business other than in the ordinary and usual
course; and (ii) engage in any type of business except the businesses described
in the first recital and activities substantially related thereto.
7.2.2. LIENS. The Borrower will not, and will not permit any Subsidiary
to, create, incur, assume or suffer to exist any Lien upon any of its property
or assets, whether now owned or hereafter acquired, except:
(a) security interests in favor of the Banks to secure the
Liabilities;
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(b) security interests which were granted prior to the date
hereof in (and only in) assets identified in Item 10 ("ONGOING
INDEBTEDNESS") and Item 11 ("SECURITY INTERESTS") of Exhibit E attached
hereto and any security interests arising from any refinancing of such
Ongoing Indebtedness in (and only in) such assets;
(c) security interests in (and only in) fixed assets permitted
to be acquired by Section 7.2.4 granted to secure Indebtedness incurred
to finance the acquisition of such assets;
(d) statutory and common law banker's Liens on bank deposits;
(e) funds with respect to which the Borrower or any Subsidiary
has become a trustee pursuant to Section 4113.15(c) of the Ohio Revised
Code (or any successor provision);
(f) Liens for taxes, assessments or other governmental charges
or levies not at the time delinquent or thereafter payable without
penalty or being contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with generally accepted
accounting principles shall have been set aside on its books;
(g) Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not
overdue or being contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with generally accepted
accounting principles shall have been set aside on its books;
(h) other non-material Liens incurred or existing in the
ordinary course of business, such as in connection with workmen's
compensation, unemployment insurance or other forms of governmental
insurance or benefits, or to secure performance of tenders, statutory
obligations, leases and contracts (other than for borrowed money)
entered into in the ordinary course of business or to secure obligations
on surety or appeal bonds;
(i) judgment Liens in existence less than 30 days after the
entry thereof or with respect to which execution has been stayed or the
payment of which is covered in full (subject to a customary deductible)
by insurance;
(j) other Liens securing Indebtedness in an aggregate principal
amount not in excess of $1,000,000;
(k) security interests in (and only in) stock or assets granted
to secure Indebtedness, in an aggregate principal amount not in excess
of $15,000,000, incurred to finance the acquisition of such stock or
assets;
(l) Liens existing on any assets at the date of acquisition of
any stock or assets acquired after the Restatement Effective Date,
PROVIDED such Liens are not incurred in anticipation of such
acquisition;
(m) Liens existing under reciprocal easement on similar types of
agreements; and
(n) Liens permitted by Section 1(d) of the Ship Mortgages.
7.2.3. FINANCIAL CONDITION. The Borrower will not permit:
(a) the ratio of its Current Assets to its Current Liabilities,
on a consolidated basis, at any time to be less than 1.20 to 1.00;
(b) its Debt to Total Capital Ratio, on a consolidated basis, to
exceed .60 to 1.00 at any time;
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(c) its Debt Service Coverage Ratio, on a consolidated basis, to
be less than 1.50 to 1.00 at any time; or
(d) its Tangible Net Worth to be less than $57,000,000 (the
"MINIMUM AMOUNT"), on a consolidated basis, at any time, EXCEPT that
effective as of the end of the Borrower's Fiscal Year ended December 31,
1994, and as of the end of each Fiscal Year thereafter, the Minimum
Amount (as it may from time to time be increased as herein provided),
shall be increased by 50% of the Net Income of the Borrower and its
Consolidated Subsidiaries, on a consolidated basis, for the Fiscal Year
ended on such date, if any (there being no reduction in the case of any
Net Income which reflects any net loss).
7.2.4. FIXED OR CAPITAL ASSETS, ETC. The Borrower will not, and will not
permit any Subsidiary to, make any Capital Expenditures, unless such Capital
Expenditure together with all other such Capital Expenditures made by the
Borrower and its Subsidiaries in any Fiscal Year, does not aggregate in excess
of the Maximum Amount of Capital Expenditures. As used herein, the term "MAXIMUM
AMOUNT OF CAPITAL EXPENDITURES" means, with respect to any Fiscal Year, the sum
of the depreciation expense of the Borrower and its Consolidated Subsidiaries,
on a consolidated basis, for such Fiscal Year, PLUS an amount equal to 50% of
the Net Income of the Borrower and its Consolidated Subsidiaries, on a
consolidated basis, for such Fiscal Year.
7.2.5. TAKE OR PAY CONTRACTS. Except as described in Item 12 ("TAKE OR
PAY CONTRACTS") of Exhibit E attached hereto, the Borrower will not, and will
not permit any Subsidiary to, enter into or be a party to any arrangement for
the purchase of materials, supplies, other property or services if such
arrangement by its express terms requires that payment be made by the Borrower
or such Subsidiary regardless of whether or not such materials, supplies, other
property or services are delivered or furnished to it.
7.2.6. CONSOLIDATION, MERGER, ETC. The Borrower will not, and will not
permit any Subsidiary to, consolidate with or merge into or with any other
corporation, or sell, transfer, lease or otherwise dispose of any part of its
assets to any Person, except:
(a) dispositions of inventory, and dispositions of non-material
amounts of other assets, all in the ordinary course of business;
(b) dispositions of stock or assets made for consideration at
least equal to the fair market value thereof and in an aggregate amount
for all dispositions by the Borrower and its Subsidiaries in any Fiscal
Year not in excess of 10% of Net Tangible Assets at the beginning of
such Fiscal Year, except that the foregoing restrictions shall not
prevent the disposition of margin stock (as such term is used in Section
6.7) for cash at its fair value provided that the proceeds of such
disposition are invested in or held as Permitted Investments; and
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(c) the merger of any Subsidiary into a Subsidiary or into the
Borrower provided that, in the latter case, the Borrower is the
surviving corporation.
7.2.7. MODIFICATION, ETC. OF SUBORDINATED DEBT. The Borrower will not
amend any term or provision, including any subordination provision, covenant,
event of default or right of acceleration or any sinking fund provision or term
of required repayment or redemption (except any amendment which extends the date
or reduces the amount of any required repayment or redemption), contained in or
applicable to any Instrument evidencing or applicable to any Subordinated Debt
of the Borrower.
7.2.8. TRANSACTIONS WITH AFFILIATES. Except as described in Item 13
("TRANSACTIONS WITH AFFILIATES") of Exhibit E attached hereto, the Borrower will
not, and will not permit any Subsidiary to, enter into, or cause, suffer or
permit to exist:
(a) any arrangement or contract with any of its other Affiliates
(other than the Borrower and its Subsidiaries) of a nature customarily
entered into by Persons which are Affiliates of each other for tax or
financial reporting purposes or for management services purposes
(including management or similar contracts or arrangements relating to
the allocation of revenues, taxes and expenses or otherwise) requiring
any payments to be made by the Borrower or any Subsidiary to any such
other Affiliates, whether or not such services shall be received by the
Borrower or any Subsidiary; and
(b) any other transaction, arrangement or contract with any of
its other Affiliates which would not be entered into by a prudent Person
in the position of the Borrower or such Subsidiary with, or which is on
terms which are less favorable than are obtainable from, any Person
which is not one of its Affiliates;
and the Borrower will not, and will not permit any Subsidiary to, make any
payment, whether voluntary or otherwise, in respect of any arrangement described
in clause (a) or (b) or which involves the provision of services to the Borrower
or any Subsidiary whether or not permitted by clause (b).
7.2.9. SALE OR DISCOUNT OF RECEIVABLES. Except as permitted by Section
7.2.6, the Borrower will not, and will not permit any Subsidiary to, directly or
indirectly, sell with recourse, or discount or otherwise sell for less than the
face value thereof, any of its notes or accounts receivable in an aggregate
amount for all such sales or discounts by the Borrower and its Subsidiaries in
any Fiscal Year in excess of $100,000.
7.2.10. NEGATIVE PLEDGES. Except as described in Item 14 ("NEGATIVE
PLEDGES") of Exhibit E attached hereto, the Borrower will not, and will not
permit any Subsidiary to, enter into any agreement (excepting this Agreement and
any Loan Document) prohibiting the creation or assumption of any Lien upon its
properties or assets, whether now owned or hereafter acquired.
7.2.11. INCONSISTENT AGREEMENTS. The Borrower will not, and will not
permit any Subsidiary to, enter into any agreement containing any provision
which would be violated or breached by any borrowing by the Borrower made
hereunder or by the performance by the Borrower or any Subsidiary of their
respective obligations hereunder or under any Loan Document.
7.2.12. INTEREST RATE PROTECTION AGREEMENTS. The Borrower shall promptly
but in no case later than 180 days after the Effective Date under the Original
Loan Agreement (with an effective date on or prior to 180 days after such
Effective Date) enter into a separate Interest Rate Protection Agreement or
Interest Rate Protection Agreements with respect to interest on Indebtedness
under the Original Loan Agreement in an initial aggregate notational amount and
otherwise having terms which, when considered in light of the notational amount
and other terms of the BNS Interest Rate Swap Agreement, shall be satisfactory
to the Agent.
7.2.13. DIVIDENDS, STOCK PURCHASES, ETC. The Borrower will not directly
or indirectly declare, order, pay or make
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(a) any dividend (other than dividends payable solely in capital
stock of the Borrower) or other distribution on or in respect of any
capital stock of any class of the Borrower, whether by reduction of
capital or otherwise, or
(b) any purchase, redemption, retirement or other acquisition of
any capital stock of any class of the Borrower (other than for a
consideration consisting solely of capital stock of the same class of
the Borrower) or of any warrants, rights or options to acquire or any
securities convertible into or exchangeable for any capital stock of the
Borrower,
UNLESS, (i) immediately prior to and immediately after giving effect to any such
action, no condition or event shall exist which constitutes or which, after
notice or lapse of time or both, would constitute an Event of Default, and (ii)
such action is permitted by applicable law and, immediately after giving effect
to such action, the Borrower is solvent in both the equity and bankruptcy
senses.
7.2.14. LEASE OBLIGATIONS. The Borrower will not, and will not permit
any Subsidiary to, enter into, assume or otherwise be or remain liable under any
obligations for the payment of rental on noncancellable leases of real or
personal property (whether or not such leases are required to be capitalized
under generally accepted accounting principles) if the aggregate of all
obligations under such leases in respect of rentals due in any period of 12
consecutive months would exceed $8,000,000.
ARTICLE VIII
EVENTS OF DEFAULT
8.1. EVENTS OF DEFAULT. The term "EVENT OF DEFAULT" shall mean each of
the following events:
8.1.1. NON-PAYMENT OF LIABILITIES. The Borrower shall default in the
payment or prepayment when due of any principal of any Note, or the Borrower
shall default (and such default shall continue unremedied for a period of five
days) in the payment when due of interest on any Note, of any commitment fee or
of any other Liability.
8.1.2. NON-PERFORMANCE OF CERTAIN COVENANTS. The Borrower shall default
in the due performance and observance of any of its obligations under:
(a) Section 7.1.2 or 7.2 (other than 7.2.3), and such default
shall continue unremedied for twenty days after notice thereof shall
have been given to the Borrower by the Agent or the holder of any Note;
or
(b) Section 7.2.3 and such default shall continue unremedied for
fifteen days after notice thereof shall have been given to the Borrower
by the Agent or the holder of any Note.
8.1.3. CERTAIN DEFAULTS ON OTHER INDEBTEDNESS. Any default shall occur
under the terms applicable to any Indebtedness outstanding in a principal amount
exceeding $1,000,000 of the Borrower or any Subsidiary representing any
borrowing or financing or arising under any other material agreement, and such
default shall:
(a) consist of the failure to pay such Indebtedness at the
maturity thereof; or
(b) continue unremedied for a period of time sufficient to
permit acceleration of such
Indebtedness; or
(c) continue unremedied (and not have been waived by the holder
of such Indebtedness) for more than 30 days after notice thereof shall
have been given to the Borrower by the Agent or the holder of any Note.
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8.1.4. BANKRUPTCY, INSOLVENCY, ETC. The Borrower or any Subsidiary shall
become insolvent or generally fail to pay, or admit in writing its inability to
pay, debts as they become due; or the Borrower or any Subsidiary shall apply
for, consent to, or acquiesce in, the appointment of a trustee, receiver,
sequestrator or other custodian for the Borrower or such Subsidiary or any
property of any thereof, or make a general assignment for the benefit of
creditors; or, in the absence of such application, consent or acquiescence, a
trustee, receiver, sequestrator or other custodian shall be appointed for the
Borrower or any Subsidiary or for a substantial part of the property of any
thereof and not be discharged within 60 days; or any bankruptcy, reorganization,
debt arrangement, or other case or proceeding under any bankruptcy or insolvency
law, or any dissolution, winding up or liquidation proceeding, shall be
commenced in respect of the Borrower or any Subsidiary, and, if such case or
proceeding is not commenced by the Borrower or such Subsidiary, such case or
proceeding shall be consented to or acquiesced in by the Borrower or such
Subsidiary or shall result in the entry of an order for relief or shall remain
for 60 days undismissed; or the Borrower or any Subsidiary shall take any
corporate action to authorize, or in furtherance of, any of the foregoing.
8.1.5. CONTROL OF THE BORROWER. Any Change in Control shall occur.
8.1.6. NON-PERFORMANCE OF OTHER OBLIGATIONS. The Borrower shall default
in the due performance and observance of any other agreement contained herein or
in any Loan Document, and such default shall continue unremedied for a period of
30 days after notice thereof shall have been given to the Borrower by the Agent
or the holder of any Note.
8.1.7. BREACH OF WARRANTY. Any warranty of the Borrower hereunder or in
any writing furnished after the date of this Agreement by or on behalf of the
Borrower to the Banks for the purposes of or in connection with this Agreement
is or shall be incorrect when made, and the Borrower shall not have taken
corrective measures with respect thereto satisfactory to the Required Banks
within 30 days after notice thereof to the Borrower by the Agent or the holder
of any Note.
8.1.8. ERISA. Any of the following events shall occur with respect to
any Plan:
(a) such Plan shall be terminated (or steps shall be instituted
to effect such termination), but only if such Plan has any Unfunded
Vested Obligations on the date of this Agreement or has any Unfunded
Vested Obligations at the date of such termination or the date of the
institution of such steps, as the case may be,
(b) the Borrower or any Subsidiary shall withdraw from such Plan
(or shall institute steps to effect such withdrawal), or
(c) any Reportable Event (other than any Reportable Event as to
which the requirement of giving notice to the PBGC within 30 days has
been waived) shall occur with respect to such Plan,
and there shall exist a deficiency in excess of $500,000 in the assets available
to satisfy the benefits guaranteeable under ERISA with respect to such Plan.
8.1.9. JUDGMENTS. A final judgment to the extent not covered by
insurance which, with other such outstanding final judgments against the
Borrower and Subsidiaries, exceeds an aggregate of $1,000,000 shall be rendered
against the Borrower or any Subsidiary and if, within 60 days after entry
thereof, such judgment shall not have been discharged or otherwise satisfied or
execution thereof stayed pending appeal, or if, within 60 days after the
expiration of any such stay, such judgment shall not have been discharged or
otherwise satisfied.
8.2. ACTION IF BANKRUPTCY. If any Event of Default described in Section
8.1.4 shall occur, the outstanding principal amount of all outstanding Notes and
all other Liabilities shall be and become immediately due and payable, without
notice or demand.
8.3. ACTION IF OTHER EVENT OF DEFAULT. If any Event of Default (other
than an Event of Default described in Section 8.1.4) shall occur for any reason,
whether voluntary or involuntary, and be continuing, the Agent, upon the
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direction of the Required Banks shall, without notice or demand, declare all or
any portion of the outstanding principal amount of the Loans to be due and
payable and any or all other Liabilities to be due and payable, whereupon the
full unpaid amount of such Loans and any and all other Liabilities which shall
be so declared due and payable shall be and become immediately due and payable,
without further notice, demand, or presentment.
ARTICLE IX
THE AGENT
9.1. ACTIONS. Each Bank and the holder of each Note authorizes the Agent
to act on behalf of such Bank or holder under this Agreement and any other Loan
Document and, in the absence of other written instructions from the Required
Banks received from time to time by the Agent (with respect to which the Agent
agrees that it will, subject to the last two sentences of this Section, comply
in good faith except as otherwise advised by counsel), to exercise such powers
hereunder and thereunder as are specifically delegated to or required of the
Agent by the terms hereof and thereof, together with such powers as may be
reasonably incidental thereto. Each Bank agrees (which agreement shall survive
any termination of this Agreement) to indemnify the Agent, PRO RATA according to
such Bank's Percentage of the Total Commitment Amount, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses, or disbursements of any kind or nature whatsoever which
may at any time be imposed on, incurred by, or asserted against the Agent in any
way relating to or arising out of this Agreement, the Notes, and any other Loan
Document, including without limitation the reimbursement of the Agent for all
reasonable out-of-pocket expenses (including reasonable attorneys' fees)
incurred by the Agent hereunder or in connection herewith or in enforcing the
Liabilities of the Borrower under this Agreement or any other Loan Document, in
all cases as to which the Agent is not reimbursed by the Borrower; PROVIDED that
no Bank shall be liable for the payment of any portion of such Liabilities,
losses, damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements determined by a court of competent jurisdiction in a final
proceeding to have resulted solely from the Agent's gross negligence or wilful
misconduct. The Agent shall not be required to take any action hereunder or
under any other Loan Document, or to prosecute or defend any suit in respect of
this Agreement or any other Loan Document, unless it is indemnified to its
satisfaction by the Banks against loss, costs, liability, and expense. If any
indemnity in favor of the Agent shall become impaired, it may call for
additional indemnity and cease to do the acts indemnified against until such
additional indemnity is given.
9.2. FUNDING RELIANCE, ETC. Unless the Agent shall have been notified by
telephone, confirmed in writing, by any Bank by 5:00 p.m., Cleveland time, on
the day prior to a Borrowing that such Bank will not make available the amount
which would constitute its Percentage of such Borrowing on the date specified
therefor, the Agent may assume that such Bank has made such amount available to
the Agent and, in reliance upon such assumption, make available to the Borrower
a corresponding amount. If such amount is made available by such Bank to the
Agent on a date after the date of such Borrowing, such Bank shall pay to the
Agent on demand interest on such amount at the daily average Federal funds rate
quoted by the Agent for the number of days from and including the date of such
Borrowing to the date on which such amount becomes immediately available to the
Agent, together with such other compensatory amounts as may be required to be
paid by such Bank to the Agent pursuant to the Rules for Interbank Compensation
of the Council on International Banking or the Clearinghouse Compensation
Committee, as the case may be, as in effect from time to time. A statement of
the Agent submitted to any Bank with respect to any amounts owing under this
paragraph shall be conclusive, in the absence of manifest error. If such amount
is not in fact made available to the Agent by such Bank within three Business
Days after the date of such Borrowing, the Agent shall be entitled to recover
such amount, with interest thereon at the rate per annum then applicable to the
Loans comprising such Borrowing, within five Business Days after demand, from
the Borrower.
9.3. EXCULPATION. Neither the Agent nor any of its directors, officers,
employees, or agents shall be liable to any Bank for any action taken or omitted
to be taken by it under this Agreement or any other Loan Document, or in
connection herewith or therewith, except for its own willful misconduct or gross
negligence, nor responsible for any recitals or warranties herein or therein,
nor for the effectiveness, enforceability, validity, or due execution of this
Agreement or any other Loan Document, nor to make any inquiry respecting the
performance by the Borrower of its
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obligations hereunder or thereunder. The Agent shall be entitled to rely upon
advice of counsel concerning legal matters and upon any notice, consent,
certificate, statement, or writing which they believe to be genuine and to have
been presented by a proper Person.
9.4. SUCCESSOR. The Agent may resign as such at any time upon at least
30 days' prior notice to the Borrower and all Banks. If the Agent at any time
shall resign, the Required Banks may appoint another Bank as a successor Agent
which shall thereupon become the Agent hereunder. If no successor Agent shall
have been so appointed by the Required Banks, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving notice of
resignation, then the retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be one of the Banks or a commercial banking
institution organized under the laws of the United States and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
be entitled to receive from the retiring Agent such documents of transfer and
assignment as such successor Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges, and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations under this Agreement.
9.5. LOANS BY THE AGENT. The Agent shall have the same rights and powers
with respect to (a) the Loans made by it or any of its Affiliates, and (b) the
Notes held by it or any of its Affiliates as any Bank and may exercise the same
as if it were not the Agent.
9.6. CREDIT DECISIONS. Each Bank acknowledges that it has, independently
of the Agent and each other Bank, and based on the financial information
referred to in Section 6.4 and such other documents, information, and
investigations as it has deemed appropriate, made its own credit decision to
extend its Commitment. Each Bank also acknowledges that it will, independently
of the Agent and each other Bank, and based on such other documents,
information, and investigations as it shall deem appropriate at any time,
continue to make its own credit decisions as to exercising or not exercising
from time to time any rights and privileges available to it under this Agreement
or any other Loan Document.
9.7. COPIES, ETC. The Agent shall give prompt notice to each Bank of
each notice or request required or permitted to be given to the Agent by the
Borrower pursuant to the terms of this Agreement. The Agent will distribute to
each Bank each Instrument received for its account and copies of all other
communications received by the Agent from the Borrower for distribution to the
Banks by the Agent in accordance with the terms of this Agreement.
ARTICLE X
MISCELLANEOUS
10.1. WAIVERS, AMENDMENTS, ETC. The provisions of this Agreement and of
each Loan Document may from time to time be amended, modified, or waived, if
such amendment, modification or waiver is in writing and consented to by the
Borrower and the Required Banks; PROVIDED, HOWEVER, that no such amendment,
modification, or waiver:
(a) which would modify any requirement hereunder that any
particular action be taken by all the Banks or by the Required Banks
shall be effective unless consented to by each Bank;
(b) which would modify Section 3.8, Section 3.9 or this Section
10.1, release any collateral at the time provided by any of the Ship
Mortgages, change the definition of "Required Banks", increase the Total
Tranche A Revolving Credit Commitment Amount, the Total Tranche B
Revolving Credit Commitment Amount, or the Percentage of any Bank
(except as expressly contemplated by clause (d) of the definitions of
the terms Tranche A Commitment Termination Date and Tranche B Commitment
Termination Date), reduce any fees described in Article II, or extend
the Tranche A Commitment Termination Date or the Tranche B Commitment
Termination Date (except as expressly contemplated by clause (d) of the
definitions of the terms Tranche A Commitment
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Termination Date and Tranche B Commitment Termination Date) or the
Maturity Date of the Term Loans, shall be made without the consent of
each Bank;
(c) which would extend the due date for, or reduce the amount
of, any payment or prepayment of principal of or interest on any Loan
(or reduce the principal amount of or rate of interest on any Loan),
shall be made without the consent of the holder of the Note evidencing
such Loan; or
(d) which would affect adversely the interests, rights or
obligations of the Agent QUA the Agent, shall be made without consent of
the Agent.
No failure or delay on the part of the Agent, the Collateral Trustee, any Bank,
or the holder of any Note in exercising any power or right under this Agreement
or any other Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power or right preclude any other or
further exercise thereof or the exercise of any other power or right. No notice
to or demand on the Borrower in any case shall entitle it to any notice or
demand in similar or other circumstances. No waiver or approval by the Agent,
the Collateral Trustee, any Bank, or the holder of any Note under this Agreement
or any other Loan Document shall, except as may be otherwise stated in such
waiver or approval, be applicable to subsequent transactions. No waiver or
approval hereunder shall require any similar or dissimilar waiver or approval
thereafter to be granted hereunder.
10.2. NOTICES. All notices and other communications provided to any
party hereto under this Agreement or any other Loan Document shall be in writing
or by telex or by facsimile and addressed or delivered to it at its address set
forth below its signature hereto or at such other address as may be designated
by such party in a notice to the other parties. Any notice, if mailed and
properly addressed with postage prepaid, shall be deemed given when received;
any notice, if transmitted by telex or facsimile, shall be deemed given when
transmitted (answerback confirmed in the case of telexes).
10.3. COSTS AND EXPENSES. The Borrower agrees to pay all expenses of the
Agent and the Collateral Trustee for the negotiation, preparation, execution,
and delivery of this Agreement and each other Loan Document, including schedules
and exhibits, and any amendments, waivers, consents, supplements, or other
modifications to this Agreement or any other Loan Document as may from time to
time hereafter be required (including the reasonable fees and expenses of
special counsel for the Agent and special counsel for the Collateral Trustee
from time to time incurred in connection therewith), whether or not the
transactions contemplated hereby are consummated, and to pay all expenses of the
Agent and the Collateral Trustee (including reasonable fees and expenses of
counsel to the Agent and counsel for the Collateral Trustee) incurred in
connection with the preparation and review of the form of any Instrument
relevant to this Agreement or any other Loan Document and the consideration of
legal questions relevant hereto and thereto or to any restructuring or
"work-out" of any Liabilities. The Borrower also agrees to reimburse each Bank
upon demand for all reasonable out-of-pocket expenses (including attorneys' fees
and legal expenses) incurred by such Bank in enforcing the obligations of the
Borrower or any Subsidiary Guarantor under this Agreement or any other Loan
Document.
10.4. INDEMNIFICATION. In consideration of the execution and delivery of
this Agreement by each Bank and the extension of the Commitments, the Borrower
hereby indemnifies, exonerates and holds the Agent, the Collateral Trustee and
each Bank and each of its officers, directors, employees, and agents (the "BANK
PARTIES") free and harmless from and against any and all actions, causes of
action, suits, losses, costs, liabilities and damages, and expenses actually
incurred in connection therewith (irrespective of whether such Bank Party is a
party to the action for which indemnification hereunder is sought), including
reasonable attorneys' fees and disbursements (the "INDEMNIFIED LIABILITIES"),
incurred by the Bank Parties or any of them as a result of, or arising out of,
or relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Loan;
(b) any violation of any Environmental Law in connection with
the existence, or exercise by any of the Bank Parties, of any rights
under this Agreement or any Loan Document;
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(c) the indemnification and other obligations undertaken by the
Banks in the Master Vessel Trust Agreement;
(d) the entering into and performance of this Agreement and any
other Loan Document by any of the Bank Parties (including any action
brought by or on behalf of the Borrower as the result of any
determination by the Required Banks pursuant to Section 5.2.2 to not
fund any Borrowing); or
(e) any investigation, litigation, or proceeding related to any
acquisition or proposed acquisition by the Borrower or any Subsidiary of
all or any portion of the stock or all or substantially all the assets
of any Person, whether or not the Agent or such Bank is party thereto,
except for any such Indemnified Liabilities arising for the account of a
particular Bank Party by reason of the relevant Bank Party's breach of this
Agreement or of any Loan Document or gross negligence or wilful misconduct, and
if and to the extent that the foregoing undertaking may be unenforceable for any
reason, the Borrower hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
10.5. SURVIVAL. The obligations of the Borrower under Sections 2.4, 4.4,
4.6, 10.3, and 10.4, and the obligations of the Banks under Section 9.1, shall
in each case survive any termination of this Agreement. The representations and
warranties made by the Borrower in this Agreement and in each other Loan
Document shall survive the execution and delivery of this Agreement and each
such other Loan Document.
10.6. SEVERABILITY. Any provision of this Agreement or any other Loan
Document which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or such Loan Document or affecting the validity or enforceability of such
provision in any other jurisdiction.
10.7. HEADINGS. The various headings of this Agreement and of each other
Loan Document are inserted for convenience only and shall not affect the meaning
or interpretation of this Agreement or such Loan Document or any provisions
hereof or thereof.
10.8. COUNTERPARTS, EFFECTIVENESS, ETC. This Agreement may be executed
by the parties hereto in several counterparts, each of which shall be executed
by the Borrower and the Agent and be deemed to be an original and all of which
shall constitute together but one and the same agreement. This Agreement shall
become effective (the "RESTATEMENT EFFECTIVE DATE") when counterparts hereof
executed on behalf of the Borrower and each Bank (or notice thereof satisfactory
to the Agent) shall have been received by the Agent and notice thereof shall
have been given by the Agent to the Borrower and each Bank. At the time this
Agreement becomes effective on the Restatement Effective Date, the Original Loan
Agreement shall be considered amended and restated in its entirety by this
Agreement. As contemplated by Articles IX and X of this Agreement, the Agent is
hereby instructed to instruct the Collateral Trustee to enter into the
Amendments to Ship Mortgages contemplated by Section 5.1.8 hereof, and the Agent
hereby so instructs the Collateral Trustee. The Collateral Trustee shall be
furnished with a copy of this Agreement and the Collateral Trustee shall treat
this Agreement as its instructions pursuant to Section 4.02 of the Master Vessel
Trust Agreement to enter into the Amendments to Ship Mortgages contemplated by
this Agreement, in the forms provided to the Collateral Trustee by ▇▇▇▇▇, Day,
▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel for the Agent. On the Restatement Effective
Date, the Subsidiary Guaranty executed and delivered pursuant to the Original
Loan Agreement shall automatically terminate and the Subsidiaries of the
Borrower party thereto shall automatically be released from all obligations
thereunder.
10.9. GOVERNING LAW; ENTIRE AGREEMENT. THIS AGREEMENT, THE NOTES, AND
EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF OHIO. THIS AGREEMENT, THE NOTES,
AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE
PARTIES
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HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR
AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
10.10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns; PROVIDED, HOWEVER, that:
(a) the Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of all Banks;
and
(b) the rights of sale, assignment, and transfer of the Banks
are subject to Section 10.11.
10.11. SALE AND TRANSFERS, ETC., OF LOANS AND NOTES; PARTICIPATIONS IN
LOANS AND NOTES. Each Bank shall have the right at any time, upon written notice
to the Borrower and the Agent, and with the prior consent of the Agent, to sell,
assign, transfer, or negotiate all or any part of its Commitments, Loans, Notes,
and rights under other Loan Documents to either one or more Affiliates which are
commercial banking institutions of one or more Banks. Each Bank shall have the
right at any time, with the prior consent of both the Borrower (which shall not
be unreasonably withheld) and the Agent, to sell, assign, transfer, or negotiate
all or any part of its Commitments, Loans, or Notes to any other commercial bank
or other financial institution. In the case of any such sale, assignment,
transfer, or negotiation of all or part of its Commitments, Loans, Notes, and
rights under other Loan Documents, the assignee, transferee, or recipient shall
have, to the extent of such sale, assignment, transfer, or negotiation, the same
rights, benefits, and obligations as a Bank hereunder, including the right to
approve or disapprove actions which, in accordance with the terms hereof,
require the approval of the Required Banks, and the obligation to make Loans
pursuant to Section 2.1; PROVIDED, HOWEVER, that
(a) no Bank shall, as between the Borrower and such Bank, be
relieved of any of its obligations hereunder as a result of any sale,
assignment, transfer, or negotiation of, or granting of any
participation in, all or any part of its Commitments, Loans, or Notes,
unless the sale, assignment, transfer, or negotiation was made with the
consent of the Agent and the Borrower; and
(b) the Agent and each Bank shall be entitled to continue to
deal solely and directly with the assignor Bank in connection with the
interests so assigned until written notice of such assignment, together
with the addresses and related information with respect to the assignee
shall have been given to the Agent and each Bank by the assignor Bank
and the assignee.
The Borrower hereby acknowledges and agrees that any such disposition described
in this Section will give rise to a direct obligation of the Borrower to the
buyer, assignee, transferee, or participant, as the case may be, and such Person
shall, for purposes of Sections 2.4, 3.7, 3.8, 3.10, 4.4, 4.5 and 4.6, be
considered a Bank and may rely on, and possess all rights under, any opinions,
certificates, or other Instruments delivered under or in connection with this
Agreement or any other Loan Document; PROVIDED, HOWEVER, that, except in the
case of a sale, assignment, or transfer by any Bank of all its Commitments,
Loans, Notes, and other rights pursuant to this Section, the Borrower shall only
be required to deliver information and data required pursuant to this Agreement
to the Bank selling, assigning, transferring, or granting a participation in (in
whole or in part) its Commitments, Loans, Notes, and other rights.
10.12. OTHER TRANSACTIONS. Nothing contained herein shall preclude the
Agent or any other Bank from engaging in any transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Affiliates in which the Borrower or such Affiliate is not restricted
hereby from engaging with any other Person.
[The balance of this page is intentionally blank.]
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10.13. WAIVER OF JURY TRIAL. THE AGENT, THE BANKS, AND THE BORROWER
HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR
ACTIONS OF THE AGENT, SUCH BANKS, OR THE BORROWER. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENT AND SUCH BANKS ENTERING INTO THIS AGREEMENT.
10.14. DISPOSITION OF MARGIN STOCK. The provisions of this Agreement are
not intended to limit or restrict in any manner or to any extent the right of
the Borrower or any of its Subsidiaries to hold, pledge or otherwise encumber,
sell or otherwise dispose of or deal with any margin stock (as such term is used
in Section 6.7) or any interest in margin stock now or hereafter owned by the
Borrower or any of its Subsidiaries. Each of the provisions of this Agreement
shall be construed in a manner consistent with this intention.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
OGLEBAY NORTON COMPANY
By:
-------------------------
Title: Treasurer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telex No.: 980697
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Treasurer
SOCIETY NATIONAL BANK, AS AGENT
By:
-------------------------
Title: Vice President
Address: Society Center
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telex No.: 212525
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
(for notices): ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(for payments): ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
48
54
Total Revolving Credit SOCIETY NATIONAL BANK
Commitment Amount:
Tranche A: $6,756,750
Tranche B: $4,054,050 By:
-----------------------------
Title: Vice President
Percentage: 27.027%
Additional Term Loan Domestic Society Center
Commitment Amount: $2,364,862.50 Office : ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Maximum Amount of
Term Loans
Outstanding: $13,513,500
Telex No.: 212525
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
(for notices): ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(for payments): ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
LIBOR
Office: Society Center
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telex No.: 212525
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
(for notices): ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(for payments): ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
49
55
Total Revolving Credit THE BANK OF NOVA SCOTIA Commitment Amount:
By:
--------------------
Tranche A: $6,081,000 Title:
Tranche B: $3,648,600 -----------------
Domestic Atlanta Agency
Percentage: 24.324% Office: ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇. ▇. ▇▇▇▇▇
Maximum Amount of Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Term Loans Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Outstanding: $12,162,000
Additional Term Loan
Commitment Amount: $2,128,350 Address for Communications:
Chicago Representative
Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telex No.: 00254275
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
(for notices): ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
(for payments): Relationship Manager
or
▇▇▇▇ ▇▇▇▇▇▇▇
LIBOR
Office:
Atlanta Agency
Suite 2700
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇. ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Communications:
Chicago Representative
Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telex No.: 00254275
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Relationship Manager
or
▇▇▇▇ ▇▇▇▇▇▇▇
50
56
Total Revolving Credit NBD BANK, N.A.
Commitment Amount:
By:
-------------------------
Tranche A: $6,081,000 Title: Vice President
Tranche B: $3,648,600
Domestic
Office: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇: 24.324% ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telex No.: 4320060
Additional Term Loan FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
Commitment Amount: $2,128,350 Attention:
(for notices): ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Second Vice President
Maximum Amount of
Term Loans
Outstanding: $12,162,000
(for payments): ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇
LIBOR
Office: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telex No.: 4320060
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇▇▇
51
57
COMERICA BANK
Total Revolving Credit (Successor by merger to Manufacturers
Commitment Amount: National Bank of Detroit)
Tranche A: $3,378,500
Tranche B: $2,027,100 By:
-----------------------
Title: Vice President
Percentage: 13.514%
Additional Term Loan
Commitment Amount: $1,182,475
Maximum Amount Domestic Office:
of Term Loans One Detroit Center
Outstanding: $6,757,000 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
(for notices): ▇▇▇ ▇▇▇▇▇
(for payments): Vice President
or
▇▇▇▇▇▇▇ ▇▇▇▇▇
LIBOR
Office:
One Detroit Center
500 ▇▇▇▇▇▇▇▇ Avenue,
MC 3279
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Vice President
or
▇▇▇▇▇▇▇ ▇▇▇▇▇
52
58
Total Revolving Credit THE HUNTINGTON NATIONAL BANK
Commitment Amount:
By:
---------------------------
Tranche A: $2,702,750 Title: Senior Vice President
Tranche B: $1,621,650
Percentage: 10.811%
Additional Term Loan
Commitment Amount: $945,962.50
Maximum Amount Domestic
of Term Loans Office: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Outstanding: $5,405,500 ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
FAX No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
(for notices): ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(for payments): ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
LIBOR
Office: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
FAX No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
53
59
EXHIBIT A-1
AMENDED AND RESTATED TRANCHE A REVOLVING CREDIT NOTE
$_____________________ December 29, 1994
FOR VALUE RECEIVED, the undersigned, OGLEBAY NORTON COMPANY, a Delaware
corporation (the "BORROWER"), promises to pay to the order of ________________
(the "BANK") on the Tranche A Commitment Termination Date specified in the
Loan Agreement referred to below the principal sum of ________ DOLLARS AND
NO CENTS ($__________) or, if less, the principal amount of all Tranche A
Revolving Credit Loans made by the Bank to the Borrower from time to time
pursuant to that certain Amended and Restated Loan Agreement, originally
dated as of December 1, 1990, and amended and restated as of December 29, 1994
(together with all amendments, if any, hereafter from time to time made
thereto, the "LOAN AGREEMENT"), between the Borrower and the Bank as one of the
Banks thereto and SOCIETY NATIONAL BANK (the "AGENT"), as agent for the Banks,
as such Tranche A Revolving Credit Loans are entered by the holder hereof in
the appropriate column of the grid (the "GRID") attached to this Note. All
payments on account of the principal hereof shall also be endorsed by the
holder hereof on the Grid. Failure to record any such amounts on the Grid shall
not limit or otherwise affect the obligations of the Borrower to make payments
of principal or interest on this Note when due.
The unpaid principal amount of this Note from time to time outstanding
shall bear interest payable as provided in Section 3.4, Section 3.5 and Section
3.6 of the Loan Agreement.
All payments of principal of and interest on this Note shall be payable
in lawful currency of the United States of America at the offices of the Agent
at Society Center, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ in immediately
available funds.
This Note has been issued in replacement for a Note originally issued in
December 1990 pursuant to the Loan Agreement as originally executed and
delivered as of December 1, 1990.
This Note is one of the Tranche A Revolving Credit Notes referred to in,
and evidences indebtedness incurred under, the Loan Agreement, to which
reference is made for a statement of the terms and conditions on which the
Borrower is permitted and required to make prepayments of principal of this Note
and on which the indebtedness evidenced hereby may be declared to be immediately
due and payable.
OGLEBAY NORTON COMPANY
By:
-----------------------
Title: Treasurer
60
GRID
A Tranche A Revolving Credit Loan made by the Bank to Oglebay Norton
Company described in the Loan Agreement, referred to in the within Note, and
payments of principal of such Loan.
PORTION OF PRINCIPAL BALANCE
MAINTAINED
Date Amount of Loan Amount of Outstanding Base Rate LIBOR CD Rate Loan Applicable Notation
Principal Principal Loan Rate Loan Fixed Rate Made By
Payment Balance Interest
Period
61
EXHIBIT A-2
AMENDED AND RESTATED TRANCHE B REVOLVING CREDIT NOTE
$__________________________ December 29, 1994
FOR VALUE RECEIVED, the undersigned, OGLEBAY NORTON COMPANY, a Delaware
corporation (the "BORROWER"), promises to pay to the order of _________________
(the "BANK") on the Tranche B Commitment Termination Date specified in the
Loan Agreement referred to below the principal sum of __________ DOLLARS AND
NO CENTS ($____________) or, if less, the principal amount of all Tranche B
time pursuant to that certain Amended and Restated Loan Agreement, originally
dated as of December 1, 1990, and amended and restated as of December 29, 1994
(together with all amendments, if any, hereafter from time to time made
thereto, the "LOAN AGREEMENT"), between the Borrower and the Bank as one of the
Banks thereto and SOCIETY NATIONAL BANK (the "AGENT"), as agent for the Banks,
as such Tranche B Revolving Credit Loans are entered by the holder hereof in
the appropriate column of the grid (the "GRID") attached to this Note. All
payments on account of the principal hereof shall also be endorsed by the
holder hereof on the Grid. Failure to record any such amounts on the Grid shall
not limit or otherwise affect the obligations of the Borrower to make payments
of principal or interest on this Note when due.
The unpaid principal amount of this Note from time to time outstanding
shall bear interest payable as provided in Section 3.4, Section 3.5 and Section
3.6 of the Loan Agreement.
All payments of principal of and interest on this Note shall be payable
in lawful currency of the United States of America at the offices of the Agent
at Society Center, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ in immediately
available funds.
This Note has been issued in replacement for a Note originally issued in
December 1990 pursuant to the Loan Agreement as originally executed and
delivered as of December 1, 1990.
This Note is one of the Tranche B Revolving Credit Notes referred to in,
and evidences indebtedness incurred under, the Loan Agreement, to which
reference is made for a statement of the terms and conditions on which the
Borrower is permitted and required to make prepayments of principal of this Note
and on which the indebtedness evidenced hereby may be declared to be immediately
due and payable.
OGLEBAY NORTON COMPANY
By:
-----------------------
Title: Treasurer
62
GRID
A Tranche B Revolving Credit Loan made by the Bank to Oglebay Norton
Company described in the Loan Agreement, referred to in the within Note, and
payments of principal of such Loan.
PORTION OF PRINCIPAL BALANCE
MAINTAINED
Date Amount of Loan Amount of Outstanding Base Rate LIBOR CD Rate Loan Applicable Notation
Principal Principal Loan Rate Loan Fixed Rate Made By
Payment Balance Interest
Period
63
EXHIBIT A-3
AMENDED AND RESTATED TERM LOAN NOTE
$_________________ December 29, 1994
FOR VALUE RECEIVED, the undersigned, OGLEBAY NORTON COMPANY, a Delaware
corporation (the "BORROWER"), promises to pay to the order of _________________
(the "BANK") the principal sum of _________________________ DOLLARS AND
NO CENTS ($________________), in installments on the dates and in the amounts
provided in Section 3.3 of the Loan Agreement referred to below, with the last
such installment payable on December 31, 2001. This Note is issued pursuant
to that certain Amended and Restated Loan Agreement, originally dated as of
December 1, 1990, and amended and restated as of December 29, 1994 (together
with all amendments, if any, hereafter from time to time made thereto, the
"LOAN AGREEMENT"), between the Borrower and the Bank as one of the Banks
thereto and SOCIETY NATIONAL BANK (the "AGENT"), as agent for the Banks, and
evidences a Term Loan which shall be entered by the holder hereof in the
appropriate column of the grid (the "GRID") attached to this Note. All payments
on account of the principal hereof shall also be endorsed by the holder hereof
on the Grid. Failure to record any such amounts on the Grid shall not limit or
otherwise affect the obligations of the Borrower to make payments of principal
or interest on this Note when due.
The unpaid principal amount of this Note from time to time outstanding
shall bear interest payable as provided in Section 3.4, Section 3.5 and Section
3.6 of the Loan Agreement.
All payments of principal of and interest on this Note shall be payable
in lawful currency of the United States of America at the offices of the Agent
at Society Center, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ in immediately
available funds.
This Note has been issued in replacement for a Note originally issued in
December 1990 pursuant to the Loan Agreement as originally executed and
delivered as of December 1, 1990.
This Note is one of the Term Loan Notes referred to in, and evidences
indebtedness incurred under, the Loan Agreement, to which reference is made for
a statement of the terms and conditions on which the Borrower is permitted and
required to make prepayments of principal of this Note and on which the
indebtedness evidenced hereby may be declared to be immediately due and payable.
OGLEBAY NORTON COMPANY
By:
--------------------------
Title: Treasurer
64
GRID
A Term Loan made by the Bank to Oglebay Norton Company described in the
Loan Agreement, referred to in the within Note, and payments of principal of
such Loan.
PORTION OF PRINCIPAL BALANCE
MAINTAINED
Date Amount of Loan Amount of Outstanding Base Rate LIBOR CD Rate Loan Applicable Notation
Principal Principal Loan Rate Loan Fixed Rate Made By
Payment Balance Interest
Period
65
EXHIBIT B
LOAN REQUEST
Society National Bank
(the "AGENT")
Society Center
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Re: Amended and Restated Loan Agreement, originally dated as
of December 1, 1990, and amended and restated as of
December 29, 1994 (together with all amendments, if any,
thereafter from time to time made thereto, the "LOAN
AGREEMENT"), between Oglebay Norton Company, a Delaware
corporation (the "BORROWER"), the Banks parties thereto
AND THE AGENT.
Gentlemen/Ladies:
The Borrower hereby requests that [a] [Tranche A] [Tranche B] [Revolving
Credit Loan] [Additional Term Loans] be made to the Borrower in the principal
amount of $__________ on _____________, 19__. The Borrower hereby also requests
that such [Borrowing] [Additional Term Loans] be made as [ ] a CD Rate Loan
in the amount of $__________ having an Interest Period of ____ days, [____]
a LIBO Rate Loan in the amount of $___________ having an Interest Period of
_____ months or [____] a Base Rate Loan in the amount of $_______.
The Borrower hereby certifies and warrants that:
(a) the representations and warranties set forth in Article VI
of the Loan Agreement were true and correct as of the date as of which
made, and on the date of the [Borrowing] [Additional Term Loans]
requested hereby (and after giving effect to the incurrence thereof),
such representations and warranties (except as permitted by the
exceptions to Section 5.2.1 thereof) will be true and correct as if then
made, and no Default will have occurred and be continuing; and
(b) no litigation, arbitration or governmental proceeding or
investigation is pending or, to the knowledge of the Borrower,
threatened against the Borrower or any Subsidiary or affecting their
respective businesses or operations which was not disclosed by the
Borrower pursuant to Section 6.6, or prior to the last previous
Revolving Credit Loan pursuant to Section 7.1.6 of the Loan Agreement,
and no development not so disclosed shall have occurred in any
litigation, arbitration or governmental investigation or proceeding so
disclosed, which, in either event, if adversely determined, might have a
Materially Adverse Effect.
The Borrower agrees that if prior to the time of the making of the Loans
requested hereby any matter certified to herein by it will not be true and
correct at such time as if then made, it will immediately so notify the Agent.
Except to the extent, if any, that prior to the time of the making of the Loan
requested hereby the Agent shall receive written notice to the contrary from the
Borrower, each matter certified to herein shall be deemed to be certified at the
date of such Loan as if then made.
IN WITNESS WHEREOF, the Borrower has caused this Certificate to be
executed and delivered by its duly Authorized Officer this __________ day of
________, 19___.
66
OGLEBAY NORTON COMPANY
By:
------------------------
Title:
--------------------
67
EXHIBIT C
LOAN
CONTINUATION/CONVERSION NOTICE
Society National Bank
(the "AGENT")
Society Center
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Re: Amended and Restated Loan Agreement, originally dated as
of December 1, 1990, and amended and restated as of
December 29, 1994 (together with all amendments, if any,
thereafter from time to time made thereto, the "LOAN
AGREEMENT"), between Oglebay Norton Company, a Delaware
corporation (the "BORROWER"), the Banks parties thereto
AND THE AGENT
Gentlemen/Ladies:
The Borrower hereby requests that on __________, 19__, a [Tranche A
Revolving Credit] [Tranche B Revolving Credit] [Term] Loan in an outstanding
principal amount of $______________,
(1) which is presently being maintained as
[ ] a Base Rate Loan,
[ ] a CD Rate Loan, or
[ ] a LIBO Rate Loan
(2) be
[ ] converted into, or
[ ] continued as
(3) [ ] a CD Rate Loan having an Interest Period of
[ ] 30 days in the amount of $ ,
----------
[ ] 60 days in the amount of $ ,
----------
[ ] 90 days in the amount of $ ,
----------
[ ] 180 days in the amount of $ ,
----------
[ ] 180 days in the amount of $ ,
----------
68
[ ] a LIBO Rate Loan having an Interest Period of
[ ] 1 month in the amount of $ ,
----------
[ ] 2 months in the amount of $ ,
----------
[ ] 3 months in the amount of $ ,
----------
[ ] 6 months in the amount of $ ,
----------
[ ] a Base Rate Loan.
In the event that the Loan is to be converted into, or continued as, a
Fixed Rate Loan, the Borrower hereby:
(a) certifies and warrants that no Default has occurred and is
continuing; and
(b) agrees that if prior to the time of such continuation or
conversion any matter certified to herein by it will not be true and
correct at such time as if then made, it will immediately so notify the
Agent.
Except to the extent, if any, that prior to the time of the continuation or
conversion requested hereby the Agent shall receive written notice to the
contrary from the Borrower, each matter certified to herein shall be deemed to
be certified at the date of such continuation or conversion as if then made.
IN WITNESS WHEREOF, the Borrower has caused this Certificate to be
executed and delivered by its Authorized Officer this _________ day of
__________, 19__.
OGLEBAY NORTON COMPANY
By:
---------------------
Title:
-------------------
2
69
EXHIBIT D
COMPLIANCE CERTIFICATE
Society National Bank
(the "AGENT")
Society Center
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Re: Amended and Restated Loan Agreement, originally dated as of
December 1, 1990, and amended and restated as of December 29,
1994 (together with all amendments, if any, thereafter from time
to time made thereto, the "LOAN AGREEMENT"), between Oglebay
Norton Company, a Delaware corporation (the "BORROWER"), the
Banks parties thereto and the Agent
Gentlemen/Ladies:
The Borrower hereby certifies and warrants that as of _________ 19__
(the "COMPUTATION DATE"):
(a) the Borrower's Current Assets [exceeded] its Current
Liabilities, on a consolidated basis, by $____________, as computed on
Attachment 1 hereto, and the ratio of the Borrower's Current Assets to
its Current Liabilities was ____ to 1.00, which [complies] [does not
comply] with the requirements of clause (a) of Section 7.2.3 of the Loan
Agreement which requires that the Borrower maintain a ratio of Current
Assets to Current Liabilities of at least 1.20 to 1.00;
(b) the Borrower's Debt to Total Capital Ratio, on a
consolidated basis, was approximately (and in any event not more than)
___ to 1.00 as computed on Attachment 2 hereto, which [complies] [does
not comply] with the requirements of clause (b) of Section 7.2.3 of the
Loan Agreement which requires a maximum of .60 to 1.00 as of the
Computation Date;
(c) the Borrower's Debt Service Coverage Ratio, on a
consolidated basis, was approximately (and in any event not less than)
___ to 1.00, as computed on Attachment 4 hereto, which [complies] [does
not comply] with the requirements of clause (e) of Section 7.2.3 of the
Loan Agreement which requires a minimum of 1.50 to 1.00;
(d) the Borrower's Tangible Net Worth, on a consolidated basis,
was approximately (and in any event not less than) $_______, as computed
on Attachment 3 hereto, which [complies) [does not comply] with the
requirements of clause (d) of Section 7.2.3 of the Loan Agreement which
requires a minimum of $57,000,000, PLUS [50% of Net Income for Fiscal
Year 1994 (which was $___________), Fiscal Year 1995 (which was
$__________), etc.___________];
(f) except as set forth in Attachment 5 hereto, no Default had
occurred and was continuing.
70
IN WITNESS WHEREOF, the Borrower has caused this Certificate to be
executed and delivered by its Authorized Officer this ____ day of __________,
19__.
OGLEBAY NORTON COMPANY
By: ____________________________
Title:______________________
2
71
ATTACHMENT 1
to
__/__/__ Compliance Certificate
EXCESS OF CURRENT ASSETS OVER
CURRENT LIABILITIES
1. Current Assets: All assets of the
Borrower and its Consolidated
Subsidiaries classified on the
consolidated balance sheet of the
Borrower and its Consolidated
Subsidiaries at the Computation Date as
current assets, in accordance with
generally accepted accounting principles............. $______
2. Intangible Assets: All licenses,
franchises, patents, patent
applications, trademarks, program
rights, goodwill and research and
development expense or like intangibles
shown as current assets on the
consolidated balance sheet of the
Borrower and its Consolidated
Subsidiaries at the Computation Date....... $_______
3. The excess of Item 1 over Item 2..................... $_______
4. Current Liabilities: All liabilities
of the Borrower and its Consolidated
Subsidiaries classified on the
consolidated balance sheet of the
Borrower and its Consolidated
Subsidiaries at the Computation Date as
current liabilities, including the then
outstanding principal amount of the
Notes due and to become due within 12
months after the Computation Date, in
accordance with generally accepted
accounting principles............................... $______
5. Excess of Current Assets Over Current
Liabilities: The excess of Item 3 over Item 4....... $______
6. Ratio of Item 3 to Item 4 ............................... ____ to 1.00
72
ATTACHMENT 2
to
__/__/__ Compliance Certificate
DEBT TO TOTAL CAPITAL RATIO
1. Consolidated Indebtedness: All
Indebtedness of the Borrower and its
Consolidated Subsidiaries (excluding
intercompany obligations) as of the
Computation Date described in clauses
(a) through (d) of the definition of the
term "Indebtedness"; and all
Indebtedness of Persons other than the
Borrower and its Consolidated
Subsidiaries of the nature described in
clauses (a) and (b) of the definition
of the term "Indebtedness" as to which
the Borrower or a Consolidated
Subsidiary has issued a Guaranty.................... $______
2. Net Worth: The sum of capital stock, additional
paid-in capital, unrealized gains or losses, and
retained earnings (minus accumulated deficits) of the
Borrower and its Consolidated Subsidiaries,
all as shown on a consolidated balance
sheet of the Borrower and its Consolidated
Subsidiaries prepared all as of the
Computation Date.................................... $______
3. Total Capital: The sum of Item 1
and 2.............................................. $______
4. Debt to Total Capital Ratio: The ratio
of Item 1 to Item 3.............................................. ___to 1.00
73
ATTACHMENT 3
to
__/__/__ Compliance Certificate
MINIMUM TANGIBLE NET WORTH REQUIREMENT
1. Net Worth: The sum of capital stock, additional
paid-in capital, unrealized gains or losses, and
retained earnings (minus accumulated deficits) of the
Borrower and its Consolidated Subsidiaries,
all as shown on a consolidated balance
sheet of the Borrower and its Consolidated
Subsidiaries prepared all as of the
Computation Date.................................... $______
2. To the extent reflected as an asset in
such consolidated balance sheet as of
the Computation Date, Intangible
Assets.............................................. $______
3. Tangible Net Worth: The excess of Item 1 over
Item 2.............................................. $______
4. Minimum Tangible Net Worth: The sum of $57,000,000
increased by 50% of the Net Income of the Borrower
and its Consolidated Subsidiaries for the following
Fiscal Years:
FYE 12/31/94 $______
FYE 12/31/95 $______
etc.
Total..................................................... $_______
74
ATTACHMENT 4
to
__/__/__Compliance Certificate
DEBT SERVICE COVERAGE RATIO
1. Net Income (as defined in the Loan
Agreement) of the Borrower and its
Consolidated Subsidiaries for the most
recently completed four Fiscal Quarters
prior to the Computation Date........................ $______
2. The sum of income tax expense,
depreciation expense, and amortization
expense of the Borrower and
its Consolidated Subsidiaries for the
most recently completed four Fiscal
Quarters prior to the
Computation Date..................................... $______
3. Interest Expense (as defined in the
Loan Agreement) of the Borrower and its
Consolidated Subsidiaries for the most
recently completed four Fiscal
Quarters prior to the
Computation Date.................................... $______
4. Interest Expense (as defined in the
Loan Agreement) for the most recently
completed four Fiscal Quarters prior to
the Computation Date of all Persons which
are not Consolidated Subsidiaries
in respect of Indebtedness as to which the
Borrower or a Consolidated Subsidiary
has issued a Guaranty............................... $______
5. EBITDA: The sum of Items 1, 2, 3 and 4.............. $______
6. Regularly scheduled principal payments
of the Borrower and its Consolidated
Subsidiaries for the most recently
completed four Fiscal Quarters prior to
the Computation Date in respect of all
Indebtedness of the nature described in
clauses (a) and (b) of the definition
of the term "Indebtedness" (and all
Indebtedness of Persons other than the
Borrower and its Consolidated
Subsidiaries of the nature described in
such clauses (a) and (b) with respect
to which the Borrower or any
75
Consolidated Subsidiary has
issued a Guaranty)................................... $______
7. Debt Service Requirements: The sum of
Items 3, 4 and 6 .................................... $______
8. Debt Service Coverage Ratio: The ratio
of Item 5 to Item 7.................................. ____ to 1.00
2
76
ATTACHMENT 5
to
__/__/__ Compliance Certificate
[Describe Defaults, if any, continuing on the Computation Date;
if no Defaults were so continuing, indicate "None".]
77
EXHIBIT E
Item 1
(Article V Section 5.1.5)
INDEBTEDNESS TO BE PAID
Discharge of Indebtedness under Current Revolving Credit Agreement,
dated July 11, 1988, between Borrower and The Bank of Nova Scotia and various
other commercial banking institutions named therein.
Item 2
(Article VI Section 6.2)
MATERIAL CONTRACTUAL OBLIGATIONS
- None -
Item 3
(Article VI Section 6.5)
LAW, GOVERNMENTAL, REGULATION
COURT DECREE OR ORDER
- None -
78
Item 4
(Article VI Section 6.6)
LITIGATION
1) State of West Virginia, on behalf of the Environmental Task Force of the
State of West Virginia, ex rel. vs. Bethlehem Mines Corporation,
Bethlehem Steel Corporation, ▇▇▇▇▇ Land Company, Ltd. and Oglebay Norton
Company. This action was filed in the Circuit Court of ▇▇▇▇▇ County,
West Virginia on March 12, 1981. The State of West Virginia brought this
action for injury and damages caused by a coal refuse pile allegedly
created by the defendants which is polluting the waters of White Oak
Creek and Big Coal River. The State seeks $1,000,000 in damages in
addition to recovery of clean-up costs.
2) The Borrower, along with Oglebay Norton Taconite Company, Eveleth
Taconite Company and Eveleth Expansion Company, were sued in United
States District Court for the District of Minnesota, by ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ ▇▇▇▇▇▇▇▇, on their own behalf and
on behalf of a class of female employees and applicants of Eveleth
Mines, to obtain injunctive relief and recover damages under Title VII
of the Civil Rights Act of 1964 and the Minnesota Human Rights Act.
Plaintiffs alleged nine counts which were tried to the court in 1993.
The Court dismissed seven (7) of the nine (9) counts in May, 1993.
Proceedings continue on the two remaining counts. The claims of the
class members will be tried before a United States Magistrate beginning
January 17, 1995. Neither the outcome nor any potential loss from these
claims can be predicted at this time. All or a portion of any loss in
respect of this litigation may be covered by insurance, although at this
time no assessment can be made as to the ultimate scope of insurance
coverage available, if any.
3) The Borrower and certain of its subsidiaries are involved in various
other claims and ordinary routine litigation incidental to their
businesses, including claims relating to the exposure of persons to
asbestos and silicosis. Plaintiffs prayers for damages range from
amounts in excess of $10,000 to $20,000 (the statutory minimums for
jurisdiction by the courts) to millions of dollars in compensatory
and/or punitive damages.
4) The Borrower is the party to several disputes among the partners and
stockholders of Eveleth. Among them are the following:
(i) A demand for arbitration made by the Borrower to
resolve the treatment of in-process inventories.
(ii) A demand for arbitration made by the Borrower to
resolve the allocation and funding of liability for
post-retirement benefits of employees at Eveleth Mines.
(iii) A demand for arbitration to resolve the allocation
of costs and legal expenses incurred in the "▇▇▇▇▇▇" litigation.
(iv) A demand for arbitration made by ▇▇▇▇▇▇▇▇ ▇▇▇▇
challenging the authority of the Borrower on behalf of Eveleth
Mines to have entered into operating leases for two 190 ton
trucks.
(v) A demand for arbitration made by ▇▇▇▇▇▇▇▇ ▇▇▇▇
challenging the authority of the Borrower on behalf of Eveleth
Mines to have entered into the 1993 Electric Service Agreement
for electric service to the crusher at the Thunderbird North
Mine.
None of these arbitrations are active at the moment. The parties are not
actively pursuing the claims; no arbitrators have been picked and no
hearing dates selected.
2
79
In addition to these arbitrations, ▇▇▇▇▇▇▇▇ ▇▇▇▇ has notified the
Borrower that it disputes the Borrower's actions, taken on behalf of
Eveleth Mines, to enter into Stockpiling Agreements with the State of
Minnesota and a Dumplands Agreement with USX; to enter into a six month
1994 Electric Service Agreement; to allocate Excess Capacity from the
production at Eveleth Mines for the year 1994; and to allocate
expenditures for Eveleth Mines in connection with the 1994 budget. None
of these matters has become the subject of arbitration or litigation,
and the parties are not currently pursuing the claims.
Item 5
(Article VI Section 6.9)
CERTAIN CONTRACTUAL OBLIGATIONS
OR ORGANIC DOCUMENTS
The Borrower and certain of its subsidiaries are parties to contracts
which under certain events could have materially adverse effect upon the
Borrower. Those contracts are:
1. Various contractual arrangements involving the operations and
funding of mining operations in Eveleth Mines (see Item 13).
2. See also Item 10 and 11.
Item 6
(Article VI Section 6.11)
ERISA - REPORTABLE EVENTS
The Borrower has taken steps to terminate the Toledo Overseas Terminal
Pension Plan. This is a trusteed plan, and all assets will be distributed to
plan participants once approval is granted by the Internal Revenue Service.
Approval is expected by mid-1995.
Item 7
OGLEBAY NORTON COMPANY AND ASSOCIATED COMPANIES
WHOLLY OWNED SUBSIDIARIES:
Canadian Ferro Hot Metal Specialties Limited
3
80
Oglebay Norton Industrial Sands, Inc.
Oglebay Norton Refractories & Minerals, Inc.
ASSOCIATED COMPANIES:
Eveleth Expansion Company
Eveleth Taconite Company
Oglebay Norton Taconite Company
ONCO Eveleth Company
OTHER SUBSIDIARIES:
Columbia Transportation Company [Dormant]
Laxare, Inc.
National Perlite Products Company
ON Coast Petroleum Company
ONCO Technology, Inc. [Dormant]
ONCO WVA, Inc. [Dormant]
Saginaw Mining Company
SUBSIDIARIES IN PROCESS OF DISSOLUTION:
Oglebay Norton Sales Company
TBF, Inc.
4
81
Item 8
(Article VI Section 6.14)
MATERIAL PATENTS & TRADE MARKS
- None -
Item 9
(Article VI Section 7.1.5)
INSURANCE
- None -
Item 10 and 11
(Article VII Section 7.2.2(b))
ONGOING INDEBTEDNESS & SECURITY INTERESTS
The "Columbia Star" a self unloading bulk carrier has been financed
through the use of bonds issued pursuant to Title XI of the Merchant Marine Act
of 1936, as amended, which is secured by a First Mortgage in favor of the U.S.
Government and including a Security Agreement between Oglebay Norton Company and
the United States of America (dated November 13, 1980) M/V Columbia Star, and
other Title XI documents related to the financing and refinancing of the M/V
Columbia Star, as amended from time to time.
Title XI Reserve Fund and Financial Agreement between Oglebay Norton
Company and The United States of America (dated November 13, 1980) as amended
from time to time.
Capital Construction Fund Agreement between Oglebay Norton Company and
the United States of America (dated November 13, 1980) as amended from time to
time.
Sublease and Bareboat Subcharter - M/V ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (dated August
20, 1975) and related Title XI documents, as amended from time to time.
Lease and Bareboat Charter - M/V ▇▇▇▇ ▇▇▇▇▇▇ (dated August 20, 1975),
Assignment and Assumption Agreement 902, dated December 31, 1992, and related
Title XI documents, as amended from time to time.
5
82
Substitution and Assignment Agreement - M/V Wolverine (dated October 15,
1974), whereby the ▇▇▇▇▇▇▇ Marine Transit Company assigned to Oglebay Norton
Company all of its rights, interests, duties and obligations under the Lease and
Bareboat Charter relative to the M/V Wolverine (dated February 15, 1974) and
other Title XI documents, as modified by the Substitution and Assignment
Agreement, as amended from time to time.
UCC financing statements have been filed granting security interests in
personal property, proceeds, and replacements securing payment of the purchase
price of such personal property.
▇▇▇▇▇▇▇ Transit Company was merged into the Borrower during 1994 and as
such obligations of ▇▇▇▇▇▇▇ Transit Company have been assumed by the Borrower.
Item 12
(Article VII Section 7.2.5)
TAKE OR PAY CONTRACTS
See Item 13
Electric Service Agreement
between Eveleth Mines,
Oglebay Norton Company, Manager
and
Minnesota Power & Light Company
dated May 25, 1979, including Amendments
dated December 25, 1987, May 24, 1988,
March 25, 1989, March 29, 1990, October 30, 1990,
July 12, 1991 and April 26, 1994.
The parties are currently in negotiations
for an amendment to this agreement
which would affect the term, pricing and other
terms and conditions. Alternatively,
a replacement agreement may be negotiated and executed.
Item 13
(Article VII Section 7.2.8)
TRANSACTIONS WITH AFFILIATES
Eveleth Mines, a taconite mining operation located at Eveleth,
Minnesota, consists of two operating entities: Eveleth Taconite Company, a
Minnesota corporation ("Taconite Company"), and Eveleth Expansion Company, a
Minnesota general partnership ("Expansion Company"). The Borrower owns a 15%
interest in Taconite Company and a wholly owned subsidiary of the Borrower, ONCO
Eveleth Company, holds a 20.5% interest in Expansion Company.
The combined operations of the Eveleth Mines companies represent a
cost-sharing arrangement in accordance with agreements for the life of the mines
that govern the combined operations. These agreements contemplate that Eveleth
6
83
Mines will operate at full production capability and require the respective
participants to provide advances to Taconite Company or Expansion Company for
substantially all capital and fixed operating costs incurred, in proportion to
their ownership. The Borrower has entered into long-term sales contracts to sell
a portion of its production capacity of Taconite Company and Expansion Company.
The Borrower is manager of Eveleth Mines and provides employment service to
Eveleth Mines through a wholly owned subsidiary.
Effective January 1, 1991, the Participants in Eveleth Mines revised
their operating agreements to (a) give each of the owners the discretion to
determine the amount of ore to be produced for its account and (b) provide for
the allocation of fixed costs based on ownership and variable costs based on
production. These revisions expire on December 31, 1996.
Item 14
(Article VII Section 7.2.10)
NEGATIVE PLEDGES
Title XI Reserve Fund and Financial Agreement.
Partnership operating agreement dated January 2, 1974, among Eveleth
Expansion Company, Dofasco Eveleth Corporation, ONCO Eveleth Company and
▇▇▇▇▇▇▇▇ ▇▇▇▇ Taconite Company (in its own right and as a successor in interest
to Dofasco Eveleth Corporation).
Stockholders Agreement dated April 17, 1964 among Eveleth Taconite
Company, Ford Motor Company, and Oglebay Norton Company.
7
84
EXHIBIT F-1
December , 1994
To each of the Banks parties to the
Loan Agreement hereinafter referred to
and to
Society National Bank
as Agent for the Banks
and to
Bank One, Columbus, NA
as Trustee for the Banks
Re: AMENDED AND RESTATED LOAN AGREEMENT, ORIGINALLY
DATED AS OF DECEMBER 1, 1990, AND AMENDED AND
RESTATED AS OF DECEMBER 29, 1994
Ladies and Gentlemen:
We have acted as counsel to Oglebay Norton Company, a Delaware
corporation (the "COMPANY"), and to each of the Subsidiary Guarantors (as
hereafter defined) in connection with the negotiation, execution and delivery of
the following agreements and documents:
(a) Amended and Restated Loan Agreement, originally dated as of
December 1, 1990, and amended and restated as of December 29, 1994 (the
"LOAN AGREEMENT"), by and among the Company, the banks parties thereto
(collectively, the "BANKS") and Society National Bank, as agent for the
Banks (in such capacity, the "AGENT");
(b) Fifteen separate promissory notes (the "NOTES"), each dated
December , 1994, issued by the Company pursuant to the Loan Agreement,
with three of each of such notes payable to the order of each Bank,
respectively;
(c) Amended and Restated Subsidiary Guaranty, originally dated
as of December 1, 1990, and amended and restated as of December 29, 1994
(the "SUBSIDIARY GUARANTY") executed by Oglebay Norton Industrial Sands,
Inc. and Oglebay Norton Refractories & Minerals, Inc. (the "SUBSIDIARY
GUARANTORS") in favor of the Banks;
(d) The four Ship Mortgages, dated December 20, 1990, and the
two amendments to each of the Ship Mortgages, dated as of April 8, 1993,
and as of December 29, 1994 (collectively, the "SHIP MORTGAGES")
executed by the Company in favor of Bank One, Columbus, NA, as trustee;
and
(e) The Vessel Sale Agreement, dated as of , 1990 (the "VESSEL
SALE AGREEMENT"), by and between the Company and Bethlehem Steel
Corporation.
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings assigned to such terms in the Loan Agreement.
We are familiar with the corporate proceedings taken by the Company and
each Subsidiary Guarantor in connection with the foregoing agreements and
documents and the transactions contemplated thereby. In addition, we have
examined such corporate records, certificates and other documents and such
questions of law as we have considered necessary or appropriate for the basis of
the opinions hereinafter expressed. As to certain factual matters, we have
relied, where we
85
deemed appropriate, upon information contained in a certificate (a copy of which
has been delivered to the Banks) of officers of the Company.
In making the examination of all documents and agreements in connection
with the opinions expressed herein, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity with the originals of all documents submitted to us as
copies.
The opinions expressed in paragraph 5 and paragraph 6 below are
qualified to the extent that the enforceability of the terms and provisions of
the documents and instruments referred to in said paragraphs may be limited by
bankruptcy, insolvency and other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles which, for
example, may limit the right to obtain the remedy of specific performance of
executory covenants.
Based upon, and subject to, the foregoing, we are of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware. The Company is duly
qualified and in good standing as a foreign corporation authorized to do
business in each jurisdiction where its ownership or leasing of real estate,
ownership of substantial assets other than real estate, conduct of substantial
business, or location of employees require it to be so qualified and where the
failure so to qualify would have a materially adverse effect on the business or
operations of the Company.
2. Each Subsidiary Guarantor is a corporation duly incorporated, validly
existing and in good standing under the laws of the state of its respective
incorporation. Each Subsidiary Guarantor is duly qualified and in good standing
as a foreign corporation authorized to do business in each jurisdiction where
its ownership or leasing of real estate, ownership of substantial assets other
than real estate, conduct of substantial business, or location of employees
require it to be so qualified and where the failure so to qualify would have a
materially adverse effect on the business or operations of such Subsidiary
Guarantor.
3. The Company has full corporate power and authority to own and operate
its properties and assets, carry on its business as currently conducted, and
enter into and perform its obligations under the Vessel Sale Agreement and the
Loan Agreement.
4. Each Subsidiary Guarantor has full corporate power and authority to
own and operate its properties and assets and carry on its business as currently
conducted. Each Subsidiary Guarantor has full corporate power and authority to
enter into and perform its obligations under the Subsidiary Guaranty.
5. The execution and delivery of the Vessel Sale Agreement, the Loan
Agreement, the Ship Mortgages and the Notes, and the performance by the Company
of its obligations thereunder, have been duly authorized by all necessary
corporate action on the part of the Company, and all of said documents and
instruments have been duly executed and delivered on behalf of the Company and
the Vessel Sale Agreement, the Loan Agreement and the Notes each constitute
valid and binding obligations of the Company, enforceable in accordance with
their respective terms.
6. The execution and delivery of the Subsidiary Guaranty, and the
performance by each Subsidiary Guarantor of its obligations thereunder, have
been duly authorized by all necessary corporate action on the part of each
Subsidiary Guarantor and constitute valid and binding obligations of each
Subsidiary Guarantor, enforceable in accordance with their respective terms.
7. There is no provision in the articles of incorporation or the by-laws
of the Company, nor any provision in any indenture, mortgage, contract or
agreement known to us after due inquiry to which the Company is a party or by
which it or its properties may be bound, nor any law, statute, rule or
regulation (other than any law, statute, rule or regulation relating to maritime
or admiralty matters, as to which matters you are receiving the separate opinion
of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇), nor any writ, order or decision known to us after due
inquiry of any court or governmental instrumentality binding on the Company
which would be contravened by the execution and delivery of the Vessel Sale
Agreement, the Loan Agreement, the Ship
2
86
Mortgages or the Notes, nor do any of the foregoing prohibit performance by the
Company of any term, provision, condition, covenant or any other obligation of
the Company contained therein.
8. There is no provision in the articles of incorporation or the by-laws
of any Subsidiary Guarantor, nor any provision in any indenture, mortgage,
contract or agreement known to us after due inquiry to which any Subsidiary
Guarantor is a party or by which it or its properties may be bound, nor any law,
statute, rule or regulation, nor any writ, order or decision known to us after
due inquiry of any court or governmental instrumentality binding on any
Subsidiary Guarantor which would be contravened by the execution and delivery of
the Subsidiary Guaranty, nor do any of the foregoing prohibit performance by any
Subsidiary Guarantor of any term, provision, condition, covenant or any other
obligation of any Subsidiary Guarantor contained therein.
9. Except as described in the Company's financial statements referred to
in Section 6.4 of the Loan Agreement or in the Disclosure Schedule, to the best
of our knowledge after due inquiry, there are no actions, suits or proceedings
pending or threatened against or affecting the Company or any Subsidiary
Guarantor before any court or arbitrator or by or before any administrative
agency or governmental authority, which, if adversely determined, would have a
materially adverse effect on the financial condition or business of the Company
and the Consolidated Subsidiaries taken as a whole.
10. Neither the making nor the performance of the Vessel Sale Agreement,
the Loan Agreement, the Ship Mortgages or the Notes or the Subsidiary Guaranty
requires the consent or approval of any governmental instrumentality under any
law, statute, rule or regulation (other than any law, statute, rule or
regulation relating to maritime or admiralty matters, as to which you are
receiving the separate opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇) or under any indenture,
mortgage, contract or agreement known to us, after due inquiry.
11. The Company is not a "holding company", a "subsidiary company" of a
"holding company" or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
12. The Company is not an "investment company" or a company "controlled"
by an "investment company", within the meaning of the Investment Company Act of
1940, as amended.
13. The Company is not engaged in the business of extending credit for
the purpose of buying or carrying margin stock (within the meaning of Regulation
U of the Board of Governors of the Federal Reserve System), and, to the best of
our knowledge after due inquiry, the making of Loans under the Loan Agreement
for the purposes stated in the preamble to the Loan Agreement will not violate
Regulation U.
We are licensed to practice law only in the State of Ohio and,
accordingly, the foregoing opinions are limited solely to the laws of the State
of Ohio and applicable Federal law.
This opinion letter is being furnished to the Agent, Bank One, Columbus,
NA, as trustee, and the Banks for their use and the use of their respective
counsel. We understand and agree that ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ will rely upon the
matters contained in paragraph 5 above for purposes of rendering their opinion
to you pursuant to the Loan Agreement. No other use or distribution of this
opinion may be made without our prior written consent.
Very truly yours,
3
87
EXHIBIT F-2
December , 1994
To each of the Banks parties to the
Trust Agreement hereinafter referred to
and to
Society National Bank
as Agent for the Banks
and to
Bank One, Columbus, NA,
as Trustee for the Banks
Re: OGLEBAY NORTON COMPANY
Ladies and Gentlemen:
We have acted as maritime counsel to Oglebay Norton Company, a Delaware
corporation (the "COMPANY"), in connection with the negotiation, execution and
delivery of the four First Preferred Ship Mortgages dated December 20, 1990, and
amended by amendments to each thereof dated as of April 8, 1993 and as of
December 29, 1994 (collectively, the "SHIP MORTGAGES"), by the Company to Bank
One, Columbus, NA, Trustee ("MORTGAGEE") in its capacity as trustee under a
Master Trust Agreement dated as of December 1, 1990 (the "TRUST AGREEMENT"), for
the benefit of the banks named therein (the "BANKS"). The Ship Mortgages grant a
first preferred mortgage in favor of Mortgagee on the following vessels (the
"VESSELS"): ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., OGLEBAY NORTON, BUCKEYE and ARMCO.
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings assigned to such terms in the Ship Mortgages.
We are familiar with the corporate proceedings taken by the Company in
connection with the Ship Mortgages and the transactions contemplated thereby. In
addition, we have examined such corporate records, certificates and other
documents and such questions of law as we have considered necessary or
appropriate for the basis of the opinions hereinafter expressed. As to certain
factual matters, we have relied, where we deemed appropriate, upon information
contained in certificates or affidavits (copies of which have been delivered to
the Banks) of officers of the Company.
In making the examination of all documents and agreements in connection
with the opinions expressed herein, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity with the originals of all documents submitted to us as
copies.
With respect to the opinion expressed in paragraph 4 below, we have
relied upon the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇ and ▇▇▇▇▇, which is being delivered
simultaneously to you, with respect to the due authorization, execution and
delivery of the Ship Mortgages, and further our opinion is qualified to the
extent that the enforceability of the terms and provisions of the documents and
instruments referred to in paragraph 4 may be limited by bankruptcy, insolvency
and other similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles which may limit the right to obtain the
remedy of specific performance of executory covenants.
Based upon, and subject to, the foregoing, we are of the opinion that:
88
1. The Company is a citizen of the United States within the meaning of
Section 2 of the Shipping Act of 1916, as amended.
2. Each of the Vessels is duly and lawfully registered and documented in
the name of the Company under the laws and flag of the United States, and no
other action is necessary or advisable to establish and perfect the Company's
title to and interest in such Vessel as against any third party in any
applicable jurisdiction in the United States. The certificate of documentation
of each Vessel is endorsed with a Great Lakes endorsement pursuant to 46 U.S.C.
ss. 12107, and each Vessel is qualified under the laws of the United States to
be employed in the coastwise trade.
3. The Company lawfully owns and is lawfully possessed of each of the
Vessels, free from any security interest, lien, charge or encumbrance whatsoever
or any commitment to make any Vessel available for charter or sale or use by any
government authority other than the liens granted by the Ship Mortgages and
Permitted Liens. With respect to security interests, liens, charges or
encumbrances of record, we have relied upon the United States Coast Guard
Certificate of Ownership for the Vessels, and with respect to all other security
interests, liens, charges or encumbrances and the absence of any commitment to
make the Vessels available for sale, charter or use by any governmental
authority, we have relied upon the certificate of the Company.
4. The execution and delivery of the Ship Mortgages, and the performance
by the Company of its obligations thereunder, have been duly authorized by all
necessary corporate action on the part of the Company, and all of such documents
and instruments have been duly executed and delivered on behalf of the Company
and constitute valid and binding obligations of the Company, enforceable in
accordance with their respective terms.
5. There is no United States maritime or admiralty law, statute, rule or
regulation, which would be contravened by the execution and delivery of the Ship
Mortgages, nor do any of the foregoing prohibit performance by the Company of
any term, provision, condition, covenant or any other obligation of the Company
contained in any of the Ship Mortgages.
6. Neither the making nor the performance of the Ship Mortgages on the
part of the Company requires the consent or approval of any governmental
instrumentality under any United States maritime or admiralty law, statute, rule
or regulation, other than any such consent or approval as has been obtained and
is in full force and effect.
7. The Ship Mortgages are in proper form for filing and recording and
have been duly filed with and recorded by the United States Coast Guard, and
each of the Ship Mortgages constitutes a first "PREFERRED MORTGAGE" on the
Vessel covered by such Ship Mortgage under Chapter 313 of 46 U.S.C., having the
effect and with the priority provided in such Chapter; and no other filing or
periodic refiling or recording or periodic re-recording of the Ship Mortgages,
or any other act with respect to the Ship Mortgages, is necessary under existing
United States maritime or admiralty law to continue the respective liens of the
Ship Mortgages.
8. The Mortgagee has obtained the approval of the United States
Secretary of Transportation to act as an "APPROVED TRUSTEE" pursuant to 46
U.S.C. ss. 31328 and to act as a trustee for the benefit of the Banks under the
Trust Agreement to hold the security interests granted by the Company in the
Vessels pursuant to the terms of the Ship Mortgages.
This opinion letter is being furnished to the Banks, Society National
Bank, as agent for the Banks, and to the Mortgagee, for their use and the use of
their respective counsel. No other use or distribution of this opinion may be
made without our prior written consent.
Very truly yours,
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EXHIBIT G-1
================================================================================
AMENDED AND RESTATED SUBSIDIARY GUARANTY
FROM
OGLEBAY NORTON INDUSTRIAL SANDS, INC.
AND
OGLEBAY NORTON REFRACTORIES & MINERALS, INC.
TO
SOCIETY NATIONAL BANK,
INDIVIDUALLY AND AS AGENT
AND
THE BANK OF NOVA SCOTIA
NBD BANK, N.A.
COMERICA BANK
[SUCCESSOR BY MERGER TO MANUFACTURERS NATIONAL BANK OF DETROIT]
THE HUNTINGTON NATIONAL BANK
================================================================================
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AMENDED AND RESTATED SUBSIDIARY GUARANTY
FOR VALUE RECEIVED, and in consideration of any loan or other financial
accommodation heretofore or hereafter at any time made or granted to OGLEBAY
NORTON COMPANY, a Delaware corporation (herein called the "DEBTOR") by SOCIETY
NATIONAL BANK, individually (herein, in such capacity, together with its
successors and assigns, called "SOCIETY") and as Agent (herein, in such capacity
together with its successors and assigns, called the "AGENT") under the Loan
Agreement referred to below, THE BANK OF NOVA SCOTIA, NBD BANK, N.A., COMERICA
BANK [SUCCESSOR BY MERGER TO MANUFACTURERS NATIONAL BANK OF DETROIT] or THE
HUNTINGTON NATIONAL BANK (herein, together with Society and their respective
successors and assigns, collectively called the "BANKS" and individually called
a "BANK"), each of the undersigned, hereby jointly and severally unconditionally
guarantees the full and prompt payment when due, whether by acceleration or
otherwise, and at all times thereafter, of all monetary obligations of the
Debtor to any Bank or the Agent, howsoever created, arising or evidenced,
whether direct or indirect, primary or secondary, absolute or contingent, joint
or several, or now or hereafter existing or due or to become due (all such
monetary obligations being hereinafter collectively called the "LIABILITIES"),
under that certain Amended and Restated Loan Agreement, originally dated as of
December 1, 1990, and amended and restated as of December 29, 1994 (herein, as
the same may be amended from time to time, called the "LOAN AGREEMENT"), between
the Debtor, the Banks and the Agent, and each of the undersigned further jointly
and severally agrees to pay all expenses (including attorneys' fees and legal
expenses) paid or incurred by the Agent or any of the Banks in endeavoring to
collect the Liabilities, or any part thereof, and in enforcing this guaranty.
The right of recovery against each of the undersigned under this guaranty shall
not, however, exceed at any time the amount by which the Maximum Amount (as
hereinafter defined) of such undersigned calculated at that time exceeds the
aggregate of all amounts, if any, collected before that time by or on behalf of
the Agent or the Banks from such undersigned under this guaranty, plus interest
on such amount, accruing after demand upon such undersigned for payment
hereunder, at the Base Rate (as defined in the Loan Agreement) plus 2-3/8% per
annum and plus all expenses of enforcing this guaranty. The "MAXIMUM AMOUNT" for
any of the undersigned as of a particular time means the greater of (a) the
aggregate of all amounts advanced, from whatever source, to such undersigned by
the Debtor on or before such time, or (b) 95 percent of the amount by which (i)
the fair saleable value of the property of such undersigned exceeds (ii) the
total liabilities of such undersigned (including, without limitation, contingent
liabilities other than liabilities of such undersigned under this guaranty) as
calculated on the date hereof or, if such excess is greater, as calculated after
the date hereof but before such time.
Each of the undersigned agrees that, in the event of the dissolution or
insolvency of the Debtor or such undersigned, or the inability or failure of the
Debtor or such undersigned to pay debts as they become due, or an assignment by
the Debtor or such undersigned for the benefit of creditors, or the commencement
of any case or proceeding in respect of the Debtor or such undersigned under any
bankruptcy, insolvency or similar laws, and if such event shall occur at a time
when any of the Liabilities may not then be due and payable, such undersigned
will pay to each Bank forthwith the full amount which would be payable hereunder
by such undersigned if all Liabilities were then due and payable.
To secure all obligations of each of the undersigned hereunder, each
Bank shall have a lien upon and security interest in (and may, without demand or
notice of any kind, at any time and from time to time when any amount shall be
due and payable by such undersigned hereunder, appropriate and apply toward the
payment of such amount, in such order of application as such Bank may elect) any
and all balances, credits, deposits (general or special, time or demand,
provisional or final), accounts or moneys of or in the name of such undersigned
now or hereafter with such Bank and any and all property of every kind or
description of or in the name of such undersigned now or hereafter, for any
reason or purpose whatsoever, in the possession or control of, or in transit to,
such Bank or any agent or bailee for such Bank.
This guaranty shall in all respects be a continuing, absolute and
unconditional guaranty, and shall remain in full force and effect
(notwithstanding, without limitation, the dissolution of any of the undersigned
or that at any time or from time to time all Liabilities may have been paid in
full), until all Liabilities (including any extensions or renewals of any
thereof) and
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all interest thereon and all expenses (including attorneys' fees and legal
expenses) paid or incurred by the Agent and the Banks in endeavoring to collect
the Liabilities and in enforcing this guaranty shall have been finally paid in
full; PROVIDED, HOWEVER, that this guaranty shall terminate as to any
undersigned upon its ceasing to be a Subsidiary (as defined in the Loan
Agreement) of the Debtor in a manner that is permitted by the Loan Agreement.
Each of the undersigned further agrees that, if at any time all or any
part of any payment theretofore applied by the Agent or any Bank to any of the
Liabilities is or must be rescinded or returned by the Agent or such Bank for
any reason whatsoever (including, without limitation, the insolvency, bankruptcy
or reorganization of the Debtor), such Liabilities shall, for the purposes of
this guaranty, to the extent that such payment is or must be rescinded or
returned, be deemed to have continued in existence, notwithstanding such
application by the Agent or such Bank, and this guaranty shall continue to be
effective or be reinstated, as the case may be, as to such Liabilities, all as
though such application by the Agent or such Bank had not been made.
Each Bank and the Agent may, from time to time, at its sole discretion
and without notice to the undersigned (or any of them), take any or all of the
following actions without impairing the obligation of the undersigned under this
guaranty: (a) retain or obtain a lien upon or a security interest in any
property to secure any of the Liabilities or any obligation hereunder, (b)
retain or obtain the primary or secondary obligation of any obligor or obligors,
in addition to the undersigned, with respect to any of the Liabilities, or any
other liabilities or obligations, (c) extend or renew for one or more periods
(whether or not longer than the original period), alter or exchange any of the
Liabilities, or release or compromise any obligation of any of the undersigned
hereunder or any obligation of any nature of any other obligor with respect to
any of the Liabilities, (d) release or fail to perfect its lien upon or security
interest in, or impair, surrender, release or permit any substitution or
exchange for, all or any part of any property securing any of the Liabilities or
any obligation hereunder, or extend or renew for one or more periods (whether or
not longer than the original period) or release, compromise, alter or exchange
any obligations of any nature of any obligor with respect to any such property,
and (e) resort to the undersigned (or any of them) for payment of any of the
Liabilities, whether or not such Bank or the Agent (i) shall have resorted to
any property securing any of the Liabilities or any obligation hereunder, or
(ii) shall have proceeded against any other of the undersigned or any other
obligor primarily or secondarily obligated with respect to any of the
Liabilities (all of the actions referred to in preceding clauses (i) and (ii)
being hereby expressly waived by each of the undersigned).
Any amounts received by the Agent or any of the Banks from whatever
source on account of the Liabilities may be applied by the Agent or any such
Bank, toward the payment of such of the Liabilities, and in such order of
application, as the Agent or any of the Banks may from time to time elect.
Until such time as the Agent and the Banks shall have received payment
of the full amount of all Liabilities and of all obligations of each of the
undersigned hereunder, no payment made by or for the account of the undersigned
(or any of them) pursuant to this guaranty shall entitle any of the undersigned
by subrogation or otherwise to any payment by the Debtor or from or out of any
property of the Debtor and none of the undersigned shall exercise any right or
remedy against the Debtor or any property of the Debtor by reason of any
performance by such undersigned of this guaranty.
Each of the undersigned hereby expressly waives: (a) notice of the
acceptance by the Agent and the Banks of this guaranty, (b) notice of the
existence or creation or non-payment of all or any of the Liabilities, (c)
presentment, demand, notice of dishonor, protest, and all other notices
whatsoever, and (d) all diligence in collection or protection of or realization
upon the Liabilities or any thereof, any obligation hereunder, or any security
for or guaranty of any of the foregoing.
The creation or existence, with or without notice to any of the
undersigned, from time to time, of Liabilities in excess of the amount to which
the right of recovery under this guaranty is limited shall not in any way affect
or impair the rights of the Agent or any of the Banks or the obligation of any
of the undersigned under this guaranty.
The Agent or any of the Banks may, from time to time, without notice to
the undersigned (or any of them), assign or transfer any or all of the
Liabilities or any interest therein; and, notwithstanding any such assignment or
transfer or any subsequent assignment or transfer thereof, such Liabilities
shall be and remain Liabilities for the purposes of this guaranty, and each and
every immediate and successive assignee or transferee of any of the Liabilities
or of any interest therein shall, to the extent of the interest of such assignee
or transferee in the Liabilities, be entitled to the benefits of this guaranty
to the
2
92
same extent as if such assignee or transferee were the Agent or a Bank, as the
case may be; PROVIDED, HOWEVER, that, unless the Agent or any Bank, as the case
may be, shall otherwise consent in writing, the Agent or such Bank, as the case
may be, shall have an unimpaired right, prior and superior to that of any such
assignee or transferee, to enforce this guaranty, for the benefit of the Agent
or such Bank, as the case may be, as to those of the Liabilities which the Agent
or such Bank, as the case may be, has not assigned or transferred.
No delay on the part of the Agent or any Bank in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise by the Agent or any Bank of any right or remedy shall preclude other or
further exercise thereof or the exercise of any other right or remedy; nor shall
any modification or waiver of any of the provisions of this guaranty be binding
upon the Agent or any Bank except as expressly set forth in a writing duly
signed and delivered on behalf of the Agent or such Bank, as the case may be. No
action of the Agent or any Bank permitted hereunder shall in any way affect or
impair the rights of the Agent or such Bank or the obligations of any of the
undersigned under this guaranty. For the purposes of this guaranty, Liabilities
shall include all obligations of the Debtor to the Agent and the Banks under the
Loan Agreement, notwithstanding any right or power of the Debtor or anyone else
to assert any claim or defense as to the invalidity or unenforceability of any
such obligation, and no such claim or defense shall affect or impair the
obligations of the undersigned hereunder. The obligations of each of the
undersigned under this guaranty shall be absolute and unconditional irrespective
of any circumstance whatsoever which might constitute a legal or equitable
discharge or defense of the undersigned (or any of them). Each of the
undersigned hereby acknowledges that there are no conditions to the
effectiveness of this guaranty.
Each of the undersigned hereby warrants and represents to the Agent and
the Banks that such undersigned now has and will continue to have independent
means of obtaining information concerning the affairs, financial condition and
business of the Debtor. The Agent and the Banks shall not have any duty or
responsibility to provide the undersigned (or any of them) with any credit or
other information concerning the affairs, financial condition or business of the
Debtor which may come into the Agent's or any Bank's possession.
Each of the undersigned hereby further warrants and represents to the
Agent and the Banks that (a) the execution and delivery of this guaranty, and
the performance by each of the undersigned of its obligations hereunder, are
within the corporate right, power, authority and capacity of each of the
undersigned and have been duly authorized by all necessary corporate action on
the part of each of the undersigned, and (b) this guaranty has been duly
executed and delivered on behalf of each of the undersigned and is the legal,
valid and binding obligation of each of the undersigned, enforceable in
accordance with its terms, the making and performance of which do not and will
not contravene or conflict with the charter or by-laws of any of the undersigned
or violate or constitute a default under any law, any presently existing
requirement or restriction imposed by judicial, arbitral or any governmental
instrumentality or any agreement, instrument or indenture by which any of the
undersigned is bound.
This guaranty shall be binding upon each of the undersigned, and upon
the successors and assigns of each of the undersigned; and to the extent that
the Debtor or any of the undersigned is either a partnership or a corporation,
all references herein to the Debtor and to such of the undersigned,
respectively, shall be deemed to include any successor or successors, whether
immediate or remote, to such partnership or corporation. The term "undersigned"
as used herein shall mean all parties executing this guaranty and each of them,
and all such parties shall, subject to the limitation on right of recovery in
the first paragraph hereto, be jointly and severally obligated hereunder.
This guaranty amends and restates in its entirety a guaranty dated as of
December 1, 1990 originally executed and delivered in connection with the Loan
Agreement, as originally executed as of December 1, 1990. Certain guarantors
named in the original guaranty are no longer liable as guarantors of the
Liabilities.
THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF OHIO. Wherever possible each provision of this guaranty
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this guaranty.
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93
EACH OF THE UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
GUARANTY OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR
WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH, AND AGREES THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
Each of the undersigned agrees that any judicial proceedings brought
against such undersigned with respect to this guaranty may be brought in any
state or federal court of competent jurisdiction in the State of Ohio and by the
execution and delivery of this guaranty, each of the undersigned accepts the
nonexclusive jurisdiction of the aforesaid courts. Service of process may be
made by any means authorized by federal law or the law of Ohio. A copy of any
such process so served shall be mailed by registered mail to each of the
undersigned at its address set forth opposite its name on the signature page
hereto or at such other address as may be designated by such undersigned in a
notice to the Agent and the Banks. Nothing herein shall limit the right of the
Agent or any Bank to bring proceedings against any of the undersigned in the
courts of any other jurisdiction.
SIGNED AND DELIVERED as of this 29th day of December, 1994.
OGLEBAY NORTON INDUSTRIAL SANDS, INC.
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By:
------------------------------------
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Title:
---------------------------
OGLEBAY NORTON REFRACTORIES & MINERALS,
INC.
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By:
------------------------------------
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Title:
---------------------------
4
94
EXHIBIT G-2
SECOND AMENDMENT TO
FIRST PREFERRED SHIP MORTGAGE
THIS SECOND AMENDMENT TO FIRST PREFERRED SHIP MORTGAGE dated as of
December 29, 1994 (this "AMENDMENT"), made by OGLEBAY NORTON COMPANY, a Delaware
corporation, with its address at The Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "MORTGAGOR"), and BANK ONE, COLUMBUS,
NA, as Trustee pursuant to a Master Vessel Trust Agreement dated as of December
1, 1990 for the benefit of the banks named therein, with its address at ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (the "MORTGAGEE"):
WITNESSETH:
WHEREAS, the Mortgagor is the sole owner of one hundred percent (100%)
of the Great Lakes self-unloading ore carrier named _________________________
(O.N. _______) which Vessel is duly documented under and pursuant to the laws of
the United States of America, having its home port at the Port of Philadelphia,
Pennsylvania (as further described in the Granting Clause of the Original
Mortgage referred to below, wherein called the "VESSEL"); and
WHEREAS, the Mortgagor entered into a First Preferred Ship Mortgage (the
"ORIGINAL MORTGAGE"), dated December 20, 1990, in favor of the Mortgagee,
creating a "preferred mortgage" on the Vessel under Chapter 313 of 46 U.S.C.;
WHEREAS, the Original Mortgage was recorded at the United States Coast
Guard-Philadelphia, Pennsylvania at __ p.m. on December 20, 1990, in Book __ at
page ___; and
WHEREAS, the Original Mortgage was amended by an Amendment to First
Preferred Ship Mortgage (the "FIRST AMENDMENT"), dated as of April 8, 1993,
which Amendment was recorded at the United States Coast Guard-Philadelphia,
Pennsylvania at __ [p.m.][a.m.] on ___________________, 1993, in Book __ at page
___; and
WHEREAS, the Mortgagor and the Mortgagee desire to amend the Original
Mortgage, as heretofore amended by the First Amendment, to reflect certain
amendments to the Loan Agreement referred to therein; and
WHEREAS, the execution and delivery of this Amendment has been duly
authorized by the Mortgagor, all conditions and requirements necessary to make
this Amendment a valid and binding agreement of the Mortgagor have been complied
with;
NOW, THEREFORE, the Mortgagor and the Mortgagee agree as follows:
1. DEFINITIONS. Unless otherwise defined herein, terms which are defined
in the definitions of which are incorporated by reference in the Original
Mortgage are used herein as so defined.
2. INCORPORATION OF AMENDMENT AND RESTATEMENT OF LOAN AGREEMENT. The
Loan Agreement has been amended and restated in its entirety by an Amended and
Restated Loan Agreement, originally dated as of December 1, 1990, and amended
and restated as of December 29, 1994 (the "AMENDED AND RESTATED LOAN
AGREEMENT"), a copy of which is attached hereto as Exhibit A and made a part of
the Original Mortgage for all purposes. All references in the Original Mortgage
to the Loan Agreement shall be deemed to refer to the Amended and Restated Loan
Agreement, and any amendments, supplements thereto or restatements thereof
entered into after the date hereof.
3. CONFIRMATION OF AMOUNT OF SECURED INDEBTEDNESS. For the purpose of 46
U.S.C. Section 31321(b)(3), the amount of the direct or contingent obligations
that are or may be secured by the Original Mortgage, as heretofore amended and
as amended hereby, excluding interest, expenses and fees, is Ninety Million and
no/100 ths Dollars ($90,000,000.00),
95
and interest and performance of mortgage covenants. The date of maturity is
extended from December 31, 1998 to December 31, 2001, and the discharge amount
is the same as the total amount.
4. RATIFICATIONS. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions set forth in
the Original Mortgage, as heretofore amended, and except as expressly modified
and superseded by this Amendment, the terms and provisions of the Original
Mortgage, as heretofore amended, are ratified and confirmed and shall continue
in full force and effect.
5. HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
6. 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.
7. 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 instruments.
[The balance of this page is intentionally blank.]
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96
IN WITNESS WHEREOF, this Amendment has been duly executed by the
Mortgagor and the Mortgagee as of the date first above written.
OGLEBAY NORTON COMPANY, AS
THE MORTGAGOR
BY: ______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇, TREASURER
ATTEST: __________________________
ASSISTANT SECRETARY
BANK ONE, COLUMBUS, NA, AS
TRUSTEE, AS THE MORTGAGEE
BY: ______________________________
NAME: ________________________
TITLE:_________________________
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97
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, the undersigned authority, on this day personally appeared
▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, known to me to be the persons whose names
are subscribed to the foregoing instrument, and who acknowledged to me that they
are the Treasurer and an Assistant Secretary, respectively, of Oglebay Norton
Company a Delaware corporation; and that they executed the foregoing instrument
for the purposes and consideration therein expressed and in the capacity therein
stated.
Given under my hand and seal of office this ____ day of December, 1994.
---------------------------------------
Notary Public
My commission expires: ___________
4
98
STATE OF OHIO )
) SS:
COUNTY OF FRANKLIN )
BEFORE ME, the undersigned authority, on this day personally appeared
_____________________________, known to me to be the person whose name is
subscribed to the foregoing instrument, and who acknowledged to me that he or
she is the ________________________, of Bank One, Columbus, NA, a national
banking association; and that he or she executed the foregoing instrument for
the purposes and consideration therein expressed and in the capacity therein
stated.
Given under my hand and seal of office this ____ day of December, 1994.
---------------------------------------
Notary Public
My commission expires: ___________
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99
EXHIBIT A
COPY OF AMENDED AND RESTATED LOAN AGREEMENT