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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1998 Commission File Number 000-25651
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OGLEBAY NORTON COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
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(STATE OR OTHER JURISDICTION
OF INCORPORATION OR ORGANIZATION)
1100 SUPERIOR AVENUE -- 21ST FLOOR,
CLEVELAND, OHIO
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
34-1888342
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(IRS EMPLOYER
IDENTIFICATION NO.)
44114-2598
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(ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (216) 861-3300
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
COMMON STOCK
$1 PAR VALUE
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RIGHTS TO PURCHASE
PREFERRED STOCK
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Indicate by check mark whether Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months, and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ].
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
The aggregate market value of voting stock held by non-affiliates of
Registrant at March 22, 1999 (calculated by excluding the total number of shares
reported under Item 12 hereof) was $69,876,000.
Shares of Common Stock with associated Rights to Purchase Preferred Stock
outstanding at March 22, 1999: 4,819,766.
Portions of the following document are incorporated by reference: Schedule
14A Information containing Registrant's proxy statement, dated March 23, 1999
required to be filed pursuant to Regulation 14(a) of the Securities Exchange Act
of 1934 in connection with Registrant's 1999 Annual Meeting of Stockholders.
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PART I
ITEM 1. BUSINESS
A. (1) ABOUT THE COMPANY
Oglebay Norton Company, founded in 1854 and headquartered in Cleveland,
Ohio, mines, processes, transports and markets industrial minerals and enjoys
significant market share in each of its business segments. In March 1999, the
Company reorganized into a holding company structure. Each business segment
consists of one or more subsidiaries. The primary Standard Industrial Code for
the Company is 1400. The Company serves a broad customer base in the integrated
steel, electric utility, construction, oil drilling, glass, ceramic,
environmental, chemical, recreational and industrial manufacturing industries.
The principal offices of the Company are located at 1100 Superior Avenue, 21st
floor, Cleveland, Ohio 44114-2598. The Company benefits from long-term
relationships with market-leading customers, many of which have multi-year
purchase contracts with the Company. In addition, the Company owns high-quality
assets, including (1) strategically located, high-quality industrial sand and
limestone reserves, (2) modern industrial sands and lime and limestone
extraction equipment and facilities, and (3) a well-maintained fleet of marine
transportation vessels.
The Company (1) mines and/or processes limestone and manufactures lime at
nine operations located throughout the eastern United States and Canada through
its Lime and Limestone business segment, (2) mines and processes industrial
sands at six operations, located in Ohio and the southwestern United States,
through its Industrial Sands business segment, and (3) operates the largest
fleet of self-unloading vessels on the Great Lakes, transporting iron ore, coal,
limestone and other dry bulk cargo between U.S. ports through its Marine
Transportation business segment. The Company believes that its Lime and
Limestone business is the fifth largest producer of lime in the United States
and that its Industrial Sands business is the fourth largest producer of
industrial sands in the United States. The Marine Transportation business
segment, which is one of four leading providers of marine transportation between
U.S. ports on the Great Lakes, has an approximate 20% share of such market.
In early 1998, the Company's Board of Directors installed a new management
team, led by John N. Lauer, Chairman, President and Chief Executive Officer and
David H. Kelsey, Vice President and Chief Financial Officer. During 1998, the
new management team completed four acquisitions, the largest of which was the
purchase of Global Stone Corporation ("Global Stone"), a Canadian publicly
traded company that produces and markets lime and limestone. In addition, the
Company purchased the Port Inland, Michigan limestone operations ("Port Inland")
of Specialty Minerals Inc. (a subsidiary of Minerals Technologies Inc.),
Colorado Silica Sand, Inc. ("Colorado Silica"), an industrial sands producer,
and Filler Products, Inc. ("Filler Products"), a privately owned producer of
chemical limestone. The Global Stone acquisition and the acquisitions of Port
Inland and Filler Products are part of the Company's overall strategy to
capitalize on its core competencies in the industrial minerals industry by
expanding operations to include the mining and processing of limestone and the
production of lime.
(2) BUSINESS STRATEGY
The Company's strategy for enhancing its market leadership position and
maximizing profitability and cash flow includes the following:
- Pursue growth through selective acquisitions. The Company intends to
continue to make strategic acquisitions of complementary businesses to:
- supplement internally generated growth;
- increase the breadth of product offerings;
- add customers and expand geographic coverage;
- take advantage of industry consolidation; and
- capitalize on the Company's expertise in the industrial minerals
industry.
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The Company uses strict criteria to evaluate business acquisition
possibilities, including existing customer relationships, potential cost
reductions and synergies, return on investment parameters and impact on earnings
per share.
- Capitalize on increasing demand for lime products. Public concerns over
environmental issues, reflected in recent legislative changes in the
United States, have resulted in an increase in the demand for lime used
in environmental clean-up applications, including flue gas
desulfurization, municipal waste sludge treatment, drinking water
treatment and hazardous waste remediation. The Clean Air Act, for
example, requires the reduction of emissions, particularly sulfur, from
certain machinery. Lime is the principal agent used in the
desulfurization process. The Company believes that it is well positioned
to capitalize on this increasing demand.
- Maximize fleet efficiency. The Marine Transportation business segment
strives to efficiently control the dispatch and movement of its vessel
fleet. This function is performed centrally and is key to maximizing
profitability. The segment attempts to negotiate contracts and dispatch
vessels to facilitate backhauls, improving efficiency and profitability
by providing tonnage on a vessel's return trip, when it would normally
travel without cargo. The business segment also attempts to maximize the
fleet's efficiency through careful scheduling and continuous tracking of
weather, dock and traffic conditions. In addition, the fleet benefits
from an extensive preventive maintenance program. Every vessel is brought
into top mechanical condition during the winter and maintained during the
shipping season through continuous attention to maintenance needs.
Regular inspections and ongoing electronic monitoring of equipment enable
mechanics to repair or replace machinery before it fails.
- Continue decentralized management of operating units. The Company's
business segments are managed on a decentralized basis by operating
managers, while the corporate management team provides strategic
direction and support, and identifies and evaluates potential acquisition
opportunities. The Company believes that its decentralized corporate
culture eliminates many of the inefficiencies that can result from a
highly centralized corporate structure. Operating managers have
decision-making authority and are compensated based on the profitability
of their respective business segment. The Company also believes that this
philosophy results in better customer service by allowing each operating
segment the flexibility and autonomy to implement policies and make
decisions based on first-hand assessments of individual customer
requirements.
B. PRINCIPAL PRODUCTS AND SERVICES
1. LIME AND LIMESTONE
The Company's Lime and Limestone business segment is headquartered in
Roswell, Georgia. The lime and limestone operations were established in 1998
through the acquisitions of Global Stone, Port Inland and Filler Products. With
these acquisitions, the Company's Lime and Limestone segment is a major North
American supplier of lime, chemical limestone and construction aggregates
serving a broad customer base in a variety of industries.
Industry
Limestone accounts for about three-quarters of crushed stone production in
the United States. Crushed limestone has four primary end uses: construction
aggregates; chemical and metallurgical uses; cement and lime manufacturing; and
agricultural purposes.
High-purity chemical limestone may be processed into value-added products,
such as lime or limestone fillers, or sold as chemical limestone for use in
manufacturing products as diverse as poultry feed mixtures, fiberglass, and
roofing shingles. Fillers, which are finely ground limestone powders, are used
in a wide range of manufacturing processes including vinyl flooring, carpet
backing, adhesives, sealants and jointing compounds for wallboard.
Lime is a value-added product, derived from limestone, and is widely used
in a variety of manufacturing processes and industries, including iron and
steel, pulp and paper, chemical, air purification, sewage, water and
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waste treatments, agricultural and construction. The wide range of end-uses and
markets for lime offers some protection from the economic cycles experienced by
individual sectors such as the steel industry. In addition, since a high
proportion of lime is sold into end-uses that have year-round requirements
largely unaffected by the weather, the demand for lime is relatively less
seasonal.
Operations
The Company's Lime and Limestone business segment produces products for all
four primary end uses described above. The segment has nine lime and/or
limestone operations in North America that collectively extract and process high
purity limestone. These operations are located in Tennessee, Virginia (2
operations), Michigan (2 operations), Pennsylvania, Oklahoma, Georgia and
Ontario, Canada.
The segment currently operates nine open pit quarries and four underground
mines. At the quarry operations, limestone is extracted from the ground by
traditional drilling and blasting techniques. In an open pit quarrying
operation, the high purity limestone is often covered by an overburden of
construction grade limestone that must first be removed. This overburden is used
whenever possible to produce construction aggregates, usually in a dedicated
crushing plant, in order to minimize the net costs of extraction. Following
extraction, trucks or trains are used to deliver the "as-blasted" limestone to a
primary crusher. It is then processed through several stages of crushing and
screening to form products that are saleable as chemical limestone or ready for
further processing into lime, fillers and other added value products. The
Company assesses mineral reserves at all of its quarries and mines utilizing
external consulting geologists and mining engineers.
High-purity chemical limestone is processed into lime by heating it in a
kiln. At December 31, 1998, the Company believes its daily lime production
capacity is approximately 4,500 tons. The capacity over a 24-hour period cannot
be projected over a full calendar year because kilns require regular planned
outages for maintenance and equipment is subject to unplanned outages customary
with any mechanical plant. Typically, a kiln will operate between 80% and 90% of
the available hours in any year.
Customers
Transportation cost represents a significant portion of the overall cost of
lime and limestone. As a result, the majority of lime and limestone production
is sold within a 200-mile radius of the producing facility. The Company believes
that its lime and/or limestone operations are strategically located near major
markets. The segment's customers vary by the type of limestone products they
demand; lime, chemical limestone or construction aggregate.
In general, demand for lime and limestone correlates to general economic
cycles, principally new construction demand, population growth rates and
government spending on road construction, which affect the demand for our
customers' products and services. The segment has a broad customer base covering
all sectors of the demand for lime and limestone. The Company estimates that the
steel, environmental and construction markets account for approximately 25%, 16%
and 16%, respectively, of the business segment's revenue.
Competition
Given that transportation cost represents a significant portion of the
overall cost of lime and limestone products, competition generally occurs among
participants in close geographic proximity. In addition, the scarcity of high
purity limestone deposits on which the required zoning, extraction and emission
permits can be obtained serve to limit competition from start-up operations
within the lime and limestone market.
Lime is primarily purchased under annual contracts. For many customers, the
cost of lime is quite small in comparison to their overall production costs. For
1998, the Company estimates that the five largest lime producers in North
America accounted for approximately 72% of total industry capacity, with the
Company's business segment accounting for approximately 6%. The four largest
companies with which the Company competes are privately owned.
The construction aggregate industry in North America is highly fragmented.
Many of the active operations are small scale or wayside locations operated by
state or local governments, usually to meet the requirements of highway
contracts in more remote locations. There are many companies whose positions are
substantial and often
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centered on a particular geographic region, including Vulcan Materials
Corporation, Martin Marietta Materials and Lafarge Corporation.
2. INDUSTRIAL SANDS
The Company's Industrial Sands segment, headquartered in Phoenix, Arizona,
is engaged in the mining and processing of industrial sands for the oil
drilling, construction, manufacturing, filtration, landscaping and ceramic and
fiberglass industries.
Industry
Industrial sands and gravels, often termed "silica", "silica sand" and
"quartz sand", include high silicon dioxide content sands and gravels. While
deposits of more common construction sand and gravel are widespread, silica and
industrial sand deposits are limited. The special properties of silica
sand -- purity, grain size, color, inertness, hardness and resistance to high
temperatures -- make it often irreplaceable in a variety of industrial
applications. Higher silica content allows for more specialized, high margin
applications than construction sand and gravel, such as glass, ceramics,
fiberglass, foundry, abrasive, hydraulic fracturing (oil drilling), and a
variety of other high margin applications.
The demand for industrial sands is driven by a number of factors depending
on end use. For example, silica flour, which is used in the production of
fiberglass, paint and ceramics, is used primarily in new construction, making
demand for silica flour highly correlated with housing starts in the geographic
markets served. Demand for frac sands, used by oil drilling services companies,
is correlated with the price per barrel of oil. In specialized applications, the
physical properties of sand, such as strength, color, shape and texture can also
be important.
Operations
The Industrial Sands business segment products include: (i) fracturing
sands, which are used by oil drillers to hold rock structures open; (ii) foundry
sands, which are used to create molds for hot iron and other metals; (iii)
filtration sands, which are used in liquid filtration systems; (iv) recreational
sands, which are used in the construction of golf courses and other recreation
fields as well as in general landscaping applications; (v) specialty
construction/industrial sands, which are used in the construction industry; and
(vi) silica flour, which is used in the glass, fiberglass and ceramic
industries.
The Industrial Sands segment has six industrial sands operations located in
Ohio and the southwestern United States. The business segment currently operates
four open pit quarries with integrated processing plants, one processing plant
supported by surface sand purchased under a long-term contract and two remote
processing plants. Once extracted, the sand is washed to remove impurities like
clay and dirt. The sand is then dried, screened and separated into different
sized granules. At certain of the facilities, the sand is also pulverized into
powder for use in ceramic and other applications. All of the segment's
industrial sands operations have railroad and/or highway access.
Customers
The segment has a broad customer base covering all sectors of demand for
industrial sands. Similar to lime and limestone, transportation cost represents
a significant portion of the overall cost of industrial sands, and the majority
of production is sold within a 200-mile radius of the producing facility.
However, for the higher-margin industrial sands products, representing sands
with particular qualities, competition occurs amongst sand producers in
different geographic regions since transportation costs are less restrictive.
Customers of the Industrial Sands segment participate in the oil well service,
specialty construction, fiberglass, ceramic, recreational, foundry and
filtration industries. Within these industries, sand is used for a wide variety
of applications, from fracturing sands used to increase oil well production to
sands used in playground and golf course construction. Demand for industrial
sands has been high in recent years, due in part to increases in activity in the
domestic oil and gas industry and the construction industry in the Southwest. In
general, demand for industrial sands correlates to general economic cycles,
including the price of oil, new construction demands and population growth
rates, which affect the demand for our customers' products and services. The
Company
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estimates that the oil field/frac and construction markets accounted for
approximately 32% and 18%, respectively, of the business segment's revenue.
Competition
Again, since transportation cost represents a significant portion of the
overall cost of industrial sands, competition generally occurs among
participants in close geographic proximity. Furthermore, the scarcity of high
purity sand deposits on which the required zoning and extraction permits can be
obtained serves to limit competition. Management estimates that the Industrial
Sands segment accounts for approximately 11% of the U.S. industrial sands market
making it the fourth largest industrial sand producer in the United States. Its
principal competition comes from three private companies, Unimin Corp., U.S.
Silica Co. and Fairmount Minerals Ltd.
3. MARINE TRANSPORTATION
The Company's Marine Transportation business segment is headquartered in
Cleveland, Ohio and operates the largest fleet of self-unloading vessels on the
Great Lakes in terms of number of vessels and the third largest such fleet in
terms of cargo capacity. The fleet primarily serves the integrated steel,
electric utility and construction industries through the transportation of iron
ore, coal, limestone and other dry bulk commodities.
Industry
Great Lakes shipping demand is generally related to the state of the
economy and to the overall level of manufacturing activity. Moreover, the Great
Lakes marine transportation business is seasonal. The season is affected by
weather conditions (such as the waterways freezing over), the closing/opening of
the locks between the lakes, and customer demand for service. These factors
cause the actual number of days of operation to vary each year. Typically, the
locks close around January 15 and re-open around March 25. Management believes
that the Great Lakes shipping market in which its fleet competes operated
throughout 1998 at a utilization rate approaching full capacity.
Operations
The marine transportation fleet focuses primarily on the bulk
transportation of iron ore, coal and limestone for approximately 30 customers.
Substantially all the fleet's transportation services are conducted between U.S.
ports on the Great Lakes, including Cleveland, Detroit, Milwaukee, Toledo and
Duluth. The largest vessels in the fleet, the 1,000-foot M/V Columbia Star and
M/V Oglebay Norton, transport primarily iron ore and coal. Management believes
that these 1,000-foot vessels, of which there are 13 operating on the Great
Lakes, are the most efficient and desirable method of transporting these
commodities. The smaller vessels also transport limestone in addition to iron
ore and coal and are subject to more flexible scheduling. Generally, the
transportation of iron ore represents the highest revenue per ton, but it also
often involves the longest routes. Many factors contribute to the overall
profitability of a particular vessel and commodity. Delays, including those
caused by weather, dock congestion and lake and river traffic also effect
profitability. The key to maximizing profitability is effective control of the
dispatch and movement of the vessels in the fleet. Through continuous monitoring
of fleet sailing patterns and weather, dock and traffic conditions, delays can
be minimized, increasing the fleet's profitability.
In addition to the marine transportation fleet, the segment operates a bulk
material dock facility in Cleveland, Ohio. The dock facility is operated under a
ten-year agreement with the Cleveland-Cuyahoga County Port Authority expiring in
March 2007 (with an option to extend for an additional ten years). The dock
facility receives cargo from Great Lakes vessels, stores cargo as needed and
transfers cargo for further shipment via rail or water transportation. While the
Cleveland dock facility handled only iron ore cargoes during 1998, it can also
be utilized for the transshipment of in-bound and out-bound cargoes of other
dry-bulk commodities such as coal, sand, limestone, magnetic concentrate ore,
salt, cement and coke. As is the case with the Great Lakes vessels, operations
at the dock facility are typically seasonal, commencing in late March and
continuing until early January. However, the location permits its use during the
off-season for transshipment of dry bulk cargoes from the dock to points on the
adjoining Cuyahoga River, weather conditions permitting.
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Customers
The segment has long-established relationships with many of its customers
and provides services to many of them pursuant to long-term contracts.
Management estimates that approximately 90% of the tonnage hauled by the vessel
fleet was shipped pursuant to long-term contracts. To a certain extent, demand
for our marine transportation services correlates to general economic cycles,
including steel production, construction activity in the Great Lakes region and
the price and availability of oil and other fuels, which affect demand for our
customers' products. The segment's customers include integrated steel
manufacturers (which use our services to transport iron ore, coal and
limestone), electric utility companies (which use our services to transport
coal) and chemical limestone and construction aggregate producers and purchasers
(which use our services to transport limestone). The segment has three principal
iron ore customers including The LTV Corporation and AK Steel Holding
Corporation, eight principal coal customers, including DTE Energy Company, and
approximately 15 limestone customers. The Company estimates that integrated
steel customers account for approximately 52% of the segment's revenues.
Competition
The most important competitive factors impacting the Marine Transportation
segment are price, customer relationships and customer service. Management
believes that customers are generally willing to continue to use the same
carrier assuming such carrier provides satisfactory service with competitive
pricing. The vessel fleet competes only among U.S. flag Great Lakes vessels
because of the U.S. federal law known as the Jones Act. The Jones Act requires
that cargo moving between U.S. ports be carried in a vessel that was built in
the United States, has a U.S. crew, and is owned (at least 75%) by U.S. citizens
or corporations. As a result, Canadian-flag Great Lakes vessels or foreign-flag
oceanic vessels do not carry dry bulk cargo between U.S. ports. The competitive
landscape has remained relatively stable over the last ten years with the
overall number of vessels available for service decreasing from 75 to 69. The
fleet principally competes against three other similar-sized U.S. flag Great
Lakes commercial fleets, American Steamship Company, The Interlake Steamship
Company and U.S.S. Great Lakes Fleet, Inc. It also competes with certain
companies that operate smaller captive fleets and, to a lesser extent, with rail
and truck transportation companies serving the Great Lakes region.
C. ENVIRONMENTAL, HEALTH AND SAFETY CONSIDERATIONS
The Company is subject to various environmental laws and regulations
imposed by federal, state and local governments. The Company cannot reasonably
estimate future costs related to compliance with these laws and regulations.
However, costs incurred to comply with environmental regulations historically
have not been outside the ordinary course of business. Although it is possible
that the Company's future operating results could be affected by future costs of
environmental compliance, management believes that such costs will not have a
material adverse effect on the Company's consolidated financial position. The
Company is unable to predict the effects of future environmental laws and
regulations upon its business.
D. EMPLOYEES
At December 31, 1998, the Company employed approximately 1,800 people, of
whom 200 are management and 1,600 are operational. Approximately 57% of the
Company's employees are unionized, and the Company is party to nine collective
bargaining agreements with various labor unions. The Company believes that it
maintains good relations with each of these unions. During 1999, the collective
bargaining agreements covering employees at the Ingersoll, Ontario operation and
the unlicensed crew of the marine transportation vessel fleet expire. These
agreements cover approximately 80% and 62% of the employees of the Ingersoll
operation and marine transportation fleet, respectively. Negotiations on these
collective bargaining agreements will commence in the second quarter of 1999 and
may affect the results of operations for both the Lime and Limestone and Marine
Transportation business segments.
E. SUBSEQUENT EVENTS
On March 5, 1999, Oglebay Norton Company completed a holding company merger
pursuant to Section 251(g) of the Delaware Corporation Law. As a result of the
merger, Oglebay Norton Company is a
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Delaware holding company and the successor issuer to former Oglebay Norton
Company, which is now known as ON Marine Services Company.
ITEM 2. PROPERTIES
The Company's principal operating properties are described below. The
Company's executive offices are located at 1100 Superior Avenue, Cleveland,
Ohio, under a sublease expiring on March 31, 2003. The total area involved is
approximately 55,000 square feet.
<TABLE>
<CAPTION>
OWNED/ RESERVES(1)
LOCATION USE LEASED (YEARS REMAINING)
-------- --- ------ -----------------
<S> <C> <C> <C>
CORPORATE HEADQUARTERS
Cleveland, Ohio Offices Leased N/A
MARINE TRANSPORTATION
Cleveland, Ohio Marine transportation Leased N/A
Bulk commodity dock
INDUSTRIAL SANDS
Orange County, California Sand quarry and processing plant (2) 14
(San Juan Capistrano)
Riverside, California Sand processing plant (3) Supplied by third parties
Bakersfield, California Sand processing plant (3) Supplied by Voca facility
Ohio Operations:
Glenford and Howard, Sand quarries and processing Owned 17 and 25, respectively
plants
Texas Operations:
Brady and Voca Sand quarries and processing Owned 71
plants
Colorado Springs, Colorado Sand processing plant (4) 6
LIME AND LIMESTONE
Ingersoll, Ontario, Canada Limestone quarry and lime works Owned 293
Luttrell, Tennessee Limestone mine and lime works (5) 17
Chemstone operations:
Strasburg and Limestone quarries, processing (6) 68 and 45, respectively
Middletown, Virginia plants and lime works
Detroit, Michigan Lime works Leased Supplied by third parties
York, Pennsylvania Limestone quarries and processing Owned 32
plants
Marble City, Oklahoma Limestone mine and lime works Owned 61
Buchanan, Virginia Limestone quarry and processing Owned 45
plant
Gulliver, Michigan Limestone quarries, ship loading Owned 44
facility and processing plant
Filler Products
Operations:
Chatsworth, Ellijay and Limestone mines and processing (7) 50
Cisco, Georgia plants
</TABLE>
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- ---------------
(1) Certain estimates of reserves are based on the life of a mineral lease and
not the actual reserves remaining at the location.
(2) The processing plant is owned and the sand quarry is subject to a mineral
lease agreement through 2013.
(3) The sand processing plants are owned, however, they are located on land
which is leased (the Riverside operation on a month to month basis and the
Bakersfield operation through December 31, 2000 with a right to renew for an
additional 5-year term).
(4) The sand processing plant is owned and the operation acquires feedstock sand
under supply agreements that provide 6 years of reserves at current
production levels.
(5) The lime works is owned and the limestone mine is subject to a mineral lease
agreement through 2015.
(6) The limestone quarry and lime works at Strasburg and the processing plant at
Middletown are owned. The limestone quarry at Middletown is subject to a
100-year mineral lease agreement, however, it is estimated that there are 45
years of reserves remaining on the property.
(7) The processing plants are owned and the limestone mines are subject to a
99-year mineral lease agreement, however, it is estimated that there are 50
years of reserves remaining on the properties.
ITEM 3. LEGAL PROCEEDINGS
(1) The Company, Oglebay Norton Taconite Company (a former wholly-owned
subsidiary of the Company), Eveleth Taconite Company, Eveleth Expansion Company
and the United Steel Workers of America, Local 6860 were named defendants in a
class action complaint filed on August 16, 1988 in United States District Court,
Fifth District of Minnesota, by Lois E. Jenson and Patricia S. Kosmach alleging
both sexual harassment and sexual discrimination under federal and state laws.
On November 22, 1988, Kathleen O'Brien Anderson, a former employee of Eveleth
Mines, filed a Notice of Charge of Discrimination with the Equal Employment
Opportunity Commission, alleging sexual harassment and sexual discrimination.
These claims were settled in January 1999 and the settlement is covered by
insurance.
(2) The Company and certain of its subsidiaries are involved in various
other claims and routine litigation incidental to their businesses, including
claims relating to the exposure of persons to asbestos and silica. The full
impact of these claims and proceedings in the aggregate continues to be unknown.
The Company currently believes that these claims and proceedings are covered by
insurance and are unlikely to have a material adverse effect on the Company's
financial position.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matter was submitted to a vote of the Company's security holders,
through the solicitation of proxies or otherwise, during the fourth quarter of
the fiscal year covered by this report.
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PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS
The Company's common stock is traded on the NASDAQ National Market (symbol:
OGLE). The Company had 413 and 451 stockholders of record at December 31, 1998
and 1997, respectively. There were no sales of unregistered equity securities by
the Company during 1998. The following is a summary of the market range and
dividends for each quarterly period in 1998 and 1997 for the Company's common
stock.
<TABLE>
<CAPTION>
MARKET RANGE
QUARTERLY -------------
PERIOD HIGH LOW DIVIDENDS
--------- ----- ---- ---------
<S> <C> <C> <C>
1998
4th............................................... $27 3/4 $22 3/8 $0.20
3rd............................................... 41 26 1/2 0.20
2nd............................................... 50 1/2 39 1/2 0.20
1st............................................... 41 1/4 36 0.20
1997
4th............................................... $41 1/4 $29 5/8 $0.20
3rd............................................... 29 7/8 21 3/4 0.20
2nd............................................... 22 3/8 19 5/8 0.175
1st............................................... 22 1/2 20 1/2 0.175
</TABLE>
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ITEM 6. SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------------------------
1998 1997 1996 1995 1994
-------- -------- -------- -------- --------
(DOLLARS AND SHARES IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
OPERATIONS
Net sales and operating revenues.... $238,852 $145,185 $129,697 $126,373 $118,509
Income from operations.............. 37,035 24,465 11,653 12,973 10,370
Income from continuing operations... 12,036 18,356 11,039 10,624 9,558
Discontinued operations............. -0- (2,104) 4,518 4,737 5,333
Net income.......................... 12,036 16,252 15,557 15,361 14,891
PER SHARE DATA
Income (loss) per common
share -- basic:
Continuing operations............. $ 2.52 $ 3.84 2.26 $ 2.15 $ 1.92
Discontinued operations........... -0- (0.44) 0.93 0.95 1.07
Net income........................ 2.52 3.40 3.19 3.10 2.99
Income (loss) per common share --
assuming dilution:
Continuing operations............. 2.51 3.81 2.26 2.15 1.92
Discontinued operations........... -0- (0.44) 0.92 0.95 1.07
Net income........................ 2.51 3.37 3.18 3.10 2.99
Dividends........................... 0.80 0.75 0.65 0.60 0.50
Market price at December 31......... 24.75 41.00 21.88 18.63 15.25
Book value at December 31........... 26.64 24.77 22.01 19.52 17.07
Shares of common stock
outstanding....................... 4,765 4,752 4,835 4,932 4,966
Average shares of common
stock -- basic.................... 4,772 4,785 4,876 4,948 4,982
Average shares of common stock --
assuming dilution................. 4,786 4,816 4,891 4,948 4,982
FINANCIAL CONDITION
Capital expenditures................ $ 19,119 $ 24,554 5,573 $ 5,968 $ 6,411
Working capital..................... 27,311 37,955 28,561 24,780 21,387
Total assets........................ 565,624 263,224 234,696 247,220 259,177
Capitalization:
Current portion of long-term
debt........................... 9,506 9,087 8,476 8,476 8,476
Long-term debt.................... 302,560 38,446 28,665 43,641 57,118
Stockholders' equity.............. 126,933 117,716 106,449 96,265 84,753
</TABLE>
Results for 1998 include Global Stone, Port Inland, Filler Products and
Colorado Silica from their respective dates of acquisition. Discontinued
operations include the Company's Engineered Materials business segment
discontinued in 1997 and Iron Ore business segment discontinued in 1996.
11
<PAGE> 12
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Management's Discussion and Analysis of Financial Condition and Results of
Operations may contain statements concerning certain trends and other
forward-looking information, within the meaning of certain safe harbor
provisions of the federal securities laws. Such forward-looking statements are
subject to uncertainties and factors relating to the Company's operations and
business environment, all of which are difficult to predict and many of which
are beyond the control of the Company. The Company believes that the following
factors, among others, could affect its future performance and cause actual
results to differ materially from those expressed or implied by forward-looking
statements made by or on behalf of the Company: (1) unfavorable weather
conditions; (2) fluctuations in oil prices; (3) a decline in steel production;
(4) changes in the demand for the Company's products or services due to changes
in technology; (5) Great Lakes and Mid-Atlantic construction activity; (6) a
slowdown in the California economy and population growth rates in the
Southwestern United States; (7) labor unrest; (8) the loss or bankruptcy of
major customers; (9) year 2000 software conversion failures of vendors,
suppliers and customers; and (10) changes in environmental laws. During 1999,
the collective bargaining agreements covering employees at the Ingersoll,
Ontario operation and the unlicensed crew of the marine transportation vessel
fleet expire. These agreements cover approximately 80% and 62% of the employees
of the Ingersoll operation and marine transportation fleet, respectively.
Negotiations on these collective bargaining agreements will commence in the
second quarter of 1999 and may affect the results of operations for both the
Lime and Limestone and Marine Transportation business segments. Fluctuations in
oil prices have both a positive and negative impact on the Company. Low oil
prices generally result in less drilling activity, negatively impacting our
Industrial Sands business segment, while at the same time reducing the marine
transportation fleet's operating costs. The Company does not anticipate a
significant increase in drilling activity during 1999.
FINANCIAL CONDITION
During 1998, the Company acquired the assets and liabilities of Global
Stone Inc. ("Global Stone") and Colorado Silica Sand, Inc. ("Colorado Silica")
and the assets of the Port Inland, Michigan operations of Minerals Technologies,
Inc. (subsequently renamed Global Stone Port Inland ("Port Inland")) and Filler
Products, Inc. (subsequently renamed Global Stone Filler Products ("Filler
Products")). The operating results of Global Stone, Port Inland and Filler
Products form the Company's Lime and Limestone segment, while the operating
results of Colorado Silica are included within the existing Industrial Sands
segment. These acquisitions (collectively referred to as the "Recent
Acquisitions") were accounted for as business combinations applying the purchase
method of accounting. The combined purchase prices of these acquisitions,
including assumed debt, totaled $294,194,000. During 1997, the Company's
Industrial Sands segment acquired certain assets of a sand screening plant in
California and a supplier of blending sand and organic mixes in Ohio. The
combined purchase prices of these assets totaled $3,400,000.
The Company's operating activities provided cash of $26,149,000 in 1998,
which was an increase of 10%, or $2,459,000, compared with $23,690,000 for 1997.
Cash provided from operations during 1998 increased 30%, or $5,983,000, compared
with 1996. The increase in cash provided by operations during 1998 compared with
1997 and 1996 is principally due to the operating activities of the Recent
Acquisitions. The Company's net income was $12,036,000 in 1998 compared with
$16,252,000 and $15,557,000 in 1997 and 1996, respectively. Non-cash charges for
depreciation, depletion and amortization increased to $20,875,000 during 1998
compared with $8,947,000 during 1997 and $11,259,000 during 1996. As a result of
the Recent Acquisitions, accrued interest and deferred income taxes increased by
$12,706,000 as of December 31, 1998 compared with an increase of $896,000 as of
December 31, 1997 and an increase of $131,000 as of December 31, 1996.
Non-recurring gains on the sale of assets and the disposals of discontinued
operations (net of tax) totaled $4,285,000 and $3,720,000, during 1997 and 1996,
respectively, compared with $125,000 in 1998. Changes in other operating assets
and liabilities, principally the result of the Recent Acquisitions, used cash of
$19,343,000 during 1998. Changes in other operating assets and liabilities
generated cash of $1,126,000 and $1,941,000 during 1997 and 1996, respectively.
Operating activities of discontinued operations provided cash of $755,000 during
1997 and used cash of $5,001,000 during 1996. There were no operations
classified as discontinued at December 31, 1998.
12
<PAGE> 13
Operating results of the Company's business segments are discussed in more
detail under "RESULTS OF OPERATIONS".
Expenditures for property and equipment, including vessel inspection costs,
amounted to $19,119,000 in 1998 compared with $24,554,000 and $5,573,000 in 1997
and 1996, respectively. During 1998, the Company's newly formed Lime and
Limestone segment expended approximately $8,322,000 for various capital
projects. In 1998, the Company's Industrial Sands segment expended $6,069,000,
primarily on plant expansion projects at the Brady, Texas and Orange County,
California operations. The Marine Transportation segment expended $4,703,000 in
1998 related to vessel inspection costs and various equipment improvements on
the vessel fleet. In 1997, the Company's Industrial Sands segment expended
$4,108,000 on various capital projects and the Marine Transportation segment
expended $3,234,000 for vessel inspection costs and various improvements to
vessels. Expenditures in 1997 also include $17,000,000 for the acquisition of
two self-unloading vessels that the Company had been operating under long-term
leases. During 1996, the Company's Industrial Sands segment expended $4,540,000
on various capital projects while the Marine Transportation segment expended
$925,000 on various improvements to the vessels. No vessel inspections were
required during 1996. Expenditures for property and equipment for 1999,
excluding business acquisitions, are currently expected to approximate
$23,000,000.
In December 1997, the Company recognized a net loss of $1,263,000 on the
disposal of its Engineered Materials assets. During 1998, the Company completed
the sale of these assets and received installment payments totaling $9,082,000.
In December 1996, the Company sold its interest in Eveleth Mines and certain
mining equipment for $5,000,000, completing its exit from the iron ore business.
No such transactions occurred in 1998. Discontinued operations are further
described in Note C to the consolidated financial statements.
During May 1998, the Company negotiated a $215,000,000 Senior Credit
Facility with a group of banks in order to finance a portion of the acquisition
of Global Stone, refinance existing debt and for general purposes. The interest
rate on the Senior Credit Facility, which approximated 7.75% at December 31,
1998, is based on LIBOR interest rates, plus an applicable margin. Additionally,
the Company incurred $100,000,000 of indebtedness under interim Senior
Subordinated Notes in order to complete the funding of the Global Stone
acquisition. The Notes were subsequently exchanged with the lender for new
Subordinated Notes that were then remarketed by the lender through a private
placement on February 1, 1999. The exchanged Senior Subordinated Notes, which
mature February 1, 2009, accrue interest at a fixed rate of 10%, payable
semi-annually in February and August. Additional long-term debt, including the
Senior Credit Facility and Senior Subordinated Notes, totaled $302,650,000
during 1998. In connection with the acquisition of Global Stone, the Company
assumed additional debt and various capital leases totaling $43,100,000 and
$10,900,000, respectively, as of the acquisition date. The Company made
long-term debt payments, including capital leases, of $94,629,000 during 1998
compared with $8,476,000 and $14,976,000 during the same periods of 1997 and
1996, respectively. In July 1997, the Company financed a $17,000,000 acquisition
of two Marine Transportation vessels under a ten-year term loan with a bank. As
a result of the financing associated with the Global Stone acquisition, this
term loan was amended from a fixed interest rate of 7.32% to a semi-variable
interest rate not to exceed 8.32%. The fixed portion of the semi-variable rate
is 7.82%. The Company's Senior Credit Facility requires interest rate protection
on fifty-percent of the Company's senior secured debt for a period of at least
two years. The Company's existing fixed rate senior secured debt fulfills a
portion of the fifty-percent protection requirement. The Company entered into
separate interest rate swap agreements with banks to substitute fixed interest
rates for LIBOR-based interest rates on notional amounts totaling $90,000,000 at
December 31, 1998. The effect of these agreements, which expire in 2000 and
2001, was to limit the Company's interest rate exposure to 7.98% on $90,000,000
of the Senior Credit Facility. As a result of the swap agreements, interest
expense increased by $55,000 in 1998. No such agreements were in place during
1997 or 1996.
The following table provides information about the Company's derivative and
other financial instruments that are sensitive to changes in interest rates,
which include interest rate swaps and debt obligations. For debt obligations,
the table presents cash flows and related weighted average interest by expected
maturity dates. For interest rate swaps, the table presents notional amounts and
weighted average LIBOR interest rates by contractual maturity dates. Notional
amounts are used to calculate the contractual payments to be exchanged under the
contract. Weighted average variable rates are based on implied forward LIBOR
interest rates in the yield curve,
13
<PAGE> 14
plus a 2.5% margin for variable rate long-term debt. The Company does not hold
or issue financial instruments for trading purposes.
<TABLE>
<CAPTION>
DECEMBER 31
--------------------------------------------------------------------------------
1999 2000 2001 2002 2003 THEREAFTER TOTAL FAIR VALUE
------ ------ -------- ----- ------ ---------- -------- ----------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Liabilities:
Long-term debt:
Fixed rate....................... $9,306 $5,176 $ 2,570 $ 513 $1,602 $114,050 $133,216 $128,775
Average interest rate............ 9.74% 9.71% 9.70% 9.70% 9.73% 9.76%
Variable rate.................... 200 200 178,450 178,850 178,850
Average interest rate............ 7.60% 7.92% 8.15%
Interest rate derivatives:
Interest rate swaps:
Variable to fixed............. 50,000 40,000 90,000 903
Average LIBOR pay rate........ 5.48% 5.44% 5.65%
Average LIBOR receive rate.... 5.10% 5.47% 5.65%
</TABLE>
In 1998, the Company disposed of certain assets resulting in a pretax gain
of $125,000 (net gain of $81,000 or $0.02 per share -- assuming dilution).
During 1997, the Company recognized pretax gains of $5,548,000 (net gain of
$3,606,000, or $0.75 per share -- assuming dilution), principally on the sale of
certain coal reserves. In 1996, the Company recognized pretax gains of
$3,150,000 (net gain of $2,292,000, or $0.47 per share -- assuming dilution),
principally on the sale of an inactive business and marketable securities. Total
proceeds received on the sale of assets were $875,000, $8,192,000 and $5,543,000
in 1998, 1997 and 1996, respectively.
The Company declared dividends of $0.80 per share during 1998 compared with
$0.75 per share in 1997 and $0.65 per share in 1996. Dividends paid were
$3,812,000 for 1998 compared with $3,584,000 and $3,162,000 in 1997 and 1996,
respectively. The Company purchased on the open market, and placed in treasury,
16,046 shares of its Common Stock for $600,000 during 1998, 87,990 shares for
$1,970,000 during 1997 and 99,558 shares for $2,068,000 during 1996.
At the end of 1998, the Company re-evaluated assumptions used in
determining postretirement pension and health care benefits. The
weighted-average discount rates were adjusted from 7.25% to 7.00% to better
reflect market rates. The change in discount rates did not affect 1998
consolidated results of operations and will not have a significant effect on
1999 consolidated results of operations.
At the end of 1998, the Company adopted Statement of Financial Accounting
Standard ("SFAS") No. 131, "Disclosure about Segments of an Enterprise and
Related Information", and SFAS No. 132, "Employers Disclosures about Pensions
and Other Postretirement Benefits". These standards required new disclosures for
the Company's business segments and pension and postretirement benefits, but did
not affect its 1998 consolidated results of operations or financial position.
Disclosures under SFAS No. 131 and No. 132 can be found in Notes K and I,
respectively, to the consolidated financial statements. As further described in
Note A to the consolidated financial statements, the Company is required to
adopt SFAS No. 133, "Accounting for Derivative Instruments and Hedging
Activities", on January 1, 2000. This new standard is not expected to have a
material impact on the Company's consolidated results of operations or financial
position.
Anticipated cash flows from operations and current financial resources are
expected to meet the Company's needs during 1999. All financing alternatives are
under constant review to determine their ability to provide sufficient funding
at the least possible cost.
RESULTS OF OPERATIONS
The Company's net sales and operating revenues of $238,852,000 were 65%
greater than the 1997 level of $145,185,000 and 84% greater than net sales and
operating revenues of $129,697,000 in 1996. Income from operations increased
$12,571,000, or 51%, to $37,035,000 compared with 1997 and increased
$25,382,000, or more than double, the income from operations of 1996. Net income
was $12,036,000 ($2.51 per share -- assuming dilution) for 1998 compared with
$16,252,000 ($3.37 per share -- assuming dilution) and $15,557,000
14
<PAGE> 15
($3.18 per share -- assuming dilution) for 1997 and 1996, respectively. The
increases in net sales and operating revenues and income from operations are
attributable to the Recent Acquisitions and strong operating results of the
Company's Marine Transportation segment. The decline in net income is primarily
due to increased interest expense on borrowings used to fund the Recent
Acquisitions, the absence of non-recurring gains and a higher effective tax
rate.
In 1998, net income includes the effect of pretax gains totaling $125,000
principally on the sale of certain assets. Net income for 1997 includes the
effect of gains totaling $3,606,000 principally from the sale of certain coal
reserves. Net income for 1996 includes the effect of $2,292,000, principally
from the sale of an inactive business and marketable securities, and the effects
of a $1,824,000 state tax refund and related interest income of $576,000. Net
income, excluding the gains on the sale of assets, and in 1996 the tax refund,
approximated $11,955,000 ($2.50 per share -- assuming dilution) in 1998,
compared with $14,694,000 ($3.05 per share -- assuming dilution) and $7,376,000
($1.51 per share -- assuming dilution) in 1997 and 1996, respectively.
During 1997, the Company increased the estimated useful lives and salvage
values for certain vessels in its Marine Transportation fleet. These changes in
accounting estimates were treated prospectively as of January 1, 1997, and
therefore prior periods were not restated. The effects of these changes reduced
depreciation by $3,178,000 and increased net income by $2,097,000 ($0.44 per
share -- assuming dilution) when comparing the 1997 results of operations to
those of 1996.
The operating results of the Company's business segments for 1998, 1997 and
1996 are discussed below. At the end of 1998, the Company discontinued its
policy of allocating a portion of corporate general and administrative expenses
to its business segments. Accordingly, the 1997 and 1996 operating results of
the business segments have been restated to conform with the 1998 presentation
of corporate general and administrative expenses.
NET SALES AND OPERATING REVENUES
Lime and Limestone. Net sales for the Lime and Limestone segment include
the operations of Port Inland, Global Stone and Filler Products as of their
respective purchase dates of April 28, May 22, and August 31, 1998 and totaled
$95,498,000 for 1998.
Industrial Sands. Net sales for the Industrial Sands segment decreased by
$1,684,000, or 3%, to $47,800,000 during 1998, compared with $49,484,000 for the
same period of 1997. The decline in net sales is attributable to an 8% decrease
in tonnage shipped during 1998 compared with the record tonnage shipped during
1997. The decreases in tonnage and net sales are related to softness in oil
prices and a related slow down in oil field drilling. Accordingly, the demand
for frac sands provided by the Brady, Texas operations declined causing a
decrease in tonnage shipped and a shift in product mix that negatively impacted
average selling price. The acquisition of the Colorado Silica operations during
March 1998 and a strong operating performance from the Orange County, California
operations partially offset the overall declines in net sales and tonnage
shipped. Although 1998 tonnage levels at Orange County declined when compared
with 1997, a favorable shift in product mix resulted in an increase in the
operation's net sales during 1998. The segment's 1998 net sales increased
$5,217,000, or 12%, from the 1996 level of $42,583,000. The acquisition of
Colorado Silica in 1998 and the 1997 acquisitions of the Kurtz Sports Turf
operations in Ohio and operations in Bakersfield, California, combined with
strong improvements at the Orange County operations in 1998 offset the effects
of an 18% decline in net sales at the Brady operations, attributed to softness
in oil prices and related oil field demand.
Marine Transportation. Operating revenues for the Marine Transportation
segment of $95,554,000 were comparable to those of 1997 and exceeded 1996
operating revenues by 11%, or $9,376,000. Strong customer demand and good
operating conditions on the Great Lakes favorably influenced operations during
1998. Sailing days were 3,363 in 1998 compared with 3,405 and 3,336 in 1997 and
1996, respectively. Favorable operating conditions at the end of 1997 extended
the fleet's 1997 sailing season. Heavy ice conditions at the start of the 1996
sailing season caused substantial delays, minor damage and, in general, hampered
operations. The vessel fleet hauled 23,235,000 tons during 1998, 3% less than
the record tonnage hauled during 1997. However, a favorable shift in the product
mix of tons hauled offset the decline in volume. The 1998 tonnage level exceeded
the 1996 tonnage hauled by 5%, or 1,132,000 tons.
15
<PAGE> 16
COST OF GOODS SOLD AND OPERATING EXPENSES
Lime and Limestone. Cost of goods sold for the Lime and Limestone segment
totaled $65,192,000, or 68% of net sales, for the period ended December 31,
1998.
Industrial Sands. Cost of goods sold for the Industrial Sands segment
totaled $30,542,000, $31,623,000 and $28,196,000 for 1998, 1997 and 1996,
respectively. As a result of more favorable product mix, cost of goods sold as a
percentage of net sales was 64% during 1998 and 1997, an improvement from a
level of 66% in 1996.
Marine Transportation. Operating expenses for the Marine Transportation
segment totaled $61,842,000, $66,795,000 and $66,299,000 for 1998, 1997 and
1996, respectively. Operating expenses as a percentage of operating revenues
improved to 65% for 1998 compared with 70% for 1997 and 77% for 1996. The
improvement was principally due to lower fuel costs, favorable operating
conditions and increased efficiencies within fleet dispatch operations. The
higher operating expenses as a percentage of operating revenues experienced
during 1996 relate to the harsh weather conditions experienced at the start of
the 1996 sailing season.
DEPRECIATION, DEPLETION AND AMORTIZATION
Depreciation, depletion and amortization expense increased to $20,875,000
during 1998 compared with $8,947,000 during 1997 and $11,259,000 during 1996.
The increase is principally related to additional depreciation, depletion and
amortization associated with the Recent Acquisitions totaling $11,133,000. As
indicated previously, the Company increased the estimated useful lives and
salvage values for certain vessels in its Marine Transportation fleet in 1997.
The effect of these changes reduced 1997 depreciation by $3,178,000 when
comparing 1997 to 1996.
GENERAL, ADMINISTRATIVE AND SELLING EXPENSES
General, administrative and selling expenses increased to $22,983,000 for
1998 compared with $13,352,000 and $12,389,000 for 1997 and 1996, respectively.
The increase in general, administrative and selling expenses during 1998 is
principally the result of the Recent Acquisitions. As a percentage of total
revenues, general, administrative and selling expenses remained comparable for
all three years at approximately 10%.
INCOME FROM OPERATIONS
Lime and Limestone. The acquisitions of Port Inland, Global Stone and
Filler Products contributed $11,851,000 to income from operations for the period
ended December 31, 1998.
Industrial Sands. Income from operations for the Industrial Sands segment
declined to $9,465,000 during 1998 compared with $11,205,000 during 1997 (a
record for the segment) and $9,747,000 during 1996. The decline in income from
operations was principally the result of reduced oil field demand for frac sand
supplied by the Brady, Texas operations, partially offset by the addition of the
Colorado Silica operations and improvements in product mix and increased demand
at the Orange County operations.
Marine Transportation. Income from operations for the Marine Transportation
segment increased to $24,335,000 during 1998 compared with $20,547,000 and
$9,087,000 during 1997 and 1996, respectively. As discussed previously, the
improvement was principally due to lower fuel costs, favorable operating
conditions and increased efficiencies within the fleet dispatch operations. The
comparison to 1996 is also impacted by the change in the estimated useful lives
and salvage values in 1997.
Corporate and Other. Includes operating results from other non-segment
operations and corporate general and administrative expenses which are not
allocated to the business segments. Accordingly, Corporate and Other operations
recognized a loss from operations of $8,616,000, $7,287,000 and $7,181,000 for
1998, 1997 and 1996, respectively. The increase in the loss from operations
experienced during 1998, was principally the result of one-time increases to
general and administrative charges as a result of the Recent Acquisitions and
changes in the corporate structure.
OTHER
Interest increased during 1998 to $19,281,000 from $2,834,000 and
$3,004,000 during 1997 and 1996, respectively. The increase in interest expense
is principally the result of increased debt levels and the amortization
16
<PAGE> 17
of financing costs incurred related to the Recent Acquisitions. During 1998, the
Company recognized net gains of $125,000 from asset sales compared with
$5,548,000 for 1997 and $3,150,000 for 1996. The gains recognized during 1997
principally include a gain related to the sale of certain coal reserves, while
the 1996 gains include the effects of the sale of an inactive business and
current marketable securities (all marketable securities were liquidated prior
to 1998). Other expense, net (including interest and other income) decreased
$1,417,000 during 1998 when compared to 1997. The principal reason for this
decrease was a reduction in the Coal Act expense as more fully described in
Notes I and L to the consolidated financial statements. Other expense, net for
1998 was comparable to 1996.
EFFECTS OF ACQUISITIONS
The following unaudited pro forma information presents a summary of
consolidated results of operations (in thousands, except per share data) for the
Company and the acquisitions of Global Stone, Port Inland and Colorado Silica
for the years ended December 31, 1998 and 1997 as if the acquisitions had
occurred on January 1, 1997. The pro forma adjustments give effect to (i) the
amortization of goodwill, (ii) the amortization of the write-up of property and
equipment to fair market value, (iii) the interest expense on debt incurred to
fund the acquisitions and (iv) the related income tax effects. This unaudited
pro forma information (i) assumes that the Company incurred all acquisition
related debt as of January 1, 1997, (ii) included operating results for periods
of time prior to the Company's ownership and (iii) takes into consideration
expense reductions of $1,200,000 during 1998 and $1,600,000 during 1997,
principally due to a realized reduction of general and administrative costs.
<TABLE>
<CAPTION>
1998 1997
-------- --------
<S> <C> <C>
Revenues................................................ $288,000 $283,000
Income from operations.................................. 40,700 35,000
Net Income.............................................. 6,300 9,800
Earnings per share -- basic............................. 1.31 2.04
Earnings per share -- assuming dilution................. 1.30 2.03
</TABLE>
Included in net income for 1998 is approximately $825,000 ($0.17 per
share -- assuming dilution) in non-recurring takeover defense costs incurred by
Global Stone to defend against an unsolicited takeover attempt prior to its
acquisition by the Company. Included in net income for 1997 are gains
approximating $3,606,000 ($0.75 per share -- assuming dilution), principally
from the sale of certain coal reserves.
YEAR 2000 COMPLIANCE
The Company continues to address the impact of the Year 2000 issue on its
business. This issue affects computer systems that have date-sensitive programs
that may not properly recognize the year 2000. Specifically, with respect to the
Company, this issue affects not only the computer software and hardware but also
machines and equipment used in production that contain embedded computer chips.
The Company has reviewed and assessed its information system hardware,
business system software, production system hardware and other systems and
technology used in its business operations. Based on this review and assessment,
the Company believes that the majority of its internal systems are Year 2000
compliant and that any non-compliance will not have a material adverse effect on
the Company. The Company expects to complete its internal Year 2000 remediation
efforts by June 30, 1999 with the implementation of a new order processing
system for both the Industrial Sands and Lime and Limestone business segments.
As part of its Year 2000 program, the Company has also made efforts to
determine and assess the Year 2000 compliance status of third parties with which
it does business. During 1997, the Company sent a detailed questionnaire to its
customers, suppliers, financial institutions and others to obtain information
relating to the status of such third parties with respect to Year 2000 issues.
Of the total questionnaires sent out, 90% of these third parties have returned
their questionnaires to the Company. The Company is following up on the balance
of the questionnaires not returned. Based upon its review of the returned
questionnaires, the Company does not believe that it will experience material
disruption of its operations as a result of third parties Year 2000
17
<PAGE> 18
noncompliance. In addition, since sending the questionnaires, the Company has
maintained ongoing correspondence with its suppliers regarding Year 2000 issues
and placed particular emphasis on determining the Year 2000 readiness of its
critical suppliers.
Due to the uncertainties associated with Year 2000 problems, the Company
has developed a contingency plan to use manual entry in its accounting and order
entry system in the event that its business or operations are disrupted as of
January 1, 2000.
The Company expects to incur total expenditures of approximately $200,000
in connection with its Year 2000 remediation efforts. Through 1998, the Company
has incurred approximately $80,000 in expenses relating to its Year 2000 issues
and expects to incur an additional $120,000 during 1999. The Company believes
that the cost of its remediation will not have a material impact on the
Company's consolidated results of operations or financial condition.
The date on which the Company believes it will complete its Year 2000
compliance efforts and the expenses related to the Company's Year 2000
compliance efforts are management's best estimates, which are based on
assumptions of future events, including the availability of certain resources,
third party modification plans and other factors. There can be no assurances
that these results and estimates will be achieved, and the actual results could
materially differ from those anticipated. A specific factor that might cause
such material differences is the ability to locate and correct all relevant
computer codes. In addition, there can be no assurances that the systems or
products of third parties on which the Company relies will be timely converted
or that a failure by a third party, or a conversion that is incompatible with
the Company's systems, would not have a material adverse effect on the Company.
ITEM 7A QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The response to this item is submitted in a separate section of this Annual
Report on Form 10-K on pages 12, 13 and 14 under ITEM 7. MANAGEMENT'S DISCUSSION
AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The response to this item is submitted in a separate section of this Annual
Report on Form 10-K on pages F-1 through F-21.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY
Information regarding Directors of the Company, as required by Part III,
Item 10; is incorporated herein by reference to the information contained in the
Company's proxy statement dated March 23, 1999, filed in connection with the
Company's 1999 Annual Meeting of Stockholders.
18
<PAGE> 19
The Executive Officers of the Company as of March 22, 1999 were as follows:
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
John N. Lauer 60 Chairman, President and Chief Executive Officer
Michael F. Biehl 43 Vice President, Finance and Treasurer
Ronald J. Compiseno 48 Vice President, Human Resources
Jeffrey S. Gray 42 Vice President, Corporate Development and General
Counsel
Mark P. Juszli 47 Vice President, Industrial Sands
David H. Kelsey 48 Vice President and Chief Financial Officer
Danny R. Shepherd 47 Vice President, Lime and Limestone
Stuart H. Theis 56 Vice President, Marine Transportation
Rochelle F. Walk 38 Director, Corporate Affairs and Secretary
</TABLE>
JOHN N. LAUER has served as President, Chief Executive Officer and Director
of the Company since January 1, 1998 and as Chairman of the Board since July
1998. From 1994 to December 1997, Mr. Lauer was retired and pursued activities
as a private investor. Mr. Lauer served as the President and Chief Operating
Officer of The B.F. Goodrich Company, a chemical and aerospace company, from
1990 until 1994. Mr. Lauer also serves on the Boards of Directors of Diebold,
Incorporated, Menasha Corporation and BorsodChem, Rt.
MICHAEL F. BIEHL has been Vice President, Finance and Treasurer since July
1998. Mr. Biehl joined the Company in 1992 as Corporate Controller and was
promoted to Treasurer and Director of Finance in 1994. Prior to joining the
Company, Mr. Biehl was a Senior Manager in the audit division of Ernst & Young
in Cleveland, Ohio for 14 years.
RONALD J. COMPISENO was elected Vice President, Human Resources in
September 1998. Prior to joining the Company Mr. Compiseno was Group Director of
Human Resources for Invacare Corporation of Elyria, Ohio.
JEFFREY S. GRAY has served as Vice President, Corporate Development and
General Counsel of the Company since March 17, 1997. Mr. Gray was an associate
from 1987 to 1994 and a partner from 1995 to 1997 of Ulmer & Berne LLP, a law
firm.
MARK P. JUSZLI has been President of the Industrial Sands segment since
October 1998 and continues to serve as a Vice President of the Company, a
position he has held from 1995 to 1998. Mr. Juszli also served as General
Manager, Industrial Sands, Inc. from 1994 to 1995. Prior to joining the Company,
Mr. Juszli was the Senior Vice President -- Ohio Region of American Aggregates
Corp., Dayton, Ohio, a producer of construction aggregates from 1993 to 1994 and
President of Western Rock Products, Inc., Albuquerque, New Mexico, a producer of
railroad ballast from 1992 to 1993.
DAVID H. KELSEY has been Vice President and Chief Financial Officer of the
Company, since February 23, 1998. Prior to joining the Company, Mr. Kelsey
served as the Executive Vice President and Chief Financial Officer of Host
Communications, Inc., a sports marketing and management firm from 1994 to 1997.
In addition, Mr. Kelsey was Senior Vice President and Director of GE Capital
Equity Funding Group, a growth capital provider from 1992 to 1994 and was Senior
Vice President and Portfolio Manager of GE Capital Corporate Finance Group, a
provider of senior and mezzanine financing, from 1988 to 1992.
DANNY R. SHEPHERD was elected to President of the Lime and Limestone
segment (Global Stone Corporation) and Vice President of the Company in October
1998. Mr. Shepherd served as Executive Vice President and General Manager of
Global Stone (U.S.A.) Eastern Region from 1994 to 1998.
STUART H. THEIS has been President of the Marine Transportation segment
since October 1998 and continues to serve as a Vice President of the Company, a
position held since 1993. From 1992 to 1993 he was Assistant to the President of
the Company.
ROCHELLE F. WALK was elected Director, Corporate Affairs and Secretary of
the Company in June 1998. Prior to joining the Company, she was a Business Unit
Director and Marketing Director of The Sherwin Williams Company.
19
<PAGE> 20
Except as noted above, all executive officers of the Company have served in
the capacities indicated, respectively, during the past five years. All
executive officers serve at the pleasure of the Board of Directors, with no
fixed term of office.
ITEM 11. EXECUTIVE COMPENSATION
Information regarding Executive Compensation, as required by Part III, Item
11; is incorporated herein by reference to the information contained in the
Company's proxy statement dated March 23, 1999, filed in connection with the
Company's 1999 Annual Meeting of Stockholders.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information regarding Executive Compensation, as required by Part III, Item
12; is incorporated herein by reference to the information contained in the
Company's proxy statement dated March 23, 1999, filed in connection with the
Company's 1999 Annual Meeting of Stockholders.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information regarding Executive Compensation, as required by Part III, Item
13; is incorporated herein by reference to the information contained in the
Company's proxy statement dated March 23, 1999, filed in connection with the
Company's 1999 Annual Meeting of Stockholders.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(A)(1) LIST OF FINANCIAL STATEMENTS: The following consolidated financial
statements of Oglebay Norton Company and its Subsidiaries are included in Item
8:
Report of Independent Auditors
Consolidated Statement of Operations -- Years Ended December 31, 1998,
1997 and 1996
Consolidated Balance Sheet -- December 31, 1998 and 1997
Consolidated Statement of Cash Flows -- Years Ended December 31, 1998,
1997 and 1996
Consolidated Statement of Stockholders' Equity -- Years Ended December
31, 1998, 1997 and 1996
Notes to Consolidated Financial Statements -- December 31, 1998, 1997
and 1996
(A)(2) AND (D) FINANCIAL STATEMENT SCHEDULES: No consolidated financial
statement schedules are presented because the schedules are not required. The
information is not present or not present in amounts sufficient to require
submission of the schedules, or because the information required is included in
the financial statements and related notes.
(A)(3) AND (C) EXHIBIT INDEX: The response to this portion of Item 14 is
submitted in a separate section of this Annual Report on Form 10-K at pages 1-1
through 1-6.
20
<PAGE> 21
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company has duly caused this Annual Report to be
signed on its behalf by the undersigned thereunto duly authorized.
OGLEBAY NORTON COMPANY
By: /s/ DAVID H. KELSEY
------------------------------------
Vice President and Chief Financial
Officer
March 22, 1999
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Annual Report has been signed below by the Principal Executive Officer, the
Principal Financial Officer, the Principal Accounting Officer and a majority of
the Directors of the Company on March 22, 1999.
/s/ JOHN N. LAUER
- -------------------------------------------------
John N. Lauer
Chairman, President and
Chief Executive Officer and Director;
Principal Executive Officer
/s/ DAVID H. KELSEY
- -------------------------------------------------
David H. Kelsey
Vice President and Chief Financial
Officer; Principal Financial Officer
/s/ MICHAEL F. BIEHL
- -------------------------------------------------
Michael F. Biehl
Vice President -- Finance
and Treasurer; Principal
Accounting Officer
/s/ BRENT D. BAIRD
- -------------------------------------------------
Brent D. Baird
Director
/s/ MALVIN E. BANK
- -------------------------------------------------
Malvin E. Bank
Director
/s/ WILLIAM G. BARES
- -------------------------------------------------
William G. Bares
Director
/s/ JAMES T. BARLETT
- -------------------------------------------------
James T. Barlett
Director
/s/ ALBERT C. BERSTICKER
- -------------------------------------------------
Albert C. Bersticker
Director
/s/ R. THOMAS GREEN, JR.
- -------------------------------------------------
R. Thomas Green, Jr.
Director
/s/ RALPH D. KETCHUM
- -------------------------------------------------
Ralph D. Ketchum
Director
/s/ WILLIAM G. PRYOR
- -------------------------------------------------
William G. Pryor
Director
/s/ JOHN D. WEIL
- -------------------------------------------------
John D. Weil
Director
21
<PAGE> 22
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
REPORT OF INDEPENDENT AUDITORS
Board of Directors
Oglebay Norton Company
We have audited the accompanying consolidated balance sheet of Oglebay
Norton Company and subsidiaries as of December 31, 1998 and 1997, and the
related consolidated statements of operations, stockholders' equity, and cash
flows for each of the three years in the period ended December 31, 1998. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position of
Oglebay Norton Company and subsidiaries at December 31, 1998 and 1997, and the
consolidated results of their operations and their cash flows for each of the
three years in the period ended December 31, 1998, in conformity with generally
accepted accounting principles.
/s/ ERNST & YOUNG LLP
Cleveland, Ohio
February 16, 1999
F-1
<PAGE> 23
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------------
1998 1997 1996
------------ ------------ ------------
<S> <C> <C> <C>
NET SALES AND OPERATING REVENUES................ $238,852,390 $145,184,849 $129,697,228
COSTS AND EXPENSES
Cost of goods sold and operating expenses..... 157,959,384 98,421,276 94,395,629
Depreciation, depletion and amortization...... 20,874,673 8,946,878 11,259,284
General, administrative and selling
expenses................................... 22,982,895 13,352,068 12,388,863
------------ ------------ ------------
201,816,952 120,720,222 118,043,776
------------ ------------ ------------
INCOME FROM OPERATIONS.......................... 37,035,438 24,464,627 11,653,452
Gain on disposition of assets................. 124,540 5,548,036 3,150,434
Interest, dividends and other income.......... 1,750,239 2,693,101 2,790,859
Interest expense.............................. (19,280,532) (2,834,445) (3,003,639)
Other expense................................. (1,935,068) (4,295,342) (2,011,072)
------------ ------------ ------------
INCOME FROM CONTINUING OPERATIONS BEFORE INCOME
TAXES......................................... 17,694,617 25,575,977 12,580,034
INCOME TAXES:
Current....................................... (2,256,000) 6,967,000 1,387,000
Deferred...................................... 7,915,000 253,000 154,000
------------ ------------ ------------
5,659,000 7,220,000 1,541,000
------------ ------------ ------------
INCOME FROM CONTINUING OPERATIONS............... 12,035,617 18,355,977 11,039,034
Discontinued operations:
(Loss) income from operations................. -0- (841,727) 3,947,518
(Loss) gain from disposals.................... -0- (1,262,700) 570,433
------------ ------------ ------------
(Loss) income from discontinued operations...... -0- (2,104,427) 4,517,951
------------ ------------ ------------
NET INCOME...................................... $ 12,035,617 $ 16,251,550 $ 15,556,985
============ ============ ============
PER SHARE AMOUNTS:
Income (loss) per common share -- basic:
Continuing operations......................... $ 2.52 $ 3.84 $ 2.26
Discontinued operations....................... (.44) .93
------------ ------------ ------------
NET INCOME PER SHARE -- BASIC................... $ 2.52 $ 3.40 $ 3.19
============ ============ ============
Income (loss) per common share -- assuming
dilution:
Continuing operations......................... $ 2.51 $ 3.81 $ 2.26
Discontinued operations....................... (.44) .92
------------ ------------ ------------
NET INCOME PER SHARE -- ASSUMING DILUTION....... $ 2.51 $ 3.37 $ 3.18
============ ============ ============
</TABLE>
See notes to consolidated financial statements.
F-2
<PAGE> 24
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------
1998 1997
------------ ------------
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents................................. $ 1,940,410 $ 29,885,922
Accounts receivable (net of reserve for doubtful accounts
of $1,194,000 in 1998 and $723,000 in 1997)............. 36,624,374 21,490,725
Income taxes receivable................................... 3,460,026 -0-
Inventories
Raw materials and finished products..................... 19,627,908 1,210,940
Operating supplies...................................... 8,822,183 3,382,764
------------ ------------
28,450,091 4,593,704
Deferred income taxes..................................... 2,510,745 3,050,091
Prepaid insurance and other expenses...................... 5,069,554 1,300,715
Discontinued operations................................... -0- 15,571,082
------------ ------------
TOTAL CURRENT ASSETS........................................ 78,055,200 75,892,239
PROPERTY AND EQUIPMENT
Land and improvements..................................... 27,207,563 8,654,241
Mineral reserves.......................................... 88,477,552 -0-
Buildings and improvements................................ 26,550,372 16,459,414
Machinery and equipment................................... 423,959,452 279,844,911
------------ ------------
566,194,939 304,958,566
Less allowances for depreciation, depletion and
amortization............................................ 218,752,499 154,022,177
------------ ------------
347,442,440 150,936,389
GOODWILL (net of accumulated amortization of $2,370,000 in
1998 and $1,171,000 in 1997).............................. 89,262,233 5,337,459
PREPAID PENSION COSTS....................................... 31,303,221 25,137,863
OTHER ASSETS................................................ 19,560,668 5,919,935
------------ ------------
TOTAL ASSETS................................................ $565,623,762 $263,223,885
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Current portion of long-term debt......................... $ 9,506,345 $ 9,086,708
Accounts payable.......................................... 10,332,250 6,875,498
Payrolls and other accrued compensation................... 10,446,352 7,547,241
Accrued expenses.......................................... 14,908,743 11,459,428
Accrued interest expense.................................. 5,481,665 691,081
Income taxes payable...................................... 68,741 2,277,749
------------ ------------
TOTAL CURRENT LIABILITIES................................... 50,744,096 37,937,705
LONG-TERM DEBT, less current portion........................ 302,559,729 38,445,616
POSTRETIREMENT BENEFITS OBLIGATION.......................... 27,181,435 24,341,252
OTHER LONG-TERM LIABILITIES................................. 22,059,322 23,672,960
DEFERRED INCOME TAXES....................................... 36,145,768 21,109,949
STOCKHOLDERS' EQUITY
Common stock, par value $1.00 per share -- authorized
10,000,000 shares; issued 7,253,332 shares.............. 7,253,332 7,253,332
Additional capital........................................ 7,480,572 6,288,822
Retained earnings......................................... 146,852,300 138,628,719
Accumulated other comprehensive income (expense).......... (708,549) -0-
------------ ------------
160,877,655 152,170,873
Treasury stock, at cost -- 2,487,901 and 2,501,152 shares
in 1998 and 1997, respectively.......................... (33,944,243) (33,739,795)
Unallocated Employee Stock Ownership Plan shares.......... -0- (714,675)
------------ ------------
126,933,412 117,716,403
------------ ------------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY.................. $565,623,762 $263,223,885
============ ============
</TABLE>
See notes to consolidated financial statements.
F-3
<PAGE> 25
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------
1998 1997 1996
------------- ----------- -----------
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net income..................................... $ 12,035,617 $16,251,550 $15,556,985
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation, depletion and
amortization........................... 20,874,673 8,946,878 11,259,284
Deferred income taxes..................... 7,915,000 253,000 154,000
Gain on disposition of assets............. (124,540) (5,548,036) (3,150,434)
Loss (gain) from disposal of discontinued
operations............................. -0- 1,262,700 (570,433)
Increase in prepaid pension costs......... (4,457,662) (4,204,687) (3,125,094)
Decrease (increase) in accounts
receivable............................. 4,008,657 2,671,391 (945,050)
Increase in income taxes receivable....... (3,460,026) -0- -0-
(Increase) decrease in inventories........ (4,452,346) (697,639) 142,466
(Decrease) increase in accounts payable... (8,636,517) 1,367,172 1,750,056
Increase (decrease) in payrolls and other
accrued compensation................... 1,800,245 881,961 (366,171)
(Decrease) increase in accrued expenses... (981,246) 715,152 (720,468)
Increase (decrease) in accrued interest... 4,790,584 642,865 (23,173)
(Decrease) increase in income taxes
payable................................ (2,492,577) 1,464,873 2,704,219
Other operating activities................ (671,143) (1,071,891) 2,500,569
Net operating activities of discontinued
operations............................. -0- 754,820 (5,000,521)
------------- ----------- -----------
NET CASH PROVIDED BY OPERATING ACTIVITIES... 26,148,719 23,690,109 20,166,235
INVESTING ACTIVITIES
Capital expenditures........................... (19,119,185) (24,554,382) (5,573,238)
Acquisition of businesses...................... (239,639,230) (1,600,000) -0-
Proceeds from sale of assets................... 874,618 8,191,884 5,543,361
Proceeds from sale of discontinued
operations.................................. 9,082,170 -0- 5,000,000
Net investing activities of discontinued
operations.................................. -0- (662,014) (5,739,689)
------------- ----------- -----------
NET CASH USED FOR INVESTING ACTIVITIES...... (248,801,627) (18,624,512) (769,566)
FINANCING ACTIVITIES
Payments on long-term debt..................... (94,628,792) (8,476,450) (14,976,450)
Additional long-term debt...................... 302,650,000 17,000,000 -0-
Financing costs................................ (9,397,340) -0- -0-
Payments of dividends.......................... (3,812,036) (3,583,523) (3,162,341)
Purchases of treasury stock.................... (600,198) (1,969,984) (2,068,032)
------------- ----------- -----------
NET CASH PROVIDED BY (USED FOR) FINANCING
ACTIVITIES................................ 194,211,634 2,970,043 (20,206,823)
Effect of exchange rate changes on cash.......... 495,762 -0- -0-
------------- ----------- -----------
(Decrease) increase in cash and cash
equivalents.................................... (27,945,512) 8,035,640 (810,154)
Cash and cash equivalents, January 1............. 29,885,922 21,850,282 22,660,436
------------- ----------- -----------
CASH AND CASH EQUIVALENTS, DECEMBER 31........... $ 1,940,410 $29,885,922 $21,850,282
============= =========== ===========
</TABLE>
See notes to consolidated financial statements.
F-4
<PAGE> 26
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
YEAR ENDED DECEMBER 31, 1998, 1997 AND 1996
<TABLE>
<CAPTION>
OTHER COMPREHENSIVE
INCOME (EXPENSE)
-------------------------
FOREIGN UNALLOCATED
CURRENCY COMMON EMPLOYEE STOCK
COMMON ADDITIONAL RETAINED UNREALIZED TRANSLATION STOCK IN OWNERSHIP
STOCK CAPITAL EARNINGS GAINS ADJUSTMENT TREASURY PLAN SHARES
---------- ----------- ------------ ----------- ----------- ------------ --------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, January 1, 1996...... $3,626,666 $ 9,078,611 $113,566,048 $ 1,468,476 $(29,806,819) $(1,667,575)
Comprehensive income:
Net income.................. 15,556,985
Change in unrealized
gains..................... (1,058,029)
Total comprehensive
income....................
Dividends, $.65 per share..... (3,162,341)
Tax benefit of unallocated
shares in ESOP.............. 57,460
Stock plans................... 339,772 41,327
Purchases of treasury stock... (2,068,032)
Allocated ESOP shares......... 476,450
---------- ----------- ------------ ----------- ------------ -----------
Balance, December 31, 1996.... 3,626,666 9,475,843 125,960,692 410,447 (31,833,524) (1,191,125)
Comprehensive income:
Net income.................. 16,251,550
Change in unrealized
gains..................... (410,447)
Total comprehensive
income....................
Dividends, $.75 per share..... (3,583,523)
Tax benefit of unallocated
shares in ESOP.............. 68,250
Stock plans................... 371,395 63,713
Two-for-one stock split....... 3,626,666 (3,626,666)
Purchases of treasury stock... (1,969,984)
Allocated ESOP shares......... 476,450
---------- ----------- ------------ ----------- ------------ -----------
Balance, December 31, 1997.... 7,253,332 6,288,822 138,628,719 -0- (33,739,795) (714,675)
Comprehensive income:
Net income.................. 12,035,617
Foreign currency translation
adjustment................ $(708,549)
Total comprehensive
income....................
Dividends, $.80 per share..... (3,812,036)
Tax benefit of unallocated
shares in ESOP.............. 72,800
Stock plans................... 1,118,950 395,750
Purchase of treasury stock.... (600,198)
Allocated ESOP shares......... 714,675
---------- ----------- ------------ ----------- --------- ------------ -----------
Balance, December 31, 1998.... $7,253,332 $ 7,480,572 $146,852,300 $ -0- $(708,549) $(33,944,243) $ -0-
========== =========== ============ =========== ========= ============ ===========
<CAPTION>
TOTAL
STOCKHOLDERS'
EQUITY
-------------
<S> <C>
Balance, January 1, 1996...... $ 96,265,407
Comprehensive income:
Net income.................. 15,556,985
Change in unrealized
gains..................... (1,058,029)
------------
Total comprehensive
income.................... 14,498,956
Dividends, $.65 per share..... (3,162,341)
Tax benefit of unallocated
shares in ESOP.............. 57,460
Stock plans................... 381,099
Purchases of treasury stock... (2,068,032)
Allocated ESOP shares......... 476,450
------------
Balance, December 31, 1996.... 106,448,999
Comprehensive income:
Net income.................. 16,251,550
Change in unrealized
gains..................... (410,447)
------------
Total comprehensive
income.................... 15,841,103
Dividends, $.75 per share..... (3,583,523)
Tax benefit of unallocated
shares in ESOP.............. 68,250
Stock plans................... 435,108
Two-for-one stock split....... -0-
Purchases of treasury stock... (1,969,984)
Allocated ESOP shares......... 476,450
------------
Balance, December 31, 1997.... 117,716,403
Comprehensive income:
Net income.................. 12,035,617
Foreign currency translation
adjustment................ (708,549)
------------
Total comprehensive
income.................... 11,327,068
Dividends, $.80 per share..... (3,812,036)
Tax benefit of unallocated
shares in ESOP.............. 72,800
Stock plans................... 1,514,700
Purchase of treasury stock.... (600,198)
Allocated ESOP shares......... 714,675
------------
Balance, December 31, 1998.... $126,933,412
============
</TABLE>
See notes to consolidated financial statements.
F-5
<PAGE> 27
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1998, 1997 AND 1996
NOTE A -- ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION: The consolidated financial statements include
the accounts of the Company and its wholly-owned subsidiaries. Intercompany
transactions and accounts have been eliminated upon consolidation.
CASH EQUIVALENTS: The Company considers all highly liquid investments with
a maturity of three months or less at the date of purchase to be cash
equivalents. Cash equivalents are stated at cost which approximates market
value.
INVENTORIES: Inventories are stated at the lower of average cost (first-in,
first-out method) or market.
MARKETABLE SECURITIES: Available-for-sale securities are carried at fair
value, based on quoted market prices. Realized gains and losses on the sale of
such securities are based on average cost. The Company realized gains on the
sale of securities of $656,000 (proceeds of $933,000) in 1997 and $2,076,000
(proceeds of $3,130,000) in 1996.
PROPERTY AND EQUIPMENT: Property and equipment are stated at cost. The
Company provides depreciation on buildings and improvements and machinery and
equipment using the straight-line method over the assets estimated useful lives
that range from 2 to 60 years. Depletion of mineral reserves is recognized on a
units-of-production basis. Effective January 1, 1997, the Company extended the
estimated useful lives and increased the estimated salvage values for certain
vessels in its Marine Transportation fleet. The effect of these changes in
estimate reduced depreciation by $3,178,000 and increased net income by
$2,097,000 ($0.44 per share, assuming dilution) for the year ended December 31,
1997.
INTANGIBLE ASSETS: Intangible assets, consisting primarily of the purchase
price in excess of net assets of acquired businesses ("Goodwill"), are amortized
using the straight-line method over the periods of expected benefit, which range
from 15 to 40 years. Financing costs are amortized using the straight-line
method over the periods of the loan agreements, which range from 3 to 10 years.
IMPAIRMENT OF LONG-LIVED ASSETS: The Company assesses the recoverability of
its long-lived and intangible assets by determining whether the amortization of
the remaining balance of an asset over its remaining useful life can be
recovered through undiscounted future operating cash flows. If impairment
exists, the carrying amount of the related asset is reduced.
FOREIGN CURRENCY TRANSLATION: The financial statements of the Company's
subsidiaries outside the United States ("U.S.") are generally measured using the
local currency as the functional currency. Assets and liabilities of these
subsidiaries are translated at the rates of exchange at the balance sheet dates.
Income and expense items are translated at average monthly rates of exchange.
Translation adjustments are included in accumulated comprehensive income
(expense), a separate component of stockholders' equity. Generally, gains and
losses from foreign currency transactions of these subsidiaries and the U.S.
parent are included in net income. Gains and losses from foreign currency
transactions which hedge a net investment in a foreign subsidiary and from
intercompany foreign currency transactions of a long-term investment nature are
included in accumulated comprehensive income (loss).
DERIVATIVE FINANCIAL INSTRUMENTS: The Company periodically uses derivative
financial instruments to manage its exposure to fluctuations in interest rates.
The Company designates its interest rate swap agreements as hedges of specific
debt instruments and recognizes the interest differentials as adjustments to
interest expense over the terms of the related debt obligations. When using
interest rate swap agreements, the intermediaries to such agreements expose the
Company to the risk of nonperformance, though such risk is not considered likely
under the circumstances. The Company does not hold or issue financial
instruments for trading purposes.
F-6
<PAGE> 28
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
STOCK PLANS: The Company accounts for stock based compensation in
accordance with the provisions of Accounting Principles Board Opinion No. 25,
"Accounting for Stock Issued to Employees," and related interpretations.
USE OF ESTIMATES: The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the amounts reported in the Company's
consolidated financial statements and accompanying notes. Actual results could
differ from those estimates and assumptions.
NEW FINANCIAL ACCOUNTING STANDARDS: Statement of Financial Accounting
Standard ("SFAS") No. 133, "Accounting for Derivative Instruments and Hedging
Activities" was issued in 1998. This SFAS establishes accounting and reporting
standards for derivative instruments and hedging activities. It requires that
all derivatives be recognized as assets or liabilities on the balance sheet at
fair value. The Company will adopt SFAS No. 133 on January 1, 2000, as required;
and it is not expected to have a material impact on its consolidated results of
operations or financial position.
REVENUE RECOGNITION: Sales are generally recognized when products are
shipped to customers. Operating revenues are recognized as services are provided
to customers over the Great Lakes sailing season.
RECLASSIFICATIONS: Certain amounts in prior years have been reclassified to
conform with the 1998 consolidated financial statement presentation.
NOTE B -- ACQUISITIONS AND DISPOSITIONS
In the first quarter of 1998, the Company's Industrial Sands segment
acquired all of the outstanding common shares of Colorado Silica Sands, Inc.
("Colorado Silica") for $6,127,000 in cash and a $1,067,000 note payable over
three years.
In the second quarter of 1998, the Company acquired for cash all of the
outstanding common shares of Global Stone Corporation ("Global Stone"), which
formed the Company's new Lime and Limestone business segment. Global Stone has
eight operations in the United States and Canada, and is engaged in the mining,
production and marketing of lime, chemical limestone and construction aggregate
used in a variety of manufacturing processes and industries, including iron and
steel, pulp and paper, chemical, environmental, agricultural and construction.
The total purchase price was $227,600,000, including the assumption of
$54,000,000 of net debt.
In the second quarter of 1998, the Company also purchased the assets of a
limestone operation in Port Inland, Michigan ("Port Inland") for $35,200,000 in
cash. The acquisition included inventories, land, mineral reserves, equipment
and other tangible property used in the business of mining, processing,
marketing and distributing limestone, chemical limestone and construction
aggregate. Port Inland is now a part of the Lime and Limestone segment.
In the third quarter of 1998, the Company's Lime and Limestone segment
purchased the assets of Filler Products, Inc. ("Filler Products"), a privately
owned producer of chemical limestone in Chatsworth, Georgia, for $24,200,000 in
cash. The acquisition included inventories, land, mineral reserves, equipment
and other tangible property used in the business of mining, processing,
marketing and distributing chemical limestone to the carpet and decorative
gardening industries.
All acquisitions have been accounted for under the purchase method. The
results of operations of the acquired businesses are included in the
consolidated financial statements from the dates of acquisition. The purchase
prices have been allocated, on a preliminary basis, based on estimated fair
values at the dates of acquisition. The purchase price allocations will be
finalized during 1999 as the asset and liability valuations are completed.
F-7
<PAGE> 29
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The following unaudited pro forma information presents a summary of
consolidated results of operations (in thousands, except per share data) for the
Company and the acquisitions of Global Stone, Port Inland and Colorado Silica
for the years ended December 31, 1998 and 1997 as if the acquisitions had
occurred on January 1, 1997. The pro forma adjustments give effect to (i) the
amortization of goodwill, (ii) the amortization of the write-up of property and
equipment to fair market value, (iii) the interest expense on debt incurred to
fund the acquisitions and (iv) the related income tax effects. This unaudited
pro forma information (i) assumes that the Company incurred all acquisition
related debt as of January 1, 1997, (ii) included operating results for periods
of time prior to the Company's ownership and (iii) takes into consideration
expense reductions of $1,200,000 during 1998 and $1,600,000 during 1997,
principally due to a realized reduction of general and administrative costs. The
pro forma results do not necessarily represent results that would have occurred
if the acquisitions had taken place on the basis assumed above, nor are they
indicative of the results of future combined operations.
<TABLE>
<CAPTION>
1998 1997
-------- --------
<S> <C> <C>
Revenues................................................ $288,000 $283,000
Net Income.............................................. 6,300 9,800
Earnings per share -- basic............................. 1.31 2.04
Earnings per share -- assuming dilution................. 1.30 2.03
</TABLE>
In 1997, the Company purchased, for $3,400,000 in cash and notes payable,
the assets of two sand operations. These operations screen sand to make
specialty grades and sizes and supply certain blended sand and organic mixes for
end users, such as golf courses, playgrounds, parks and sports fields. Operating
results for these businesses have been included within the Industrial Sands
business segment since acquisition, and are not material. Additionally, two
self-unloading vessels were purchased for $17,000,000. These vessels have been
operated on the Great Lakes under charter, as part of the Company's Marine
Transportation fleet for over 20 years.
In the fourth quarter of 1997, the Company sold its interest in certain
coal reserves for $6,000,000 in cash. The sale resulted in a $5,212,000 pretax
gain (net gain of $3,388,000 or $0.70 per share, assuming dilution). In 1996,
the Company sold an inactive business resulting in a pretax gain of $625,000
(net gain of $625,000 or $0.13 per share, assuming dilution).
NOTE C -- DISCONTINUED OPERATIONS
In December 1997, the Company decided to divest the assets of its
Engineered Materials business segment. Hot top operations were sold in December
1997 and the sale of its metallurgical treatment operations occurred in May
1998. The loss upon disposition of these operations was $1,263,000 (net of an
income tax benefit of $807,000 in 1997). No gain or loss was incurred on the
sale of discontinued operations in 1998. In December 1996, the Company sold its
interest in Eveleth Mines and certain mining equipment for $5,000,000,
completing its exit from the iron ore business. The sale of these operations
resulted in a gain of $570,000 (net of an income tax benefit of $744,000).
F-8
<PAGE> 30
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The results of discontinued operations were as follows (in thousands):
<TABLE>
<CAPTION>
1997 1996
------- -------
<S> <C> <C>
Net sales................................................. $30,883 $57,730
Cost of goods sold........................................ 27,180 49,703
------- -------
Gross margin.............................................. 3,703 8,027
Depreciation and amortization............................. 1,691 1,793
Selling, general and administrative expenses.............. 3,279 3,379
Loss on sale and shutdown of facilities................... -0- 1,078
------- -------
(Loss) income from operations............................. (1,267) 1,777
Royalties, management fees and other expense.............. (76) 4,190
------- -------
(Loss) income before income taxes......................... (1,343) 5,967
Income tax (benefit) expense.............................. (501) 2,019
------- -------
(Loss) income from discontinued operations................ $ (842) $ 3,948
======= =======
</TABLE>
NOTE D -- NET INCOME PER SHARE
The calculation of net income per share, basic and assuming dilution,
follows (in thousands, except per share data):
<TABLE>
<CAPTION>
1998 1997 1996
------- ------- -------
<S> <C> <C> <C>
Net income per share -- basic:
Net income.................................... $12,036 $16,252 $15,557
======= ======= =======
Average number of shares outstanding.......... 4,772 4,785 4,876
======= ======= =======
Net income per share -- basic................. $ 2.52 $ 3.40 $ 3.19
======= ======= =======
Net income per share -- assuming dilution:
Net income.................................... $12,036 $16,252 $15,557
======= ======= =======
Average number of shares outstanding.......... 4,772 4,785 4,876
Dilutive effect of stock plans................ 14 31 15
------- ------- -------
Adjusted average number of shares
outstanding................................ 4,786 4,816 4,891
======= ======= =======
Net income per share -- assuming dilution..... $ 2.51 $ 3.37 $ 3.18
======= ======= =======
</TABLE>
F-9
<PAGE> 31
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE E -- INCOME TAXES
Total income taxes from continuing operations differs from the tax computed
by applying the U.S. federal corporate income tax statutory rate for the
following reasons (in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
------- ------- -------
<S> <C> <C> <C>
Income from continuing operations before taxes.... $17,695 $25,576 $12,580
======= ======= =======
Income taxes at statutory rate.................... $ 6,193 $ 8,952 $ 4,277
Tax differences due to:
Percentage depletion............................ (943) (1,271) (1,344)
State income taxes.............................. 65 312 (991)
Officers' life insurance........................ (106) (410) (76)
Goodwill amortization........................... 254 -0- -0-
Other........................................... 196 (363) (325)
------- ------- -------
Total income taxes................................ $ 5,659 $ 7,220 $ 1,541
======= ======= =======
</TABLE>
The Company received income tax refunds of $1,049,000 and $2,479,000 during
1998 and 1996, respectively. During 1996 the Company received a $1,824,000 state
income tax refund for prior tax years, which favorably impacted 1996 state
income tax expense. The Company made income tax payments of $3,999,000,
$6,161,000, and $1,962,000 during 1998, 1997 and 1996, respectively.
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. Significant components of
the Company's deferred tax liabilities and assets are as follows (in thousands):
<TABLE>
<CAPTION>
1998 1997
------- -------
<S> <C> <C>
Deferred tax liabilities:
Tax over book depreciation and amortization............. $47,401 $29,267
Pension benefits........................................ 10,916 8,949
Other................................................... 2,379 2,619
------- -------
Total deferred tax liabilities.................. 60,696 40,835
Deferred tax assets:
Postretirement benefits................................. 10,276 9,865
Coal Act liability...................................... 4,689 5,285
Other................................................... 12,096 7,625
------- -------
Total deferred tax assets....................... 27,061 22,775
------- -------
Net deferred tax liabilities.................... $33,635 $18,060
======= =======
</TABLE>
F-10
<PAGE> 32
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE F -- LONG-TERM DEBT
Long-term debt is as follows (in thousands):
<TABLE>
<CAPTION>
1998 1997
-------- -------
<S> <C> <C>
Senior Credit Facility................................... $171,000 -0-
Senior Subordinated Notes................................ 100,000 -0-
Title XI Ship Financing Bonds............................ 7,450 $ 8,700
Term Loans............................................... 16,754 36,250
Capital Leases........................................... 10,317 -0-
Notes Payable............................................ 6,545 1,868
Guaranteed ESOP Loans.................................... -0- 715
-------- -------
312,066 47,533
Less current portion..................................... 9,506 9,087
-------- -------
$302,560 $38,446
======== =======
</TABLE>
In the second quarter of 1998, the Company entered into a three-year
$215,000,000 revolving credit facility ("Senior Credit Facility") with a group
of banks to finance the acquisition of Global Stone, refinance debt and for
other general purposes. The variable interest rate on the Senior Credit Facility
approximated 7.75% at December 31, 1998. The agreement matures in May 2001, but
is renewable annually thereafter at the discretion of the banks. The Company
also entered into an agreement for an interim private placement of $100,000,000
ten-year senior subordinated debt ("Senior Subordinated Facility") in connection
with the Global Stone acquisition. The interim Senior Subordinated Facility was
at a fixed rate of 9.35% at December 31, 1998. The notes under the interim
Senior Subordinated Facility were exchanged with the lender on February 1, 1999
for Senior Subordinated Notes. The Senior Subordinated Notes, privately placed
with several purchasers, mature in February 2009 and have a fixed interest rate
of 10%. The Company incurred $9,397,000 in financing costs associated with the
new debt facilities. The financing costs are being amortized over the terms of
the respective agreements and are included in Other Assets on the consolidated
balance sheet at December 31, 1998.
The Title XI Ship Financing Bonds related to a first preferred ship
mortgage on the M/V Columbia Star and are guaranteed by the U.S. Government
under the Federal Ship Financing Program. To facilitate a pledge under the
Senior Credit Facility, the bonds were called, at face value, and repaid in
January 1999 with additional borrowings under the Senior Credit Facility.
In 1997, the Company entered into a $17,000,000 fixed rate Term Loan with a
bank to finance the acquisition of two Marine Transportation vessels, which had
previously been under charter agreements. The Company is required to make
semi-annual payments on the Term Loan of $750,000, including interest, through
July 14, 2002; $1,350,000 payable semi-annually, including interest, through
January 14, 2007 and a final payment of $7,805,000, including interest, on July
14, 2007. The loan is secured by mortgages on the two vessels, which have a net
book value of $16,545,000 at December 31, 1998. The Term Loan was amended in
1998 as a result of the Company's increase in debt related to the acquisition of
Global Stone. The amendment revised the Term Loan covenants to the same
covenants contained in the Senior Credit Facility. In addition, the interest
rate was changed from a fixed rate of 7.32% to a semi-variable maximum rate of
8.32% (fixed portion of rate is 7.82%).
The Company's debt agreements contain various covenants with the most
restrictive covenants requiring the Company to maintain a specified level of
earnings before interest, taxes, depreciation and amortization (EBITDA), a
specified leverage ratio and a limitation on capital distributions. The
Company's EBITDA, as defined, was $69,326,000 at December 31, 1998, compared
with a minimum specified level of $66,000,000. The Company's leverage ratio, as
defined, was 4.5 at December 31, 1998 compared with a maximum of 5.0. The
F-11
<PAGE> 33
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Company's capital distributions, which include payments of dividends and
purchases of treasury stock, totaled $4,412,000 compared with a maximum of
$5,000,000.
The Company, in separate agreements which expire in 2000 and 2001, entered
into interest rate swap agreements with banks to substitute fixed rates for
LIBOR-based variable interest rates on notional amounts totaling $90,000,000 at
December 31, 1998. The Company's debt agreement with its bank group requires
interest rate protection on fifty percent of its senior secured debt for a
period of at least two years. The Company's existing fixed rate senior secured
debt fulfills a portion of the fifty-percent protection requirement. The swap
agreements limit the effect of increases in the interest rates on any floating
rate debt. The differential between fixed and floating rates is recorded as an
increase or decrease to interest expense. The effect of these agreements is to
limit the Company's interest rate exposure to 7.98% on $90,000,000 of the Senior
Credit Facility. As a result of these swap agreements, interest expense was
$55,000 greater in 1998 than if the Company had maintained its floating LIBOR
pricing. At December 31, 1998, the fair value of the Company's interest rate
swaps and long-term debt were liabilities of $903,000 and $307,625,000,
respectively.
Substantially all of the Company's U.S. accounts receivable, inventories
and property and equipment, which approximates $346,506,000, secure long-term
senior debt of $210,636,000 at December 31, 1998. Long-term debt maturities are
$9,506,000 in 1999, $5,376,000 in 2000, $181,020,000 in 2001, $513,000 in 2002,
$1,602,000 in 2003 and $114,049,000 thereafter. The Company made interest
payments of $13,593,000, $2,353,000 and $3,117,000 during 1998, 1997, 1996,
respectively.
NOTE G -- STOCKHOLDERS' EQUITY
In 1997, the Company declared a two-for-one split of its common stock in
the form of a 100% stock dividend to stockholders of record as of October 10,
1997. This stock split was recorded by a transfer, within stockholders' equity,
of $3,626,000 from additional capital to common stock for all periods presented,
representing $1.00 par value for each additional share issued.
The Company's preferred stock is issuable in series and the Board of
Directors is authorized to fix the number of shares and designate the terms of
each issue. At December 31, 1998 and 1997, 5,000,000 preferred stock shares were
authorized. No preferred stock was issued or outstanding at December 31, 1998
and 1997. In 1987, under a Stockholder Rights Plan, as amended, the Company's
Board of Directors declared a dividend consisting of one Right for each
outstanding share of the Company's common stock. Upon certain "change in
control" events, the Rights entitle the holder to purchase one one-hundredth of
a share of the Company's Series C $10.00 preferred stock for $130 or one share
of the Company's common stock for $2.50, depending on the "change in control"
circumstances. The Stockholder Rights Plan, which expires December 18, 2006,
should not interfere with any merger or other business combination approved by
the Board of Directors, because the Board, at its option, may redeem the Rights
at a redemption price of $0.05 per Right.
NOTE H -- COMPANY STOCK PLANS
The Company's Long-Term Incentive Plan ("Plan"), adopted in 1996, permits
grants of stock options, stock appreciation rights, restricted stock and other
performance awards. There were 200,000 common shares authorized for awards under
the Plan. At the end of 1998, 10,055 shares remain available for grant under the
Plan. Included in Additional Capital at December 31, 1998 and 1997 is $902,000
and $655,000, respectively, of obligations under the Plan, representing 38,113
and 31,549 "share units", respectively. Compensation expense under the Plan was
$31,000 in 1998, $568,000 in 1997 and $387,000 in 1996. Under the Plan, stock
options have been granted to key employees. These options vest ratably over a
four-year period and expire 10 years from the date of grant. There have been no
stock appreciation rights, restricted stock or performance awards granted under
the Plan.
F-12
<PAGE> 34
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In connection with an employment agreement ("Agreement") the Company
provided its Chairman, President and Chief Executive Officer ("CEO") with a
restricted common stock award, in lieu of compensation. In January 1998, upon
the CEO's completion of a $1,000,000 personal investment in the Company's common
stock, the Company issued to the CEO 25,744 shares of common stock equal to the
number of shares of common stock he acquired. Of the total shares issued, 5,148
became immediately vested and non-forfeitable. The remaining shares are
restricted at December 31, 1998 and become vested and non-forfeitable, ratably,
on January 1, 1999, 2000, 2001 and 2003, as defined by the Agreement.
The CEO is entitled to all voting rights and any dividends on the
restricted shares. Total compensation expense of $965,000, computed based on the
closing market price on the date the stock was issued, is being recognized over
the vesting period. Compensation expense related to this award was $386,000 in
1998. Also under the Agreement, the Company granted the CEO an option to acquire
380,174 common shares at an exercise price of $38.00 per share. The option
becomes exercisable in whole or in part on January 1, 2001 and expires June 30,
2005.
In 1998, the Company established a Director Fee Deferral Plan (the
"Directors Plan"), which allows non-employee directors of the Company the option
of deferring all or part of their fees in the form of "share units" or "deferred
cash". Any fees deferred as "share units" will be matched at 25% by the Company
in the form of additional "share units". Common stock (100,000 shares) is
authorized for distribution under the Directors Plan. At December 31, 1998,
$186,000 was included in additional paid-in-capital, representing 5,469 "share
units". Expense under the Directors Plan was $186,000 in 1998.
The following table summarizes the Company's stock option activity and
related information. Exercise prices for options outstanding as of December 31,
1998 ranged from $26.00 to $42.13. The weighted-average remaining contractual
life of these options is 7.3 years.
<TABLE>
<CAPTION>
WEIGHTED
AVERAGE WEIGHTED
NUMBER OF EXERCISE AVERAGE
SHARES PRICE FAIR VALUE
--------- -------- ----------
<S> <C> <C> <C>
Options outstanding, January 1, 1997.......... -0- -0-
Granted....................................... 48,700 $30.63 $7.06
-------
Options outstanding, December 31, 1997........ 48,700 30.63
Granted -- CEO................................ 380,174 38.00 11.36
Granted -- others............................. 97,200 29.51 8.52
Forfeited..................................... (8,900) 35.79
-------
Options outstanding, December 31, 1998........ 517,174 $35.75
======= ======
Options exercisable, December 31, 1998........ 10,950 $30.63
======= ======
</TABLE>
F-13
<PAGE> 35
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
As permitted by SFAS No. 123, "Accounting for Stock-Based Compensation",
the Company has chosen to continue accounting for stock options at their
intrinsic value. Under the alternative fair value method of this SFAS the
estimated fair value of the options is amortized to expense over the options'
vesting period. Had the fair value method of accounting been applied to the
Company's stock option plan, the impact would be as follows:
<TABLE>
<CAPTION>
(THOUSANDS OF DOLLARS,
EXCEPT PER SHARE DATA) 1998 1997
---------------------- ------- -------
<S> <C> <C>
Net income, as reported................................... $12,036 $16,252
Estimated fair value of stock option granted, net of
taxes................................................... (306) (8)
------- -------
Net income, as adjusted................................... $11,730 $16,244
======= =======
Net income per share, as adjusted-assuming dilution....... $ 2.45 $ 3.37
======= =======
</TABLE>
The fair value for these options was estimated at the date of grant using a
Black-Scholes option pricing model with the following weighted average
assumptions: risk-free interest rate of 6.0%; dividend yields ranging from
2.0%-3.0%; volatility factors of the expected market price of the Company's
common shares of 31% and 22% in 1998 and 1997, respectively; and a
weighted-average expected life of five years for the options. Since changes in
the subjective input assumptions can materially affect the fair value estimate,
in management's opinion, the existing models do not necessarily provide a
reliable single measure of the fair value of its employee stock options.
NOTE I -- POSTRETIREMENT BENEFITS
The Company has a number of noncontributory defined benefit pension plans
covering certain employees. The plans provide benefits based on the
participant's years of service and compensation or state amounts for each year
of service. The Company's funding policy is to contribute amounts to the plans
sufficient to meet the minimum funding required by applicable regulations. In
addition to pension benefits, the Company provides health care and life
insurance for certain retired employees. Substantially all of the Company's
employees are eligible for these benefits when they reach normal retirement age.
The Company's policy is to fund these postretirement benefit costs principally
on a cash basis as claims are incurred. The Coal Industry Retiree Health Benefit
Act of 1992 ("Coal Act") requires companies that previously mined coal to assume
certain health care benefit obligations for retired coal miners and their
dependents.
F-14
<PAGE> 36
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
A summary of the Company's pension and other benefits, as required by SFAS
No. 132, "Employers' Disclosures about Pensions and Other Postretirement
Benefits", is as follows (in thousands)
<TABLE>
<CAPTION>
OTHER BENEFITS(2)
------------------------------------------
POSTRETIREMENT
PENSION BENEFITS(1) HEALTH CARE COAL ACT
------------------- ------------------- -------------------
1998 1997 1998 1997 1998 1997
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
CHANGE IN BENEFIT OBLIGATIONS
Benefit obligations at
beginning of year........... $ 61,443 $ 54,622 $ 14,976 $ 14,723 $ 13,551 $ 13,914
Service cost.................. 1,708 1,114 528 379
Interest cost................. 4,530 4,255 1,276 1,069 909 974
Amendments.................... 78
Actuarial loss (gain)......... 1,023 6,150 1,751 (113) (1,423) (121)
Benefits paid................. (4,924) (4,698) (1,257) (1,082) (1,014) (1,216)
Acquisitions.................. 6,671 3,050
-------- -------- -------- -------- -------- --------
Benefit obligations at end of
year(3)..................... 70,529 61,443 20,324 14,976 12,023 13,551
CHANGE IN PLAN ASSETS
Fair value of plan assets at
beginning of year........... 102,934 83,340 103 75
Actual return on plan
assets...................... 6,883 23,196 3 3
Employer contributions........ 1,103 1,096 25 25
Benefits paid................. (4,924) (4,698)
Acquisitions.................. 5,410
-------- -------- -------- --------
Fair value of plan assets at
end of year................. 111,406 102,934 131 103
-------- -------- -------- --------
Funded status................. 40,877 41,491 (20,193) (14,873) (12,023) (13,551)
Unrecognized net actuarial
gain........................ (13,350) (17,885) (5,638) (7,925)
Unrecognized prior service
cost (credit)............... 1,993 2,213 (1,350) (1,543)
Unrecognized initial net
asset....................... (2,251) (2,962)
-------- -------- -------- -------- -------- --------
Net amount recognized......... $ 27,269 $ 22,857 $(27,181) $(24,341) $(12,023) $(13,551)
======== ======== ======== ======== ======== ========
AMOUNTS RECOGNIZED IN THE
BALANCE SHEET CONSIST OF:
Prepaid benefit cost........ $ 30,151 $ 24,421
Intangible asset............ 1,152 717
-------- --------
Prepaid pension costs....... 31,303 25,138
Accrued long-term benefit
liability................ (4,034) (2,281) $(27,181) $(24,341) $(12,023) $(13,551)
-------- -------- -------- -------- -------- --------
Net amount recognized......... $ 27,269 $ 22,857 $(27,181) $(24,341) $(12,023) $(13,551)
======== ======== ======== ======== ======== ========
</TABLE>
F-15
<PAGE> 37
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
<TABLE>
<CAPTION>
PENSION BENEFITS(1)
---------------------
1998 1997
---------- ----
<S> <C> <C>
WEIGHTED-AVERAGE ASSUMPTION AS OF DECEMBER 31
Discount rate............................................... 6.50%-7.00% 7.25%
Expected return on plan assets.............................. 7.50%-9.00% 9.00%
Rate of compensation increase............................... 4.00% 4.00%
Rate of increases in pension payments....................... 2.50%
</TABLE>
<TABLE>
<CAPTION>
OTHER BENEFITS(2)
-------------------------------------------------
POSTRETIREMENT HEALTH CARE COAL ACT
--------------------------- ---------------
1998 1997 1998 1997
------------- ------- ---- ----
<S> <C> <C> <C> <C>
WEIGHTED-AVERAGE ASSUMPTION AS OF DECEMBER 31
Discount rate........................................... 6.50%-7.00% 7.25% 7.00% 7.00%
Expected return on plan assets.......................... 6.00% 6.00%
Rate of compensation increase........................... 3.00%
</TABLE>
For measurement purposes on the Company's U.S. postretirement health care a
7.75% (pre-65) and 5.25% (post-65) annual rate of increase in the per capita
cost of covered health care benefits was assumed for 1999. The rate was assumed
to decrease gradually to 5.0% for 2005 (pre-65) and 2000 (post-65) and remain at
that level thereafter. For measurement purposes on the Company's Canadian
postretirement health care, a 10.0% annual rate cost of covered health care
benefits was assumed for 1999. The rate was assumed to decrease gradually to
4.5% after five years. The Coal Act's weighted-average annual assumed rate of
increase in the health care cost trend rate for 1999 and 1998 is 6.0%.
<TABLE>
<CAPTION>
PENSION BENEFITS(1)
-----------------------------
1998 1997 1996
------- ------- -------
<S> <C> <C> <C>
COMPONENTS OF NET PERIODIC BENEFIT COST (CREDIT)
Service cost................................................ $ 1,708 $ 1,114 $ 1,390
Interest cost............................................... 4,530 4,255 4,246
Expected return on plan assets.............................. (9,659) (7,831) (7,361)
Amortization of prior service cost.......................... 298 437 250
Amortization of initial net asset........................... (711) (711) (706)
Recognized net actuarial (gain) loss........................ (735) (37) 278
------- ------- -------
Net periodic benefit cost (credit).......................... $(4,569) $(2,773) $(1,903)
======= ======= =======
</TABLE>
F-16
<PAGE> 38
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
<TABLE>
<CAPTION>
OTHER BENEFITS(2)
--------------------------------------------------------
POSTRETIREMENT HEALTH CARE COAL ACT
-------------------------- --------------------------
1998 1997 1996 1998 1997 1996
------ ------ ------ ------- ----- ------
<S> <C> <C> <C> <C> <C> <C>
COMPONENTS OF NET PERIODIC
BENEFIT COST (CREDIT)
Service cost.................. $ 528 $ 379 $ 368
Interest cost................. 1,276 1,069 1,059 $ 909 $ 974 $ 936
Expected return on plan
assets...................... (6) (5) (3)
Amortization of prior service
cost........................ (192) (192) (192)
Recognized net actuarial
(gain) loss................. (534) (404) (551) (1,361) (121) 122
------ ------ ------ ------- ----- ------
Net periodic benefit cost
(credit).................... $1,072 $ 847 $ 681 $ (452) $ 853 $1,058
====== ====== ====== ======= ===== ======
</TABLE>
Assumed health care cost trend rates have a significant effect on the
amounts reported for the health care plans. A one-percentage point change in
assumed health care cost trend rates would have the following effects (in
thousands):
<TABLE>
<CAPTION>
OTHER BENEFITS(2)
--------------------------------------------------------
POSTRETIREMENT HEALTH CARE COAL ACT
-------------------------- --------------------------
1% INCREASE 1% DECREASE 1% INCREASE 1% DECREASE
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Effect on total of service and interest
cost components......................... $ 351 $ (286) $ 116 $ (94)
Effect on postretirement benefits
obligation.............................. 2,788 (2,297) 1,481 (1,197)
</TABLE>
- ---------------
(1) Reflects the combined Pension Plans of the Company
(2) Reflects the Postretirement Health Care, Life Insurance Plans of the Company
and benefits required under the 1992 Coal Act. Net periodic benefit cost for
the Coal Act declined in 1998 as a result of a decline in the number of
beneficiaries assigned to the Company.
(3) Benefit obligations at the end of 1998 include Canadian pension and
postretirement health care benefit obligations of $5,561,000 and $3,005,000,
respectively.
The projected benefit obligation, accumulated benefit obligation, and fair
value of plan assets for the pension plans with accumulated benefit obligations
in excess of plan assets were $10,559,000, $10,514,000 and $7,098,000,
respectively, as of December 31, 1998 and $4,346,000, $3,997,000, and
$1,722,000, respectively, as of December 31, 1997.
Pension plan assets include 293,000 shares of the Company's common stock at
December 31, 1998. The ending market value and dividends received during the
year for these shares were $7,252,000 and $234,000, respectively.
The Company maintains defined contribution plans for certain employees and,
except for the Employee Stock Ownership Plan (ESOP), contributes to these plans
based on a percentage of employee contributions. The expense for these plans was
$1,533,000, $1,039,000 and $934,000 for 1998, 1997 and 1996, respectively.
The Company also pays into certain defined benefit multi-employer plans
under various union agreements that provide pension and other benefits for
various classes of employees. Payments are based upon negotiated contract rates
and related expenses totaled $1,166,000, $1,688,000 and $1,915,000 for 1998,
1997, and 1996, respectively.
F-17
<PAGE> 39
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE J -- COMMITMENTS AND CONTINGENCIES
The Company leases various buildings, computers and equipment in addition
to a vessel charter in its Marine Transportation fleet. In general, these
operating leases are renewable or contain purchase options. The purchase price
or renewal lease payment is based on the fair market value of the asset at the
date of purchase or renewal. Rental expense was $5,076,000, $3,718,000, and
$4,767,000 in 1998, 1997 and 1996, respectively.
Future minimum payments at December 31, 1998, under non-cancelable
operating leases, are $4,199,000 in 1999, $3,790,000 in 2000, $2,675,000 in
2001, $2,532,000 in 2002, $1,804,000 in 2003 and $10,123,000 thereafter.
The Company is subject to various environmental laws and regulations
imposed by federal, state and local governments. Also, in the normal course of
business, the Company is involved in various pending or threatened legal
actions. The Company cannot reasonably estimate future costs, if any, related to
these matters. However, costs incurred to comply with environmental regulations
and to settle litigation have not been significant in 1998 and prior years.
Although it is possible that the Company's future operating results could be
affected by future costs of environmental compliance or litigation, it is
management's belief that such costs will not have a material adverse effect on
the Company's consolidated financial position.
NOTE K -- INDUSTRY SEGMENTS AND MAJOR CUSTOMERS
The Company adopted SFAS No. 131, "Disclosure about Segment of an
Enterprise and Related Information". The new SFAS requires the Company to
provide information about operating segments in annual and quarterly financial
statements. It also requires certain related disclosures about products and
services, geographic areas and major customers.
The Company supplies essential natural resources to industrial and
commercial customers. Through its three operating segments -- Lime and
Limestone, Industrial Sands and Marine Transportation -- the Company serves
customers, through a direct sales force, in a wide range of industries,
including steel, construction, oil, ceramic, chemical, glass and electric
utilities. Founded in 1854, the Company is headquartered in Cleveland, Ohio.
LIME AND LIMESTONE
The lime and limestone business segment, headquartered in Roswell, Georgia,
mines and processes limestone and produces lime, a limestone derivative. This
business segment operates nine facilities, primarily in the Eastern U.S. and
Canada. Lime is used for water and waste treatment, steel making, flue gas
desulfurization, glass production, animal feed, fertilizers, and fillers for
plastic, latex, and sealants. Chemical limestone is used in many diverse
industrial and agricultural uses, including fiberglass, roofing shingles and
animal feed. Limestone is sized and graded for lawn and garden applications as
well as for aggregates in construction.
INDUSTRIAL SANDS
The Industrial Sands business segment, headquartered in Phoenix, Arizona,
mines and processes high-purity silica sands at two facilities in Ohio and six
facilities in the southwestern U.S. It produces fracturing sands used in oil
well drilling; foundry sands for hot-metal die casting; filtration sands;
recreational sands for golf courses, playgrounds, athletic fields, and
landscaping; industrial sands used as abrasives and for fillers in building
materials; and silica flour for fiberglass and ceramic production.
MARINE TRANSPORTATION
The Marine Transportation business segment, headquartered in Cleveland,
Ohio, provides dry bulk transportation between U.S. ports on the Great Lakes.
This business segment operates 12 self-unloading vessels. The fleet transports
primarily iron ore for integrated steel manufacturers, coal for electric utility
companies, and
F-18
<PAGE> 40
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
limestone for construction and other purposes. The segment also operates the
Cleveland Bulk Terminal at the Port of Cleveland.
Geographic information for revenues and long-lived assets are as follows
(in thousands):
<TABLE>
<CAPTION>
LONG-
REVENUES(1) LIVED ASSETS
----------- ------------
<S> <C> <C>
1998
United States....................................... $227,129 $361,977
Canada and other foreign............................ 11,723 28,327
-------- --------
Consolidated........................................ $238,852 $390,304
======== ========
1997
United States....................................... $144,348 $181,995
Canada and other foreign............................ 837
-------- --------
Consolidated........................................ $145,185 $181,995
======== ========
1996
United States....................................... $129,298 $169,900
Canada and other foreign............................ 399 187
-------- --------
Consolidated........................................ $129,697 $170,087
======== ========
</TABLE>
- ---------------
(1) Revenues are attributed to countries based on the location of customers.
Accounts receivable of $15,694,000 at December 31, 1998 are due from
companies in the steel and utilities industries. Credit is extended based on an
evaluation of a customer's financial condition, and generally collateral is not
required. Credit losses within these industries have not been significant for
the three years in the period ended December 31, 1998. There were no customers
that exceeded 10% of consolidated net sales and operating revenues in 1998. In
prior years, Marine Transportation's operating revenues from two major steel
producers and one utility company exceeded 10% of consolidated net sales and
operating revenues and are summarized as follows (in thousands):
<TABLE>
<CAPTION>
1997 1996
------- -------
<S> <C> <C>
Customer:
A........................... $18,773 $14,008
B........................... 18,589 15,787
C........................... 18,245 17,315
------- -------
$55,607 $47,110
======= =======
</TABLE>
F-19
<PAGE> 41
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
<TABLE>
<CAPTION>
LIME AND INDUSTRIAL MARINE TOTAL CORPORATE
LIMESTONE(3) SANDS TRANSPORTATION SEGMENTS AND OTHER CONSOLIDATED
------------ ---------- -------------- -------- --------- ------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
1998
Identifiable assets........... $226,552 $52,248 $137,969 $416,769 $ 148,855(1) $565,624
Depreciation, depletion and
amortization expense........ 10,581 3,914 6,252 20,747 128 20,875
Capital expenditures.......... 8,322 6,069 4,703 19,094 25 19,119
Net sales and operating
revenues.................... $ 95,498 $47,800 $ 95,554 $238,852 $238,852
Income from operations........ $ 11,851 $ 9,465 $ 24,335 $ 45,651 $ (8,616)(2) $ 37,035
Gain (loss) on disposition of
assets...................... 76 213 289 (164) 125
Interest expense.............. (19,281) (19,281)
Interest, dividends and other
income (expense) -- net..... (184) (184)
-------- ------- -------- -------- --------- --------
Income from continuing
operations before income
taxes....................... $ 11,927 $ 9,678 $ 24,335 $ 45,940 $ (28,245) $ 17,695
======== ======= ======== ======== ========= ========
1997
Identifiable assets........... $40,928 $143,554 $184,482 $ 78,742(1) $263,224
Depreciation, depletion and
amortization expense........ 3,150 5,654 8,804 143 8,947
Capital expenditures.......... 4,108 20,234 24,342 212 24,554
Net sales and operating
revenues.................... $49,484 $ 95,701 $145,185 $145,185
Income from operations........ $11,205 $ 20,547 $ 31,752 $ (7,287)(2) $ 24,465
Gain on disposition of
assets...................... 197 197 5,351 5,548
Interest expense.............. (2,834) (2,834)
Interest, dividends and other
income (expense) -- net..... (1,603) (1,603)
------- -------- -------- --------- --------
Income from continuing
operations before income
taxes....................... $11,402 $ 20,547 $ 31,949 $ (6,373) $ 25,576
======= ======== ======== ========= ========
1996
Identifiable assets........... $36,120 $130,125 $166,245 $ 68,451(1) $234,696
Depreciation, depletion and
amortization expense........ 2,444 8,671 11,115 144 11,259
Capital expenditures.......... 4,540 925 5,465 108 5,573
Net sales and operating
revenues.................... $42,583 $ 86,178 $128,761 $ 936 $129,697
Income from operations........ $ 9,747 $ 9,087 $ 18,834 $ (7,181)(2) $ 11,653
Gain on disposition of
assets...................... 75 75 3,075 3,150
Interest expense.............. (3,004) (3,004)
Interest, dividends and other
income (expense) -- net..... 781 781
------- -------- -------- --------- --------
Income from continuing
operations before income
taxes....................... $ 9,822 $ 9,087 $ 18,909 $ (6,329) $ 12,580
======= ======== ======== ========= ========
</TABLE>
F-20
<PAGE> 42
OGLEBAY NORTON COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
- ---------------
(1) Consists primarily of cash and cash equivalents, marketable securities,
prepaid pension costs, goodwill, other assets and net assets of discontinued
operations of $15,571,000 and $13,661,000 in 1997 and 1996, respectively.
(2) Includes other operations, net of corporate general and administrative
expenses.
(3) Includes the results of operations of Global Stone, Port Inland and Filler
Products as of their respective dates of April, May and August 1998.
NOTE L -- QUARTERLY RESULTS OF OPERATIONS (UNAUDITED)
Unaudited quarterly results of operations for the years ended December 31,
1998 and 1997 are summarized as follows (in thousands, except per share data):
<TABLE>
<CAPTION>
QUARTER ENDED
-----------------------------------------
DEC. 31 SEPT. 30 JUNE 30 MAR. 31
------- -------- ------- -------
<S> <C> <C> <C> <C>
1998
Net sales and operating revenues................... $74,974 $ 85,845 $63,726 $14,307
Gross profit....................................... 16,234 22,763 16,773 4,248
Net income......................................... 1,127 5,680 5,449 (220)
Per common share:
Net income (loss) -- basic....................... 0.24 1.19 1.14 (0.05)
Net income (loss) -- assuming dilution........... 0.24 1.19 1.13 (0.05)
1997
Net sales and operating revenues................... $43,222 $ 45,602 $43,576 $12,785
Gross profit....................................... 9,165 13,571 10,839 4,242
Income from continuing operations.................. 5,989 6,431 5,184 752
Net income......................................... 3,814 6,476 5,109 853
Per common share -- basic:
Continuing operations............................ 1.26 1.35 1.09 0.16
Net income....................................... 0.80 1.36 1.07 0.18
Per common share -- assuming dilution:
Continuing operations............................ 1.25 1.34 1.08 0.16
Net income....................................... 0.80 1.35 1.06 0.18
</TABLE>
The sum of per share amounts for the four quarters of 1997 do not equal the
annual per share amounts as a result of treasury stock purchases and the effect
of stock options granted by the Company.
Net income for the fourth quarter of 1998 includes $967,000 ($0.20 per
share, assuming dilution) as a result of a decline in the number of
beneficiaries assigned to the Company under the Coal Act. Fourth quarter 1998
net income includes a $773,000 ($0.16 per share, assuming dilution) charge
primarily related to separation benefits that will be paid over a two year
period to former Global Stone management.
Net income for the fourth quarter of 1997 includes $3,388,000 ($0.70 per
share, assuming dilution) related to the sale of certain coal reserves. Fourth
quarter 1997 net income includes a $1,052,700 ($0.22 per share, assuming
dilution) charge related to supplemental retirement benefits for its former
Chairman, President and Chief Executive Officer.
F-21
<PAGE> 43
ITEM 14(A)3
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEC
EXHIBIT
NO. DESCRIPTION LOCATION**
- ------- --------------------------------------- ---------------------------------------
<C> <S> <C>
2 Agreement and Plan of Merger, dated Incorporated by reference to Exhibit 2
March 3, 1999, by and among Oglebay of the Registrant's Form 8-K filed
Norton Company, Oglebay Norton Holding March 19, 1999
Company, ONCO Investment Company and
Oglebay Norton Merger Company
3 (i) Certificate of Incorporation Incorporated by reference to Exhibit
4.1 of the Registrant's Form 8-K filed
March 19, 1999
(ii) By-laws Incorporated by reference to Exhibit
4.2 of the Registrant's Form 8-K filed
March 19, 1999
(iii) Amendment to Bylaws, dated March Filed herewith as Exhibit 3(iii)
9, 1999
4 (a) The Company is a party to
instruments, copies of which will be
furnished to the Securities and
Exchange Commission upon request,
defining the rights of holders of its
long-term debt identified in Note F to
the Consolidated Financial Statements.
(b) Form of Rights Agreement (including Incorporated by reference to Exhibit
first and second amendments) 4(b) of the Registrant's Annual Report
on Form 10-K for the year ended
December 31, 1993
(c) Form of Third Amendment to Rights Incorporated by reference to Exhibit
Agreement, dated as of August 31, 1994, 4(c) of Amendment No. 3 to Form 8-A/A,
between Company and the Rights Agent filed on September 26, 1994
(d) Form of Fourth Amendment of Rights Incorporated by reference to Exhibit
Agreement, dated as of January 21, 4(d) of Form 8-A/A, filed on January
1997, between Company and the Rights 21, 1997
Agent
(e) Form of Fifth Amendment of Rights Incorporated by reference to Exhibit
Agreement, dated as of October 28, 4(e) of Form 8-A/A, filed November 20,
1998, between Company and the Rights 1998
Agent
</TABLE>
- ---------------
* Indicates management contracts or compensatory plans or arrangements in which
one or more directors or executive officers of the Company may be
participants.
** As appropriate, indicates filing made by the Registrant's predecessor, ON
Marine Services Company, a Delaware corporation, formerly known as Oglebay
Norton Company.
I-1
<PAGE> 44
<TABLE>
<CAPTION>
SEC
EXHIBIT
NO. DESCRIPTION LOCATION**
- ------- --------------------------------------- ---------------------------------------
<C> <S> <C>
10 (a) Agreement with Brent D. Baird Incorporated by reference to Exhibit
10(b) of the Registrant's Annual Report
on Form 10-K for the year ended
December 31, 1993
(b) Form of Change-in-Control Incorporated by reference to Exhibit
Agreements with Executive Officers and 10(d)(3) of the Registrant's Annual
key employees* Report on Form 10-K for the year ended
December 31, 1996
(b)(1) Schedule of Executive Officers Filed herewith as Exhibit 10(b)(1)
and key employees with
Change-in-Control Agreements
(c) Agreement with John D. Weil Incorporated by reference to Exhibit
10(f) of the Registrant's Annual Report
on Form 10-K for the year ended
December 31, 1993
(e) Oglebay Norton Company Long-Term Incorporated by reference to Exhibit
Incentive Plan* 10(h) of the Registrant's Annual Report
on Form 10-K for the year ended
December 31, 1995
(e)(1) Form of Oglebay Norton Company Incorporated by reference to Exhibit
Long-Term Incentive Plan stock option 10(f)(1) of the Registrant's Annual
prospectus supplement, dated October Report on Form 10-K for the year ended
29, 1997, between the Company and 10 December 31, 1997
Executive Officers and 11 key
employees*
(e)(2) Form of Oglebay Norton Company Filed herewith as Exhibit 10(e)(2)
Long-Term Incentive Plan stock option
prospectus supplement, dated October
28, 1998, between the Company and 8
Executive Officers and 34 key
employees*
(f) Amended and Restated Director Stock Incorporated by reference to Exhibit
Plan* 10(i)(1) of the Registrant's Quarterly
Report on Form 10-Q for the quarter
ended September 30, 1997
(g) Supplemental Savings and Stock Incorporated by reference to Exhibit
Ownership Plan* 10(j) of the Registrant's Annual Report
on Form 10-K for the year ended
December 31, 1996
</TABLE>
- ---------------
* Indicates management contracts or compensatory plans or arrangements in which
one or more directors or executive officers of the Company may be
participants.
** As appropriate, indicates filing made by the Registrant's predecessor, ON
Marine Services Company, a Delaware corporation, formerly known as Oglebay
Norton Company.
I-2
<PAGE> 45
<TABLE>
<CAPTION>
SEC
EXHIBIT
NO. DESCRIPTION LOCATION**
- ------- --------------------------------------- ---------------------------------------
<C> <S> <C>
(g)(1) First Amendment to Oglebay Incorporated by reference to Exhibit
Norton Company Supplemental Savings and 10(j)(1) of the Registrant's Annual
Stock Ownership Plan* Report on Form 10-K for the year ended
December 31, 1996
(g)(2) Second Amendment to Oglebay Incorporated by reference to Exhibit
Norton Company Supplemental Savings and 10(j)(2) of the Registrant's Annual
Stock Ownership Plan* Report on Form 10-K for the year ended
December 31, 1996
(g)(3) Form of Third Amendment to Incorporated by reference to Exhibit
Oglebay Norton Company Supplemental 10(h)(3) of the Registrant's Annual
Savings and Stock Ownership Plan* Report on Form 10-K for the year ended
December 31, 1997
(h) Irrevocable Trust Agreement I* Incorporated by reference to Exhibit
10(k) of the Registrant's Annual Report
on Form 10-K for the year ended
December 31, 1996
(i) Irrevocable Trust Agreement II* Incorporated by reference to Exhibit
10(l) of the Registrant's Annual Report
on Form 10-K for the year ended
December 31, 1996
(j) Executive Life Insurance Program I Incorporated by reference to Exhibit
(Form of letter Agreement)* 10(m) of the Registrant's Annual Report
on Form 10-K for the year ended
December 31, 1996
(k) Executive Life Insurance Program II Incorporated by reference to Exhibit
(Program description)* 10(n) of the Registrant's Annual Report
on Form 10-K for the year ended
December 31, 1996
(l) Oglebay Norton Company Excess and Incorporated by reference to Exhibit
TRA Supplemental Benefit Retirement 10(o) of the Registrant's Annual Report
Plan (January 1, 1991 Restatement)* on Form 10-K for the year ended
December 31, 1996
(l)(1) First Amendment to Oglebay Incorporated by reference to Exhibit
Norton Company Excess and TRA 10(o)(1)) of the Registrant's Annual
Supplemental Benefit Retirement Plan Report on Form 10-K for the year ended
(January 1, 1991 Restatement), dated as December 31, 1996
of December 15, 1994*
</TABLE>
- ---------------
* Indicates management contracts or compensatory plans or arrangements in which
one or more directors or executive officers of the Company may be
participants.
** As appropriate, indicates filing made by the Registrant's predecessor, ON
Marine Services Company, a Delaware corporation, formerly known as Oglebay
Norton Company.
I-3
<PAGE> 46
<TABLE>
<CAPTION>
SEC
EXHIBIT
NO. DESCRIPTION LOCATION**
- ------- --------------------------------------- ---------------------------------------
<C> <S> <C>
(l)(2) Second Amendment to Oglebay Incorporated by reference to Exhibit
Norton Company Excess and TRA 10(m)(2) of the Registrant's Annual
Supplemental Benefit Retirement Plan Report on Form 10-K for the year ended
(January 1, 1991 Restatement), dated as December 31, 1997
of December 17, 1997*
(m) Credit Agreement dated of May 15, Incorporated by reference to Exhibit
1998 among Oglebay Norton Company, as 10.2 of the Registrant's Quarterly
Borrower, various financial Report on Form 10-Q for the quarter
institutions, as Banks, and KeyBank ended June 30, 1998
National Association, as agent
(m)(1) First Amendment to Credit Incorporated by reference to Exhibit
Agreement dated of May 15, 1998 among 10.1 of the Registrant's Quarterly
Oglebay Norton Company, as Borrower, Report on Form 10-Q for the quarter
various financial institutions, as ended September 30, 1998
Banks, and KeyBank National
Association, as agent
(m)(2) Second Amendment to Credit Incorporated by reference to Exhibit
Agreement dated of May 15, 1998 among 10.2 of the Registrant's Quarterly
Oglebay Norton Company, as Borrower, Report on Form 10-Q for the quarter
various financial institutions, as ended September 30, 1998
Banks, and KeyBank National
Association, as agent
(m)(3) Third Amendment to Credit Filed herewith as Exhibit 10(m)(3)
Agreement dated of May 15, 1998 among
Oglebay Norton Company, as Borrower,
various financial institutions, as
Banks, and KeyBank National
Association, as agent
(m)(4) Assignment and Assumption Filed herewith as Exhibit 10(m)(4)
Agreement dated March 5, 1999 in which
Registrant assumed the obligations of
ON Marine Services Company (formerly
Registrant) under the Credit Agreement
dated May 15, 1998.
(n) Annual Incentive Plan (plan Incorporated by reference to Exhibit
description)* 10(q) of the Registrant's Annual Report
on Form 10-K for the year ended
December 31, 1996
(o) Separation Agreement between the Incorporated by reference to Exhibit
Company and R. Thomas Green, Jr., dated 10(p) of the Registrant's Annual Report
as of December 17, 1997* on Form 10-K for the year ended
December 31, 1997
</TABLE>
- ---------------
* Indicates management contracts or compensatory plans or arrangements in which
one or more directors or executive officers of the Company may be
participants.
** As appropriate, indicates filing made by the Registrant's predecessor, ON
Marine Services Company, a Delaware corporation, formerly known as Oglebay
Norton Company.
I-4
<PAGE> 47
<TABLE>
<CAPTION>
SEC
EXHIBIT
NO. DESCRIPTION LOCATION**
- ------- --------------------------------------- ---------------------------------------
<C> <S> <C>
(p) Letter Agreement between Company Incorporated by reference to Exhibit
and R. Thomas Green, Jr. regarding 10(q) of the Registrant's Annual Report
deferral of 1997 Annual Incentive on Form 10-K for the year ended
Award, dated December 17, 1997* December 31, 1997
(q) Employment Agreement between Incorporated by reference to Exhibit
Company and John N. Lauer, dated 10(r) of the Registrant's Annual Report
December 17, 1997* on Form 10-K for the year ended
December 31, 1997
(r) Supplemental Letter between Company Incorporated by reference to Exhibit
and John N. Lauer, dated December 17, 10(s) of the Registrant's Annual Report
1997* on Form 10-K for the year ended
December 31, 1997
(s) Oglebay Norton Company Performance Incorporated by reference to Exhibit
Option Agreement between the Company 10(t) of the Registrant's Annual Report
and John N. Lauer, dated as of December on Form 10-K for the year ended
17, 1997* December 31, 1997
(t) Oglebay Norton Company Special Incorporated by reference to Exhibit
Supplemental Retirement Plan, dated as 10(u) of the Registrant's Annual Report
of December 17, 1997* on Form 10-K for the year ended
December 31, 1997
(u) Form of Oglebay Norton Company Incorporated by reference to Exhibit
Director Fee Deferral Plan, dated as of 10(v) of the Registrant's Annual Report
February 1, 1998* on Form 10-K for the year ended
December 31, 1997
(v) Form of Oglebay Norton Company Incorporated by reference to Exhibit
Pour-Over Trust, dated as of December 10(w) of the Registrant's Annual Report
17, 1997* on Form 10-K for the year ended
December 31, 1997
(w) Senior Subordinated Increasing Rate Incorporated by reference to Exhibit
Notes Note Purchase Agreement dated as 10.3 of the Registrant's quarterly
of May 15, 1998 Predecessor Registrant, report filed on form 10-Q for the
and the Guarantors, and quarter ended June 30, 1998
CIBC/Oppenheimer Corp., as Purchaser
(w)(1) Indenture, dated as of February Filed herewith as Exhibit 10(w)(1)
1, 1999 among Predecessor Registrant,
the Guarantors and Norwest Bank
Minnesota, National Association
</TABLE>
- ---------------
* Indicates management contracts or compensatory plans or arrangements in which
one or more directors or executive officers of the Company may be
participants.
** As appropriate, indicates filing made by the Registrant's predecessor, ON
Marine Services Company, a Delaware corporation, formerly known as Oglebay
Norton Company.
I-5
<PAGE> 48
<TABLE>
<CAPTION>
SEC
EXHIBIT
NO. DESCRIPTION LOCATION**
- ------- --------------------------------------- ---------------------------------------
<C> <S> <C>
(w)(2) Registration Rights Agreement Filed herewith as Exhibit 10(w)(2)
dated as of February 1, 1999, among
Predecessor Registrant and The
guarantors and CIBC/ Oppenheimer Corp.
(w)(3) Supplemental Indenture Filed herewith as Exhibit 10(w)(3)
(Assignment and Assumption Agreement),
dated March 5, 1999 among Registrant,
Predecessor Registrant and Norwest Bank
Minnesota, National Association
13 Report to Stakeholders included in Filed herewith as Exhibit 13
package mailed with Annual Report for
1998 filed on Form 10-K
21 Subsidiaries of Company Filed herewith as Exhibit 21
23 Consent of Independent Auditors Filed herewith as Exhibit 23
27 Financial Data Schedule Filed herewith as Exhibit 27
</TABLE>
- ---------------
* Indicates management contracts or compensatory plans or arrangements in which
one or more directors or executive officers of the Company may be
participants.
** As appropriate, indicates filing made by the Registrant's predecessor, ON
Marine Services Company, a Delaware corporation, formerly known as Oglebay
Norton Company.
I-6
<PAGE> 1
Exhibit 3(iii)
12. The property and business of this corporation shall be managed by its
Board of Directors, consisting of such number of members, not less,
however, than three, as the stockholders may determine at any annual or
special meeting called for the purpose of electing directors at which a
quorum is present, by the affirmative vote of a majority of the capital
stock which is represented at the meeting and entitled to vote on such
proposal, or as the directors may determine from time to time. Whenever the
number of directors shall have been so determined, such number shall be
deemed the authorized number of directors until the same shall be changed
by vote of the stockholders as aforesaid or by the directors. As long as
the Certificate of Incorporation provides that the directors shall be
divided into three classes, the number of directors in each of the three
classes may be determined by vote of the stockholders as aforesaid or by
the directors. Directors need not be stockholders. They shall be elected at
the annual meeting of the stockholders, and each director shall be elected
to serve until his successor shall be elected and shall qualify.
<PAGE> 1
Exhibit 10(b)(1)
SCHEDULE OF PARTICIPANTS
IN CHANGE-IN-CONTROL AGREEMENTS
The form of Change-In-Control Agreement was filed as Exhibit 10(d)(3) to the
Registrant's Annual Report on Form 10-K for the year ended December 31, 1996
and is incorporated herein by reference. All Change-In-Control Agreements are
identical except for the identity of the participants and dates of execution.
Participants:
Michael F. Biehl
Ronald J. Compiseno
Jeffrey S. Gray
Mark P. Juszli
David H. Kelsey
John N. Lauer
Kenneth P. Pavlich
Danny R. Shepherd
Stuart H. Theis
Rochelle F. Walk
<PAGE> 1
Exhibit 10(e)(2)
OGLEBAY NORTON COMPANY
LONG-TERM INCENTIVE PLAN
Prospectus Supplement
_________________
THE SECURITIES OFFERED HEREBY ARE NOT
SAVINGS ACCOUNTS, DEPOSITS, OR OTHER OBLIGATIONS
OF A BANK OR SAVINGS ASSOCIATION AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION
OR ANY OTHER GOVERNMENTAL AGENCY
__________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_________________
No person has been authorized to give information or to make any
representation, other than as contained herein, in connection with the offer
contained in this Prospectus, and if given or made, such information or
representation must not be relied upon as having been authorized by the Company.
This Prospectus does not constitute an offer to sell or a solicitation of an
offer to buy any of the securities offered by this Prospectus in any state in
which, or to any person to whom, such offer would be unlawful. Neither the
delivery of this Prospectus nor any distribution of the securities covered
hereby shall, under any circumstances, create any implication that there has
been no change in the affairs of the Company since the date hereof.
_________________
The date of this Prospectus Supplement is October 28, 1998.
<PAGE> 2
[LOGO-OGLEBAY NORTON COMPANY]
AWARD AGREEMENT
(For Non-Qualified Stock Option)
- ----------------------------------
To: Number:
---------------------------- --------------------------
(Name of Optionee)
Date of Grant: October 28, 1998
----------------------------
(Social Security Number)
There hereby is granted to you, as a key employee of Oglebay Norton Company
("Company") or of a subsidiary, an Option to purchase _____________ Oglebay
Norton Common Shares, $1.00 par value, at an option price of $26.00 per Share.
This Option is granted to you pursuant to the Oglebay Norton Company Long Term
Incentive Plan (the "Plan") and is subject to the terms and conditions set forth
below. This Option is not an incentive stock option as defined in Section 422 of
the Internal Revenue Code (the "Code").
Please acknowledge your acceptance of the terms of this option by signing on
the reverse side.
----------------------------------------------
John N. Lauer
Chairman, President and Chief Executive Officer
_______________________________________________________________________________
Section 1. General Information
This Award Agreement along with other materials provided to you at this time and
at other times in the future constitute the Prospectus for the Shares of Company
Common Stock issuable pursuant to Options granted under the Plan.
A summary of the material provisions of the Plan and the Options granted
thereunder is set forth below, but this summary is qualified in its entirety by
reference to the full text of the Plan, a copy of which is available for
inspection at the principal office of the Company or will be mailed to any
participant within 30 days after written request therefor.
Section 2. Purposes of the Plan
The purpose of the Plan is to promote the interests of the stockholders by
furthering the long-term performance of the Company and to enable the Company to
be competitive in encouraging key employees who perform services of special
importance to the management, operation and the development of the business of
the Company or its subsidiaries, to remain in its service, to attract others to
it, and to provide such employees an additional incentive to contribute to the
prosperity of the Company and its stockholders.
Section 3. Eligibility
Key employees of the Company and its subsidiaries, including officers, whether
or not Directors, are eligible to participate in the Plan. Directors who are not
regular employees are not eligible to participate in the Plan. Participation in
the Plan will be limited to those key employees of the Company selected by the
Committee.
Nothing contained in the Plan or in any document related to the Plan shall
confer upon any optionee any right to continue in the employ of the Company or
any subsidiary of the Company or limit the Company or any subsidiary of the
Company to terminate the optionee's employment at any time and for any reason.
Section 4. Exercise of Option
The Option shall be exercisable on or before the expiration date of October 28,
2008 as to the percentage of shares indicated on the following dates:
<TABLE>
<CAPTION>
Percent of
Shares
Purchasable
-----------
<S> <C>
Prior to 10/28/99 None
On 10/28/99 to 10/28/00 25%
On 10/28/00 to 10/28/01 50%
On 10/28/01 to 10/28/02 75%
On or after 10/28/02 100%
</TABLE>
less the number of shares, if any, previously purchased under the Option.
The Option may be exercised as to all or any of the shares that can then be
purchased by submitting a letter to the Secretary of the Company stating the
number of shares you are electing to purchase at that time, and enclosing your
payment of the option price in full, either (a) in cash (including checks, bank
drafts, or money orders), (b) by delivering common stock of the Company owned of
record by you or by sale of shares acquired in the exercise of the option, or
(c) by a combination of (a) and (b). As soon as practicable after payment of the
option price, a certificate or certificates representing the purchased shares
will be issued.
Pursuant to the terms of the Plan, the Committee may, upon notice of exercise,
elect to cash out all or part of the portion of the Option to be exercised and
pay you an amount equal to the excess of the fair market value of the Company's
shares over the option price (the "Spread Value"). The payment of the Spread
Value may be made, at the Committee's discretion, in cash or shares of the
Company's common stock.
<PAGE> 3
Section 5. Non-Assignability
The Option is personal to you and is not transferable except as otherwise
provided in Section 8.
Section 6. Retirement
If your employment with the Company or a subsidiary company terminates during
the term of the Option by reason of your retirement from active employment
pursuant to which you are entitled to receive a normal, early, or shutdown
retirement pension under the Oglebay Norton Company Pension Plan for Salaried
Employees, the Option shall become immediately exercisable in full and may be
exercised at any time within two years of date of retirement, but in no event
beyond the term of the Option, and thereafter the Option shall terminate.
Section 7. Disability
If your employment with the Company or a subsidiary company terminates during
the term of the Option by reason of a disability covered under the Oglebay
Norton Company Long-Term Disability Insurance Plan, the Option shall become
immediately exercisable in full, and may be exercised at any time within one
year of your termination of employment, but in no event beyond the term of the
Option, and thereafter the Option shall terminate.
Section 8. Death
In the event of your death during the term of the Option, the Option shall
become immediately exercisable in full and may be exercised by your executor or
administrator at any time within one year of the date of your death, but in no
event beyond the term of the Option, and thereafter the Option shall terminate.
Section 9. Other Termination
If your employment with the Company or a subsidiary company terminates during
the term of the Option for any reason other than death, retirement, or
disability referred to in Sections 6, 7, and 8, the Option shall thereupon
terminate, unless you are involuntarily terminated by the Company without Cause,
as defined in the Plan. In the case of your involuntary termination of
employment without Cause, the Option shall be limited to the number of shares as
to which it could have been exercised pursuant to Section 4 at the time your
employment ends and shall terminate as to the remaining shares. The Option may
then be exercised as to the limited number of shares at any time within
ninety days of your involuntary termination of employment without Cause, but in
no event beyond the term of the Option, and thereafter the Option shall
terminate.
Section 10. Share Adjustments
The number and kind of shares subject to the Option and, if appropriate, the
purchase price per share, shall be adjusted appropriately in the event of any
stock split, stock dividend, combination of shares, merger, consolidation,
reorganization, or other change in the nature of the shares of the Company as
determined by the Board of Directors or the Committee.
Section 11. Notices
All notices hereunder to the Company shall be delivered personally or mailed to
its corporate offices, attention: Secretary, at its headquarters location, 1100
Superior Avenue, Cleveland, Ohio 44114, and all notices hereunder to you shall
be delivered personally or mailed to you. Such addresses may be changed at any
time by advance notice of such change to the Company or to you, as the case may
be.
Section 12. Provisions of Plan Control
This Agreement is subject to all of the terms, conditions and provisions of the
Plan (all of which are incorporated herein by reference) and to such rules,
regulations, and interpretations related to the Plan as may be adopted by the
Compensation and Organization Committee of the Board of Directors of Company
(the "Committee") and as may be in effect from time to time. In the event and to
the extent that this Agreement conflicts or is inconsistent with the terms,
conditions, and provisions of the Plan, the Plan shall control, and this
Agreement shall be deemed to be modified accordingly. The Committee has
authority to interpret and construe any provision of this Agreement and its
interpretation and construction shall be binding and conclusive.
Section 13. Liability
The liability of the Company under this Agreement and any distribution of shares
made hereunder is limited to the obligations set forth herein with respect to
such distribution and no term or provision of this Agreement shall be construed
to impose any liability on the Company, its officers, employees or any
subsidiary with respect to any loss, cost or expense which you may incur in
connection with or arising out of any transaction in connection with this
Agreement.
Section 14. Withholding
You agree that the Company may make appropriate provision for tax withholding
with respect to the transactions contemplated by this Agreement.
ACCEPTANCE
The undersigned hereby accepts the terms of the stock option granted herein.
- -------------------------------------------------- -----------------------
(Signature of Optionee) (Date)
<PAGE> 1
10(m)(3)
THIRD AMENDMENT AGREEMENT
This Third Amendment Agreement is made effective as of the 15th day of
October, 1998, by and among OGLEBAY NORTON COMPANY, a Delaware corporation
("Borrower"), the banking institutions listed on Schedule 1 to the Credit
Agreement, as hereinafter defined ("Banks"), and KEYBANK NATIONAL ASSOCIATION,
as agent for the Banks ("Agent"):
WHEREAS, Borrower, Agent and the Banks are parties to a certain Credit
Agreement dated as of May 15, 1998, as amended, and as it may from time to time
be further amended, restated or otherwise modified, which provides, among other
things, for loans, letters of credit, and other financial accommodations
aggregating Two Hundred Fifteen Million Dollars ($215,000,000), all upon certain
terms and conditions stated therein ("Credit Agreement");
WHEREAS, Borrower has acquired all of the outstanding stock of Global
Stone Filler Products Company ("Filler Products");
WHEREAS, Borrower is redeeming the bonds that secure the Title XI Ship
Mortgage on the Columbia Star;
WHEREAS, Borrower, Agent and the Banks desire to amend the Credit
Agreement to modify certain provisions thereof; and
WHEREAS, each term used herein shall be defined in accordance with the
Credit Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other valuable considerations, Borrower,
Agent and the Banks hereby agree as follows:
1. The Credit Agreement is hereby amended by deleting the first two
lines of Section 4.2(c) of the Credit Agreement in their entirety and by
substituting in place thereof the following:
(c) GLOBAL STONE PLEDGORS. On or before September 23, 1998,
or, with respect to item (v) below, on or before December 1, 1998,
Borrower shall have delivered to Agent:
2. The Credit Agreement is hereby amended by deleting Section 4.2(g)
thereof in its entirety and by substituting in place thereof the following:
(g) PREFERRED SHIP MORTGAGE.
(i) On or before September 15, 1998, Borrower shall have
caused to be filed a Preferred Ship Mortgage with respect to the
Wolverine and the David Z. Norton.; and
<PAGE> 2
(ii) with respect to the Columbia Star,
(A) on or before December 9, 1998, Borrower shall
have notified National City Bank, as Indenture Trustee with
respect to the bonds that financed the Columbia Star (the
"MARAD Bonds") of Borrower"s intent to make an optional
redemption of the bonds on January 25, 1999 (the "Redemption
Date");
(B) on or before January 8, 1999, Borrower shall have
made a deposit with the Indenture Trustee of funds in the
amount required to pay all unpaid principal of the MARAD
Bonds, together with interest and other fees and expenses
required to be paid to the Redemption Date;
(C) on or before January 15, 1999, Borrower shall (1)
cause the Indenture Trustee to issue a "Retired or Paid
Certificate" for the MARAD Bonds, (2) provide such certificate
to the United States Agency responsible for the financing of
the Columbia Star ("MARAD"), (3) cause MARAD to execute a
Satisfaction and Discharge of the Title XI Ship Mortgage,
record such Satisfaction and Discharge with the United States
Coast Guard National Vessel Documentation Center, the
Recorder"s Office of Cuyahoga County and the Secretary of
State of Ohio, and (4) obtain an Abstract of Title indicating
that the Columbia Star is free and clear of all liens;
(D) on or before the Redemption Date, Borrower shall
have executed and delivered to Agent a Preferred Ship Mortgage
with respect to the Columbia Star; and
(E) on or before January 31, 1999, Borrower shall
have caused to be filed such Preferred Ship Mortgage with
respect to the Columbia Star with the United States Coast
Guard National Vessel Documentation Center, the Recorder"s
Office of Cuyahoga County and the Secretary of State of Ohio.
3. The Credit Agreement is hereby amended by deleting the first four
lines of Section 4.2(j) thereof in their entirety and by inserting in place
thereof the following:
(j) REAL ESTATE MATTERS. Borrower shall have delivered to
Agent all of the following on or before January 31, 1999, with respect
to the Mortgaged Real Property owned by a Pledgor:
4. The Credit Agreement is hereby amended to delete Schedule 2
(Mortgaged Real Property) and Schedule 3 (Pledgors) therefrom in their entirety
and to substitute a new Schedule 2 and a new Schedule 3, respectively, in the
form of Schedule 2 and Schedule 3 hereof, respectively, in place thereof.
5. On or before January 4, 1999, or, with respect to item (a) (vii)
below, on or before January 15, 1999, Borrower shall:
<PAGE> 3
(a) deliver to Agent each of the following:
(i) evidence of the name change for Oglebay Norton Limestone
Company;
(ii) UCC Financing Statements reflecting the name change of
Oglebay Norton Limestone Company to Global Stone Port Inland,
Inc.;
(iii) a Guaranty of Payment, a Security Agreement and UCC
Financing Statements from Global Stone Corporation;
(iv) stock certificates for Global Stone Corporation to be
pledged pursuant to the Pledge Agreement executed by ONCO
Investment Company;
(v) UCC Financing Statements reflecting the name change/merger
of Oglebay Norton Acquisition Company with Global Stone
Corporation;
(vi) a Guaranty of Payment, a Security Agreement, UCC
Financing Statements, and such corporate governance documents
as Agent may reasonably request for Global Stone Filler
Products Company; and
(vii) a Mortgage, and such other real estate related documents
as Agent may reasonably request with respect to the Real
Property owned by Global Stone Filler Products Company;
(b) cause each Pledgor to consent and agree to and acknowledge the
terms of this Third Amendment Agreement; and
(c) pay all legal fees and expenses of Agent in connection with this
Third Amendment Agreement.
6. Borrower hereby represents and warrants to Agent and the Banks that
(a) Borrower has the legal power and authority to execute and deliver this Third
Amendment Agreement; (b) the officers executing this Third Amendment Agreement
have been duly authorized to execute and deliver the same and bind Borrower with
respect to the provisions hereof; (c) the execution and delivery hereof by
Borrower and the performance and observance by Borrower of the provisions hereof
do not violate or conflict with the organizational agreements of Borrower or any
law applicable to Borrower or result in a breach of any provision of or
constitute a default under any other agreement, instrument or document binding
upon or enforceable against Borrower; (d) no Unmatured Event of Default or Event
of Default exists under the Credit Agreement, nor will any occur immediately
after the execution and delivery of the Third Amendment Agreement or by the
performance or observance of any provision hereof; (e) neither Borrower nor any
Pledgor is aware of any claim or offset against, or defense or counterclaim to,
any of Borrower's or any Pledgor's
<PAGE> 4
obligations or liabilities under the Credit Agreement or any Related Writing;
and (f) this Third Amendment Agreement constitutes a valid and binding
obligation of Borrower in every respect, enforceable in accordance with its
terms.
7. Each reference that is made in the Credit Agreement or any other
writing to the Credit Agreement shall hereafter be construed as a reference to
the Credit Agreement as amended hereby. Except as herein otherwise specifically
provided, all provisions of the Credit Agreement shall remain in full force and
effect and be unaffected hereby. This Third Amendment Agreement is a Related
Writing as defined in the Credit Agreement.
8. Borrower and each Pledgor, by signing below, hereby waives and
releases Agent and each of the Banks and their respective directors, officers,
employees, attorneys, affiliates and subsidiaries from any and all such claims,
offsets, defenses and counterclaims of which Borrower and any Pledgor is aware,
such waiver and release being with full knowledge and understanding of the
circumstances and effect thereof and after having consulted legal counsel with
respect thereto.
9. This Third Amendment Agreement may be executed in any number of
counterparts, by different parties hereto in separate counterparts and by
facsimile signature, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
10. The rights and obligations of all parties hereto shall be governed
by the laws of the State of Ohio, without regard to principles of conflicts of
laws.
[Remainder of Page Intentionally Left Blank]
4
<PAGE> 5
11. JURY TRIAL WAIVER. BORROWER, PLEDGORS, AGENT AND EACH OF THE BANKS
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT AND THE BANKS, OR
ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
OGLEBAY NORTON COMPANY
By:
---------------------------------
Michael F. Biehl, Treasurer
KEYBANK NATIONAL ASSOCIATION
as Agent and as a Bank
By:
---------------------------------
Lawrence A. Mack, Senior Vice President
5
<PAGE> 6
BANK ONE, NA
By:
---------------------------------
Its:
---------------------------------
THE BANK OF NOVA SCOTIA
By:
---------------------------------
Its:
---------------------------------
COMERICA BANK
By:
---------------------------------
Its:
---------------------------------
THE HUNTINGTON NATIONAL BANK
By:
---------------------------------
Its:
---------------------------------
MELLON BANK, N.A.
By:
---------------------------------
Its:
---------------------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:
---------------------------------
Its:
---------------------------------
HARRIS TRUST AND SAVINGS BANK
By:
---------------------------------
Its:
---------------------------------
6
<PAGE> 7
THE CHASE MANHATTAN BANK
By:
---------------------------------
Its:
---------------------------------
STAR BANK NATIONAL ASSOCIATION
By:
---------------------------------
Its:
---------------------------------
FLEET BANK, N.A.
By:
---------------------------------
Its:
---------------------------------
ABN AMRO BANK N.V.,
PITTSBURGH BRANCH
By:
---------------------------------
Its:
---------------------------------
FIFTH THIRD BANK OF NORTHEASTERN
OHIO
By:
---------------------------------
Its:
---------------------------------
<PAGE> 8
Each of the undersigned consents and agrees to and acknowledges the
terms of the foregoing Third Amendment Agreement. Each of the undersigned
further agrees that the obligations of each of the undersigned pursuant to the
Guaranty of Payment executed by each of the undersigned shall remain in full
force and effect and be unaffected hereby.
Oglebay Norton Holding Company
ONCO Investment Company
Oglebay Norton Industrial Minerals, Inc.
Oglebay Norton Management Company
Oglebay Norton Industrial Sands, Inc.
Colorado Silica Sand, Inc.
Oglebay Norton Terminals, Inc.
Oglebay Norton Engineered Materials, Inc.
Global Stone Corporation (successor by merger to
Oglebay Norton Acquisition Company)
Global Stone Port Inland, Inc.
Moreland Development Company
Western Wisconsin Materials, Inc.
Global Stone (USA) Inc.
Global Stone Tenn Lutrell Company
Global Stone Chemstone Corporation
Global Stone Detroit Lime Company
Global Stone St. Clair, Inc.
Global Stone PenRoc Inc.
Global Stone Filler Products Company
By:
-------------------------------------
Michael F. Biehl as Treasurer of each
of the companies listed above
Texas Mining, LP
By: Oglebay Norton Industrial Sands, Inc.,
General Partner
By:
-------------------------------------
Michael F. Biehl, Treasurer
8
<PAGE> 9
SCHEDULE 2
MORTGAGED REAL PROPERTY
<TABLE>
<CAPTION>
- ----------------------------------------------------------- --------------------------------------
Owner Location
- ----------------------------------------------------------- --------------------------------------
<S> <C>
Oglebay Norton Industrial Sands, Inc. Glenford, Ohio
- ----------------------------------------------------------- --------------------------------------
Oglebay Norton Industrial Sands, Inc. Millwood, Ohio
- ----------------------------------------------------------- --------------------------------------
Texas Mining, LP Voca, Texas
- ----------------------------------------------------------- --------------------------------------
Texas Mining, LP Brady, Texas
- ----------------------------------------------------------- --------------------------------------
Global Stone Port Inland, Inc. (f.k.a. Oglebay Gulliver, Michigan
Norton Limestone Company)
- ----------------------------------------------------------- --------------------------------------
Global Stone Tenn Lutrell Company Lutrell, Tennessee
- ----------------------------------------------------------- --------------------------------------
Global Stone Chemstone Corporation Strasburg, Virginia
- ----------------------------------------------------------- --------------------------------------
Global Stone PenRoc, Inc. York, Pennsylvania
- ----------------------------------------------------------- --------------------------------------
Global Stone St. Clair Inc. Marble City, Oklahoma
- ----------------------------------------------------------- --------------------------------------
Global Stone Chemstone Corporation Buchanan, Virginia
- ----------------------------------------------------------- --------------------------------------
Global Stone Chemstone Corporation Middletown, Virginia
- ----------------------------------------------------------- --------------------------------------
Global Stone Filler Products Company Murray and Gilmer Counties, Georgia
- ----------------------------------------------------------- --------------------------------------
</TABLE>
9
<PAGE> 10
SCHEDULE 3
PLEDGORS
1. Oglebay Norton Holding Company
2. ONCO Investment Company
3. Oglebay Norton Industrial Minerals, Inc.
4. Oglebay Norton Management Company
5. Oglebay Norton Industrial Sands, Inc.
6. Texas Mining, LP
7. Colorado Silica Sand, Inc.
8. Oglebay Norton Terminals, Inc.
9. Oglebay Norton Engineered Materials, Inc.
10. Global Stone Corporation (successor by merger to Oglebay Norton
Acquisition Company)
11. Global Stone Port Inland, Inc. (f.k.a. Oglebay Norton Limestone
Company)
12. Global Stone (USA) Inc.
13. Global Stone Tenn Lutrell Company
14. Global Stone Chemstone Corporation
15. Global Stone Detroit Lime Company
16. Global Stone St. Clair, Inc.
17. Global Stone PenRoc Inc.
18. Global Stone Filler Products Company
10
<PAGE> 1
10(m)(4)
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is made
effective as of the 5th day of March, 1998, between OGLEBAY NORTON HOLDING
COMPANY, an Delaware corporation, ("Holding Company") and OGLEBAY NORTON
COMPANY, a Delaware corporation ("Original Borrower"):
WHEREAS, Original Borrower, KEYBANK NATIONAL ASSOCIATION, as agent
("Agent"), and the banks a party to the Credit Agreement (as hereinafter
defined) (the "Banks"), are parties to the Credit Agreement dated as of May 15,
1998 (as amended and as the same may from time to time be further amended,
restated or otherwise modified, the "Credit Agreement", each term not defined
herein being therein defined) wherein Agent and the Banks have agreed to make
Loans and Agent has agreed to issue Letters of Credit on behalf of the Banks,
all upon certain terms and conditions;
WHEREAS, pursuant to Section 5.14 of the Credit Agreement, effective on
March 5, 1999, the Original Borrower became a Wholly-Owned Subsidiary of Holding
Company;
WHEREAS, Agent and the Banks are willing to (a) allow Original Borrower
to assign all of its rights and obligations under the Credit Agreement, and the
Commitment thereunder, to Holding Company, and (b) continue to grant the Loans
and issue the Letters of Credit pursuant to the Credit Agreement upon certain
terms and conditions, one of which is that the Holding Company assume all
obligations of Original Borrower under the Credit Agreement, the Notes and the
Agent Fee Letter, to which Original Borrower is a party, and this Agreement is
being executed and delivered in consideration of each financial accommodation,
if any, granted to Holding Company by the Banks and for other valuable
considerations;
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Holding Company hereby agrees as follows:
1. ASSUMPTION. On and after the Assignment Effective Date, as
hereinafter defined, Holding Company irrevocably and unconditionally (a) assumes
all of the obligations of Original Borrower under the Credit Agreement, the
Notes and the Agent Fee Letter, as fully as if Holding Company had been an
original party to such Loan Documents in place of the Original Borrower
thereunder, and (b) becomes bound by all representations, warranties, covenants,
provisions and conditions of such Loan Documents applicable to the Original
Borrower thereunder as if Holding Company had been the original party making
such representations, warranties and covenants.
2. ASSIGNMENT. On and after the Assignment Effective Date, Original
Borrower hereby transfers and assigns to Holding Company all of its rights and
obligations under the Credit Agreement, the Notes and the Agent Fee Letter.
<PAGE> 2
3. ASSIGNMENT EFFECTIVE DATE. The Assignment Effective Date (the
Assignment Effective Date") shall be March 5, 1999.
4. HOLDING COMPANY REPRESENTATIONS AND WARRANTIES. Holding Company
represents and warrants to Agent and each of the Banks that:
(a) Holding Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
and is duly qualified to do business in each state in which Holding
Company is doing business;
(b) Holding Company has full power, authority and legal right
to execute and deliver this Agreement, and to perform and observe the
provisions hereof and of the Credit Agreement and the Notes, and the
officers acting on Holding Company"s behalf have been duly authorized
to execute and deliver this Agreement;
(c) this Agreement and the Credit Agreement and the Notes are
each valid and binding upon Holding Company and enforceable against
Holding Company in accordance with their respective terms;
(d) neither the execution and delivery of this Agreement, nor
the performance and observance of the provisions hereof, by Holding
Company will conflict with, or constitute a violation or default under,
any provision of any applicable law or of any contract (including,
without limitation, Holding Company"s Articles of Incorporation and
Code of Regulations) or of any other writing binding upon Holding
Company in any manner; and
(e) each of the representations and warranties of "Borrower"
as set forth in Article VI of the Credit Agreement are true and
complete with respect to Holding Company as Borrower under the Credit
Agreement; provided, however, that Holding Company shall have ten (10)
Business Days from the date hereof to update or replace any of the
schedules referenced in the Credit Agreement to the extent that any
such schedule is no longer complete or accurate as a result of the
Holding Company Reorganization, as defined in the Credit Agreement, or
to amend any such representations and warranties if inappropriate with
respect to Holding Company.
5. HOLDING COMPANY AND ORIGINAL BORROWER REPRESENTATIONS AND
WARRANTIES. Original Borrower and Holding Company represent and warrant to Agent
and each of the Banks that:
(a) no Unmatured Event of Default or Event of Default exists
under the Credit Agreement, nor will any occur immediately after the
execution and delivery of this Agreement or by the performance or
observance of any provision hereof; and
(b) neither Original Borrower nor Holding Company has any
claim or offset against, or defense or counterclaim to, any Company's
obligations or liabilities under the Credit Agreement or any Related
Writing.
2
<PAGE> 3
6. ORIGINAL BORROWER TO REMAIN PLEDGOR. Anything herein to the contrary
notwithstanding, Original Borrower shall remain bound by the terms and
conditions of all of the Security Documents to which Original Borrower is a
party regardless of the assignment made hereunder. On and after the Assignment
Effective Date, Original Borrower shall remain a Pledgor under the Credit
Agreement.
7. WAIVER OF CLAIMS. Each of Original Borrower and Holding Company
hereby waives and releases Agent and each of the Banks and their respective
directors, officers, employees, attorneys, affiliates and subsidiaries from any
and all such claims, offsets, defenses and counterclaims of which Original
Borrower or Holding Company is aware, such waiver and release being with full
knowledge and understanding of the circumstances and effect thereof and after
having consulted legal counsel with respect thereto.
8. DELIVERY OF DOCUMENTS. Concurrently with the execution of this
Agreement, Original Borrower or Holding Company, as appropriate, shall:
(a) if required by Agent, execute and deliver to Agent new Notes dated
as of May 15, 1998, or such other date as may be deemed appropriate by Agent,
made payable to each Bank;
(b) pay all legal fees and expenses of Agent incurred in connection
with this Agreement and the Holding Company Reorganization, as defined in the
Credit Agreement;
(c) deliver to Agent and the Banks a Guaranty of Payment of Debt and
such corporate governance and authorization documents and an opinion of counsel
as may be deemed necessary or advisable by Agent and the Banks;
(d) cause each Pledgor to consent and agree to and acknowledge the
terms of this Agreement;
(e) provide such other items as may be reasonably required by Agent or
the Banks in connection with this Agreement.
9. BINDING NATURE OF AGREEMENT. All provisions of the Credit Agreement
shall remain in full force and effect and be unaffected hereby. This Agreement
is a Related Writing as defined in the Credit Agreement. This Agreement shall
bind and benefit Original Borrower, Holding Company, Agent and the Banks, and
their respective successors and assigns; provided that the interest assigned
hereunder shall not be further assigned without the prior written consent of
Agent and the Banks.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and, by different parties hereto in separate counterparts and by
facsimile signature, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall
3
<PAGE> 4
constitute but one and the same agreement. This Agreement shall not be effective
until Agent has executed the consent set forth below.
11. OHIO LAW TO GOVERN. The rights and obligations of all parties
hereto shall be governed by the laws of the State of Ohio, without regard to
principles of conflicts of laws.
12. JURY TRIAL WAIVER. EACH OF THE UNDERSIGNED WAIVE ANY RIGHT TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT
OR OTHERWISE, AMONG THE UNDERSIGNED AND AGENT AND THE BANKS, OR ANY THEREOF,
ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
OGLEBAY NORTON HOLDING
COMPANY
By:__________________________
Title:________________________
OGLEBAY NORTON COMPANY
By:__________________________
Title:________________________
The undersigned consents and agrees to and acknowledges the terms of this
Agreement:
KEYBANK NATIONAL ASSOCIATION,
as Agent
By:_______________________________
Lawrence A. Mack, Senior
Vice President
4
<PAGE> 5
Each of the undersigned consents and agrees to and acknowledges the
terms of the foregoing Assignment and Assumption Agreement. Each of the
undersigned further agrees that the obligations of each of the undersigned
pursuant to the Guaranty of Payment, the Security Agreement and any other Loan
Document to which any of the undersigned is a party shall remain in full force
and effect and be unaffected hereby.
Oglebay Norton Holding Company
ONCO Investment Company
Oglebay Norton Industrial Minerals, Inc.
Oglebay Norton Management Company
Oglebay Norton Industrial Sands, Inc.
Colorado Silica Sand, Inc.
Oglebay Norton Terminals, Inc.
Oglebay Norton Engineered Materials, Inc.
Global Stone Corporation (successor by merger to
Oglebay Norton Acquisition Company)
Global Stone Port Inland, Inc.
Moreland Development Company
Western Wisconsin Materials, Inc.
Global Stone (USA) Inc.
Global Stone Tenn Lutrell Company
Global Stone Chemstone Corporation
Global Stone Detroit Lime Company
Global Stone St. Clair, Inc.
Global Stone PenRoc Inc.
Global Stone Filler Products Company
By:_______________________________________
Michael F. Biehl as Treasurer of each
of the companies listed above
Texas Mining, LP
By: Oglebay Norton Industrial Sands, Inc.,
General Partner
By:_____________________________________
Michael F. Biehl, Treasurer
5
<PAGE> 1
Exhibit 10(w)(1)
================================================================================
OGLEBAY NORTON COMPANY
-------------------
THE GUARANTORS named herein
and
-------------------
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
================================================================================
Dated as of February 1, 1999
$100,000,000
10% Senior Subordinated Notes due
<PAGE> 2
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TIA Indenture
Section Section
- ------- ------------
<S> <C>
310 (a)(1)............................................................... 7.10
(a)(2)............................................................... 7.10
(a)(3)............................................................... N.A.
(a)(4)............................................................... N.A.
(a)(5)............................................................... N.A.
(b).................................................................. 7.08; 7.10; 12.02
(b)(1)............................................................... 7.10
(c).................................................................. N.A.
311 (a).................................................................. 7.11
(b).................................................................. 7.11
(c).................................................................. N.A.
312 (a).................................................................. 2.06
(b).................................................................. 12.03
(c).................................................................. 12.03
313 (a).................................................................. 7.06
(b)(1)............................................................... N.A.
(b)(2)............................................................... 7.06
(c).................................................................. 7.06; 12.02
(d).................................................................. 7.06
314 (a).................................................................. 4.02; 4.04; 12.02
(b).................................................................. N.A.
(c)(1)............................................................... 12.04
(c)(2)............................................................... 12.04
(c)(3)............................................................... N.A.
(d).................................................................. N.A.
(e).................................................................. 12.05
(f).................................................................. N.A.
315 (a).................................................................. 7.01(b)
(b).................................................................. 7.05; 12.02
(c).................................................................. 7.01(a)
(d).................................................................. 7.01(c)
(e).................................................................. 6.12
316 (a) (last sentence).................................................. 2.10
(a)(1)(A)............................................................ 6.05
(a)(1)(B)............................................................ 6.04
(a)(2)............................................................... N.A.
(b).................................................................. 6.08
(c).................................................................. 8.04
317 (a)(1)............................................................... 6.09
(a)(2)............................................................... 6.10
(b).................................................................. 2.05; 7.12
318 (a).................................................................. 12.01
</TABLE>
- ---------------
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
<S> <C>
SECTION 1.01. Definitions..........................................................................1
SECTION 1.02. Other Definitions...................................................................24
SECTION 1.03. Incorporation by Reference of Trust Indenture Act...................................24
SECTION 1.04. Rules of Construction...............................................................25
ARTICLE TWO
THE NOTES
SECTION 2.01. Amount of Notes.....................................................................26
SECTION 2.02. Form and Dating.....................................................................26
SECTION 2.03. Execution and Authentication........................................................27
SECTION 2.04. Registrar and Paying Agent..........................................................28
SECTION 2.05. Paying Agent To Hold Money in Trust.................................................28
SECTION 2.06. Noteholder Lists....................................................................29
SECTION 2.07. Transfer and Exchange...............................................................29
SECTION 2.08. Replacement Notes...................................................................30
SECTION 2.09. Outstanding Notes...................................................................30
SECTION 2.10. Treasury Notes......................................................................31
SECTION 2.11. Temporary Notes.....................................................................31
SECTION 2.12. Cancellation........................................................................31
SECTION 2.13. Defaulted Interest..................................................................32
SECTION 2.14. CUSIP Number........................................................................32
SECTION 2.15. Deposit of Moneys...................................................................32
SECTION 2.16. Book-Entry Provisions for Global Notes..............................................33
SECTION 2.17. Special Transfer Provisions.........................................................35
SECTION 2.18. Computation of Interest.............................................................37
ARTICLE THREE
REDEMPTION
SECTION 3.01. Election To Redeem; Notices to Trustee..............................................37
SECTION 3.02. Selection by Trustee of Notes To Be Redeemed........................................37
</TABLE>
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<TABLE>
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SECTION 3.03. Notice of Redemption................................................................38
SECTION 3.04. Effect of Notice of Redemption......................................................39
SECTION 3.05. Deposit of Redemption Price.........................................................39
SECTION 3.06. Notes Redeemed in Part..............................................................39
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes....................................................................40
SECTION 4.02. Reports to Holders..................................................................40
SECTION 4.03. Waiver of Stay, Extension or Usury Laws.............................................40
SECTION 4.04. Compliance Certificate..............................................................41
SECTION 4.05. Taxes...............................................................................41
SECTION 4.06. Limitation on Additional Indebtedness...............................................42
SECTION 4.07. Limitation on Other Senior Subordinated Indebtedness................................43
SECTION 4.08. Limitation on Restricted Payments...................................................44
SECTION 4.09. Limitation on Certain Asset Sales...................................................46
SECTION 4.10. Limitation on Transactions with Affiliates..........................................47
SECTION 4.11. Limitations on Liens................................................................48
SECTION 4.12. Limitation on Sale and Leaseback Transactions.......................................49
SECTION 4.13. Limitation on Creation of Subsidiaries..............................................49
SECTION 4.14. Limitation on Restrictions Affecting Restricted Subsidiaries........................49
SECTION 4.15. Designation of Unrestricted Subsidiaries............................................50
SECTION 4.16. Limitation on Preferred Equity Interests of Restricted Subsidiaries.................51
SECTION 4.17. Limitation on the Issuance and Sale of Equity Interests of Restricted
Subsidiaries.....................................................................51
SECTION 4.18. Payments for Consent................................................................52
SECTION 4.19. Legal Existence.....................................................................52
SECTION 4.20. Change of Control Offer.............................................................52
SECTION 4.21. Maintenance of Properties; Insurance; Compliance with Law...........................54
SECTION 4.22. Further Assurance to the Trustee....................................................54
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Limitation on Consolidation, Merger and Sale of Assets..............................54
</TABLE>
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SECTION 5.02. Successor Person Substituted........................................................56
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default...................................................................56
SECTION 6.02. Acceleration........................................................................58
SECTION 6.03. Other Remedies......................................................................59
SECTION 6.04. Waiver of Past Defaults and Events of Default.......................................60
SECTION 6.05. Control by Majority.................................................................60
SECTION 6.06. Limitation on Suits.................................................................60
SECTION 6.07. No Personal Liability of Directors, Officers,
Employees and Stockholders.......................................................61
SECTION 6.08. Rights of Holders To Receive Payment................................................61
SECTION 6.09. Collection Suit by Trustee..........................................................61
SECTION 6.10. Trustee May File Proofs of Claim....................................................61
SECTION 6.11. Priorities..........................................................................62
SECTION 6.12. Undertaking for Costs...............................................................62
SECTION 6.13. Restoration of Rights and Remedies..................................................63
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee...................................................................63
SECTION 7.02. Rights of Trustee...................................................................65
SECTION 7.03. Individual Rights of Trustee........................................................65
SECTION 7.04. Trustee's Disclaimer................................................................65
SECTION 7.05. Notice of Defaults..................................................................66
SECTION 7.06. Reports by Trustee to Holders.......................................................66
SECTION 7.07. Compensation and Indemnity..........................................................66
SECTION 7.08. Replacement of Trustee..............................................................67
SECTION 7.09. Successor Trustee by Consolidation, Merger, etc.....................................68
SECTION 7.10. Eligibility; Disqualification.......................................................68
SECTION 7.11. Preferential Collection of Claims Against Company...................................69
SECTION 7.12. Paying Agents.......................................................................69
</TABLE>
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<TABLE>
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ARTICLE EIGHT
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01. Without Consent of Holders..........................................................69
SECTION 8.02. With Consent of Holders.............................................................70
SECTION 8.03. Compliance with Trust Indenture Act.................................................72
SECTION 8.04. Revocation and Effect of Consents...................................................72
SECTION 8.05. Notation on or Exchange of Notes....................................................72
SECTION 8.06. Trustee To Sign Amendments, etc.....................................................73
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Discharge of Indenture..............................................................73
SECTION 9.02. Legal Defeasance....................................................................74
SECTION 9.03. Covenant Defeasance.................................................................74
SECTION 9.04. Conditions to Defeasance or Covenant Defeasance.....................................75
SECTION 9.05. Deposited Money and U.S. Government Obligations
To Be Held in Trust; Other Miscellaneous Provisions..............................77
SECTION 9.06. Reinstatement.......................................................................77
SECTION 9.07. Moneys Held by Paying Agent.........................................................78
SECTION 9.08. Moneys Held by Trustee..............................................................78
ARTICLE TEN
GUARANTEE OF NOTES
SECTION 10.01. Guarantee...........................................................................79
SECTION 10.02. Execution and Delivery of Guarantee.................................................80
SECTION 10.03. Limitation of Guarantee.............................................................80
SECTION 10.04. Release of Guarantor................................................................80
SECTION 10.05. Waiver of Subrogation...............................................................81
SECTION 10.06. Guarantee Obligations Subordinated to Guarantor Senior Indebtedness.................82
SECTION 10.07. Payment Over of Proceeds upon Dissolution, etc., of a Guarantor.....................82
SECTION 10.08. Suspension of Guarantee Obligations When Guarantor Senior Indebtedness
in Default.......................................................................83
SECTION 10.09. Trustee's Relation to Guarantor Senior Indebtedness.................................85
</TABLE>
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<S> <C>
SECTION 10.10. Subrogation to Rights of Holders of Guarantor Senior Indebtedness...................86
SECTION 10.11. Guarantee Subordination Provisions Solely To Define Relative Rights.................86
SECTION 10.12. Trustee To Effectuate Subordination.................................................87
SECTION 10.13. Notice to Trustee...................................................................87
SECTION 10.14. Rights of Trustee as a Holder of Guarantor Senior Indebtedness;
Preservation of Trustee's Rights.................................................89
SECTION 10.15. Application of Certain Article Eleven Provisions....................................89
ARTICLE ELEVEN
SUBORDINATION OF NOTES
SECTION 11.01. Notes Subordinate to Senior Indebtedness............................................89
SECTION 11.02. Payment Over of Proceeds upon Dissolution, etc......................................90
SECTION 11.03. Suspension of Payment When Senior Indebtedness in Default...........................91
SECTION 11.04. Trustee's Relation to Senior Indebtedness...........................................93
SECTION 11.05. Subrogation to Rights of Holders of Senior Indebtedness.............................93
SECTION 11.06. Provisions Solely To Define Relative Rights.........................................94
SECTION 11.07. Trustee to Effectuate Subordination.................................................94
SECTION 11.08. No Waiver of Subordination Provisions...............................................95
SECTION 11.09. Notice to Trustee...................................................................95
SECTION 11.10. Reliance on Judicial Order or Certificate of Liquidating Agent......................96
SECTION 11.11. Rights of Trustee as a Holder of Senior Indebtedness; Preservation of
Trustee's Rights.................................................................97
SECTION 11.12. Article Applicable to Paying Agents.................................................97
SECTION 11.13. No Suspension of Remedies...........................................................97
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls........................................................98
SECTION 12.02. Notices.............................................................................98
SECTION 12.03. Communications by Holders with Other Holders........................................99
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.................................100
SECTION 12.05. Statements Required in Certificate and Opinion.....................................100
SECTION 12.06. Rules by Trustee and Agents........................................................100
</TABLE>
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<TABLE>
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<S> <C>
SECTION 12.07. Business Days; Legal Holidays......................................................101
SECTION 12.08. Governing Law......................................................................101
SECTION 12.09. No Adverse Interpretation of Other Agreements......................................101
SECTION 12.10. No Recourse Against Others.........................................................101
SECTION 12.11. Successors.........................................................................102
SECTION 12.12. Multiple Counterparts..............................................................102
SECTION 12.13. Table of Contents, Headings, etc...................................................102
SECTION 12.14. Separability.......................................................................102
EXHIBITS
Exhibit A. Form of Note.......................................................................A-1
Exhibit B. Form of Legend for Rule 144A Notes and Other Notes that are Restricted
Notes...........................................................................B-1
Exhibit C. Form of Legend for Regulation S Note...............................................C-1
Exhibit D. Form of Legend for Global Note.....................................................D-1
Exhibit E. Form of Certificate To Be Delivered in Connection with Transfers to
Non-QIB Accredited Investors....................................................E-1
Exhibit F. Form of Certificate To Be Delivered in Connection with Transfers
Pursuant to Regulation S........................................................F-1
Exhibit G. Form of Guarantee..................................................................G-1
</TABLE>
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<PAGE> 9
INDENTURE, dated as of February 1, 1999, among OGLEBAY NORTON
COMPANY, a Delaware corporation, as issuer (the "Company"), the Guarantors (as
hereinafter defined) and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as
trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person (a)
assumed in connection with an Asset Acquisition from such Person or (b) existing
at the time such Person becomes a Restricted Subsidiary or is merged or
consolidated with or into the Company or any Restricted Subsidiary; PROVIDED,
HOWEVER, that such Indebtedness was not incurred in connection with, or in
contemplation of, such Asset Acquisition, such Person becoming a Restricted
Subsidiary or such merger or consolidation.
"ACQUISITION NOTES" means the $100.0 million aggregate
principal amount of Senior Subordinated Increasing Rate Notes issued by the
Company to the Selling Securityholder on May 22, 1998.
"ADDITIONAL INTEREST" has the meaning provided in Section 4(a)
of the Registration Rights Agreement.
"ADJUSTED NET ASSETS" of a Guarantor at any date shall mean
the lesser of the amount by which (x) the fair value of the property of such
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities), but excluding liabilities under the Guarantee, of such
Guarantor at such date and (y) the present fair salable value of the assets of
such Guarantor at such date exceeds the amount that will be required to pay the
probable liability of such Guarantor on its debts (after giving effect to all
other fixed and contingent liabilities and after giving effect to any collection
from any Subsidiary of such Guarantor in respect of the obligations of such
Guarantor under the Guarantee), excluding Indebtedness in respect of the
Guarantee, as they become absolute and matured.
<PAGE> 10
-2-
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise.
Affiliates of any Person shall include each director or executive officer of
such Person and each other Person that beneficially owns 10% or more of the
Voting Equity Interests of such Person.
"AGENT" means any Registrar, Paying Agent, or agent for
service or notices and demands.
"AMEND" means amend, modify, supplement, restate or amend and
restate, including successively; and "AMENDING" and "AMENDED" have correlative
meanings.
"ASSET ACQUISITION" means (i) any capital contribution (by
means of transfers of cash or other property to others or payments for property
or services for the account or use of others, or otherwise) by the Company or
any Restricted Subsidiary to any other Person, or any acquisition or purchase of
Equity Interests of any other Person by the Company or any Restricted
Subsidiary, in either case pursuant to which such Person shall become a
Restricted Subsidiary or shall be consolidated or merged with or into the
Company or any Restricted Subsidiary or (ii) any acquisition by the Company or
any Restricted Subsidiary of the assets of any Person which constitute all or
substantially all of an operating unit or line of business of such Person or
which is otherwise outside of the ordinary course of business.
"ASSET SALE" means any direct or indirect sale, conveyance,
transfer, lease (that has the effect of a disposition) or other disposition
(including, without limitation, by way of any merger, consolidation or Sale and
Leaseback Transaction) to any Person other than the Company or a Wholly Owned
Restricted Subsidiary, in one transaction or a series of related transactions,
of (i) any Equity Interest of any Restricted Subsidiary or (ii) other than in
the ordinary course of business, any other property or asset of the Company or
any Restricted Subsidiary (including the receipt of proceeds paid on account of
the loss of or damage to any property or asset and awards of compensation for
any asset taken by condemnation, eminent domain or similar proceedings). The
term "Asset Sale" shall not include (a) any transaction consummated in
compliance with Section 5.01; PROVIDED, HOWEVER, that any transaction
consummated in compliance with Section 5.01 involving a sale, conveyance,
assignment, transfer, lease or other disposal of less than all of the properties
or assets of the Company and the Restricted Subsidiaries shall be deemed to be
an Asset Sale with respect to the properties or assets of the Company and
Restricted Subsidiaries that are not so sold, conveyed, assigned, transferred,
leased or otherwise disposed of in such transaction; (b) sales of property or
<PAGE> 11
-3-
equipment that has become worn out, obsolete or damaged or otherwise unsuitable
for use in the business of the Company or any Restricted Subsidiary, as the case
may be; and (c) any Permitted Investment and any Restricted Payment permitted by
Section 4.08. In addition, solely for purposes of Section 4.09, sales,
conveyances, transfers, leases or other dispositions of properties or assets in
a single transaction or series of transactions involving assets with a fair
market value of less than $2.0 million shall be deemed not to be an Asset Sale.
"ATTRIBUTABLE INDEBTEDNESS" in respect of a Sale and Leaseback
Transaction means, as at the time of determination, the greater of (i) the fair
value of the property subject to such arrangement (as determined by the Board of
Directors of the Company) and (ii) the present value of the total obligations
(discounted at a rate of 10%, compounded annually) of the lessee for rental
payments during the remaining term of the lease included in such Sale and
Leaseback Transaction (including any period for which such lease has been
extended).
"BANKRUPTCY LAW" means Title 11 of the United States Code
entitled "Bankruptcy" or any other Law relating to bankruptcy, insolvency,
winding up, liquidation, reorganization or relief of debtors, whether in effect
on the date hereof or hereafter.
"BOARD OF DIRECTORS" means (i) in the case of a Person that is
a corporation, the board of directors of such Person or any committee authorized
to act therefor, (ii) in the case of a Person that is a limited partnership, the
board of directors of its corporate general partner or any committee authorized
to act therefor (or, if the general partner is itself a limited partnership, the
board of directors of such general partner's corporate general partner or any
committee authorized to act therefor) and (iii) in the case of any other Person,
the board of directors, management committee or similar governing body or any
authorized committee thereof responsible for the management of the business and
affairs of such Person.
"BOARD RESOLUTION" means a copy of a resolution certified
pursuant to an Officers' Certificate to have been duly adopted by the Board of
Directors of the Company and to be in full force and effect, and delivered to
the Trustee.
"CAPITAL LEASE OBLIGATION" means, at the time any
determination thereof is to be made, the amount of the liability in respect of a
capital lease that would at such time be so required to be capitalized on the
balance sheet in accordance with GAAP.
"CASH EQUIVALENTS" means: (a) U.S. dollars; (b) securities
issued or directly and fully guaranteed or insured by the U.S. government or any
agency or instrumentality thereof having maturities of not more than six months
from the date of acquisition; (c) certificates of deposit and eurodollar time
deposits with maturities of six months or less from the date of acquisition,
bankers' acceptances with maturities not exceeding six months and overnight bank
deposits, in each case with any domestic commercial bank having capital and
sur-
<PAGE> 12
-4-
plus in excess of $500 million; (d) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in clauses
(b) and (c) entered into with any financial institution meeting the
qualifications specified in clause (c) above; and (e) commercial paper rated
P-1, A-1 or the equivalent thereof by Moody's or S&P, respectively, and in each
case maturing within six months after the date of acquisition.
"CHANGE OF CONTROL" shall mean the occurrence of any of the
following events (whether or not approved by the Board of Directors of the
Company): (a) any Person or "group" (1) is or becomes the "beneficial owner,"
directly or indirectly, of Equity Interests representing 50% or more of the
total voting power of the Voting Equity Interests of the Company or representing
50% or more of the equity of the Company or (2) has the power, directly or
indirectly, to elect a majority of the members of the Board of Directors of the
Company; (b) the Company consolidates with, or merges with or into, another
Person or the Company or one or more Restricted Subsidiaries sell, assign,
convey, transfer, lease or otherwise dispose of all or substantially all of the
assets of the Company and the Restricted Subsidiaries, taken as a whole, to any
Person (other than a Wholly Owned Restricted Subsidiary), or any Person
consolidates with, or merges with or into, the Company, in any such event other
than pursuant to a transaction in which the Person or Persons that "beneficially
owned," directly or indirectly, Equity Interests representing 50% or more of the
Voting Equity Interests of the Company or representing 50% or more of the equity
of the Company immediately prior to such transaction, "beneficially own,"
directly or indirectly, Equity Interests representing 50% or more of the total
voting power of the Voting Equity Interests or representing 50% or more of the
equity (as the case may be) of the surviving or transferee Person; (c) during
any consecutive two-year period, individuals who at the beginning of such period
constituted the Board of Directors of the Company (together with any new
directors whose election by the stockholder of the Company or whose nomination
for election by the Board of Directors of the Company was approved by a vote of
a majority of the directors then still in office who were either directors at
the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of the Company then in office; or (d) there shall occur the
liquidation or dissolution of the Company or the stockholders of the Company
shall approve such liquidation or dissolution. For purposes of this definition,
(I) "group" has the meaning under Section 13(d) and 14(d) of the Exchange Act,
including any group acting for the purpose of acquiring, holding or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act, and
(II) "beneficial ownership" has the meaning set forth in Rules 13d-3 and 13d-5
under the Exchange Act, except that a Person shall be deemed to have "beneficial
ownership" of all securities that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time, upon
the happening of an event or otherwise.
"COMMISSION" means the Securities and Exchange Commission.
<PAGE> 13
-5-
"COMMON EQUITY INTERESTS" means any Equity Interests other
than Preferred Equity Interests.
"COMPANY" means the party named as such in the first paragraph
of this Indenture until a successor replaces such party pursuant to Article Five
of this Indenture and thereafter means the successor.
"COMPANY REQUEST" means any written request signed in the name
of the Company by the Chairman of the Board of Directors, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer or the
Treasurer of the Company and attested to by the Secretary or any Assistant
Secretary of the Company.
"CONSOLIDATED EBITDA" means, for any period, the sum, without
duplication, of (i) Consolidated Net Income plus (ii) to the extent Consolidated
Net Income has been reduced thereby, (A) all income taxes of the Company and the
Restricted Subsidiaries paid or accrued in accordance with GAAP for such period
(other than income taxes attributable to extraordinary, unusual or nonrecurring
gains or losses or taxes attributable to sales or dispositions outside the
ordinary course of business), (B) Consolidated Interest Expense, (C)
Consolidated Non-cash Charges and (D) debt prepayment premiums or penalties
paid, and other transaction costs incurred, in connection with the Transactions
less (iii) any non-cash items increasing Consolidated Net Income for such
period, all as determined on a consolidated basis for the Company and the
Restricted Subsidiaries in accordance with GAAP.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum,
without duplication, of (i) Consolidated Interest Expense, plus (ii) the product
of (x) the amount of all cash dividend payments on any series of Preferred
Equity Interests of the Company or any Restricted Subsidiary paid, accrued or
scheduled to be paid or accrued during such period times (y) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current effective consolidated federal, state and local tax rate of such Person,
expressed as a decimal.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" shall mean, at any
time of determination (a "TRANSACTION DATE"), the ratio of (x) Consolidated
EBITDA for the four full fiscal quarter period (the "FOUR QUARTER PERIOD") of
the Company for which financial statements are available at the date of
determination ending at or prior to such Transaction Date to (y) Consolidated
Fixed Changes for such period. The Consolidated Fixed Charge Coverage Ratio
shall be calculated after giving pro forma effect to (i) the incurrence or
repayment of any Indebtedness of the Company or any Restricted Subsidiary giving
rise to the need to make such calculation and any incurrence or repayment of
other Indebtedness (other than the incurrence or repayment of Indebtedness in
the ordinary course of business for working capital purposes pursuant to working
capital credit facilities) since the beginning of such Four Quarter Period and
at or prior to the Transaction Date, as if such incurrence or repayment, as the
case may be, occurred on the first day of such Four Quar-
<PAGE> 14
-6-
ter Period and (ii) any Asset Sales or Asset Acquisitions (including, without
limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of the Company or any Restricted Subsidiary (including
any Person who becomes a Restricted Subsidiary as a result of the Asset
Acquisition) incurring Acquired Indebtedness and also including any EBITDA
(provided that such EBITDA shall be included only to the extent includable
pursuant to the definition of "Consolidated Net Income") attributable to the
assets that are the subject of the Asset Acquisition during the Four Quarter
Period) since the beginning of such Four Quarter Period and at or prior to the
Transaction Date, as if such Asset Sale or Asset Acquisition (including the
incurrence of any such Acquired Indebtedness) occurred on the first day of the
Four Quarter Period. In calculating "Consolidated Fixed Charges" for purposes of
determining the denominator (but not the numerator) of this "Consolidated Fixed
Charge Coverage Ratio," (1) interest on outstanding Indebtedness determined on a
fluctuating basis as of the Transaction Date and which will continue to be so
determined thereafter shall be deemed to have accrued at a fixed rate per annum
equal to the rate of interest on such Indebtedness in effect on the Transaction
Date; and (2) notwithstanding clause (1) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is covered by one
or more Interest Rate Protection Obligations, shall be deemed to accrue at the
rate per annum resulting after giving effect to the operation of such
agreements.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the sum
of, without duplication: (i) the aggregate of the interest expense of the
Company and the Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, including (a) any amortization of
debt discount, (b) the net costs under Interest Rate Protection Obligations, (c)
all capitalized interest and (d) the interest portion of any deferred payment
obligation, but excluding amortization or write-off of deferred financing costs;
and (ii) the interest component of Capital Lease Obligations paid, accrued
and/or scheduled to be paid or accrued by the Company and the Restricted
Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP.
"CONSOLIDATED NET INCOME" means, with respect to any period,
the net income of the Company and the Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, adjusted, to the
extent included in calculating such net income, by excluding, without
duplication, (a) all extraordinary, unusual or non-recurring gains or losses for
such period, (b) all gains or losses from Asset Sales (net of taxes, fees and
expenses relating to the transaction giving rise thereto) during such period;
(c) that portion of such net income derived from or in respect of investments in
Persons other than Restricted Subsidiaries, except to the extent actually
received in cash by the Company or (subject to the provisions of clause (f) of
this definition) any Restricted Subsidiary; (d) the portion of such net income
(or loss) allocable to minority interests in any Person (other than a Restricted
Sub-
<PAGE> 15
-7-
sidiary) for such period, except to the extent the Company's allocable portion
of such Person's net income for such period is actually received in cash by the
Company or (subject to the provisions of clause (f) of this definition) any
Restricted Subsidiary; (e) the net income (or loss) of any other Person combined
with the Company or any Restricted Subsidiary on a "pooling of interests" basis
attributable to any period prior to the date of combination; and (f) the net
income of any Restricted Subsidiary to the extent that the declaration of
dividends or similar distributions by that Restricted Subsidiary of that income
is not at the time (regardless of any waiver) permitted, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulations applicable to that
Restricted Subsidiary or the holders of its Equity Interests.
"CONSOLIDATED NON-CASH CHARGES" means, for any period, the
aggregate depreciation, amortization and other non-cash expenses of the Company
and the Restricted Subsidiaries reducing Consolidated Net Income of the Company
and the Restricted Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP (excluding any such charges constituting an
extraordinary item or loss or any such charge which requires an accrual of or a
reserve for cash charges for any future period).
"CONSOLIDATED TANGIBLE ASSETS" means, at any time, the total
amount of assets of the Company and the Restricted Subsidiaries, less all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and all other intangibles, all as set forth on the most recent
consolidated balance sheet of the Company and calculated in accordance with
GAAP.
"CORPORATE TRUST OFFICE" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at c/o Norwest Bank Minnesota, National Association, Norwest Center, Sixth and
Marquette, Minneapolis, MN 55479-0069, attention: Corporate Trust Services.
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any Restricted Subsidiary against fluctuations in
currency values.
"DEFAULT" means any event that is, or with the passage of time
or the giving of notice or both would be, an Event of Default.
"DEPOSITORY" means, with respect to the Notes issued in the
form of one or more Global Notes, The Depository Trust Company or another Person
designated as Depository by the Company, which Person must be a clearing agency
registered under the Exchange Act.
<PAGE> 16
-8-
"DESIGNATED SENIOR INDEBTEDNESS" means (a) any Senior
Indebtedness or Guarantor Senior Indebtedness under the Senior Credit Facility
and (b) any other Senior Indebtedness or Guarantor Senior Indebtedness which at
the time of determination exceeds $25 million in aggregate principal amount (or
accreted value in the case of Indebtedness issued at a discount) outstanding or
available under a committed facility, which is specifically designated in the
instrument evidencing such Senior Indebtedness or Guarantor Senior Indebtedness
as "Designated Senior Indebtedness" by such Person and as to which the Holders
have been given written notice of such designation.
"DISINTERESTED DIRECTOR" means a member of the Board of
Directors of the Company who does not have any direct or indirect financial
interest in or with respect to the transaction being considered.
"DISPOSITION" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets.
"DISQUALIFIED EQUITY INTEREST" means any Equity Interest
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable,
at the option of the holder thereof, in whole or in part, on or prior to the
Final Maturity Date; PROVIDED, HOWEVER, that any Equity Interests that would not
constitute Disqualified Equity Interests but for provisions thereof giving
holders thereof the right to require the Company to redeem such Equity Interests
upon the occurrence of a change in control occurring on or prior to the Final
Maturity Date shall not constitute Disqualified Equity Interests if the change
in control provisions applicable to such Equity Interests are no more favorable
to the holders of such Equity Interests than under Section 4.20 hereof and such
Equity Interests specifically provide that the Company will not redeem any such
Equity Interests pursuant to such provisions prior to the Company's repurchase
of the Notes as are required to be repurchased pursuant to Section 4.20 hereof.
"EQUITY INTEREST" in any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) corporate stock or other
equity participations, including partnership interests, whether general or
limited, in such Person, including any Preferred Equity Interests.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and
the rules and regulations promulgated thereunder.
<PAGE> 17
-9-
"EXCHANGE NOTES" has the meaning provided in the Registration
Rights Agreement.
"EXISTING BUSINESS" means a business of the Company and its
Subsidiaries conducted on the Issue Date or any activity reasonably related
thereto.
"FAIR MARKET VALUE" means, with respect to any asset, the
price (after taking into account any liabilities relating to such assets) which
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of which is under
any compulsion to complete the transaction. For purposes of Sections 4.08 and
4.09 hereof, fair market value shall be determined in good faith by the Board of
Directors of the Company, which determination shall be evidenced by a Board
Resolution delivered to the Trustee.
"FINAL MATURITY DATE" means February 1, 2009.
"FINANCING DOCUMENTS" means this Indenture, the Registration
Rights Agreement, the Notes and the Guarantees.
"FOREIGN SUBSIDIARY" means a Restricted Subsidiary that is
incorporated in a jurisdiction other than the United States or a state thereof
or the District of Columbia and with respect to which more than 80% of any of
its sales, earnings or assets (determined on a consolidated basis in accordance
with GAAP) are located in, generated from or derived from operations located in
territories outside the United States of America and jurisdictions outside the
United States of America.
"GAAP" means, at any date of determination, generally accepted
accounting principles in effect in the United States which are applicable at the
date of determination and which are consistently applied for all applicable
periods.
"GLOBAL STONE" means Global Stone Corporation, a Canadian
corporation.
"GOVERNMENTAL AUTHORITY" shall mean any government or
political subdivision of the United States or any other country or any agency,
authority, board, bureau, central bank, securities exchange, commission,
department or instrumentality thereof or therein, including any court, tribunal,
grand jury or arbitrator, in each case whether foreign or domestic, or any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to such government or political subdivision.
"GUARANTEE" means, as applied to any obligation, (i) a
guarantee (other than by endorsement of negotiable instruments for collection in
the ordinary course of business), direct or indirect, in any manner, of any part
or all of such obligation or (ii) an agreement, direct
<PAGE> 18
-10-
or indirect, contingent or otherwise, the practical effect of which is to assure
in any way the payment or performance (or payment of damages in the event of
non-performance) of all or any part of such obligation, including, without
limiting the foregoing, the payment of amounts drawn down by letters of credit.
A guarantee shall include any agreement to maintain or preserve any other
person's financial condition or to cause any other Person to achieve certain
levels of operating results.
"GUARANTEE" means, as the context may require, individually, a
guarantee, or collectively, any and all guarantees, of the Obligations of the
Company under this Indenture and the Notes by each Guarantor, pursuant to
Article Ten hereof.
"GUARANTOR" means (i) each Restricted Subsidiary listed on the
signature pages of this Indenture as a Guarantor and (ii) each Person that
becomes a Guarantor pursuant to Section 4.13 hereof, until, in each case, the
Guarantee of such Person is released in accordance with Section 10.04 hereof.
"GUARANTOR SENIOR INDEBTEDNESS" means, with respect to any
Guarantor, all Obligations due pursuant to the terms of all agreements,
documents and instruments providing for, creating, securing or evidencing or
otherwise entered into in connection with (a) all Obligations of such Guarantor
under the Senior Credit Facility; (b) all obligations of such Guarantor with
respect to any Interest Rate Protection Obligation; (c) all obligations of such
Guarantor to reimburse any bank or other person in respect of amounts paid under
letters of credit, acceptances or other similar instruments; (d) all other
Indebtedness of such Guarantor which does not provide that it is to rank PARI
PASSU with or subordinate to the Guarantee of such Guarantor; and (e) all
deferrals, refinancings and extensions of, and amendments to, any of the
Guarantor Senior Indebtedness described above. Notwithstanding anything to the
contrary in the foregoing, Guarantor Senior Indebtedness will not include, with
respect to any Guarantor, (i) Indebtedness of such Guarantor to any of its
Subsidiaries, or to any Affiliate of such Guarantor or any of such Affiliate's
Subsidiaries; (ii) Indebtedness represented by the Guarantees; (iii) any
Indebtedness which by the express terms of the agreement or instrument creating,
evidencing or governing the same is junior or subordinate in right of payment to
any other obligations of such Guarantor; (iv) any trade payable arising from the
purchase of goods or materials or for services obtained in the ordinary course
of business; (v) Indebtedness incurred in violation of this Indenture; (vi)
Indebtedness represented by Disqualified Equity Interests; and (vii) any
Indebtedness owed to, or guaranteed on behalf of, any stockholder, director,
officer or employee of the Company or any of its Subsidiaries.
"HOLDER" or "NOTEHOLDER" means the Person in whose name a Note
is registered on the Registrar's books.
<PAGE> 19
-11-
"IN THE ORDINARY COURSE OF BUSINESS" means in the ordinary
course of business of the Company and its Subsidiaries consistent with past
practice.
"INCUR" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (including by conversion,
exchange or otherwise), assume, guarantee or otherwise become liable in respect
of such Indebtedness or other obligation or the recording, as required pursuant
to GAAP or otherwise, of any such Indebtedness or other obligation on the
balance sheet of such Person (and "incurrence," "incurred" and "incurring" shall
have meanings correlative to the foregoing). Indebtedness of a Person existing
at the time such Person becomes a Restricted Subsidiary or is merged or
consolidated with or into the Company or any Restricted Subsidiary shall be
deemed to be incurred at such time.
"INDEBTEDNESS" means (without duplication), with respect to
any Person, whether recourse is to all or a portion of the assets of such Person
and whether or not contingent, (a) every obligation of such Person for money
borrowed; (b) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses; (c) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person; (d)
every obligation of such Person issued or assumed as the deferred purchase price
of property or services (but excluding trade accounts payable incurred in the
ordinary course of business and payable in accordance with industry practices,
or other accrued liabilities arising in the ordinary course of business which
are not overdue or which are being contested in good faith); (e) every Capital
Lease Obligation of such Person; (f) every net obligation under interest rate
swap or similar agreements or foreign currency hedge, exchange or similar
agreements of such Person; (g) every obligation of the type referred to in
clauses (a) through (f) of another Person and all dividends of another Person
the payment of which, in either case, such Person has guaranteed or is
responsible or liable for, directly or indirectly, as obligor, guarantor or
otherwise; and (h) any and all deferrals, extensions and refinancings of, or
amendments to, any liability of the kind described in any of the preceding
clauses (a) through (g) above. Indebtedness (i) shall never be calculated taking
into account any cash and cash equivalents held by such Person; (ii) shall not
include obligations of any Person (x) arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
inadvertently drawn against insufficient funds in the ordinary course of
business, provided that such obligations are extinguished within two Business
Days of their incurrence unless covered by an overdraft line, (y) resulting from
the endorsement of negotiable instruments for collection in the ordinary course
of business and (z) under stand-by letters of credit to the extent
collateralized by cash or Cash Equivalents; (iii) which provides that an amount
less than the principal amount thereof shall be due upon any declaration of
acceleration thereof shall be deemed to be incurred or outstanding in an amount
equal to the accreted value thereof at the date of determination determined in
accordance with
<PAGE> 20
-12-
GAAP; and (iv) shall include the liquidation preference and any mandatory
redemption payment obligations in respect of any Disqualified Equity Interests
of the Company and any Preferred Equity Interests of any Restricted Subsidiary.
"INDENTURE" means this Indenture as amended, restated or
supplemented from time to time.
"INDEPENDENT FINANCIAL ADVISOR" means a nationally recognized
accounting, appraisal, investment banking firm or consultant (i) that does not,
and whose directors, officers and employees or Affiliates do not, have a direct
or indirect financial interest in the Company; PROVIDED that, notwithstanding
the foregoing, CIBC Oppenheimer Corp. and its Affiliates shall be deemed to be
an Independent Financial Advisor and (ii) which, in the judgment of the Board of
Directors of the Company, is otherwise independent and qualified to perform the
task for which it is to be engaged.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that
is an "accredited investor" as that term is defined in Rule 501 (a)(1), (2), (3)
or (7) promulgated under the Securities Act.
"INTEREST" means, with respect to the Notes, the sum of any
interest and any Additional Interest on the Notes.
"INTEREST PAYMENT DATES" means each February 1 and August 1,
commencing August 1, 1999.
"INTEREST RATE PROTECTION OBLIGATIONS" means, with respect to
any Person, the Obligations of such Person under (i) interest rate swap
agreements, interest rate cap agreements and interest rate collar agreements,
and (ii) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates.
"INVESTMENT" means, with respect to any Person, any direct or
indirect loan, advance, guarantee or other extension of credit or capital
contribution to (by means of transfers of cash or other property or assets to
others or payments for property or services for the account or use of others, or
otherwise), or purchase or acquisition of capital stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued by, any other
Person. The amount of any Investment shall be the original cost of such
Investment, PLUS the cost of all additions thereto, and MINUS the amount of any
portion of such Investment repaid to such Person in cash as a repayment of
principal or a return of capital, as the case may be, but without any other
adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment. In determining the amount of any
Investment involving a transfer of any property or asset other than cash, such
property shall be valued at its
<PAGE> 21
-13-
fair market value at the time of such transfer, as determined in good faith by
the Board of Directors of the Person making such transfer.
"ISSUE DATE" means February 1, 1999, the date the Notes are
first issued by the Company and authenticated by the Trustee under this
Indenture.
"LIEN" means any lien, mortgage, charge, security interest,
hypothecation, assignment for security or encumbrance of any kind (including any
conditional sale or capital lease or other title retention agreement, any lease
in the nature thereof) and any agreement to give any of the foregoing.
"MAJORITY HOLDERS" means at any time, the Holders of more than
50% in aggregate principal amount of the Notes outstanding at such time.
"MATURITY DATE" when used with respect to any Note, means the
date on which the principal of such Note becomes due and payable as therein or
herein provided, whether at the Final Maturity Date, any Purchase Date, or by
declaration of acceleration, call for redemption or otherwise.
"MOODY'S" means Moody's Investors Service, Inc. and its
successors.
"NET CASH PROCEEDS" means the aggregate proceeds in the form
of cash or cash equivalents received by the Company or any Restricted Subsidiary
in respect of any Asset Sale, including all cash or cash equivalents received
upon any sale, liquidation or other exchange of proceeds of Asset Sales received
in a form other than cash or cash equivalents, net of (a) the direct costs
relating to such Asset Sale (including legal, accounting and investment banking
fees, and sales commissions) and any relocation expenses incurred as a result
thereof; (b) taxes paid or payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements); (c) amounts required to be applied to the repayment of
Indebtedness secured by a Lien on the asset or assets that were the subject of
such Asset Sale; (d) amounts deemed, in good faith, appropriate by the Board of
Directors of the Company to be provided as a reserve, in accordance with GAAP,
against any liabilities directly associated with such assets which are the
subject of such Asset Sale (provided that the amount of any such reserves shall
be deemed to constitute Net Cash Proceeds at the time such reserves shall have
been released or are not otherwise required to be retained as a reserve); and
(e) with respect to Asset Sales by Subsidiaries, the portion of such cash
payments attributable to Persons holding a minority interest in such Subsidiary.
"NEW ONC" means Oglebay Norton Holding Company, a newly formed
Ohio corporation, to be renamed Oglebay Norton Company following the
Reorganization.
<PAGE> 22
-14-
"NON-PAYMENT EVENT OF DEFAULT" means any event (other than a
Payment Default) the occurrence of which entitles one or more Persons to
accelerate the maturity of any Designated Senior Indebtedness.
"NON-U.S. PERSON" means a Person who is not a U.S. person, as
defined in Regulation S.
"NOTES" means the 10% Senior Subordinated Notes due 2009
issued by the Company, including, without limitation, the Private Exchange
Notes, if any, and the Exchange Notes, treated as a single class of securities,
as amended from time to time in accordance with the terms hereof, that are
issued pursuant to this Indenture.
"OBLIGATIONS" means, with respect to any Indebtedness, any
principal, interest (including post-petition interest), penalties, fees,
indemnifications, reimbursement obligations, damages and other liabilities
payable under the documentation governing such Indebtedness.
"OBLIGORS" means the Company and the Guarantors, collectively;
and "OBLIGOR" means any of them.
"OFFER" has the meaning set forth in the definition of "OFFER
TO PURCHASE."
"OFFER EXPIRATION DATE" has the meaning set forth in the
definition of "OFFER TO PURCHASE."
"OFFER TO PURCHASE" means a written offer (the "OFFER") sent
by or on behalf of the Company by first-class mail, postage prepaid, to each
Holder at his address appearing in the register for the Notes on the date of the
Offer offering to purchase up to the principal amount of Notes specified in such
Offer at the purchase price specified in such Offer (as determined pursuant to
this Indenture). Unless otherwise required by applicable law, the Offer shall
specify an expiration date (the "OFFER EXPIRATION DATE") of the Offer to
Purchase, which shall be not less than 30 Business Days nor more than 60 days
after the date of such Offer, and a settlement date (the "PURCHASE DATE") for
purchase of Notes to occur no later than five Business Days after the Offer
Expiration Date. The Offer shall contain all the information required by
applicable law to be included therein. The Offer shall also contain information
concerning the business of the Company and its Subsidiaries which the Company in
good faith believes will enable such Holders to make an informed decision with
respect to the Offer to Purchase. Such information shall include, at a minimum,
(i) the most recent annual and quarterly financial statements and "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
contained in the document required to be delivered to Holders pursuant to
Section 4.02 hereof (which requirements may be satisfied by delivery of such
documents together with the Offer), (ii) a description of material developments
in the Com-
<PAGE> 23
-15-
pany's business subsequent to the date of the latest of such financial
statements referred to in clause (i) (including a description of the events
requiring the Company to make the Offer to Purchase), (iii) if applicable,
appropriate PRO FORMA financial information concerning the Offer to Purchase and
the events requiring the Company to make the Offer to Purchase and (iv) any
other information required by applicable law to be included therein. The Offer
shall contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Offer to Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the Offer
to Purchase is being made;
(2) the Offer Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the outstanding Notes
offered to be purchased by the Company pursuant to the Offer to
Purchase (including, if less than 100%, the manner by which such amount
has been determined pursuant to the Section of this Indenture requiring
the Offer to Purchase) (the "PURCHASE AMOUNT");
(4) the purchase price to be paid by the Company for each
$1,000 aggregate principal amount of Notes accepted for payment (the
"PURCHASE PRICE");
(5) that the Holder may tender all or any portion of the Notes
registered in the name of such Holder and that any portion of a Note
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Notes are to be surrendered for
tender pursuant to the Offer to Purchase;
(7) that interest on any Note not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(8) that on the Purchase Date the Purchase Price will become
due and payable upon each Note being accepted for payment pursuant to
the Offer to Purchase and that interest thereon shall cease to accrue
on and after the Purchase Date;
(9) that each Holder electing to tender all or any portion of a
Note pursuant to the Offer to Purchase will be required to surrender
such Note at the place or places specified in the Offer prior to the
close of business on the Offer Expiration Date (such Note being, if the
Company so requires, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company duly
executed by, the Holder thereof or his attorney duly authorized in
writing);
<PAGE> 24
-16-
(10) that Holders will be entitled to withdraw all or any
portion of Notes tendered if the Company receives, not later than the
close of business on the fifth Business Day next preceding the Offer
Expiration Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Note
the Holder tendered, the certificate number of the Note the holder
tendered and a statement that such Holder is withdrawing all or a
portion of its tender;
(11) that (a) if Notes in an aggregate principal amount less
than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall purchase
all such Notes and (b) if Notes in an aggregate principal amount in
excess of the Purchase Amount are tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase Notes having an
aggregate principal amount equal to the Purchase Amount on a PRO RATA
basis (with such adjustments as may be deemed appropriate so that only
Notes in denominations of $1,000 principal amount or integral multiples
thereof shall be purchased); and
(12) that in the case of any Holder whose Note is purchased only
in part, the Company shall execute and deliver to the Holder of such
Note without service charge, a new Note or Notes, of any authorized
denomination as requested by such Holder, in an aggregate principal
amount equal to and in exchange for the unpurchased portion of the Note
so tendered.
An Offer to Purchase shall be governed by and effected in
accordance with the provisions above pertaining to any Offer.
"OFFERING" means the offering of the Notes as described in the
Offering Memorandum.
"OFFERING MEMORANDUM" means the Offering Memorandum dated
January 26, 1998 pursuant to which the Notes were offered.
"OFFICER", with respect to any Person (other than the
Trustee), means the Chairman of the Board of Directors, Chief Executive Officer,
the President, any Vice President and the Chief Financial Officer, the Treasurer
or the Secretary of such Person, or any other officer of such Person designated
by the Board of Directors of such Person and set forth in an Officers'
Certificate delivered to the Trustee.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by the Chief Executive Officer or the President and the Chief
Financial Officer, the Treasurer or the Assistant Treasurer of such Person that
shall comply with applicable provisions of this Indenture.
<PAGE> 25
-17-
"OGLEBAY" means Oglebay Norton Company, a Delaware
corporation, to be renamed ONCO Transportation Company following the
Reorganization.
"OPINION OF COUNSEL" means a written opinion reasonably
satisfactory in form and substance to the Trustee from legal counsel, which
counsel is reasonably acceptable to the Trustee, stating the matters required by
Section 12.05 and delivered to the Trustee.
"PAYMENT DEFAULT" means any default, whether or not any
requirement for the giving of notice, the lapse of time or both, or any other
condition to such default becoming an event of default has occurred, in the
payment of principal of (or premium, if any) or interest on or any other amount
payable in connection with Designated Senior Indebtedness.
"PERMITTED INVESTMENTS" means (a) Cash Equivalents; (b)
Investments in prepaid expenses, negotiable instruments held for collection and
lease, utility and workers' compensation, performance and other similar
deposits; (c) loans and advances to employees made in the ordinary course of
business not to exceed $1.0 million in the aggregate at any one time
outstanding; (d) Interest Rate Protection Obligations and Currency Agreements
permitted under Section 4.06 hereof; (e) Investments in promissory notes issued
to the Company or any Restricted Subsidiary as consideration in Asset Sales made
in compliance with Section 4.09 hereof; PROVIDED, HOWEVER, that the aggregate
principal amount of such promissory notes outstanding shall not exceed the
greater of (x) $10.0 million and (y) 2.0% of Consolidated Tangible Assets; and
(f) Investments in (1) the Company or any Guarantor or (2) any Person that
becomes a Restricted Subsidiary after giving effect to such Investment so long
as such Person becomes a Guarantor at such time.
"PERMITTED LIENS" means (a) Liens on property of a Person
existing at the time such Person is acquired by, or merged into or consolidated
with, the Company or any Restricted Subsidiary; PROVIDED, HOWEVER, that such
Liens were in existence prior to the contemplation of such acquisition, merger
or consolidation and do not secure any property or assets of the Company or any
Restricted Subsidiary other than the property or assets subject to the Liens
prior to such acquisition, merger or consolidation; (b) Liens existing on the
date hereof; (c) Liens securing Purchase Money Indebtedness incurred pursuant to
Section 4.06 hereof; PROVIDED, HOWEVER, that such Liens do not extend to any
assets of the Company or any Restricted Subsidiary other than the assets
acquired with the proceeds of such Indebtedness (and improvements thereto or
thereon); (d) Liens to secure any Permitted Refinancings, in whole or in part,
of any Indebtedness secured by Liens referred to in the clauses above so long as
such Lien does not extend to any other assets (other than improvements thereto);
(e) Liens securing letters of credit entered into in the ordinary course of
business; (f) Liens for taxes not yet due or which are being actively contested
in good faith by appropriate proceedings and for which adequate reserves have
been established in accordance with GAAP; (g) other statutory Liens incidental
to the conduct of business or the ownership of property and assets by the
Company
<PAGE> 26
-18-
or any Restricted Subsidiary which (i) were not incurred in connection with the
borrowing of money or the obtaining of advances or credit, and (ii) which do not
in the aggregate materially detract from the value of the property or assets or
materially impair the use thereof in the operation of the business of the
Company or any Restricted Subsidiary; (h) easements, rights of way or other
minor defects or irregularities in title of real property not interfering in any
material respect with the use of such property in the business of the Company or
any Restricted Subsidiary; and (i) Liens securing Senior Indebtedness.
"PERMITTED REFINANCING" means, with respect to any
Indebtedness, Indebtedness to the extent representing a refinancing of such
Indebtedness; PROVIDED, HOWEVER, that (1) the refinancing Indebtedness shall not
exceed the sum of the amount of the Indebtedness being refinanced, PLUS the
amount of accrued interest or dividends thereon, the amount of any reasonably
determined prepayment premium necessary to accomplish such refinancing and
reasonable fees and expenses incurred in connection therewith; (2) the
refinancing Indebtedness shall have a Weighted Average Life to Maturity equal to
or greater than the Weighted Average Life to Maturity of the Indebtedness being
refinanced and shall not permit redemption or other retirement (including
pursuant to any required offer to purchase to be made by the Company or any
Restricted Subsidiary) of such Indebtedness at the option of the holder thereof
prior to the final stated maturity of the Indebtedness being refinanced, other
than a redemption or other retirement at the option of the holder of such
Indebtedness (including pursuant to a required offer to purchase made by the
Company or a Restricted Subsidiary) upon a change of control of the Company
pursuant to provisions substantially similar to those described in Section 4.20
hereof; (3) Indebtedness that ranks PARI PASSU with the Notes may be refinanced
only with Indebtedness that is made PARI PASSU with or subordinate in right of
payment to the Notes, and Indebtedness that is subordinated in right of payment
to the Notes may be refinanced only with Indebtedness that is subordinate in
right of payment to the Notes on terms no less favorable to the Holders than
those contained in the Indebtedness being refinanced; and (4) the refinancing
Indebtedness shall be incurred by the obligor on the Indebtedness being
refinanced or by the Company.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, limited
liability partnership, limited partnership, trust, unincorporated organization
or government or any agency or political subdivision thereof or other entity.
"PHYSICAL NOTES" means certificated Notes in registered form
in substantially the form set forth in EXHIBIT A.
"PREFERRED EQUITY INTEREST," in any Person, means an Equity
Interest of any class or classes (however designated) which is preferred as to
the payment of dividends or
<PAGE> 27
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distributions, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Person, over Equity Interests of
any other class in such Person.
"PRIVATE EXCHANGE" has the meaning set forth in the
Registration Rights Agreement.
"PRIVATE EXCHANGE NOTES" has the meaning set forth in the
Registration Rights Agreement.
"PRIVATE PLACEMENT LEGEND" means the legend initially set
forth on the Rule 144A Notes and Other Notes that are Restricted Notes in the
form set forth in EXHIBIT B.
"PROPERTY" of any Person means all types of real, personal,
tangible, intangible or mixed property owned by such Person whether or not
included in the most recent consolidated balance sheet of such Person and its
Subsidiaries under GAAP.
"PROXY STATEMENT" means the Proxy Statement/Prospectus of the
Company filed with the Commission on April 28, 1998.
"PUBLIC EQUITY OFFERING" means an underwritten public offering
for cash of Common Equity Interests of the Company pursuant to an effective
registration statement filed under the Securities Act (excluding registration
statements filed on Form S-4, S-8 or similar forms).
"PURCHASE AMOUNT" has the meaning set forth in the definition
of "OFFER TO PURCHASE."
"PURCHASE DATE" has the meaning set forth in the definition of
"OFFER TO PURCHASE."
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness incurred in
the ordinary course of business for the purpose of financing all or any part of
the purchase price, or the cost of installation, construction or improvement, of
property or equipment; PROVIDED, HOWEVER, (x) such Indebtedness shall not exceed
the cost of such property or assets and shall not be secured by any property or
assets of the Company or any Restricted Subsidiary other than the property and
assets so acquired or constructed and (y) the Lien securing such Indebtedness
shall be created within 90 days of such acquisition or construction or, in the
case of a refinancing of any Purchase Money Indebtedness, within 90 days of such
refinancing.
"PURCHASE PRICE" has the meaning set forth in the definition
of "OFFER TO PURCHASE."
<PAGE> 28
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"QUALIFIED EQUITY INTEREST" means any Equity Interest of the
Company other than any Disqualified Equity Interest.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the
meaning specified in Rule 144A promulgated under the Securities Act.
"REDEEM" means redeem, repurchase, defease or otherwise
acquire or retire for value; and "REDEMPTION" and "REDEEMED" have correlative
meanings.
"REDEMPTION DATE" when used with respect to any Note to be
redeemed means the date fixed for such redemption pursuant to the terms of the
Notes.
"REFINANCE" means refinance, renew, extend, replace, defease
or refund, in whole or in part, including successively; and "REFINANCING" and
"REFINANCED" have correlative meanings.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated February 1, 1999 among the Company, the Guarantors and the
Selling Securityholder, as amended from time to time.
"REGULATION S" means Regulation S promulgated under the
Securities Act.
"REORGANIZATION" means the reorganization substantially
similar to that described in the Proxy Statement, pursuant to which Oglebay will
become a second-tier wholly owned subsidiary of New ONC.
"REPLACEMENT ASSETS" means (x) properties and assets (other
than cash or any Equity Interests or other security) that will be used in an
Existing Business or (y) Equity Interests of any Person engaged primarily in an
Existing Business, which Person will become on the date of acquisition thereof a
Restricted Subsidiary as a result of the Company's acquiring such Equity
Interests.
"RESPONSIBLE OFFICER" when used with respect to the Trustee,
means an officer or assistant officer assigned to the corporate trust department
of the Trustee (or any successor group of the Trustee) with direct
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"RESTRICTED NOTE" has the same meaning as "Restricted
Security" set forth in Rule 144(a)(3) promulgated under the Securities Act;
PROVIDED, that the Trustee shall be entitled to request and conclusively rely
upon an Opinion of Counsel with respect to whether any Note is a Restricted
Note.
<PAGE> 29
-21-
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company
other than any Unrestricted Subsidiary.
"RULE 144" means Rule 144 promulgated under the Securities
Act.
"RULE 144A" means Rule 144A promulgated under the Securities
Act.
"S&P" means Standard & Poor's Ratings Group and its
successors.
"SALE AND LEASEBACK TRANSACTION" means any arrangement with
any Person providing for the leasing by the Company or any Restricted Subsidiary
of any real or tangible personal Property, which Property has been or is to be
sold or transferred by the Company or such Restricted Subsidiary to such Person
in contemplation of such leasing.
"SECURITIES ACT" means the Securities Act of 1933 and the
rules and regulations promulgated thereunder.
"SELLING SECURITYHOLDER" means CIBC Oppenheimer Corp.
"SENIOR CREDIT FACILITY" means the Credit Agreement dated as
of May 15, 1998 between the Company and KeyBank National Association, together
with the documents related thereto (including any guarantee agreements and
security documents), in each case as such agreements may be amended, refinanced
or restructured from time to time (including to increase the amount of available
borrowings thereunder (provided that such increase in borrowings is permitted by
Section 4.06 hereof) or adding Subsidiaries of the Company as additional
borrowers or guarantors thereunder or adding additional collateral thereunder)
with respect to all or any portion of the Indebtedness under such agreement or
any successor or replacement agreement and whether by the same or any other
agent, lender or group of lenders.
"SENIOR INDEBTEDNESS" means all Obligations due pursuant to
the terms of all agreements, documents and instruments providing for, creating,
securing or evidencing or otherwise entered into in connection with (a) all
Obligations of the Company under the Senior Credit Facility; (b) all obligations
of the Company with respect to any Interest Rate Protection Obligation; (c) all
obligations of the Company to reimburse any bank or other person in respect of
amounts paid under letters of credit, acceptances or other similar instruments;
(d) all other Indebtedness of the Company which does not provide that it is to
rank PARI PASSU with or subordinate to the Notes; and (e) all deferrals,
refinancings and extensions of, and amendments to, any of the Senior
Indebtedness described above. Notwithstanding anything to the contrary in the
foregoing, Senior Indebtedness will not include (i) Indebtedness of the Company
to any of its Subsidiaries, or to any Affiliate of the Company or any of such
Affiliate's Subsidiaries; (ii) Indebtedness represented by the Notes; (iii) any
Indebtedness which by the
<PAGE> 30
-22-
express terms of the agreement or instrument creating, evidencing or governing
the same is junior or subordinate in right of payment to any other obligations
of the Company; (iv) any trade payable arising from the purchase of goods or
materials or for services obtained in the ordinary course of business; (v)
Indebtedness incurred in violation of this Indenture; (vi) Indebtedness
represented by Disqualified Capital Stock; and (vii) any Indebtedness owed to,
or guaranteed on behalf of, any stockholder, director, officer or employee of
the Company or any of its Subsidiaries.
"SIGNIFICANT SUBSIDIARY," means, at any date of determination,
(a) any Restricted Subsidiary that satisfies the criteria for a "significant
subsidiary" set forth in Rule 1-02 of Regulation S-X under the Exchange Act
(except that references to 10% in such definition shall be changed to 5%), and
(b) for purposes of Section 6.01 hereof, any Restricted Subsidiary which, when
aggregated with all other Restricted Subsidiaries that are not otherwise
Significant Subsidiaries and as to which any event described in clause (7) or
(8) of Section 6.01 hereof has occurred and is continuing, would constitute a
Significant Subsidiary under clause (a) of this definition.
"SUBORDINATED INDEBTEDNESS" means any Indebtedness of the
Company or any Guarantor which is expressly subordinated in right of payment to
the Notes or the Guarantee of such Guarantor.
"SUBSIDIARY" means, with respect to any Person at any time,
(a) any corporation of which the outstanding Voting Equity Interests having at
least a majority of the votes entitled to be cast in the election of directors
shall at the time be owned, directly or indirectly, by such Person, or (b) any
other Person of which at least a majority of Voting Equity Interests are at the
time, directly or indirectly, owned by such first Person.
"SURVIVING PERSON" means, with respect to any Person involved
in or that makes any Disposition, the Person formed by or surviving such
Disposition or the Person to which such Disposition is made.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of this Indenture (except as
provided in Section 8.03 hereof).
"TRANSACTIONS" means (i) the consummation of the acquisition
of Global Stone, (ii) the issuance of the Acquisition Notes, (iii) the initial
borrowing under the Senior Credit Facility, (iv) the redemption of all
outstanding Trust Debentures and (v) the issuance of the Notes in exchange for
the Acquisition Notes.
<PAGE> 31
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"TRUST DEBENTURES" means the debentures issued under the Trust
Indenture between Global Stone and Montreal Trust Company of Canada, as Trustee,
dated as of February 15, 1995.
"TRUSTEE" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the Company
designated as such pursuant to Section 4.15 hereof, until such designation is
revoked pursuant to Section 4.15 hereof.
"U.S. GOVERNMENT OBLIGATIONS" means (a) securities that are
direct obligations of the United States of America for the payment of which its
full faith and credit are pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or a specific payment of principal or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt.
"VOTING EQUITY INTERESTS" means Equity Interests in a
corporation or other Person with voting power under ordinary circumstances
entitling the holders thereof to elect the Board of Directors or other governing
body of such corporation or Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payment
of principal, including payment of final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (b) the then outstanding
aggregate principal amount of such Indebtedness.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" means any Restricted
Subsidiary all of the outstanding Voting Equity Interests (other than directors'
qualifying shares) of which are owned, directly or indirectly, by the Company.
<PAGE> 32
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SECTION 1.02. OTHER DEFINITIONS.
The definitions of the following terms may be found in the
sections indicated as follows:
<TABLE>
<CAPTION>
Term Defined in Section
<S> <C>
"Affiliate Transaction".......................................... 4.10
"Agent Members".................................................. 2.16(a)
"Basket"......................................................... 4.08(c)
"Business Day"................................................... 12.07
"CEDEL".......................................................... 2.16(a)
"Change of Control Date"......................................... 4.20
"Company Bankruptcy Proceeding".................................. 11.02
"Covenant Defeasance"............................................ 9.03
"Custodian"...................................................... 6.01
"Designation".................................................... 4.15(a)
"Euroclear"...................................................... 2.16(a)
"Events of Default".............................................. 6.01
"Excess Proceeds"................................................ 4.09
"Global Notes"................................................... 2.16(a)
"Guarantor Bankruptcy Proceeding"................................ 10.07
"Legal Defeasance"............................................... 9.02
"Legal Holiday".................................................. 12.07
"Note Portion of Excess Proceeds"................................ 4.09
"Other Debt"..................................................... 4.09
"Other Notes".................................................... 2.02
"Paying Agent"................................................... 2.04
"Registrar"...................................................... 2.04
"Regulation S Global Notes"...................................... 2.16(a)
"Regulation S Notes"............................................. 2.02
"Replacement Assets.............................................. 4.09
"Restricted Global Note"......................................... 2.16(a)
"Restricted Payment"............................................. 4.08
"Revocation"..................................................... 4.15(c)
"Rule 144A Notes"................................................ 2.02
</TABLE>
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under
<PAGE> 33
-25-
the TIA is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"INDENTURE SECURITIES" means the Notes.
"INDENTURE SECURITYHOLDER" means a Holder or Noteholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE or "INSTITUTIONAL TRUSTEE" means the
Trustee.
"OBLIGOR ON THE INDENTURE SECURITIES" means the Company, the
Guarantors or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by Commission
rule have the meanings therein assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether
defined expressly or by reference;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and in the
plural include the singular;
(4) words used herein implying any gender shall apply to both
genders;
(5) "herein" "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or other
Subsection;
(6) unless otherwise specified herein, all accounting terms
used herein shall be interpreted, all accounting determinations hereunder shall
be made, and all financial statements required to be delivered hereunder shall
be prepared in accordance with GAAP as in effect from time to time, applied on a
basis consistent with the most recent audited consolidated financial statements
of the Company;
<PAGE> 34
-26-
(7) "$," "U.S. Dollars" and "United States Dollars" each refer
to United States dollars, or such other money of the United States that at the
time of payment is legal tender for payment of public and private debts; and
(8) whenever in this Indenture there is mentioned, in any
context, principal, interest or any other amount payable under or with respect
to any Note, such mention shall be deemed to include mention of the payment of
Additional Interest to the extent that, in such context, Additional Interest is,
was or would be payable in respect thereof.
ARTICLE TWO
THE NOTES
SECTION 2.01. AMOUNT OF NOTES.
The Trustee shall authenticate Notes for original issue on the
Issue Date in the aggregate principal amount of $100,000,000 upon a written
order of the Company in the form of an Officers' Certificate of the Company.
Such written order shall specify the amount of Notes to be authenticated and the
date on which the Notes are to be authenticated.
Upon receipt of a Company Request and an Officers' Certificate
certifying that a registration statement relating to an exchange offer specified
in the Registration Rights Agreement is effective or that the conditions
precedent to a private exchange thereunder have been met, the Trustee shall
authenticate an additional series of Notes in an aggregate principal amount not
to exceed $100,000,000 for issuance in exchange for the Notes tendered for
exchange pursuant to such exchange offer registered under the Securities Act or
pursuant to a Private Exchange. Exchange Notes or Private Exchange Notes may
have such distinctive series designations and such changes in the form thereof
as are specified in the Company Request referred to in the preceding sentence.
SECTION 2.02. FORM AND DATING.
The Notes and the Trustee's certificate of authentication with
respect thereto shall be substantially in the form set forth in EXHIBIT A, which
is incorporated in and forms a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, rule or usage to which the
Company is subject. Without limiting the generality of the foregoing, Notes
offered and sold to Qualified Institutional Buyers in reliance on Rule 144A
("RULE 144A NOTES") shall bear the legend and include the form of assignment set
forth in EXHIBIT B, Notes offered and sold in offshore transactions in reliance
on Regulation S ("REGULATION S NOTES") shall bear the legend and include the
form of assignment set forth in EXHIBIT C,
<PAGE> 35
-27-
and Notes offered and sold to Institutional Accredited Investors in transactions
exempt from registration under the Securities Act not made in reliance on Rule
144A or Regulation S ("OTHER NOTES") may be represented by a Restricted Global
Note or, if such an investor may not hold an interest in the Restricted Global
Note, a Physical Note, in each case, bearing the Private Placement Legend. Each
Note shall be dated the date of its authentication.
The terms and provisions contained in the Notes shall
constitute, and are expressly made, a part of this Indenture and, to the extent
applicable, the Company, the Guarantors and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and
agree to be bound thereby.
The Notes may be presented for registration of transfer and
exchange at the offices of the Registrar.
SECTION 2.03. EXECUTION AND AUTHENTICATION.
Two Officers shall sign, or one Officer shall sign and one
Officer (each of whom shall, in each case, have been duly authorized by all
requisite corporate actions) shall attest to, the Notes for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Note was an Officer at
the time of such execution but no longer holds that office at the time the
Trustee authenticates the Note, the Note shall be valid nevertheless.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if
any Note shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Note to the Trustee
for cancellation as provided in Section 2.12, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Notes. Unless otherwise provided
in the appointment, an authenticating agent may authenticate the Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affili-
<PAGE> 36
-28-
ates of the Company. Each Paying Agent is designated as an authenticating agent
for purposes of this Indenture.
The Notes shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.04. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in The City of New York, State of New York)
where Notes may be presented for registration of transfer or for exchange (the
"REGISTRAR"), and an office or agency where Notes may be presented for payment
(the "PAYING AGENT") and an office or agency where notices and demands to or
upon the Company, if any, in respect of the Notes and this Indenture may be
served. The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Company may have one or more additional Paying Agents. The
term "Paying Agent" includes any additional Paying Agent. Neither the Company
nor any Affiliate thereof may act as Paying Agent.
The Company shall enter into an appropriate agency agreement,
which shall incorporate the provisions of the TIA, with any Agent that is not a
party to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the
name and address of any such Agent. If the Company fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 7.07.
The Company initially appoints the Trustee as Registrar,
Paying Agent and Agent for service of notices and demands in connection with the
Notes and this Indenture.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent shall hold in trust for the benefit of the
Noteholders or the Trustee all money held by the Paying Agent for the payment of
principal of or premium or interest on the Notes (whether such money has been
paid to it by the Company or any other obligor on the Notes or the Guarantors),
and the Company and the Paying Agent shall notify the Trustee of any default by
the Company (or any other obligor on the Notes) in making any such payment.
Money held in trust by the Paying Agent need not be segregated except as
required by law and in no event shall the Paying Agent be liable for any
interest on any money received by it hereunder. The Company at any time may
require the Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed and the Trustee may at any time during the continuance
of any Event of Default specified in Section 6.01 (1) or (2),
<PAGE> 37
-29-
upon written request to the Paying Agent, require such Paying Agent to pay
forthwith all money so held by it to the Trustee and to account for any funds
disbursed. Upon making such payment, the Paying Agent shall have no further
liability for the money delivered to the Trustee.
SECTION 2.06. NOTEHOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of the Noteholders. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at least five Business Days before each Interest
Payment Date, and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of the Noteholders.
SECTION 2.07. TRANSFER AND EXCHANGE.
Subject to Sections 2.16 and 2.17, when Notes are presented to
the Registrar with a request from the Holder of such Notes to register a
transfer or to exchange them for an equal principal amount of Notes of other
authorized denominations, the Registrar shall register the transfer as
requested. Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar, duly executed by
the Holder thereof or his attorneys duly authorized in writing. To permit
registrations of transfers and exchanges, the Company shall issue and execute
and the Trustee shall authenticate new Notes (and the Guarantors shall execute
the guarantee thereon) evidencing such transfer or exchange at the Registrar's
request. No service charge shall be made to the Noteholder for any registration
of transfer or exchange. The Company may require from the Noteholder payment of
a sum sufficient to cover any transfer taxes or other governmental charge that
may be imposed in relation to a transfer or exchange, but this provision shall
not apply to any exchange pursuant to Section 2.11, 3.06, 4.09, 4.20 or 8.05 (in
which events the Company shall be responsible for the payment of such taxes).
The Registrar shall not be required to exchange or register a transfer of any
Note for a period of 15 days immediately preceding the mailing of notice of
redemption of Notes to be redeemed or of any Note selected, called or being
called for redemption except the unredeemed portion of any Note being redeemed
in part.
Any Holder of the Global Note shall, by acceptance of such
Global Note, agree that transfers of the beneficial interests in such Global
Note may be effected only through a book entry system maintained by the Holder
of such Global Note (or its agent), and that ownership of a beneficial interest
in the Global Note shall be required to be reflected in a book entry.
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Each Holder of a Note agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Note in violation of any provision of this Indenture
and/or applicable U.S. Federal or state securities law.
Except as expressly provided herein, neither the Trustee nor
the Registrar shall have any duty to monitor the Company's compliance with or
have any responsibility with respect to the Company's compliance with any
Federal or state securities laws.
SECTION 2.08. REPLACEMENT NOTES.
If a mutilated Note is surrendered to the Registrar or the
Trustee, or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note (and the Guarantors shall execute the guarantee
thereon) if the Holder of such Note furnishes to the Company and the Trustee
evidence reasonably acceptable to them of the ownership and the destruction,
loss or theft of such Note and if the requirements of Section 8-405 of the New
York Uniform Commercial Code as in effect on the date of this Indenture are met.
If required by the Trustee or the Company, an indemnity bond shall be posted,
sufficient in the judgment of both to protect the Company, the Guarantors, the
Trustee or any Paying Agent from any loss that any of them may suffer if such
Note is replaced. The Company may charge such Holder for the Company's
reasonable out-of-pocket expenses in replacing such Note and the Trustee may
charge the Company for the Trustee's expenses (including, without limitation,
attorneys' fees and disbursements) in replacing such Note. Every replacement
Note shall constitute a contractual obligation of the Company.
SECTION 2.09. OUTSTANDING NOTES.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those cancelled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in Sections 9.01
and 9.02, on or after the date on which the conditions set forth in Section 9.01
or 9.02 have been satisfied, those Notes theretofore authenticated and delivered
by the Trustee hereunder and (d) those described in this Section 2.09 as not
outstanding. Subject to Section 2.10, a Note does not cease to be outstanding
because the Company or one of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser in whose hands such Note is a
legal, valid and binding obligation of the Company.
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If the Paying Agent holds, in its capacity as such, on any
Maturity Date, money sufficient to pay all accrued interest and principal with
respect to the Notes payable on that date and is not prohibited from paying such
money to the Holders thereof pursuant to the terms of this Indenture, then on
and after that date such Notes cease to be outstanding and interest on them
ceases to accrue.
SECTION 2.10. TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any declaration of acceleration or notice of
default or direction, waiver or consent or any amendment, modification or other
change to this Indenture, Notes owned by the Company or any other Affiliate of
the Company shall be disregarded as though they were not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent or any amendment, modification
or other change to this Indenture, only Notes as to which a Responsible Officer
of the Trustee has received an Officers' Certificate stating that such Notes are
so owned shall be so disregarded. Notes so owned which have been pledged in good
faith shall not be disregarded if the pledgee established to the satisfaction of
the Trustee the pledgee's right so to act with respect to the Notes and that the
pledgee is not the Company, a Guarantor, any other obligor on the Notes or any
of their respective Affiliates.
SECTION 2.11. TEMPORARY NOTES.
Until definitive Notes are prepared and ready for delivery,
the Company may prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Company considers appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
SECTION 2.12. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall (subject to the
record-retention requirements of the Exchange Act) destroy cancelled Notes and
deliver a certificate of destruction thereof to the Company. The Company may not
reissue or resell, or issue new Notes to replace, Notes that the Company has
redeemed or paid, or that have been delivered to the Trustee for cancellation.
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SECTION 2.13. DEFAULTED INTEREST.
If the Company defaults on a payment of interest on the Notes,
it shall pay the defaulted interest, plus (to the extent permitted by law) any
interest payable on the defaulted interest, in accordance with the terms hereof,
to the Persons who are Noteholders on a subsequent special record date, which
date shall be at least five Business Days prior to the payment date. The Company
shall fix such special record date and payment date in a manner satisfactory to
the Trustee. At least 10 days before such special record date, the Company shall
mail to each Noteholder a notice that states the special record date, the
payment date and the amount of defaulted interest, and interest payable on
defaulted interest, if any, to be paid. The Company may make payment of any
defaulted interest in any other lawful manner not inconsistent with the
requirements (if applicable) of any securities exchange on which the Notes may
be listed and, upon such notice as may be required by such exchange, if, after
written notice given by the Company to the Trustee of the proposed payment
pursuant to this sentence, such manner of payment shall be deemed practicable by
the Trustee.
SECTION 2.14. CUSIP NUMBER.
The Company in issuing the Notes may use a "CUSIP" number, and
if so, such CUSIP number shall be included in notices of redemption or exchange
as a convenience to Holders; PROVIDED, that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any such CUSIP number used by the Company in
connection with the issuance of the Notes and of any change in the CUSIP number.
SECTION 2.15. DEPOSIT OF MONEYS.
Prior to 10:00 a.m., New York City time, on each Interest
Payment Date and Maturity Date, the Company shall have deposited with the Paying
Agent in immediately available funds money sufficient to make cash payments, if
any, due on such Interest Payment Date or Maturity Date, as the case may be, in
a timely manner which permits the Trustee to remit payment to the Holders on
such Interest Payment Date or Maturity Date, as the case may be. The principal
and interest on Global Notes shall be payable to the Depository or its nominee,
as the case may be, as the sole registered owner and the sole holder of the
Global Notes represented thereby. The principal and interest on Physical Notes
shall be payable, either in person or by mail, at the office of the Paying
Agent.
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SECTION 2.16. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES.
(a) Rule 144A Notes initially shall be represented by one or
more notes in registered, global form without interest coupons (collectively,
the "RESTRICTED GLOBAL NOTE"). Regulation S Notes initially shall be represented
by one or more notes in registered, global form without interest coupons
(collectively, the "REGULATION S GLOBAL NOTE," and, together with the Restricted
Global Note and any other global notes representing Notes, the "GLOBAL NOTES").
The Global Notes shall bear legends as set forth in EXHIBIT D. The Global Notes
initially shall (i) be registered in the name of the Depository or the nominee
of such Depository, in each case for credit to an account of an Agent Member
(or, in the case of the Regulation S Global Notes, of Euroclear System
("EUROCLEAR") and Cedel Bank, S.A. ("CEDEL")), (ii) be delivered to the Trustee
as custodian for such Depository and (iii) bear legends as set forth in EXHIBIT
B with respect to Restricted Global Notes and EXHIBIT C with respect to
Regulation S Global Notes.
Members of, or direct or indirect participants in, the
Depository ("AGENT MEMBERS") shall have no rights under this Indenture with
respect to any Global Note held on their behalf by the Depository, or the
Trustee as its custodian, or under the Global Notes, and the Depository may be
treated by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner of the Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Note.
(b) Transfers of Global Notes shall be limited to transfer in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Notes may be transferred
or exchanged for Physical Notes in accordance with the rules and procedures of
the Depository and the provisions of Section 2.17. In addition, a Global Note
shall be exchangeable for Physical Notes if (i) the Depository (x) notifies the
Company that it is unwilling or unable to continue as depository for such Global
Note and the Company thereupon fails to appoint a successor depository or (y)
has ceased to be a clearing agency registered under the Exchange Act, (ii) the
Company, at its option, notifies the Trustee in writing that it elects to cause
the issuance of such Physical Notes or (iii) there shall have occurred and be
continuing an Event of Default with respect to the Notes. In all cases, Physical
Notes delivered in exchange for any Global Note or beneficial interests therein
shall be registered in the names, and issued in any approved denominations,
requested by or on behalf of the Depository (in accordance with its customary
procedures).
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(c) In connection with any transfer or exchange of a portion
of the beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Company
shall execute, and the Trustee shall upon receipt of a written order from the
Company authenticate and make available for delivery, one or more Physical Notes
of like tenor and amount.
(d) In connection with the transfer of Global Notes as an
entirety to beneficial owners pursuant to paragraph (b), the Global Notes shall
be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in writing in exchange for its
beneficial interest in the Global Notes, an equal aggregate principal amount of
Physical Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered
in exchange for an interest in a Global Note pursuant to paragraph (b), (c) or
(d) shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of
Section 2.17, bear the Private Placement Legend or, in the case of the
Regulation S Global Note, the legend set forth in EXHIBIT C, in each case,
unless the Company determines otherwise in compliance with applicable law.
(f) On or prior to the 40th day after the later of the
commencement of the offering of the Notes represented by the Regulation S Global
Note and the issue date of such Notes (such period through and including such
40th day, the "RESTRICTED PERIOD"), a beneficial interest in a Regulation S
Global Note may be transferred to a Person who takes delivery in the form of an
interest in the corresponding Restricted Global Note only upon receipt by the
Trustee of a written certification from the transferor to the effect that such
transfer is being made (i)(a) to a Person whom the transferor reasonably
believes is a Qualified Institutional Buyer in a transaction meeting the
requirements of Rule 144A or (b) pursuant to another exemption from the
registration requirements under the Securities Act which is accompanied by an
opinion of counsel regarding the availability of such exemption and (ii) in
accordance with all applicable securities laws of any state of the United States
or any other jurisdiction.
(g) Beneficial interests in the Restricted Global Note may be
transferred to a Person who takes delivery in the form of an interest in the
Regulation S Global Note, whether before or after the expiration of the
Restricted Period, only if the transferor first delivers to the Trustee a
written certificate to the effect that such transfer is being made in accordance
with Rule 903 or 904 of Regulation S or Rule 144 (if available) and that, if
such transfer occurs prior to the expiration of the Restricted Period, the
interest transferred will be held immediately thereafter through Euroclear or
CEDEL.
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(h) Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest in another
Global Note shall, upon transfer, cease to be an interest in such Global Note
and become an interest in such other Global Note and, accordingly, shall
thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(i) The Holder of any Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
SECTION 2.17. SPECIAL TRANSFER PROVISIONS.
(a) TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS
AND NON-U.S. PERSONS. The following provisions shall apply with respect to the
registration of any proposed transfer of a Note constituting a Restricted Note
to any Institutional Accredited Investor which is not a QIB or to any Non-U.S.
Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Note, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after
February 1, 2001 or such other date as such Note shall be freely
transferable under Rule 144 as certified in an Officers' Certificate or
(y) (1) in the case of a transfer to an Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons), the proposed
transferee has delivered to the Registrar a certificate substantially
in the form of EXHIBIT E hereto or (2) in the case of a transfer to a
Non-U.S. Person (including a QIB), the proposed transferor has
delivered to the Registrar a certificate substantially in the form of
EXHIBIT F hereto; PROVIDED that in the case of any transfer of a Note
bearing the Private Placement Legend for a Note not bearing the Private
Placement Legend, the Registrar has received an Officers' Certificate
authorizing such transfer; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in a Global Note, upon receipt by the Registrar of
(x) the certificate, if any, required by paragraph (i) above and (y)
instructions given in accordance with the Depository's and the
Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in a Global Note to be transferred,
and (b) the Registrar shall reflect on its books and records the
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date and an increase in the principal amount of a Global Note in an amount equal
to the principal amount of the beneficial interest in the Global Note
transferred or the Company shall execute and the Trustee shall authenticate and
make available for delivery one or more Physical Notes of like tenor and amount.
(b) TRANSFERS TO QIBS. The following provisions shall apply
with respect to the registration or any proposed registration of transfer of a
Note constituting a Restricted Note to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such transfer
is being made by a proposed transferor who has checked the box provided
for on such Holder's Note stating, or has otherwise advised the Company
and the Registrar in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who has signed the
certification provided for on such Holder's Note stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the
Notes to be transferred consist of Physical Notes which after transfer
are to be evidenced by an interest in the Global Note, upon receipt by
the Registrar of instructions given in accordance with the Depository's
and the Registrar's procedures, the Registrar shall reflect on its
books and records the date and an increase in the principal amount of
the Global Note in an amount equal to the principal amount of the
Physical Notes to be transferred, and the Trustee shall cancel the
Physical Notes so transferred.
(c) PRIVATE PLACEMENT LEGEND. Upon the registration of
transfer, exchange or replacement of Notes not bearing the Private Placement
Legend, the Registrar shall deliver Notes that do not bear the Private Placement
Legend. Upon the registration of transfer, exchange or replacement of Notes
bearing the Private Placement Legend, the Registrar shall deliver only Notes
that bear the Private Placement Legend unless (i) it has received the Officers'
Certificate required by paragraph (a)(i)(y) of this Section 2.17, (ii) there is
delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the
Company and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act or (iii) such Note has been
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sold pursuant to an effective registration statement under the Securities Act
and the Registrar has received an Officers' Certificate from the Company to such
effect.
(d) GENERAL. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain for a period of two years copies of
all letters, notices and other written communications received pursuant to
Section 2.16 or this Section 2.17. The Company shall have the right to inspect
and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable notice to the Registrar.
SECTION 2.18. COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
6 ARTICLE THREE
REDEMPTION
SECTION 3.01. ELECTION TO REDEEM; NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to paragraph 6
of the Notes, at least 45 days prior to the Redemption Date (unless a shorter
notice shall be agreed to in writing by the Trustee) but not more than 65 days
before the Redemption Date, the Company shall notify the Trustee in writing of
the Redemption Date, the principal amount of Notes to be redeemed and the
redemption price, and deliver to the Trustee an Officers' Certificate stating
that such redemption will comply with the conditions contained in paragraph 6 of
the Notes. Notice given to the Trustee pursuant to this Section 3.01 may not be
revoked after the time that notice is given to Noteholders pursuant to Section
3.03.
SECTION 3.02. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED.
In the event that fewer than all of the Notes are to be
redeemed, the Trustee shall select the Notes to be redeemed, if the Notes are
listed on a national securities exchange, in accordance with the rules of such
exchange or, if the Notes are not so listed, either on a pro rata basis or by
lot, or such other method as it shall deem fair and equitable. The Trustee shall
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promptly notify the Company of the Notes selected for redemption and, in the
case of any Notes selected for partial redemption, the principal amount thereof
to be redeemed. The Trustee may select for redemption portions of the principal
of the Notes that have denominations larger than $1,000. Notes and portions
thereof the Trustee selects shall be redeemed in amounts of $1,000 or whole
multiples of $1,000. For all purposes of this Indenture unless the context
otherwise requires, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days, and no more than 60 days, before a
Redemption Date, the Company shall mail, or cause to be mailed, a notice of
redemption by first-class mail to each Holder of Notes to be redeemed at his or
her last address as the same appears on the registry books maintained by the
Registrar pursuant to Section 2.04 hereof.
The notice shall identify the Notes to be redeemed (including
the CUSIP numbers thereof) and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of premium and accrued
interest to be paid;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption Date
and upon surrender of such Note, a new Note or Notes in principal amount equal
to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the Redemption Date;
(7) the provision of paragraph 6 of the Notes, as the case may
be, pursuant to which the Notes called for redemption are being redeemed; and
(8) the aggregate principal amount of Notes that are being
redeemed.
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At the Company's written request made at least five Business
Days prior to the date on which notice is to be given, the Trustee shall give
the notice of redemption in the Company's name and at the Company's sole
expense.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once the notice of redemption described in Section 3.03 is
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the redemption price, including any premium, plus interest accrued
to the Redemption Date. Upon surrender to the Paying Agent, such Notes shall be
paid at the redemption price, including any premium, plus interest accrued to
the Redemption Date, PROVIDED that if the Redemption Date is after a regular
record date and on or prior to the Interest Payment Date, the accrued interest
shall be payable to the Holder of the redeemed Notes registered on the relevant
record date, and PROVIDED, FURTHER, that if a Redemption Date is a Legal
Holiday, payment shall be made on the next succeeding Business Day and no
interest shall accrue for the period from such Redemption Date to such
succeeding Business Day.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:00 A.M., New York City time, on each
Redemption Date, the Company shall deposit with the Paying Agent in immediately
available funds money sufficient to pay the redemption price of, including
premium, if any, and accrued interest on all Notes to be redeemed on that date
other than Notes or portions thereof called for redemption on that date which
have been delivered by the Company to the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay
the redemption price of, including premium, if any, and accrued interest on
Notes called for redemption shall have been made available in accordance with
the preceding paragraph, the Notes called for redemption will cease to accrue
interest and the only right of the Holders of such Notes will be to receive
payment of the redemption price of and, subject to the first proviso in Section
3.04, accrued and unpaid interest on such Notes to the Redemption Date. If any
Note surrendered for redemption shall not be so paid, interest will be paid,
from the Redemption Date until such redemption payment is made, on the unpaid
principal of the Note and any interest not paid on such unpaid principal, in
each case, at the rate and in the manner provided in the Notes.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Trustee
shall authenticate for the Holder thereof a new Note equal in principal amount
to the unredeemed portion of the Note surrendered.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay the principal of and interest (including
all Additional Interest as provided in the Registration Rights Agreement) on the
Notes on the dates and in the manner provided in the Notes and this Indenture.
An installment of principal or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent holds on that date money designated for
and sufficient to pay such installment.
The Company shall pay interest on overdue principal (including
post-petition interest in a proceeding under any Bankruptcy Law), and overdue
interest, to the extent lawful, at the rate specified in the Notes.
SECTION 4.02. REPORTS TO HOLDERS.
The Company shall deliver to the Trustee and the Holders, at
the time of the filing of same with the Commission, copies of the quarterly and
annual reports and of the information, documents and other reports, if any,
which the Company is required to file with the Commission pursuant to Section 13
or 15(d) of the Exchange Act. Notwithstanding that the Company may not be
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall file with the Commission, to the extent permitted, and
provide the Trustee and the Holders with such quarterly and annual reports and
such information, documents and other reports specified in Sections 13 and 15(d)
of the Exchange Act within the time periods specified therein. In addition, for
so long as any Notes remain outstanding, the Company shall furnish to the
Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act, and, to any beneficial holder of Notes, if not
obtainable from the Commission, information of the type that would be filed with
the Commission pursuant to the foregoing provisions, upon the request of any
such holder. The Company will also comply with the other provisions of TIA
Section 314(a).
SECTION 4.03. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of the Company and the Guarantors covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon, or
plead (as a defense or otherwise) or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
which would prohibit or forgive any of the Company and the
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Guarantors from paying all or any portion of the principal of, premium, if any,
and/or interest on the Notes as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that they may lawfully do so)
each of the Company and the Guarantors hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 4.04. Compliance Certificate.
-----------------------
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year and on or before 45 days after the end of the
first, second and third quarters of each fiscal year, an Officers' Certificate
stating that a review of the activities of the Company and its Subsidiaries
during such fiscal year or fiscal quarter, as the case may be, has been made
under the supervision of the signing Officers with a view to determining whether
the Company and the Guarantors have kept, observed, performed and fulfilled
their obligations under this Indenture, and further stating, as to each such
Officer signing such certificate, that to the best of his or her knowledge, the
Company and the Guarantors have kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and are not in default in the
performance or observance of any of the terms, provisions and conditions hereof
(or, if a Default shall have occurred, describing all such Defaults of which he
or she may have knowledge and what action they are taking or propose to take
with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Notes is prohibited or if such event
has occurred, a description of the event and what action the Company and the
Guarantors is taking or propose to take with respect thereto.
(b) The Company and the Guarantors shall, so long as any of
the Notes are outstanding, deliver to the Trustee, forthwith upon any Officer
becoming aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Company and the
Guarantors are taking or propose to take with respect thereto.
(c) The Company's fiscal year currently ends on December 31.
The Company will provide written notice to the Trustee of any change in its
fiscal year.
SECTION 4.05. Taxes.
------
The Company and the Guarantors shall, and shall cause each of
their Subsidiaries to, pay prior to delinquency all material taxes, assessments,
and governmental levies except as contested in good faith and by appropriate
proceedings.
<PAGE> 50
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SECTION 4.06. Limitation on Additional Indebtedness.
--------------------------------------
(a) The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, incur any Indebtedness;
PROVIDED, HOWEVER, that so long as no Default has occurred and is continuing or
would result therefrom, the Company or any Guarantor may incur Indebtedness if,
at the time of such incurrence, the Consolidated Fixed Charge Coverage Ratio
would be greater than or equal to 2.0 to 1.0.
(b) The foregoing limitations of paragraph (a) of this
Section 4.06 will not apply to any of the following:
(i) the Notes and the Exchange Notes, and Permitted
Refinancings and the Guarantees thereof;
(ii) Permitted Refinancings of (x) Indebtedness of the Company
or any Restricted Subsidiary to the extent outstanding on the Issue
Date (other than Indebtedness being refinanced with the proceeds from
the issuance of Notes and other than Indebtedness under the Senior
Credit Facility), reduced by the amount of any scheduled amortization
payments or mandatory prepayments actually made or (y) Indebtedness
incurred pursuant to the proviso in paragraph (a) above or pursuant to
clause (viii) below;
(iii) Indebtedness of the Company or any Restricted Subsidiary
incurred under the Senior Credit Facility in an aggregate amount
(including the face amount of all letters of credit) not to exceed
$232.0 million at any time outstanding, less the aggregate amount of
any scheduled amortization payments or mandatory prepayments actually
made thereunder;
(iv) Purchase Money Indebtedness and Indebtedness represented by
Capital Lease Obligations of the Company or any Restricted Subsidiary
incurred in the ordinary course of business, and Permitted Refinancings
thereof, in an aggregate amount not to exceed $20.0 million at any time
outstanding;
(v) (1) Indebtedness of any Restricted Subsidiary owed to and
held by the Company or any Guarantor and (2) Indebtedness of the
Company owed to and held by any Guarantor which is unsecured and
subordinated in right of payment to the payment and performance of the
Company's obligations under the Notes; provided, however, that an
incurrence of Indebtedness that is not permitted by this clause (v)
shall be deemed to have occurred upon (x) any sale or other disposition
of any Indebtedness of the Company or any Restricted Subsidiary
referred to in this clause (v) to any Person
<PAGE> 51
other than the Company or any Guarantor or (y) any Guarantor that holds
Indebtedness of the Company or another Guarantor ceasing to be a
Guarantor;
(vi) Interest Rate Protection Obligations of the Company
relating to Indebtedness of the Company (which Indebtedness (x) bears
interest at fluctuating interest rates and (y) is otherwise permitted
to be incurred under this Section 4.06); PROVIDED, HOWEVER, that the
notional principal amount of such Interest Rate Protection Obligations
does not exceed the principal amount of the Indebtedness to which such
Interest Rate Protection Obligations relate;
(vii) Indebtedness of the Company under Currency Agreements to
the extent relating to (x) Indebtedness of the Company and/or (y)
obligations to purchase assets, properties or services incurred in the
ordinary course of business of the Company or any Restricted
Subsidiary; PROVIDED, HOWEVER, that such Currency Agreements do not
increase the Indebtedness or other obligations of the Company and the
Restricted Subsidiaries outstanding other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnities or compensation payable thereunder;
(viii) Indebtedness of any Foreign Subsidiary if, at the time of
such incurrence, the Consolidated Fixed Charge Coverage Ratio of such
Foreign Subsidiary would be greater than or equal to 3.0 to 1.0 (for
these purposes, references to the Company or any Restricted Subsidiary
in the definitions used to calculate such ratio shall be to such
Foreign Subsidiary and its Subsidiaries (other than any Unrestricted
Subsidiary)); and
(ix) Indebtedness of the Company or any Restricted Subsidiary in
an aggregate amount not to exceed at any time outstanding $20.0
million.
(c) For purposes of determining any particular amount of
Indebtedness under this Section 4.06, Guarantees, Liens or obligations with
respect to letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included.
SECTION 4.07. Limitation on Other Senior Subordinated Indebtedness
----------------------------------------------------
The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, incur, contingently or
otherwise, any Indebtedness (other than the Notes and the Guarantees, as the
case may be) that is both (i) subordinated in right of payment to any Senior
Indebtedness of the Company or any of its Restricted Subsidiaries, as the case
may be, and (ii) senior in right of payment to the Notes and the Guarantees, as
the case may be. For purposes of this Section 4.07, Indebtedness is deemed to be
senior in right of payment to the Notes or the Guarantees, as the case may be,
if it is not explicitly subordinated in right
<PAGE> 52
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of payment to Senior Indebtedness at least to the same extent as the Notes and
the Guarantees, as the case may be, are subordinated to such Senior
Indebtedness.
SECTION 4.08. Limitation on Restricted Payments.
----------------------------------
The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly,
(i) declare or pay any dividend or any other distribution on
any Equity Interests of the Company or any Restricted Subsidiary or
make any payment or distribution to the direct or indirect holders of
Equity Interests (in their capacity as such) of the Company or any
Restricted Subsidiary (other than any dividends, distributions and
payments made to the Company or any Restricted Subsidiary and dividends
or distributions payable to any Person solely in Qualified Equity
Interests);
(ii) redeem any Equity Interests of the Company or any
Restricted Subsidiary (other than any such Equity Interests owned by
the Company or any Restricted Subsidiary);
(iii) redeem or make any principal payment on, prior to any
scheduled maturity, scheduled repayment or scheduled sinking fund
payment, any Subordinated Indebtedness (other than any Subordinated
Indebtedness held by the Company or any Restricted Subsidiary); or
(iv) make any Investment (other than Permitted Investments)
(any of the foregoing (other than an exception thereto), a "RESTRICTED
PAYMENT"), unless
(a) no Default shall have occurred and be continuing at the
time of or after giving effect to such Restricted Payment;
(b) immediately after giving effect to such Restricted
Payment, the Company would be able to incur $1.00 of additional Indebtedness
under Section 4.06(a) hereof; and
(c) immediately after giving effect to such Restricted
Payment, the aggregate amount of all Restricted Payments (including the fair
market value of any non-cash Restricted Payment) declared or made on or after
the Issue Date (excluding any Restricted Payment described in clauses (ii),
(iii), (iv) or (v) of the next paragraph) does not exceed an amount equal to the
sum of the following (the "BASKET"):
(1) 50% of Consolidated Net Income (or 100% of Consolidated Net
Loss) for the period (treated as one accounting period) commencing on
the first day of the fiscal
<PAGE> 53
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quarter in which the Issue Date occurs and ending on the last day of
the most recent fiscal quarter immediately preceding the date of such
Restricted Payment; plus
(2) the aggregate net cash proceeds received by the Company
either (x) as capital contributions to the Company after the Issue Date
or (y) from the issue and sale (other than to a Subsidiary of the
Company) of Qualified Equity Interests after the Issue Date (other than
any issuance and sale of Qualified Equity Interests financed, directly
or indirectly, using funds (i) borrowed from the Company or any of its
Subsidiaries until and to the extent such borrowing is repaid or (ii)
contributed, extended, guaranteed or advanced by the Company or any of
its Subsidiaries (including in respect of any employee stock ownership
or benefit plan)); PLUS
(3) the aggregate amount by which Indebtedness (other than any
Subordinated Indebtedness) of the Company or any Restricted Subsidiary
is reduced on the Company's consolidated balance sheet upon the
conversion or exchange (other than by a Subsidiary of the Company)
subsequent to the Issue Date into Qualified Equity Interests (less the
amount of any cash, or the fair value of property, distributed by the
Company or any Restricted Subsidiary upon such conversion or exchange);
PLUS
(4) in the case of the disposition or repayment of any
Investment that was treated as a Restricted Payment made after the
Issue Date, an amount (to the extent not included in the computation of
Consolidated Net Income) equal to the lesser of: (x) the return in cash
of capital with respect to such Investment and (y) the amount of such
Investment that was treated as a Restricted Payment, in either case,
less the cost of the disposition of such Investment and net of taxes;
PLUS
(5) so long as the Designation thereof was treated as a
Restricted Payment made after the Issue Date, with respect to any
Unrestricted Subsidiary that has been redesignated as a Restricted
Subsidiary after the Issue Date in accordance with Section 4.15 hereof,
the Company's proportionate interest in an amount equal to the excess
of (x) the total assets of such Subsidiary, valued on an aggregate
basis at the lesser of book value and fair market value, over (y) the
total liabilities of such Subsidiary, determined in accordance with
GAAP (and provided that such amount shall not in any case exceed the
Designation Amount with respect to such Restricted Subsidiary upon its
Designation); MINUS
(6) with respect to each Subsidiary of the Company which has
been designated as an Unrestricted Subsidiary after the Issue Date in
accordance with Section 4.15 hereof, the greater of (x) $0 and (y) the
Designation Amount thereof (measured as of the Date of Designation);
PLUS
<PAGE> 54
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(7) $10.0 million.
The foregoing provisions will not prevent (i) the payment of
any dividend or distribution on Equity Interests within 60 days after the date
of declaration of such dividend or distribution, if at the date of such
declaration, such dividend or distribution would comply with the provisions of
this Indenture; (ii) the redemption of any Equity Interests of the Company or
any Restricted Subsidiary in exchange for, or out of the net cash proceeds of
the substantially concurrent issue and sale (other than to a Subsidiary of the
Company) of, Qualified Equity Interests; (iii) any Investment to the extent that
the consideration therefor consists of Qualified Equity Interests; (iv) the
redemption of Subordinated Indebtedness made in exchange for, or out of the net
cash proceeds of, a substantially concurrent issue and sale (other than to a
Subsidiary) of, (x) Qualified Equity Interests or (y) a Permitted Refinancing of
such Subordinated Indebtedness; or (v) the redemption of any Equity Interests of
the Company held by directors, officers or employees of the Company or any of
its Subsidiaries upon their death, retirement or other termination not to exceed
$1.0 million in the aggregate in any calendar year; PROVIDED, HOWEVER, that any
unused amount may be used in the next succeeding (but not any subsequent)
calendar year; PROVIDED, FURTHER, HOWEVER, that (A) in the case of each of
clauses (ii), (iii), (iv) and (v), no Default shall have occurred and be
continuing or would arise therefrom and (B) no issuance of Qualified Equity
Interests pursuant to clause (ii), (iii) or (iv) shall increase the Basket.
SECTION 4.09. Limitation on Certain Asset Sales.
----------------------------------
(a) The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, make any Asset Sale, unless
(x) the Company or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market
value of the assets sold or otherwise disposed of and (y) at least 80% of such
consideration consists of (i) cash or Cash Equivalents, (ii) in the case of an
Asset Sale of an industrial mining reserve, an industrial mining reserve and
(iii) any combination of the foregoing. The amount of any Indebtedness (other
than any Subordinated Indebtedness) of the Company or any Restricted Subsidiary
that is actually assumed by the transferee in such Asset Sale and from which the
Company and the Restricted Subsidiaries are fully released shall be deemed to be
cash for purposes of determining the percentage of cash consideration received
by the Company or such Restricted Subsidiary. Any Net Cash Proceeds from any
Asset Sale that are not (x) invested in Replacement Assets or (y) used to reduce
Indebtedness under the Senior Credit Facility (with a permanent concomitant
reduction of commitments thereunder) within 365 days of the consummation of such
Asset Sale shall constitute "EXCESS PROCEEDS" subject to disposition as provided
below.
(b) When the aggregate amount of Excess Proceeds exceeds $10.0
million, the Company shall make an Offer to Purchase, from all Holders, that
aggregate principal amount
<PAGE> 55
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of Notes as can be purchased with the Note Portion of Excess Proceeds at a price
in cash equal to 100% of the principal amount thereof, plus accrued and unpaid
interest, if any, to any purchase date. To the extent that the aggregate amount
of principal and accrued interest of Notes validly tendered and not withdrawn
pursuant to an Offer to Purchase is less than the Excess Proceeds, the Company
may use such surplus for general corporate purposes. If the aggregate amount of
principal and accrued interest of Notes validly tendered and not withdrawn by
Holders thereof exceeds the amount of Notes that can be purchased with the Note
Portion of Excess Proceeds, Notes to be purchased will be selected PRO RATA
based on the aggregate principal amount of Notes tendered by each Holder. Upon
completion of an Offer to Purchase, the amount of Excess Proceeds with respect
to the applicable Asset Sale shall be reset to zero.
(c) In the event that any other Indebtedness of the Company
that ranks PARI PASSU with the Notes (the "OTHER DEBT") requires an offer to
purchase to be made to repurchase such Other Debt upon the consummation of an
Asset Sale, the Company may apply the Excess Proceeds otherwise required to be
applied to an Offer to Purchase to offer to purchase such Other Debt and to an
Offer to Purchase so long as the amount of such Excess Proceeds applied to
purchase the Notes is not less than the Note Portion of Excess Proceeds. With
respect to any Excess Proceeds, the Company shall make the Offer to Purchase in
respect thereof at the same time as the analogous offer to purchase is made
pursuant to any Other Debt and the Purchase Date in respect thereof shall be the
same as the purchase date in respect thereof pursuant to any Other Debt.
(d) For purposes of this Section 4.09, "Note Portion of Excess
Proceeds" means (1) if no Other Debt is being offered to be purchased, the
amount of the Excess Proceeds and (2) if Other Debt is being offered to be
purchased, the amount of the Excess Proceeds equal to the product of (x) the
Excess Proceeds and (y) a fraction the numerator of which is the aggregate
amount of all Notes tendered pursuant to the Offer to Purchase related to such
Excess Proceeds (the "Note Amount") and the denominator of which is the sum of
the Note Amount and the aggregate amount as of the relevant purchase date of all
Other Debt tendered and purchased pursuant to a concurrent offer to purchase
such Other Debt made at the time of such Offer to Purchase.
(e) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with an Offer to Purchase pursuant to the foregoing.
SECTION 4.10. Limitation on Transactions with Affiliates.
-------------------------------------------
(a) The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, conduct any business or enter
into any transaction or series of related transactions with or for the benefit
of any Affiliate, any holder of 5% or more of any
<PAGE> 56
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class of Equity Interests or any officer, director or employee of the Company or
any Restricted Subsidiary (an "AFFILIATE TRANSACTION"), unless such Affiliate
Transaction is (i) fair to the Company or such Restricted Subsidiary, as the
case may be, and (ii) on terms that are no less favorable to the Company or such
Restricted Subsidiary, as the case may be, than could reasonably be obtained at
such time in a comparable transaction with an unaffiliated third party. For any
Affiliate Transaction (or series of related Affiliate Transactions that are
similar or part of a common plan) involving an amount or having a fair market
value in excess of $5.0 million, the Company shall deliver to the Trustee an
Officers' Certificate stating that a majority of the Disinterested Directors has
determined that the transaction satisfies the above criteria and shall evidence
such a determination by a Board Resolution delivered to the Trustee. For any
Affiliate Transaction (or series of related Affiliate Transactions that are
similar or part of a common plan) involving an amount or having a fair market
value in excess of $10.0 million or if there shall be no Disinterested
Directors, the Company shall obtain a written opinion from an Independent
Financial Advisor to the effect that such transaction is fair, from a financial
point of view, to the Company or such Restricted Subsidiary, as the case may be.
(b) Notwithstanding the foregoing, the restrictions set forth
in this Section 4.10 shall not apply to (i) transactions exclusively between or
among the Company and one or more Wholly Owned Restricted Subsidiaries or
exclusively between or among Wholly Owned Restricted Subsidiaries; (ii)
customary directors' fees, indemnification and similar arrangements, employee
salaries, bonuses or employment agreements, compensation or employee benefit
arrangements and incentive arrangements with any officer, director or employee
of the Company entered into in the ordinary course of business; (iii) agreements
(and transactions pursuant to agreements) in effect on the date hereof, as such
agreements are in effect on the date hereof or as thereafter amended in a manner
not materially adverse to the Holders; (iv) loans and advances to officers,
directors and employees of the Company or any Restricted Subsidiary for travel,
entertainment, moving and other relocation expenses, in each case made in the
ordinary course of business and consistent with past business practices; and (v)
any Restricted Payments not prohibited by the provisions described under Section
4.08 hereof.
SECTION 4.11. Limitations on Liens.
---------------------
The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, incur any Lien (other than any
Permitted Lien) of any kind against or upon any of their respective properties
or assets now owned or hereafter acquired, or any proceeds, income or profits
therefrom, unless contemporaneously therewith or prior thereto, (i) in the case
of any Lien securing an obligation that ranks PARI PASSU with the Notes,
effective provision is made to secure the Notes equally and ratably with or
prior to such obligation with a Lien on the same collateral and (ii) in the case
of any Lien securing an obligation that is subordinated in right of payment to
the Notes, effective provision is made to se-
<PAGE> 57
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cure the Notes with a Lien on the same collateral that is prior to the Lien
securing such subordinated obligation, in each case, for so long as such
obligation is secured by such Lien.
SECTION 4.12. Limitation on Sale and Leaseback Transactions.
----------------------------------------------
The Company shall not, and shall not permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction unless (i) the
consideration received in such Sale and Leaseback Transaction is at least equal
to the fair market value of the property sold, as determined, in good faith, by
the Board of Directors of the Company and evidenced by a Board Resolution, (ii)
the Company could incur the Attributable Indebtedness in respect of such Sale
and Leaseback Transaction in compliance with Section 4.06 hereof and (iii) such
Sale and Leaseback Transaction is permitted by, and the proceeds thereof are
applied in compliance with, Section 4.09 hereof.
SECTION 4.13. Limitation on Creation of Subsidiaries.
---------------------------------------
If (a) the Company or any Restricted Subsidiary shall
organize, acquire or otherwise invest in another Person that becomes a
Restricted Subsidiary, or (b) any Restricted Subsidiary that is not already a
Guarantor shall become an obligor under the Senior Credit Facility, then the
Company shall cause such Restricted Subsidiary to (i) execute and deliver to the
Trustee a supplemental indenture pursuant to which such Restricted Subsidiary
shall become a Guarantor and, if requested by the Trustee, a notation of
Guarantee and (ii) deliver to the Trustee an opinion of counsel that such
supplemental indenture has been duly authorized, executed and delivered by such
Restricted Subsidiary and constitutes a valid and legally binding obligation of
such Restricted Subsidiary, enforceable against it in accordance with its terms,
except that the enforcement thereof may be subject to (x) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (y) general principles of
equity and the discretion of the court before which any proceeding therefor may
be brought. Notwithstanding the foregoing clause (b), no Foreign Subsidiary (so
long as it is a Foreign Subsidiary) shall be required to become a Guarantor.
SECTION 4.14. Limitation on Restrictions Affecting Restricted
Subsidiaries.
------------------------------------------------
(a) The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary to (x) pay dividends or make any other
distributions to the Company or any other Restricted Subsidiary on its Equity
Interests or with respect to any other interest or participation in, or measured
by, its profits, or pay any Indebtedness owed to the Company or any other
Restricted Subsidiary, (y)
<PAGE> 58
make loans or advances to, or guarantee any Indebtedness or other obligations
of, the Company or any other Restricted Subsidiary or (z) transfer any of its
properties or assets to the Company or any other Restricted Subsidiary.
(b) The foregoing shall not prohibit (a) any encumbrance or
restriction existing under or by reason of any agreement in effect on the date
hereof, as any such agreement is in effect on such date or as thereafter amended
but only if such encumbrance or restriction is no more restrictive than in the
agreement being amended; (b) any encumbrance or restriction existing under or by
reason of any agreement relating to any Acquired Indebtedness; PROVIDED,
HOWEVER, such encumbrance or restriction shall not apply to any assets of the
Company or any Restricted Subsidiary other than the Restricted Subsidiary
acquired or its assets; (c) customary provisions contained in an agreement that
has been entered into for the sale or disposition of all or substantially all of
the Equity Interests or assets of a Restricted Subsidiary; PROVIDED, HOWEVER,
that (x) such encumbrance or restriction is applicable only to such Restricted
Subsidiary or assets and (y) such sale or disposition is made in accordance with
Section 4.09 hereof; (d) any encumbrance or restriction existing under or by
reason of applicable law; (e) customary provisions restricting subletting or
assignment of any lease governing any leasehold interest of any Restricted
Subsidiary; (f) covenants in purchase money obligations for property acquired in
the ordinary course of business restricting transfer of such property; or (g)
covenants in security agreements securing Indebtedness of a Restricted
Subsidiary (to the extent that such Liens were otherwise incurred in accordance
with Section 4.11 hereof) that restrict the transfer of property subject to such
agreements.
SECTION 4.15. Designation of Unrestricted Subsidiaries.
-----------------------------------------
(a) The Company may designate any Subsidiary of the Company as
an "Unrestricted Subsidiary" under this Indenture (a "DESIGNATION") only if:
(i) no Default shall have occurred and be continuing at the
time of or after giving effect to such Designation;
(ii) at the time of and after giving effect to such Designation,
the Company could incur $1.00 of additional Indebtedness under Section
4.06(a) hereof; and
(iii) the Company would be permitted to make an Investment (other
than a Permitted Investment) at the time of Designation (assuming the
effectiveness of such Designation) pursuant to Section 4.08 hereof in
an amount (the "DESIGNATION AMOUNT") equal to the fair market value of
the Company's proportionate interest in the net worth of such
Subsidiary on such date calculated in accordance with GAAP.
All Subsidiaries of Unrestricted Subsidiaries shall be
Unrestricted Subsidiaries.
<PAGE> 59
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(b) The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, at any time (x) provide credit
support for, subject any of its properties or assets (other than the Equity
Interests of any Unrestricted Subsidiary) to the satisfaction of, or guarantee,
any Indebtedness of any Unrestricted Subsidiary (including any undertaking,
agreement or instrument evidencing such Indebtedness), (y) be liable for any
Indebtedness of any Unrestricted Subsidiary or (z) be liable for any
Indebtedness which provides that the holder thereof may (upon notice, lapse of
time or both) declare a default thereon or cause the payment thereof to be
accelerated or payable prior to its final scheduled maturity upon the occurrence
of a default with respect to any Indebtedness of any Unrestricted Subsidiary.
(c) The Company may revoke any Designation of a Subsidiary as
an Unrestricted Subsidiary (a "REVOCATION") only if:
(i) no Default shall have occurred and be continuing at the
time of and after giving effect to such Revocation; and
(ii) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at
such time, have been permitted to be incurred for all purposes of this
Indenture.
All Designations and Revocations must be evidenced by
resolutions of the Board of Directors of the Company, delivered to the Trustee
certifying compliance with the foregoing provisions.
SECTION 4.16. Limitation on Preferred Equity Interests of
Restricted Subsidiaries.
--------------------------------------------
The Company shall not cause or permit any Restricted
Subsidiary (other than any Guarantor) to issue any Preferred Equity Interests or
permit any Person (other than the Company or one or more Wholly Owned Restricted
Subsidiaries) to hold any such Preferred Equity Interests.
SECTION 4.17. Limitation on the Issuance and Sale of Equity
Interests of Restricted Subsidiaries.
-------------------------------------
The Company shall not sell, and shall not cause or permit any
Restricted Subsidiary, directly or indirectly, to issue or sell, any Equity
Interests of a Restricted Subsidiary, except (i) to the Company or a Wholly
Owned Restricted Subsidiary; (ii) the sale of all of the Equity Interests of a
Restricted Subsidiary in accordance with Section 4.09 hereof; (iii) in the case
of issuance of Equity Interests by a non-Wholly Owned Restricted Subsidiary if,
after
<PAGE> 60
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giving effect to such issuance, the Company maintains its direct or indirect
percentage of beneficial and economic ownership of such non-Wholly Owned
Restricted Subsidiary; or (iv) as permitted by Section 4.16 hereof.
SECTION 4.18. Payments for Consent.
---------------------
The Company shall not, and shall not cause or permit any of
its Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Notes for or as an inducement to any consent, waiver or amendment of any of
the terms or provisions of this Indenture or the Notes unless such consideration
is offered to be paid or agreed to be paid to all Holders of the Notes which so
consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
SECTION 4.19. Legal Existence.
----------------
Subject to Article Five hereof, the Company shall do or cause
to be done all things necessary to preserve and keep in full force and effect
(i) its legal existence, and the corporate, partnership or other existence of
each Restricted Subsidiary, in accordance with the respective organizational
documents (as the same may be amended from time to time) of each Restricted
Subsidiary and the rights (charter and statutory), licenses and franchises of
the Company and its Restricted Subsidiaries; PROVIDED that the Company shall not
be required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Restricted Subsidiaries if the
Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and its
Restricted Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders.
SECTION 4.20. Change of Control Offer.
------------------------
(a) Following the occurrence of a Change of Control (the date
of such occurrence being the "CHANGE OF CONTROL DATE"), the Company shall,
within 30 days after the Change of Control Date, make an Offer to Purchase all
Notes then outstanding at a purchase price in cash equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon, if
any, to the Purchase Date.
(b) On or before the Purchase Date, the Company shall (x)
accept for payment Notes or portions thereof which are to be purchased pursuant
to an Offer to Purchase under the provisions of this Section 4.20, (y) deposit
at the payment office established by the Company cash in U.S. Dollars sufficient
to pay the purchase price of all Notes to be purchased and (z) deliver or cause
to be delivered to the Trustee Notes so accepted together with an Officers'
<PAGE> 61
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Certificate stating the Notes or portions thereof tendered to the Company. The
Paying Agent shall promptly mail to each Holder of Notes so accepted payment in
an amount equal to the purchase price for such Notes, and the Company shall
execute and issue, and the Trustee shall promptly authenticate and mail to such
Holder, a new Note equal in principal amount to any unpurchased portion of the
Notes surrendered; PROVIDED that each such new Note shall be issued in an
original principal amount in denominations of $1,000 and integral multiples
thereof.
(c) If the Senior Credit Facility is in effect, or any amounts
are owing thereunder or in respect thereof, at the time of the occurrence of a
Change of Control, prior to the mailing of the notice to Holders described in
the second preceding paragraph, but in any event within 20 days following any
Change of Control, the Company covenants to (i) repay in full all obligations
and terminate all commitments under or in respect of the Senior Credit Facility
and all other Senior Indebtedness the terms of which require repayment upon a
Change of Control or offer to repay in full all obligations and terminate all
commitments under or in respect of the Senior Credit Facility and all such
Senior Indebtedness and repay the Indebtedness owed to each such lender who has
accepted such offer or (ii) obtain the requisite consents under the Senior
Credit Facility and all such other Senior Indebtedness to permit the repurchase
of the Notes as described above. The Company must first comply with the covenant
described in the preceding sentence before it shall be required to purchase
Notes in the event of a Change of Control; PROVIDED that the Company's failure
to comply with the covenant described in the preceding sentence constitutes an
Event of Default described in clause (3) of Section 6.01 hereof if not cured
within 30 days after the notice required by such clause.
(d) If the Company or any Restricted Subsidiary thereof has
issued any outstanding (1) Subordinated Indebtedness or (2) Preferred Equity
Interests, and the Company or such Restricted Subsidiary is required to make a
change of control offer or to make a distribution with respect to such
Subordinated Indebtedness or Preferred Equity Interests in the event of a change
of control, the Company shall not consummate any such offer or distribution with
respect to such Subordinated Indebtedness or Preferred Equity Interests until
such time as the Company shall have paid the Purchase Price in full to the
Holders that have accepted the Offer to Purchase pursuant to this Section 4.20
and shall otherwise have consummated such Offer to Purchase. No Obligor shall
issue Subordinated Indebtedness or Preferred Equity Interests with change of
control provisions requiring the payment of such Indebtedness or Preferred
Equity Interests prior to the payment of the Notes in the event of a Change of
Control under this Indenture.
(e) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of Notes pursuant to an Offer to Purchase under this Section
4.20.
<PAGE> 62
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SECTION 4.21. Maintenance of Properties; Insurance; Compliance
with Law.
------------------------------------------------
(a) The Company shall, and shall cause each of its Restricted
Subsidiaries to, at all times cause all properties used or useful in the conduct
of their business to be maintained and kept in good condition, repair and
working order (reasonable wear and tear excepted) and supplied with all
necessary equipment, and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereto.
(b) The Company shall maintain, and shall cause to be
maintained for each of its Restricted Subsidiaries, insurance covering such
risks as are usually and customarily insured against by corporations similarly
situated, in such amounts as shall be customary for corporations similarly
situated and with such deductibles and by such methods as shall be customary and
reasonably consistent with past practice.
(c) The Company shall, and shall cause each of its
Subsidiaries to, comply with all statutes, laws, ordinances or government rules
and regulations to which they are subject, non-compliance with which would
materially adversely affect the business, prospects, earnings, properties,
assets or financial condition of the Company and their Subsidiaries taken as a
whole.
SECTION 4.22. Further Assurance to the Trustee.
---------------------------------
The Company shall, upon the reasonable request of the Trustee,
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the provisions of
this Indenture.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Limitation on Consolidation, Merger and Sale of
Assets.
------------------------------------------------
(a) No Obligor shall consolidate with or merge with or into
(whether or not such Obligor is the Surviving Person) any other Person and the
Obligors shall not, and shall not cause or permit any Restricted Subsidiary to,
sell, convey, assign, transfer, lease or otherwise dispose of all or
substantially all of the property and assets of the Company and the Restricted
Subsidiaries, taken as a whole, to any Person or Persons in a single transaction
or series of related transactions, unless:
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(i) (w) the Company shall be the Surviving Person;
(x) if such Obligor is a Guarantor, any other
Obligor shall be the Surviving Person;
(y) the Surviving Person (if other than such Obligor)
shall be a corporation organized and validly existing under
the laws of the United States of America or any State thereof
or the District of Columbia, and shall, in any such case,
expressly assume, by a supplemental indenture executed and
delivered to the Trustee, all of the obligations of such
Obligor under the Financing Documents; or
(z) in the case of the Reorganization, (A) New ONC
shall assume, by a supplemental indenture executed and
delivered to the Trustee, all of the obligations of Oglebay
under the Financing Documents and (B) Oglebay shall become a
Guarantor under the Financing Documents by executing and
delivering a supplemental indenture to the Trustee and shall
cease to be the "Company" under the Financing Documents;
(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing; and
(iii) other than in the case of the Reorganization, immediately
after giving effect to such transaction, the Company or the Surviving
Person (as the case may be) could incur at least $1.00 of additional
Indebtedness under Section 4.06(a) hereof (if the Company shall not be
the Surviving Person, all references to the Company and the Restricted
Subsidiaries in the definitions used to determine the ratio therein
shall be to the Surviving Person and its Subsidiaries after giving
effect to such transaction (excluding any Unrestricted Subsidiaries)).
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all the properties and assets of one or
more Restricted Subsidiaries the Equity Interests of which constitutes all or
substantially all the properties and assets of the Company shall be deemed to be
the transfer of all or substantially all the properties and assets of the
Company.
(b) In connection with any consolidation, merger or transfer
of assets contemplated by the provisions of this Section 5.01, the Company shall
deliver, or cause to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers' Certificate and an opinion
of counsel, each stating that such consolidation, merger or transfer and the
supplemental indenture in respect thereto comply with the provisions of this
sec-
<PAGE> 64
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tion 5.01 and that all conditions precedent herein provided for relating to
such transaction or transactions have been complied with. Such opinion of
counsel shall also state that each such supplemental indenture has been duly
authorized, executed and delivered by the applicable Obligor and constitutes a
valid and legally binding obligation of such Obligor, enforceable against it in
accordance with its terms, except that the enforcement thereof may be subject to
(x) bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally and (y) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought.
SECTION 5.02. Successor Person Substituted.
-----------------------------
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company or any Restricted Subsidiary in
accordance with Section 5.01 above, the successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company or such Restricted Subsidiary under this Indenture with
the same effect as if such successor corporation had been named as the Company
or such Restricted Subsidiary herein, and thereafter the predecessor corporation
shall be relieved of all obligations and covenants under this Indenture and the
Notes.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
------------------
The following events are "Events of Default":
(1) the Company fails to pay any principal of the Notes when
the same becomes due and payable at maturity, upon acceleration,
redemption or otherwise (whether or not such payment is permitted by
Article Eleven);
(2) the Company fails to pay any interest on any Note when due,
which failure continues for a period of 30 days (whether or not such
payment is permitted by Article Eleven);
(3) any Obligor fails to observe or perform any of the
covenants set forth in Section 4.20 or 5.01;
<PAGE> 65
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(4) any Obligor fails to observe or perform any other covenant
in the Notes or this Indenture for 60 days after written notice from
the Holders of not less than 25% in the aggregate principal amount of
the Notes then outstanding;
(5) default under any mortgage, indenture or other instrument
or agreement under which there may be issued or by which there may be
secured or evidenced Indebtedness of the Company or any Restricted
Subsidiary, whether such Indebtedness now exists or is hereafter
incurred, which default (x) is caused by a failure to pay when due
principal or interest on such Indebtedness within the applicable
express grace period, (y) results in the acceleration of such
Indebtedness prior to its express final maturity or (z) results in the
commencement of judicial proceedings to foreclose upon, or to exercise
remedies under applicable law or applicable security documents to take
ownership of, the property or assets securing such Indebtedness and, in
each case, the principal amount of such Indebtedness, together with any
other Indebtedness with respect to which an event described in clause
(x), (y) or (z) has occurred and is continuing, aggregates $10.0
million or more;
(6) the entry of a final judgment or judgments which can no
longer be appealed for the payment of money in excess of $10.0 million
against the Company or any Restricted Subsidiary and such judgment
remains undischarged, for a period of 60 consecutive days during which
a stay of enforcement of such judgment shall not be in effect;
(7) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) generally is not paying its debts as they become
due;
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
<PAGE> 66
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(A) is for relief against either of the Company or
any Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of either of the Company or
any Significant Subsidiary or for all or substantially all of
the property of either of the Company or any Significant
Subsidiary, or
(C) orders the liquidation of either of the Company
or any Significant Subsidiary,
and the order or decree remains unstayed and in effect for 60 days; or
(9) the Guarantee of any Significant Subsidiary ceases to be in
full force and effect or any such Guarantee is declared to be null and
void and unenforceable or any such Guarantee is found to be invalid or
any of the Guarantors denies in writing its liability under its
Guarantee (other than by reason of release of a Guarantor in accordance
with the terms of this Indenture).
The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
Subject to Sections 7.01 and 7.02, the Trustee shall not be
charged with knowledge of any Default, Event of Default, Change of Control or
Asset Sale or the requirement for payment of Additional Interest unless written
notice thereof shall have been given to a Responsible Officer at the Corporate
Trust Office of the Trustee by the Company or any other Person.
SECTION 6.02. Acceleration.
-------------
If an Event of Default (other than an Event of Default
described in Section 6.01(7) or (8) with respect to the Company) shall have
occurred and be continuing, then the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Notes then outstanding may by written
notice to the Company declare to be immediately due and payable the entire
principal amount of all the Notes then outstanding plus accrued but unpaid
interest to the date of acceleration and such amounts shall become immediately
due and payable or if there are any amounts outstanding under or in respect of
the Senior Credit Facility, such amounts shall become due and payable upon the
first to occur of an acceleration of amounts outstanding under or in respect of
the Senior Credit Facility or five business days after receipt by the Company
and the representative of the holders of Senior Indebtedness under or in respect
of the Senior Credit Facility of notice of the acceleration of the Notes;
PROVIDED, HOWEVER, that after such acceleration but before a judgment or decree
based on such acceleration is
<PAGE> 67
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obtained by the Trustee, the Majority Holders may rescind and annul such
acceleration and its consequences if all existing Events of Default, other than
the nonpayment of accelerated principal, premium, if any, or interest that has
become due solely because of the acceleration, have been cured or waived and if
the rescission would not conflict with any judgment or decree. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto. In case an Event of Default described in Section 6.01(7) or (8) with
respect to the Company shall occur, the principal and interest amount with
respect to all of the Notes shall be due and payable immediately without any
declaration or other act on the part of the Holders of the Notes.
In the case of any Event of Default pursuant to the provisions
of Section 6.01 occurring by reason of any wilful action (or inaction) taken (or
not taken) by or on behalf of the Company with the intention of avoiding payment
of the premium that the Company would have had to pay if the Company then had
elected to redeem the Notes pursuant to Section 6 of the Notes, an equivalent
premium shall, upon the amounts referred to in the immediately preceding
paragraph becoming due and payable, also become and be immediately due and
payable to the extent permitted by law, anything contained in this Indenture or
in the Notes to the contrary notwithstanding. If an Event of Default occurs
prior to February 1, 2004 by reason of any wilful action (or inaction) taken (or
not taken) by or on behalf of the Company with the intention of avoiding the
prohibition on redemption of the Notes prior to February 1, 2004, pursuant to
Section 6 of the Notes, then the premium payable for purposes of this paragraph
shall be equal to the interest rate per annum then being paid on the Notes.
SECTION 6.03. Other Remedies.
---------------
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture and may
take any necessary action requested of it as Trustee to settle, compromise,
adjust or otherwise conclude any proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Noteholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative. Any costs
associated with actions taken by the Trustee under this Section 6.03 shall be
reimbursed to the Trustee by the Company.
<PAGE> 68
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SECTION 6.04. Waiver of Past Defaults and Events of Default.
----------------------------------------------
Subject to Sections 6.02, 6.08 and 8.02 hereof, the Majority
Holders have the right to waive any existing Default or Event of Default or
compliance with any provision of this Indenture or the Notes. Upon any such
waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
Event of Default or impair any right consequent thereto.
SECTION 6.05. Control by Majority.
--------------------
The Majority Holders may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee by this Indenture. The Trustee,
however, may refuse to follow any direction that conflicts with law or this
Indenture or that the Trustee determines may be unduly prejudicial to the rights
of another Noteholder not taking part in such direction, and the Trustee shall
have the right to decline to follow any such direction if the Trustee, being
advised by counsel, determines that the action so directed may not lawfully be
taken or if the Trustee in good faith shall, by a Responsible Officer, determine
that the proceedings so directed may involve it in personal liability; PROVIDED
that the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
SECTION 6.06. Limitation on Suits.
--------------------
Subject to Section 6.08 below, a Noteholder may not institute
any proceeding or pursue any remedy with respect to this Indenture or the Notes
unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount
of the Notes then outstanding make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer and if requested provide to
the Trustee indemnity reasonably satisfactory to the Trustee against
any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer, and, if requested,
provision of, indemnity; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60 day period by the Majority
Holders.
<PAGE> 69
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A Noteholder may not use this Indenture to prejudice the
rights of another Noteholder or to obtain a preference or priority over another
Noteholder.
SECTION 6.07. No Personal Liability of Directors, Officers,
Employees and Stockholders.
---------------------------------------------
No director, officer, employee, incorporator or stockholder of
the Company or any Guarantor shall have any liability for any obligations of the
Company or the Guarantors under the Notes, the Guarantees or this Indenture or
for a claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for
issuance of the Notes.
SECTION 6.08. Rights of Holders To Receive Payment.
-------------------------------------
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal of, or premium, if
any, and interest of the Note (including Additional Interest) on or after the
respective due dates expressed in the Note, or to bring suit for the enforcement
of any such payment on or after such respective dates, is absolute and
unconditional and shall not be impaired or affected without the consent of the
Holder.
SECTION 6.09. Collection Suit by Trustee.
---------------------------
If an Event of Default in payment of principal, premium or
interest specified in Section 6.01(1) or (2) hereof occurs and is continuing,
the Trustee may recover judgment in its own name and as trustee of an express
trust against the Company or any Guarantor (or any other obligor on the Notes)
for the whole amount of unpaid principal and accrued interest remaining unpaid,
together with interest on overdue principal and, to the extent that payment of
such interest is lawful, interest on overdue installments of interest, in each
case at the rate set forth in the Notes, and such further amounts as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.10. Trustee May File Proofs of Claim.
---------------------------------
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof) and the Noteholders allowed
in any judicial proceedings relative to the Company or any Guarantor (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and em-
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powered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same after deduction of its
charges and expenses to the extent that any such charges and expenses are not
paid out of the estate in any such proceedings and any custodian in any such
judicial proceeding is hereby authorized by each Noteholder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Noteholders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan or reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Noteholder in any such
proceedings.
SECTION 6.11. Priorities.
-----------
If the Trustee collects any money pursuant to this Article
Six, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07
hereof;
SECOND: to Noteholders for amounts due and unpaid on the
Notes for principal, premium, if any and interest (including Additional
Interest, if any) as to each, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes; and
THIRD: to the Company or, to the extent the Trustee collects
any amount from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 6.11.
SECTION 6.12. Undertaking for Costs.
----------------------
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.12 does not
<PAGE> 71
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apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.08
hereof or a suit by Holders of more than 10% in principal amount of the Notes
then outstanding.
SECTION 6.13. Restoration of Rights and Remedies.
-----------------------------------
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Guarantors, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
------------------
(a) If an Event of Default actually known to a Responsible
Officer of the Trustee has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the same circumstances in the conduct of his or her own
affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that
are specifically set forth in this Indenture and no others.
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture
but, in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform on their
face to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
<PAGE> 72
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(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.01.
(2) The Trustee shall not be liable for any error of
judgment made in good faith, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to the
terms hereof.
(4) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its rights,
powers or duties if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity
satisfactory to it against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, paragraphs
(a), (b), (c) and (e) of this Section 7.01 shall govern every provision of this
Indenture that in any way relates to the Trustee.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it in its sole
discretion against any loss, liability, expense or fee.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company or
any Guarantor. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by the law.
<PAGE> 73
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SECTION 7.02. Rights of Trustee.
------------------
Subject to Section 7.01 hereof:
(1) The Trustee may rely on any document reasonably believed by
it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in
the document.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both,
which shall conform to the provisions of Section 12.05 hereof. The
Trustee shall be protected and shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or
opinion.
(3) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed by it with due care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers; PROVIDED that the Trustee's
conduct does not constitute gross negligence or bad faith.
(5) The Trustee may consult with counsel of its selection, and
the advice or opinion of such counsel as to matters of law shall be
full and complete authorization and protection from liability in
respect of any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such
counsel.
SECTION 7.03. Individual Rights of Trustee.
-----------------------------
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may make loans to, accept deposits from,
perform services for or otherwise deal with the either of the Company or any
Guarantor, or any Affiliates thereof, with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. The Trustee,
however, shall be subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04. Trustee's Disclaimer.
---------------------
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes or
any Guarantee, it shall not be accountable for the Company's or any Guarantor's
use of the proceeds from the sale of Notes or any money paid to the Company or
any Guarantor pursuant to the terms of this Indenture and it shall not be
responsible for any statement in the Notes, Guarantee or this Indenture other
than its certificate of authentication.
<PAGE> 74
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SECTION 7.05. Notice of Defaults.
-------------------
If a Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to each Noteholder notice of the Default
within 90 days after it occurs. Except in the case of a Default in payment of
the principal of, or premium, if any, or interest on any Note or a default in
the observance or performance of any of the obligations of the Company under
Article Five, the Trustee may withhold the notice if and so long as a committee
of its Responsible Officers in good faith determines that withholding the notice
is in the best interest of the Noteholders.
SECTION 7.06. Reports by Trustee to Holders.
------------------------------
If required by TIA Section 313(a), within 60 days after
January 1 of any year, commencing January 1, 2000 the Trustee shall mail to each
Noteholder a brief report dated as of such January 1 that complies with TIA
Section 313(a). The Trustee also shall comply with TIA Section 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA Section
313(c) and TIA Section 313(d).
Reports pursuant to this Section 7.06 shall be transmitted by
mail:
(1) to all Holders of Notes, as the names and addresses of such
Holders appear on the Registrar's books; and
(2) to such Holders of Notes as have, within the two years
preceding such transmission, filed their names and addresses with the
Trustee for that purpose.
A copy of each report at the time of its mailing to
Noteholders shall be filed with the Commission and each stock exchange on which
the Notes are listed. The Company shall promptly notify the Trustee when the
Notes are listed on any stock exchange.
SECTION 7.07. Compensation and Indemnity.
---------------------------
The Company and the Guarantors shall pay to the Trustee and
Agents from time to time reasonable compensation for its services hereunder
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust). The Company and the
Guarantors shall reimburse the Trustee and Agents upon request for all
reasonable disbursements, expenses and advances incurred or made by it in
connection with its duties under this Indenture, including the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company and the Guarantors shall indemnify each of the
Trustee and any predecessor Trustee for, and hold each of them harmless against,
any and all loss, damage,
<PAGE> 75
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claim, liability or expense, including without limitation taxes (other than
taxes based on the income of the Trustee or such Agent) and reasonable
attorneys' fees and expenses incurred by each of them in connection with the
acceptance or performance of its duties under this Indenture including the
reasonable costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder (including, without limitation, settlement costs). The Trustee or
Agent shall notify the Company and the Guarantors in writing promptly of any
claim asserted against the Trustee or Agent for which it may seek indemnity.
However, the failure by the Trustee or Agent to so notify the Company and the
Guarantors shall not relieve the Company and Guarantors of their obligations
hereunder except to the extent the Company and the Guarantors are prejudiced
thereby.
Notwithstanding the foregoing, the Company and the Guarantors
need not reimburse the Trustee for any expense or indemnify it against any loss
or liability incurred by the Trustee through its negligence or bad faith. To
secure the payment obligations of the Company and the Guarantors in this Section
7.07, the Trustee shall have a lien prior to the Notes on all money or property
held or collected by the Trustee except such money or property held in trust to
pay principal of and interest on particular Notes. The obligations of the
Company and the Guarantors under this Section 7.07 to compensate and indemnify
the Trustee, Agents and each predecessor Trustee and to pay or reimburse the
Trustee, Agents and each predecessor Trustee for expenses, disbursements and
advances shall be joint and several liabilities of the Company and each of the
Guarantors and shall survive the resignation or removal of the Trustee and the
satisfaction, discharge or other termination of this Indenture, including any
termination or rejection hereof under any Bankruptcy Law.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(7) or (8) hereof occurs, the expenses
and the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee" shall
include any trustee appointed pursuant to this Article Seven.
SECTION 7.08. Replacement of Trustee.
-----------------------
The Trustee may resign by so notifying the Company and the
Guarantors in writing. The Holders of a majority in principal amount of the
outstanding Notes may remove the Trustee by notifying the Company and the
removed Trustee in writing and may appoint a successor Trustee with the
Company's written consent, which consent shall not be unreasonably withheld. The
Company may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
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(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of a majority in principal amount of the outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following
such delivery, the retiring Trustee shall, subject to its rights under Section
7.07 hereof, transfer all property held by it as Trustee to the successor
Trustee, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Noteholder. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company obligations under Section
7.07 hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Consolidation, Merger, etc.
------------------------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10 hereof, the successor corporation without
any further act shall be the successor Trustee; PROVIDED such entity shall be
otherwise qualified and eligible under this Article Seven.
SECTION 7.10. Eligibility; Disqualification.
------------------------------
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1) and (2) in every respect. The Trustee
(together with its corporate parent) shall have a combined capital and surplus
of at least $100,000,000 as set forth in the most recent
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applicable published annual report of condition. The Trustee shall comply with
TIA Section 310(b), including the provision in Section 310(b)(1).
SECTION 7.11. Preferential Collection of Claims Against Company.
--------------------------------------------------
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311 (b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
SECTION 7.12. Paying Agents.
--------------
The Company shall cause each Paying Agent other than the
Trustee to execute and deliver to it and the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of this Section
7.12:
(A) that it will hold all sums held by it as agent for the
payment of principal of, or premium, if any, or interest on, the Notes
(whether such sums have been paid to it by the Company or by any
obligor on the Notes) in trust for the benefit of Holders of the Notes
or the Trustee;
(B) that it will at any time during the continuance of any
Event of Default, upon written request from the Trustee, deliver to the
Trustee all sums so held in trust by it together with a full accounting
thereof; and
(C) that it will give the Trustee written notice within three
(3) Business Days of any failure of the Company (or by any obligor on
the Notes) in the payment of any installment of the principal of,
premium, if any, or interest on, the Notes when the same shall be due
and payable.
ARTICLE EIGHT
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01. Without Consent of Holders.
---------------------------
The Company and the Guarantors, when authorized by a Board
Resolution of each of them, and the Trustee may amend, waive or supplement this
Indenture or the Notes without notice to or consent of any Noteholder:
(1) to comply with Section 5.01 hereof;
<PAGE> 78
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(2) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(3) to comply with any requirements of the Commission under
the TIA;
(4) to cure any ambiguity, defect or inconsistency;
(5) to make any other change that, in the opinion of the
Trustee, does not materially and adversely affect the rights of any
Noteholders hereunder;
(6) to add a Guarantor; or
(7) to provide for the issuance of the Exchange Notes or the
Private Exchange Notes in accordance with Section 2.01 in a manner that
does not materially and adversely affect the rights of any Noteholder.
The Trustee is hereby authorized to join with the Company and
the Guarantors in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
adversely affects its own rights, duties or immunities under this Indenture.
SECTION 8.02. With Consent of Holders.
------------------------
The Company and the Guarantors (each when authorized by a
Board Resolution) may direct the Trustee to modify or supplement this Indenture
or the Notes with the written consent of the Majority Holders. The Majority
Holders may waive compliance in a particular instance by the Company or
Guarantors with any provision of this Indenture or the Notes. Subject to Section
8.04, without the consent of each Noteholder affected, however, an amendment,
supplement or waiver, including a waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Notes whose holders must consent to an
amendment, supplement or waiver to this Indenture;
(2) reduce the rate of or change the time for payment of
interest, including defaulted interest, on any Note;
(3) reduce the principal of or premium on or change the stated
maturity of any Note or change the date on which any Notes may be
subject to redemption or repurchase or reduce the redemption or
repurchase price therefor;
<PAGE> 79
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(4) make any Note payable in money other than that stated in
the Note or change the place of payment from New York, New York;
(5) waive a default on the payment of the principal of,
interest on, or redemption payment with respect to any Note;
(6) make any change in provisions of this Indenture protecting
the right of each Holder of Notes to receive payment of principal of
and interest on such Note on or after the due date thereof or to bring
suit to enforce such payment, or permitting the Majority Holders to
waive Defaults;
(7) amend, change or modify in any material respect the
obligation of the Company to make and consummate a Change of Control
Offer in the event of a Change of Control or modify any of the
provisions or definitions with respect thereto;
(8) modify or change any provision of this Indenture or the
related definitions affecting the subordination or the ranking of the
Notes or any Guarantee in a manner which adversely affects the Holders
of Notes; or
(9) release any Guarantor from any of its obligations under its
Guarantee or this Indenture otherwise than in accordance with the terms
of this Indenture.
After an amendment, supplement or waiver under this Section
8.02 becomes effective, the Company shall mail to the Holders a notice briefly
describing the amendment, supplement or waiver.
Upon the written request of the Company, accompanied by a
Board Resolution authorizing the execution of any such supplemental indenture,
and upon the receipt by the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of the Noteholders as aforesaid and upon receipt by the
Trustee of the documents described in Section 8.06 hereof, the Trustee shall
join with the Company and the Guarantors in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture, in which case the Trustee may, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
<PAGE> 80
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SECTION 8.03. Compliance with Trust Indenture Act.
------------------------------------
Every amendment or supplement to this Indenture or the Notes
shall comply with the TIA as then in effect.
SECTION 8.04. Revocation and Effect of Consents.
----------------------------------
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may revoke
the consent as to his Note or portion of a Note, if the Trustee receives the
written notice of revocation before the date the amendment, supplement, waiver
or other action becomes effective.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement, or waiver. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement, or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date unless the consent of the requisite number
of Holders has been obtained.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Noteholder, unless it makes a change described in
any of clauses (1) through (9) of Section 8.02 hereof. In that case the
amendment, supplement, waiver or other action shall bind each Holder of a Note
who has consented to it and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder's Note.
SECTION 8.05. Notation on or Exchange of Notes.
---------------------------------
If an amendment, supplement, or waiver changes the terms of a
Note, the Trustee (in accordance with the specific written direction of the
Company) shall request the Holder of the Note (in accordance with the specific
written direction of the Company) to deliver it to the Trustee. In such case,
the Trustee shall place an appropriate notation on the Note about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Note shall issue, the Guarantors
shall endorse, and the Trustee shall authenticate a new Note that reflects the
changed terms.
<PAGE> 81
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Failure to make the appropriate notation or issue a new Note shall not affect
the validity and effect of such amendment, supplement or waiver.
SECTION 8.06. Trustee To Sign Amendments, etc.
--------------------------------
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article Eight if the amendment, supplement or waiver
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment, supplement or waiver the Trustee shall be
entitled to receive and, subject to Section 7.01 hereof, shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
stating, in addition to the matters required by Section 12.04, that such
amendment, supplement or waiver is authorized or permitted by this Indenture and
is a legal, valid and binding obligation of the Company and Guarantors,
enforceable against the Company and Guarantors in accordance with its terms
(subject to customary exceptions).
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Discharge of Indenture.
-----------------------
The Company and the Guarantors may terminate their obligations
under the Notes, the Guarantees and this Indenture, except the obligations
referred to in the last paragraph of this Section 9.01, if there shall have been
cancelled by the Trustee or delivered to the Trustee for cancellation all Notes
theretofore authenticated and delivered (other than any Notes that are asserted
to have been destroyed, lost or stolen and that shall have been replaced as
provided in Section 2.08 hereof) and the Company has paid all sums payable by
them hereunder or deposited all required sums with the Trustee.
After such delivery, the Trustee upon Company Request shall
acknowledge in writing the discharge of the Company's and the Guarantors'
obligations under the Notes, the Guarantees and this Indenture except for those
surviving obligations specified below.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company in Sections 7.07, 9.05 and 9.06 hereof
shall survive.
<PAGE> 82
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SECTION 9.02. Legal Defeasance.
-----------------
The Company may at its option, by Board Resolution of the
Board of Directors of the Company, be discharged from its obligations with
respect to the Notes and the Guarantors discharged from their obligations under
the Guarantees on the date the conditions set forth in Section 9.04 below are
satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, such Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Notes and to have satisfied all its
other obligations under such Notes and this Indenture insofar as such Notes are
concerned (and the Trustee, at the expense of the Company, shall, subject to
Section 9.06 hereof, execute instruments in form and substance reasonably
satisfactory to the Trustee and Company acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of outstanding Notes to receive solely from
the trust funds described in Section 9.04 hereof and as more fully set forth in
such Section, payments in respect of the principal of, premium, if any, and
interest on such Notes when such payments are due, (B) the Company's obligations
with respect to such Notes under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08,
2.11, 4.19 and 4.21 hereof, (C) the rights, powers, trusts, duties, and
immunities of the Trustee hereunder (including claims of, or payments to, the
Trustee under or pursuant to Section 7.07 hereof) and (D) this Article Nine.
Subject to compliance with this Article Nine, the Company may exercise its
option under this Section 9.02 with respect to the Notes notwithstanding the
prior exercise of its option under Section 9.03 below with respect to the Notes.
SECTION 9.03. Covenant Defeasance.
--------------------
At the option of the Company, pursuant to a Board Resolution
of the Board of Directors of the Company, (x) the Company and the Guarantors
shall be released from their respective obligations under Sections 4.02 (except
for obligations mandated by the TIA), 4.05 through 4.18, 4.20 and 4.22 through
4.23, inclusive, and clause (a)(iii) of Section 5.01 hereof and (y) Section 6.01
(5) and (6) shall no longer apply with respect to the outstanding Notes on and
after the date the conditions set forth in Section 9.04 hereof are satisfied
(hereinafter, "COVENANT DEFEASANCE"). For this purpose, such Covenant Defeasance
means that the Company and the Guarantors may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such specified Section or portion thereof, whether directly or indirectly by
reason of any reference elsewhere herein to any such specified Section or
portion thereof or by reason of any reference in any such specified Section or
portion thereof to any other provision herein or in any other document, but the
remainder of this Indenture and the Notes shall be unaffected thereby.
<PAGE> 83
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SECTION 9.04. Conditions to Defeasance or Covenant Defeasance.
------------------------------------------------
The following shall be the conditions to application of
Section 9.02 or Section 9.03 hereof to the outstanding Notes:
(1) the Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10 hereof who shall agree to comply with the
provisions of this Article Nine applicable to it) as funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
the Notes, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later
than the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of, premium, if
any, and accrued interest on the outstanding Notes at the maturity date
of such principal, premium, if any, or interest, or on dates for
payment and redemption of such principal, premium, if any, and interest
selected in accordance with the terms of this Indenture and of the
Notes;
(2) no Event of Default or Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit or,
insofar as Events of Default under Section 6.01(7) or (8) are
concerned, at any time during the period ending on the 91st day after
the date of such deposit or, if longer, ending on the day following the
expiration of the longest preference period under any Bankruptcy Law
applicable to the Company in respect of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(3) such Legal Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest for purposes of the
TIA with respect to any securities of the Company;
(4) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute default under this
Indenture, the Senior Credit Facility or any other material agreement
or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;
(5) the Company shall have delivered to the Trustee an Opinion
of Counsel stating that, as a result of such Legal Defeasance or
Covenant Defeasance, neither the
<PAGE> 84
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trust nor the Trustee will be required to register as an investment
company under the Investment Company Act of 1940, as amended;
(6) in the case of an election under Section 9.02 above, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling to the effect that
or (ii) there has been a change in any applicable Federal income tax
law with the effect that, and such opinion shall confirm that, the
Holders of the outstanding Notes or Persons in their positions will not
recognize income, gain or loss for United States Federal income tax
purposes solely as a result of such Legal Defeasance and will be
subject to United States Federal income tax on the same amounts, in the
same manner, including as a result of prepayment, and at the same times
as would have been the case if such Legal Defeasance had not occurred;
(7) in the case of an election under Section 9.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the outstanding Notes will not recognize
income, gain or loss for United States Federal income tax purposes as a
result of such Covenant Defeasance and will be subject to United States
Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had
not occurred;
(8) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the Legal
Defeasance under Section 9.02 above or the Covenant Defeasance under
Section 9.03 hereof (as the case may be) have been complied with;
(9) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit under clause (1) was not
made by the Company with the intent of preferring the Holders of the
Notes over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any creditors of the
Company or others;
(10) the Company shall have delivered to the Trustee on Opinion
of Counsel to the effect that (i) the trust funds will not be subject
to the rights of the holders of Senior Indebtedness, including, without
limitation, those arising under this Indenture and (ii) after the 91st
day following the deposit, the trust funds will not be subject to the
effect of any applicable Bankruptcy Law; and
<PAGE> 85
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(11) the Company shall have paid or duly provided for payment
under terms mutually satisfactory to the Company and the Trustee all
amounts then due to the Trustee pursuant to Section 7.07 hereof.
SECTION 9.05. Deposited Money and U.S. Government Obligations
To Be Held in Trust; Other Miscellaneous Provisions.
----------------------------------------------------
All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee pursuant to Section 9.04 hereof in
respect of the outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent, to the Holders of such
Notes, of all sums due and to become due thereon in respect of principal,
premium, if any, and accrued interest, but such money need not be segregated
from other funds except to the extent required by law.
The Company and the Guarantors shall (on a joint and several
basis) pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 9.04 hereof or the principal, premium, if any, and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the outstanding Notes.
Anything in this Article Nine to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon a Company
Request any money or U.S. Government Obligations held by it as provided in
Section 9.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 9.06. Reinstatement.
--------------
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 9.01, 9.02 or 9.03 hereof
by reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's and each Guarantor's obligations under this
Indenture, the Notes and the Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to this Article Nine until such time as
the Trustee or Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 9.01 hereof; PROVIDED that if
the Company or the Guarantors have made any payment of principal of, premium, if
any, or accrued interest on any Notes because of the reinstatement of their
obligations, the Company or the Guarantors, as the case
<PAGE> 86
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may be, shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
SECTION 9.07. Moneys Held by Paying Agent.
----------------------------
In connection with the satisfaction and discharge of this
Indenture, all moneys then held by any Paying Agent under the provisions of this
Indenture shall, upon written demand of the Company, be paid to the Trustee, or
if sufficient moneys have been deposited pursuant to Section 9.04 hereof, to the
Company upon an Company Request (or, if such moneys had been deposited by the
Guarantors, to such Guarantors), and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
SECTION 9.08. Moneys Held by Trustee.
-----------------------
Any moneys deposited with the Trustee or any Paying Agent or
then held by the Company or the Guarantors in trust for the payment of the
principal of, or premium, if any, or interest on any Note that are not applied
but remain unclaimed by the Holder of such Note for two years after the date
upon which the principal of, or premium, if any, or interest on such Note shall
have respectively become due and payable shall be repaid to the Company (or, if
appropriate, the Guarantors) upon a Company Request, or if such moneys are then
held by the Company or the Guarantors in trust, such moneys shall be released
from such trust; and the Holder of such Note entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Company and
the Guarantors for the payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money shall thereupon cease; PROVIDED,
that the Trustee or any such Paying Agent, before being required to make any
such repayment, may, at the expense of the Company and the Guarantors, either
mail to each Noteholder affected, at the address shown in the register of the
Notes maintained by the Registrar pursuant to Section 2.03 hereof, or cause to
be published once a week for two successive weeks, in a newspaper published in
the English language, customarily published each Business Day and of general
circulation in the City of New York, New York, a notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such mailing or publication, any unclaimed balance of
such moneys then remaining will be repaid to the Company. After payment to the
Company or the Guarantors or the release of any money held in trust by the
Company or any Guarantors, as the case may be, Noteholders entitled to the money
must look only to the Company and the Guarantors for payment as general
creditors unless applicable abandoned property law designates another Person.
<PAGE> 87
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ARTICLE TEN
GUARANTEE OF NOTES
SECTION 10.01. Guarantee.
----------
Subject to the provisions of this Article Ten, each Guarantor,
by execution of this Indenture, jointly and severally, unconditionally
guarantees to each Holder (i) the due and punctual payment of the principal of
and interest on each Note, when and as the same shall become due and payable,
whether at maturity, by acceleration or otherwise, the due and punctual payment
of interest on the overdue principal of and interest on the Notes, to the extent
lawful, and the due and punctual payment of all other Obligations and due and
punctual performance of all obligations of the Company to the Holders or the
Trustee all in accordance with the terms of such Note, this Indenture and the
Registration Rights Agreement, and (ii) in the case of any extension of time of
payment or renewal of any Notes or any of such other Obligations, that the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, at stated maturity, by acceleration or otherwise.
Each Guarantor, by execution of this Indenture, agrees that its obligations
hereunder shall be absolute and unconditional, irrespective of, and shall be
unaffected by, any invalidity, irregularity or unenforceability of any such Note
or this Indenture, any failure to enforce the provisions of any such Note, this
Indenture or the Registration Rights Agreement, any waiver, modification or
indulgence granted to the Company with respect thereto by the Holder of such
Note, or any other circumstances which may otherwise constitute a legal or
equitable discharge of a surety or such Guarantor.
Each Guarantor hereby waives diligence, presentment, demand
for payment, filing of claims with a court in the event of merger or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest or notice with respect to any such Note or the Indebtedness evidenced
thereby and all demands whatsoever, and covenants that this Guarantee will not
be discharged as to any such Note except by payment in full of the principal
thereof and interest thereon. Each Guarantor hereby agrees that, as between such
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
(i) the maturity of the Obligations guaranteed hereby may be accelerated as
provided in Article Six hereof for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed hereby, and (ii) in the
event of any declaration of acceleration of such Obligations as provided in
Article Six hereof, such Obligations (whether or not due and payable) shall
forthwith become due and payable by each Guarantor for the purpose of this
Guarantee.
<PAGE> 88
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SECTION 10.02. Execution and Delivery of Guarantee.
------------------------------------
To further evidence the Guarantee set forth in Section 10.01,
each Guarantor hereby agrees that a notation of such Guarantee, substantially in
the form included in EXHIBIT G hereto, shall be endorsed on each Note
authenticated and delivered by the Trustee and such Guarantee shall be executed
by either manual or facsimile signature of an Officer or an Officer of a general
partner, as the case may be, of each Guarantor. The validity and enforceability
of any Guarantee shall not be affected by the fact that it is not affixed to any
particular Note.
Each of the Guarantors hereby agrees that its Guarantee set
forth in Section 10.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee.
If an officer of a Guarantor whose signature is on this
Indenture or a Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which such Guarantee is endorsed or at any time
thereafter, such Guarantor's Guarantee of such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any Guarantee
set forth in this Indenture on behalf of the Guarantor.
SECTION 10.03. Limitation of Guarantee.
------------------------
The obligations of each Guarantor are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor (including, without limitation, any Guarantor
Senior Indebtedness) and after giving effect to any collections from or payments
made by or on behalf of any other Guarantor in respect of the obligations of
such other Guarantor under its Guarantee or pursuant to its contribution
obligations under this Indenture, result in the obligations of such Guarantor
under its Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under federal or state law. Each Guarantor that makes a payment or
distribution under a Guarantee shall be entitled to a contribution from each
other Guarantor in a pro rata amount based on the Adjusted Net Assets of each
Guarantor.
SECTION 10.04. Release of Guarantor.
---------------------
A Guarantor shall be released from all of its obligations
under its Guarantee if:
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(i) all of the assets or Equity Interests of such Guarantor
have been sold or otherwise disposed of in a transaction in compliance
with the terms of this Indenture (including Sections 4.09, 4.20 and
5.01);
(ii) the Guarantor merges with or into or consolidates with, or
transfers all or substantially all of its assets to, the Company or
another Guarantor in a transaction in compliance with the terms of this
Indenture (including Section 5.01); or
(iii) the Guarantor is designated an Unrestricted Subsidiary in
compliance with the terms of this Indenture (including Section 4.08);
and in each such case, the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with and that such release is authorized and permitted hereunder.
The Trustee shall execute any documents reasonably requested
by the Company or a Guarantor in order to evidence the release of such Guarantor
from its obligations under its Guarantee endorsed on the Notes and under this
Article Ten.
SECTION 10.05. Waiver of Subrogation.
----------------------
Each Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Company that arise from
the existence, payment, performance or enforcement of such Guarantor's
obligations under its Guarantee and this Indenture, including, without
limitation, any right of subrogation, reimbursement, exoneration,
indemnification, and any right to participate in any claim or remedy of any
Holder of Notes against the Company, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law, including, without
limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or Note on account of such claim or other rights. If any amount shall be
paid to any Guarantor in violation of the preceding sentence and the Notes shall
not have been paid in full, such amount shall have been deemed to have been paid
to such Guarantor for the benefit of, and held in trust for the benefit of, the
Holders of the Notes, and shall forthwith be paid to the Trustee for the benefit
of such Holders to be credited and applied upon the Notes, whether matured or
unmatured, in accordance with the terms of this Indenture. Each Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the waiver set
forth in this Section 10.05 is knowingly made in contemplation of such benefits.
<PAGE> 90
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SECTION 10.06. Guarantee Obligations Subordinated to Guarantor Senior
Indebtedness.
-----------------------------------------------------
Each Guarantor covenants and agrees, and each Holder of Notes,
by its acceptance thereof, likewise covenants and agrees, that to the extent and
in the manner hereinafter set forth in this Article Ten, the Indebtedness
represented by the Guarantee and the payment of the principal of, premium, if
any, and interest on the Notes pursuant to the Guarantee by such Guarantor are
hereby expressly made subordinate and subject in right of payment as provided in
this Article Ten to the prior indefeasible payment and satisfaction in full in
cash of all existing and future Guarantor Senior Indebtedness of such Guarantor.
This Section 10.06 and the following Sections 10.07 through
10.15 shall constitute a continuing offer to all Persons who, in reliance upon
such provisions, become holders of or continue to hold Guarantor Senior
Indebtedness of any Guarantor; and such provisions are made for the benefit of
the holders of Guarantor Senior Indebtedness of each Guarantor; and such holders
are made obligees hereunder and they or each of them may enforce such
provisions.
SECTION 10.07. Payment Over of Proceeds upon Dissolution, etc.,
of a Guarantor.
-------------------------------------------------
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, arrangement, reorganization or
other similar case or proceeding in connection therewith, relative to any
Guarantor or to its creditors, as such, or to its assets, whether voluntary or
involuntary, or (b) any liquidation, dissolution or other winding-up of any
Guarantor, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy or (c) any general assignment for the benefit of
creditors or any other marshalling of assets or liabilities of any Guarantor,
then and in any such event (all and each of the foregoing, a "GUARANTOR
BANKRUPTCY PROCEEDING"): (1) the holders of all Guarantor Senior Indebtedness of
such Guarantor shall be entitled to receive payment in full in cash of all
amounts due on or in respect of all such Guarantor Senior Indebtedness, before
the Holders of the Notes are entitled to receive or retain, pursuant to the
Guarantee of such Guarantor, any payment or distribution of any kind or
character by such Guarantor on account of any of its Obligations on its
Guarantee; (2) any payment or distribution of assets of such Guarantor of any
kind or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders would be entitled but for the subordination
provisions of this Article Ten shall be paid by the liquidating trustee or agent
or other Person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to the
holders of Guarantor Senior Indebtedness of such Guarantor or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Guarantor Senior
Indebtedness may have been issued, ratably according
<PAGE> 91
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to the aggregate amounts remaining unpaid on account of such Guarantor Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full in cash of all such Guarantor Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Guarantor Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of
this Section 10.07, the Trustee or the Holder of any Note shall have received
any payment or distribution of assets of such Guarantor of any kind or
character, whether in cash, property or securities, including, without
limitation, by way of set-off or otherwise, in respect of any of its Obligations
on its Guarantee before all Guarantor Senior Indebtedness of such Guarantor is
paid in full in cash, then and in such event such payment or distribution shall
be paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment
or distribution of assets of such Guarantor for application to the payment of
all such Guarantor Senior Indebtedness remaining unpaid, to the extent necessary
to pay all of such Guarantor Senior Indebtedness in full in cash, after giving
effect to any concurrent payment or distribution to or for the holders of such
Guarantor Senior Indebtedness.
The consolidation of a Guarantor with, or the merger of a
Guarantor with or into, another Person or the liquidation or dissolution of a
Guarantor following the conveyance, transfer or lease of its properties and
assets substantially as an entirety to another Person upon the terms and
conditions set forth in Article Five hereof shall not be deemed a dissolution,
winding-up, liquidation, reorganization, assignment for the benefit of creditors
or marshaling of assets and liabilities of such Guarantor for the purposes of
this Article Ten if the Person formed by such consolidation or the surviving
entity of such merger or the Person which acquires by conveyance, transfer or
lease such properties and assets substantially as an entirety, as the case may
be, shall, as a part of such consolidation, merger, conveyance, transfer or
lease, comply with the conditions set forth in such Article Five hereof.
SECTION 10.08. Suspension of Guarantee Obligations When Guarantor
Senior Indebtedness in Default.
-----------------------------------------------------
(a) Unless Section 10.07 hereof shall be applicable, after the
occurrence of a Payment Default with respect to any Designated Senior
Indebtedness which constitutes Guarantor Senior Indebtedness, no payment or
distribution of any assets or securities of any kind or character (including,
without limitation, cash, property and any payment or distribution which may be
payable or deliverable by reason of the payment of any other Indebtedness of
such Guarantor being subordinated to its Obligations on its Guarantee) may be
made by or on behalf of such Guarantor or any Subsidiary of such Guarantor,
including, without limitation, by way of set-off or otherwise, for or on account
of its Obligations on its Guarantee, and neither the Trustee nor any holder or
owner of any Notes shall take or receive from any Guarantor
<PAGE> 92
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or any Subsidiary of such Guarantor, directly or indirectly in any manner,
payment in respect of all or any portion of its Obligations on its Guarantee
following the delivery by the representative of the holders of, for so long as
there shall exist any Designated Senior Indebtedness under or in respect of the
Senior Credit Facility, the holders of Designated Senior Indebtedness under or
in respect of the Senior Credit Facility or, thereafter, the holders of
Designated Senior Indebtedness which constitutes Guarantor Senior Indebtedness
(in either such case, the "Guarantor Representative") to the Trustee on behalf
of the Holders of written notice of (i) the occurrence of a Payment Default on
Designated Senior Indebtedness or (ii) the occurrence of a Non-Payment Event of
Default on such Designated Senior Indebtedness and (in the case of this clause
(ii)) the acceleration of the maturity of Designated Senior Indebtedness in
accordance with its terms, and in any such event, such prohibition shall
continue until such Payment Default is cured, waived in writing or ceases to
exist or such acceleration has been rescinded or otherwise cured. At such time
as the prohibition set forth in the preceding sentence shall no longer be in
effect, subject to the provisions of the following paragraph (b), such Guarantor
shall resume making any and all required payments in respect of its Obligations
under its Guarantee.
(b) Unless Section 10.07 hereof shall be applicable, upon the
occurrence of a Non-Payment Event of Default on Designated Senior Indebtedness
which constitutes Guarantor Senior Indebtedness, no payment or distribution of
any assets of such Guarantor of any kind or character (including, without
limitation, cash, property and any payment or distribution which may be payable
or deliverable by reason of the payment of any other Indebtedness of such
Guarantor being subordinated to its Obligations on its Guarantee) shall be made
by such Guarantor or any Subsidiary of any Guarantor, including, without
limitation, by way of set-off or otherwise, for or on account of any of its
Obligations on its Guarantee, and neither the Trustee nor any holder or owner of
any Notes shall take or receive from any Guarantor or any Subsidiary of such
Guarantor, directly or indirectly in any manner, payment in respect of all or
any portion of its Obligations on its Guarantee for a period (a "GUARANTEE
PAYMENT BLOCKAGE PERIOD") commencing on the date of receipt by the Trustee of
written notice from the Guarantor Representative of such Non-Payment Event of
Default, unless and until (subject to any blockage of payments that may then be
in effect under the preceding paragraph (a)) the earliest to occur of the
following events: (x) more than 179 days shall have elapsed since the date of
receipt of such written notice by the Trustee, (y) such Non-Payment Event of
Default shall have been cured or waived in writing or shall have ceased to exist
or such Designated Senior Indebtedness shall have been discharged or paid in
full or (z) such Guarantee Payment Blockage Period shall have been terminated by
written notice to such Guarantor or the Trustee from the Guarantor
Representative after which, in the case of clause (x), (y) or (z), such
Guarantor shall resume making any and all required payments in respect of its
Obligations on its Guarantee. Notwithstanding any other provisions of this
Indenture, no Non-Payment Event of Default with respect to Designated Senior
Indebtedness which existed or was continuing on
<PAGE> 93
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the date of the commencement of any Guarantee Payment Blockage Period initiated
by the Guarantor Representative shall be, or be made, the basis for the
commencement of a second Guarantee Payment Blockage Period initiated by the
Guarantor Representative, whether or not initiated within the Initial Guarantee
Blockage Period, unless such first Guarantor Non-Payment Event of Default shall
have been cured or waived for a period of not less than 90 consecutive days. In
no event shall a Guarantee Payment Blockage Period extend beyond 179 days from
the date of the receipt by the Trustee of the notice referred to in this Section
10.08(b) or, in the event of a Non-Payment Event of Default which formed the
basis for a Payment Blockage Period under Section 11.03(b) hereof, 179 days from
the date of the receipt by the Trustee of the notice referred to in Section
11.03(b) (the "INITIAL GUARANTEE BLOCKAGE PERIOD"). Any number of additional
Guarantee Payment Blockage Periods may be commenced during the Initial Guarantee
Blockage Period; PROVIDED, HOWEVER, that no such additional Guarantee Payment
Blockage Period shall extend beyond the Initial Guarantee Blockage Period. After
the expiration of the Initial Guarantee Blockage Period, no Guarantee Payment
Blockage Period may be commenced under this Section 10.08(b) and no Payment
Blockage Period may be commenced under Section 11.03(b) hereof until at least
180 consecutive days have elapsed from the last day of the Initial Guarantee
Blockage Period.
(c) In the event that, notwithstanding the foregoing, the
Holder of any Note shall have received any payment from a Guarantor prohibited
by the foregoing provisions of this Section 10.08, then and in such event such
payment shall be paid over and delivered forthwith to the Guarantor
Representative initiating the Guarantee Payment Blockage Period, in trust for
distribution to the holders of Guarantor Senior Indebtedness or, if no amounts
are then due in respect of Guarantor Senior Indebtedness, promptly returned to
the Guarantor, or as a court of competent jurisdiction shall direct.
SECTION 10.09. Trustee's Relation to Guarantor Senior Indebtedness.
----------------------------------------------------
The Trustee and any Paying Agent shall be entitled to all the
rights set forth in this Article Ten with respect to any Guarantor Senior
Indebtedness which may at any time be held by it in its individual or any other
capacity to the same extent as any other holder of Guarantor Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee or any
Paying Agent of any of its rights as such holder.
With respect to the holders of Guarantor Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Ten, and no implied
covenants or obligations with respect to the holders of Guarantor Senior
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Guarantor Senior
Indebtedness and the Trustee shall not be liable to any holder of Guarantor
Senior Indebtedness (other than for its willful misconduct or negligence) if it
shall in good faith mistakenly
<PAGE> 94
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pay over or deliver to the Holders of Notes, the Company or any other Person
moneys or assets to which any holder of Guarantor Senior Indebtedness shall be
entitled by virtue of this Article Ten or otherwise. Nothing in this Section
10.09 shall affect the obligation of any other such Person, the Company, or the
Holders to hold such money or assets for the benefit of, and to pay such money
or assets over to, the holders of the Guarantor Senior Indebtedness or their
applicable representative or representatives.
SECTION 10.10. Subrogation to Rights of Holders of Guarantor Senior
Indebtedness.
-----------------------------------------------------
Upon the payment in full of all amounts payable under or in
respect of all Guarantor Senior Indebtedness of a Guarantor, the Holders shall
be subrogated to the rights of the holders of such Guarantor Senior Indebtedness
to receive payments and distributions of cash, property and securities of such
Guarantor made on such Guarantor Senior Indebtedness until all amounts due to be
paid under the Guarantee shall be paid in full. For the purposes of such
subrogation, no payments or distributions to holders of Guarantor Senior
Indebtedness of any cash, property or securities to which Holders of the Notes
would be entitled except for the provisions of this Article Ten and no payments
over pursuant to the provisions of this Article Ten to holders of Guarantor
Senior Indebtedness by Holders of the Notes, shall, as among each Guarantor, its
creditors other than holders of Guarantor Senior Indebtedness and the Holders of
the Notes, be deemed to be a payment or distribution by such Guarantor to or on
account of such Guarantor Senior Indebtedness.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Ten shall
have been applied, pursuant to the provisions of this Article Ten, to the
payment of all amounts payable under Guarantor Senior Indebtedness, then and in
such case, the Holders shall be entitled to receive from the holders of such
Guarantor Senior Indebtedness at the time outstanding any payments or
distributions received by such holders of Guarantor Senior Indebtedness in
excess of the amount sufficient to pay all amounts payable under or in respect
of such Guarantor Senior Indebtedness in full in cash.
SECTION 10.11. Guarantee Subordination Provisions Solely To Define
Relative Rights.
----------------------------------------------------
The subordination provisions of this Article Ten are and are
intended solely for the purpose of defining the relative rights of the Holders
of the Notes on the one hand and the holders of Guarantor Senior Indebtedness on
the other hand. Nothing contained in this Article Ten or elsewhere in this
Indenture or in the Notes is intended to or shall (a) impair, as among each
Guarantor, its creditors other than holders of its Guarantor Senior Indebtedness
and the Holders of the Notes, the obligation of such Guarantor, which is
absolute and unconditional, to make payments to the Holders in respect of its
Obligations on its Guarantee in accordance
<PAGE> 95
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with its terms; or (b) affect the relative rights against such Guarantor of the
Holders of the Notes and creditors of such Guarantor other than the holders of
the Guarantor Senior Indebtedness; or (c) prevent the Holder of any Note from
exercising all remedies otherwise permitted by applicable law upon a Default or
an Event of Default under this Indenture, subject to the rights, if any, under
this Article Ten of the holders of Guarantor Senior Indebtedness (1) in any
case, proceeding, dissolution, liquidation or other winding-up, assignment for
the benefit of creditors or other marshaling of assets and liabilities of any
Guarantor referred to in Section 10.07 hereof, to receive, pursuant to and in
accordance with such Section, cash, property and securities otherwise payable or
deliverable to such Holder, or (2) under the conditions specified in Section
10.08 hereof, to prevent any payment prohibited by such Section or enforce their
rights pursuant to Section 10.08(c) hereof.
The failure by any Guarantor to make a payment in respect of
its obligations on its Guarantee by reason of any provision of this Article Ten
shall not be construed as preventing the occurrence of a Default or an Event of
Default hereunder.
SECTION 10.12. Trustee To Effectuate Subordination.
------------------------------------
Each Holder of a Note by his acceptance thereof agrees to be
bound by such provisions and authorizes and directs the Trustee, on his behalf,
to take such action as may be necessary or appropriate to effectuate the
subordination provisions in this Article Ten and appoints the Trustee his
attorney-in-fact for any and all such purposes, including, in the event of any
Guarantor Bankruptcy Proceeding or other dissolution, winding-up, liquidation or
reorganization of a Guarantor whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the prompt and timely filing of a claim for the
unpaid balance of the indebtedness of such Guarantor owing to such Holder in the
form required in such proceedings and the causing of such claim to be approved.
If the Trustee does not file such a claim prior to 30 days before the expiration
of the time to file such a claim, the holders of Guarantor Senior Indebtedness,
or any Guarantor Representative, may, and hereby are authorized to, file such a
claim on behalf of Holders of the applicable Notes.
SECTION 10.13. Notice to Trustee.
------------------
(a) The Company or any Guarantor shall give prompt written
notice to the Trustee of any fact known to the Company or any such Guarantor
which would prohibit the making of any payment to or by the Trustee at its
Corporate Trust Office in respect of the Guarantees. Notwithstanding the
provisions of this Article Ten or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the Trustee in respect of the
Guarantees, unless and until the Trustee shall have received written notice
thereof from the Company or a holder of Guarantor Senior Indebtedness or from
any trustee, fiduciary, representative, or
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agent therefor no later than one Business Day prior to such payment; and, prior
to the receipt of any such written notice, the Trustee, subject to the
provisions of this Section 10.13, and subject to the provisions of Sections 7.01
and 7.02 hereof, shall be entitled in all respects to assume that no such facts
exist; PROVIDED, HOWEVER, that if the Trustee shall not have received the notice
referred to in this Section 10.13 at least one Business Day prior to the date
upon which by the terms hereof any such payment may become payable for any
purpose under this Indenture (including, without limitation, the payment of the
principal of, premium, if any, or interest on any Note), then, anything herein
contained to the contrary notwithstanding but without limiting the rights and
remedies of the holders of Guarantor Senior Indebtedness or any trustee,
fiduciary, representative, or agent therefor as against the Holders of the Notes
or any other Person, the Trustee shall have full power and authority to receive
such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it less than one Business Day prior to such date; nor shall the
Trustee be charged with knowledge of the curing of any such applicable default
in respect of Designated Senior Indebtedness or the elimination of the act or
condition preventing any such payment unless and until the Trustee shall have
received an Officers' Certificate to such effect (subject to the rights of the
holders of the Designated Senior Indebtedness under Section 10.08 hereof).
(b) Subject to the provisions of Section 7.01 hereof, the
Trustee shall be entitled to rely (to the extent reasonable and in good faith)
on the delivery to it of a written notice to the Trustee and the Company or a
Guarantor by a Person representing itself to be a holder of Guarantor Senior
Indebtedness (or a trustee, fiduciary, representative, or agent therefor) for
purposes of establishing that such notice actually has been given by a holder of
Guarantor Senior Indebtedness (or a trustee, fiduciary, representative, or agent
therefor); PROVIDED, HOWEVER, that failure to give such notice to the Company or
a Guarantor shall not affect in any way the ability of the Trustee to rely on
such notice. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Guarantor Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Ten, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Guarantor Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article Ten, and if such
evidence is not furnished, the Trustee, acting in good faith, may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
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SECTION 10.14. Rights of Trustee as a Holder of Guarantor Senior
Indebtedness; Preservation of Trustee's Rights.
--------------------------------------------------
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article Ten with respect to any Guarantor
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Guarantor Senior Indebtedness, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder. Nothing in this
Article Ten shall apply to claims of, or payments to, the Trustee for its
compensation owing pursuant to and in accordance with, the first sentence of
Section 7.07 hereof.
SECTION 10.15. Application of Certain Article Eleven Provisions.
-------------------------------------------------
The provisions of Sections 11.08, 11.10, 11.12 and 11.13
hereof shall apply, MUTATIS MUTANDIS, to each Guarantor and their respective
holders of Guarantor Senior Indebtedness and the rights, duties and obligations
set forth therein shall govern the rights, duties and obligations of each
Guarantor, the holders of Guarantor Senior Indebtedness and the Holders with
respect to the Guarantee and all references therein to Article Eleven hereof
shall mean this Article Ten.
ARTICLE ELEVEN
SUBORDINATION OF NOTES
SECTION 11.01. Notes Subordinate to Senior Indebtedness.
-----------------------------------------
The Company covenants and agrees, and each Holder of Notes, by
its acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article Eleven, the Indebtedness
represented by the Notes and the payment of the principal of, premium, if any,
and interest on the Notes are hereby expressly made subordinate and subject in
right of payment as provided in this Article Eleven to the prior indefeasible
payment and satisfaction in full in cash of all existing and future Senior
Indebtedness.
This Article Eleven shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of or continue to
hold Senior Indebtedness; and such provisions are made for the benefit of the
holders of Senior Indebtedness; and such holders are made obligees hereunder and
they or each of them may enforce such provisions.
<PAGE> 98
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SECTION 11.02. Payment Over of Proceeds upon Dissolution, etc.
-----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, arrangement, reorganization or
other similar case or proceeding in connection therewith, relative to the
Company or to its creditors, as such, or to its assets, whether voluntary or
involuntary or (b) any liquidation, dissolution or other winding-up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any general assignment for the benefit of
creditors or any other marshalling of assets or liabilities of the Company, then
and in any such event (all and each of the foregoing, a "COMPANY BANKRUPTCY
PROCEEDING"): (1) the holders of Senior Indebtedness shall be entitled to
receive payment and satisfaction in full in cash of all amounts due on or in
respect of all Senior Indebtedness, before the Holders of the Notes are entitled
to receive or retain any payment or distribution of any kind or character on
account of principal of, premium, if any, or interest on the Notes; and (2) any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, by set-off or otherwise, to which the
Holders would be entitled but for the provisions of this Article Eleven shall be
paid by the liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
agreement under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts remaining
unpaid on account of the Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full in cash of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or distribution,
or provision therefor, to the holders of such Senior Indebtedness.
In the event that, notwithstanding the provisions of this
Section 11.02, the Trustee or the Holder of any Note shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including, without limitation, by way
of set-off or otherwise, in respect of principal of, premium, if any, and
interest on the Notes before all Senior Indebtedness is paid in full in cash,
then and in such event such payment or distribution shall be paid over or
delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of
assets of the Company for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full
in cash, after giving effect to any concurrent payment or distribution, or
provision therefor, to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company with or into, another Person or the liquidation or dissolution of the
Company following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Article Five hereof shall not be deemed a dissolu-
<PAGE> 99
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tion, winding-up, liquidation, reorganization, assignment for the benefit of
creditors or marshaling of assets and liabilities of the Company for the
purposes of this Article Eleven if the Person formed by such consolidation or
the surviving entity of such merger or the Person which acquires by conveyance,
transfer or lease such properties and assets substantially as an entirety, as
the case may be, shall, as a part of such consolidation, merger, conveyance,
transfer or lease, comply with the conditions set forth in Article Five hereof.
SECTION 11.03. Suspension of Payment When Senior Indebtedness
in Default.
-----------------------------------------------
(a) Unless Section 11.02 hereof shall be applicable, after the
occurrence of a Payment Default, no payment or distribution of any assets or
securities of any kind or character (including, without limitation, cash,
property and any payment or distribution which may be payable or deliverable by
reason of the payment of any other Indebtedness of the Company being
subordinated to the payment of the Notes by the Company) may be made by or on
behalf of the Company or any of its Subsidiaries, including, without limitation,
by way of set-off or otherwise, for or on account of principal of, premium, if
any, or interest on the Notes, or for or on account of the purchase, redemption,
defeasance or other acquisition of the Notes (other than from a trust previously
established pursuant to Section 9.04 hereof), and neither the Trustee nor any
holder or owner of any Notes shall take or receive from the Company or any of
its Subsidiaries, directly or indirectly in any manner, payment in respect of
all or any portion of Notes following the delivery by the representative of, for
so long as there shall exist any Designated Senior Indebtedness under or in
respect of the Senior Credit Facility, the holders of Designated Senior
Indebtedness under or in respect of the Senior Credit Facility or, thereafter,
the holders of Designated Senior Indebtedness (in either such case, the
"REPRESENTATIVE") to the Trustee of written notice of (i) the occurrence of a
Payment Default on Designated Senior Indebtedness or (ii) the occurrence of a
Non-Payment Event of Default on Designated Senior Indebtedness and (in the case
of this clause (ii)) the acceleration of the maturity of Designated Senior
Indebtedness in accordance with its terms, and in any such event, such
prohibition shall continue until such Payment Default is cured, waived in
writing or ceases to exist or such acceleration has been rescinded or otherwise
cured. At such time as the prohibition set forth in the preceding sentence shall
no longer be in effect, subject to the provisions of the following paragraph
(b), the Company shall resume making any and all required payments in respect of
the Notes, including any missed payments.
(b) Unless Section 11.02 hereof shall be applicable, after the
occurrence of a Non-Payment Event of Default on Designated Senior Indebtedness,
no payment or distribution of any assets or securities of any kind or character
(including, without limitation, cash, property and any payment or distribution
which may be payable or deliverable by reason of the payment of any other
Indebtedness of the Company being subordinated to the payment of the Notes by
the Company) shall be made by or on behalf of the Company or any of its Sub-
<PAGE> 100
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sidiaries, including, without limitation, by way of set-off or otherwise, for
or on account of any principal of, premium, if any, or interest on the Notes or
for or on account of the purchase, redemption, defeasance or other acquisition
of Notes (other than from a trust previously established pursuant to Section
9.04 hereof), and neither the Trustee nor any holder or owner of any Notes shall
take or receive from the Company or any of its Subsidiaries, directly or
indirectly in any manner, payment in respect of all or any portion of the Notes,
for a period (a "PAYMENT BLOCKAGE PERIOD") commencing on the date of receipt by
the Trustee of written notice from the Representative of such Non-Payment Event
of Default unless and until (subject to any blockage of payments that may then
be in effect under the preceding paragraph (a)) the earliest to occur of the
following events: (x) more than 179 days shall have elapsed since the date of
receipt of such written notice by the Trustee, (y) such Non-Payment Event of
Default shall have been cured or waived in writing or shall have ceased to exist
or such Designated Senior Indebtedness shall have been discharged or paid in
full or (z) such Payment Blockage Period shall have been terminated by written
notice to the Company or the Trustee from the Representative, after which, in
the case of clause (x), (y) or (z), the Company shall resume making any and all
required payments in respect of the Notes, including any missed payments.
Notwithstanding any other provisions of this Indenture, no Non-Payment Event of
Default with respect to Designated Senior Indebtedness which existed or was
continuing on the date of the commencement of any Payment Blockage Period
initiated by the Representative shall be, or be made, the basis for the
commencement of a second Payment Blockage Period initiated by the
Representative, whether or not within the Initial Blockage Period unless such
first Non-Payment Event of Default shall have been cured or waived for a period
of not less than 90 consecutive days. In no event shall a Payment Blockage
Period extend beyond 179 days from the date of the receipt by the Trustee of the
notice referred to in this Section 11.03(b) (the "INITIAL BLOCKAGE PERIOD"). Any
number of additional Payment Blockage Periods may be commenced during the
Initial Blockage Period; PROVIDED, HOWEVER, that no such additional Payment
Blockage Period shall extend beyond the Initial Blockage Period. After the
expiration of the Initial Blockage Period, no Payment Blockage Period may be
commenced under this Section 11.03(b) and no Guarantee Payment Blockage Period
may be commenced under Section 10.08 hereof until at least 180 consecutive days
have elapsed from the last day of the Initial Blockage Period.
(c) In the event that, notwithstanding the foregoing, the
Holder of any Note shall have received any payment prohibited by the foregoing
provisions of this Section 11.03, then and in such event such payment shall be
paid over and delivered forthwith to the Representative initiating the Payment
Blockage Period, in trust for distribution to the holders of Senior Indebtedness
or, if no amounts are then due in respect of Senior Indebtedness, promptly
returned to the Company, or otherwise as a court of competent jurisdiction shall
direct.
<PAGE> 101
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SECTION 11.04. Trustee's Relation to Senior Indebtedness.
------------------------------------------
The Trustee and any Paying Agent shall be entitled to all the
rights set forth in this Article Eleven with respect to any Senior Indebtedness
which may at any time be held by it in its individual or any other capacity to
the same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee or any Paying Agent of any of its rights as
such holder.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Eleven, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and the
Trustee shall not be liable to any holder of Senior Indebtedness (other than for
its willful misconduct or negligence) if it shall in good faith mistakenly pay
over or deliver to the Holders of Notes, the Company or any other Person moneys
or assets to which any holder of Senior Indebtedness shall be entitled by virtue
of this Article or otherwise. Nothing in this Section 11.04 shall affect the
obligation of any other such Person, the Company, or the Holders to hold such
money or assets for the benefit of, and to pay such money or assets over to, the
holders of the Senior Indebtedness or their applicable representative or
representatives.
SECTION 11.05. Subrogation to Rights of Holders of Senior
Indebtedness.
-------------------------------------------
Upon the payment in full of all Senior Indebtedness, the
Holders of the Notes shall be subrogated to the rights of the holders of such
Senior Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of,
premium, if any and interest on the Notes shall be paid in full. For purposes of
such subrogation, no payments or distributions to the holders of Senior
Indebtedness of any cash, property or securities to which the Holders of the
Notes would be entitled except for the provisions of this Article Eleven, and no
payments over pursuant to the provisions of this Article Eleven to the holders
of Senior Indebtedness by Holders of the Notes shall, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Notes, be deemed to be a payment or distribution by the Company to or on account
of the Senior Indebtedness.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Eleven shall
have been applied, pursuant to the provisions of this Article Eleven, to the
payment of all amounts payable under the Senior Indebtedness of the Company,
then and in such case the Holders shall be entitled to receive from the holders
of such Senior Indebtedness at the time outstanding any payments or distri-
<PAGE> 102
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butions received by such holders of such Senior Indebtedness in excess of
the amount sufficient to pay all amounts payable under or in respect of such
Senior Indebtedness in full in cash.
SECTION 11.06. Provisions Solely To Define Relative Rights.
--------------------------------------------
The provisions of this Article Eleven are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Notes on the one hand and the holders of Senior Indebtedness on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the Notes
is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Notes, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders of
the Notes the principal of, premium, if any, and interest on the Notes as and
when the same shall become due and payable in accordance with their terms; or
(b) affect the relative rights against the Company of the Holders of the Notes
and creditors of the Company other than the holders of Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Note from exercising all remedies
otherwise permitted by applicable law upon a Default or an Event of Default
under this Indenture, subject to the rights, if any, under this Article Eleven
of the holders of Senior Indebtedness (1) in any case, proceeding, dissolution,
liquidation or other winding-up, assignment for the benefit of creditors or
other marshaling of assets and liabilities of the Company referred to in Section
11.02 hereof, to receive, pursuant to and in accordance with such Section, cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder, or (2) under the conditions specified in Section 11.03, to prevent any
payment prohibited by such Section or enforce their rights pursuant to Section
11.03(c) hereof.
The failure to make a payment on account of principal of,
premium, if any, or interest on the Notes by reason of any provision of this
Article Eleven shall not be construed as preventing the occurrence of a Default
or an Event of Default hereunder.
SECTION 11.07. Trustee to Effectuate Subordination.
------------------------------------
Each Holder of a Note by his acceptance thereof agrees to be
bound by such provisions and authorizes and directs the Trustee, on his behalf,
to take such action as may be necessary or appropriate to effectuate the
subordination provisions in this Article Eleven and appoints the Trustee his
attorney-in-fact for any and all such purposes, including, in the event of any
Company Bankruptcy Proceeding or other dissolution, winding-up, liquidation or
reorganization of the Company whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the prompt and timely filing of a claim for the
unpaid balance of the indebtedness of the Company owing to such Holder in the
form required in such proceedings and the causing of such claim to be approved.
If the Trustee does not file such a claim prior to 30 days before the expiration
of the time to file such a claim, the holders of Senior Indebtedness, or
<PAGE> 103
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any Representative, may, and hereby are authorized to, file such a claim on
behalf of Holders of the applicable Notes.
SECTION 11.08. No Waiver of Subordination Provisions
-------------------------------------
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any non-compliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 11.08, the holders of Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders of the
Notes, without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provisions in this Article Eleven or
the obligations hereunder of the Holders of the Notes to the holders of Senior
Indebtedness, do any one or more of the following: (1) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (2) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (3) release any Person liable in any manner for the collection or
payment of Senior Indebtedness; and (4) exercise or refrain from exercising any
rights against the Company and any other Person; PROVIDED, HOWEVER, that in no
event shall any such actions limit the right of the Holders of the Notes to take
any action to accelerate the maturity of the Notes pursuant to Article Six
hereof or to pursue any rights or remedies hereunder or under applicable laws if
the taking of such action does not otherwise violate the terms of this
Indenture.
SECTION 11.09. Notice to Trustee.
------------------
(a) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the making of any
payment to or by the Trustee at its Corporate Trust Office in respect of the
Notes. Notwithstanding the provisions of this Article Eleven or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Notes, unless and until the Trustee shall have
received written notice thereof from the Company or a holder of Senior
Indebtedness or from any trustee, fiduciary, representative, or agent therefor
no later than one Business Day prior to such payment; and, prior to the receipt
of any such written notice, the Trustee, subject to the provisions of this
Section 11.09, and subject to the provisions of Sections 7.01 and 7.02 hereof,
<PAGE> 104
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shall be entitled in all respects to assume that no such facts exist; PROVIDED,
HOWEVER, that if the Trustee shall not have received the notice referred to in
this Section 11.09 at least one Business Day prior to the date upon which by the
terms hereof any such payment may become payable for any purpose under this
Indenture (including, without limitation, the payment of the principal of,
premium, if any, or interest on any Note), then, anything herein contained to
the contrary notwithstanding but without limiting the rights and remedies of the
holders of Senior Indebtedness or any trustee, fiduciary, representative, or
agent therefor as against the Holders of the Notes or any other Person, the
Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it less than one
Business Day prior to such date; nor shall the Trustee be charged with knowledge
of the curing of any such applicable default in respect of Designated Senior
Indebtedness or the elimination of the act or condition preventing any such
payment unless and until the Trustee shall have received an Officers'
Certificate to such effect (subject to the rights of the holders of the Senior
Indebtedness under Section 11.03 hereof).
(b) Subject to the provisions of Section 7.01 hereof, the
Trustee shall be entitled to rely (to the extent reasonable and in good faith)
on the delivery to it of a written notice to the Trustee and the Company by a
Person representing itself to be a holder of Senior Indebtedness (or a trustee,
fiduciary, representative, or agent therefor) for purposes of establishing that
such notice actually has been given by a holder of Senior Indebtedness (or a
trustee, fiduciary, representative, or agent therefor); PROVIDED, HOWEVER, that
failure to give such notice to the Company shall not affect in any way the
ability of the Trustee to rely on such notice. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article Eleven, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article Eleven,
and if such evidence is not furnished, the Trustee, acting in good faith, may
defer any payment to such Person pending judicial determination as to the right
of such Person to receive such payment.
SECTION 11.10. Reliance on Judicial Order or Certificate of
Liquidating Agent
---------------------------------------------
Upon any payment or distribution of assets of the Company
referred to in the Article Eleven, the Trustee, subject to the provisions of
Section 7.01 hereof, and the Holders shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up
or similar case or proceedings is pending, or a certificate of the trustee in
<PAGE> 105
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bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or the Holders, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Eleven.
SECTION 11.11. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
-----------------------------------------------------
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article Eleven with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder. Nothing in this Article Eleven
shall apply to claims of, or payments to, the Trustee for its compensation owing
pursuant to and in accordance with, the first sentence of Section 7.07 hereof.
SECTION 11.12. Article Applicable to Paying Agents.
------------------------------------
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article Eleven shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article Eleven in addition to or in place of the Trustee.
SECTION 11.13. No Suspension of Remedies.
--------------------------
Nothing contained in this Article Eleven shall limit the right
of the Trustee or the Holders of Notes to take any action to accelerate the
maturity of the Notes pursuant to Article Six hereof or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights, if any, under
this Article Eleven of the holders, from time to time, of Senior Indebtedness.
<PAGE> 106
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ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls.
-----------------------------
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control. If any provision of
this Indenture modifies any TIA provision that may be so modified, such TIA
provision shall be deemed to apply to this Indenture as so modified. If any
provision of this Indenture excludes any TIA provision that may be so excluded,
such TIA provision shall be excluded from this Indenture.
The provisions of TIA sections 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION 12.02. Notices.
--------
Except for notice or communications to Holders, any notice or
communication shall be given in writing and delivered in person, sent by
facsimile, delivered by commercial courier service or mailed by first-class
mail, postage prepaid, addressed as follows:
If to the Company or any Guarantor:
OGLEBAY NORTON COMPANY
1100 Superior Avenue
Cleveland, OH 44114
Attention: Chief Financial Officer
Fax Number: (216) 861-2863
with, in the case of any notice furnished pursuant to Article
Six, a copy to:
JONES, DAY, REAVIS & POGUE
North Point
901 Lakeside Avenue
Cleveland, OH 44114
Attention: Charles W. Hardin, Jr., Esq.
<PAGE> 107
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Fax Number: (216) 579-0212
If to the Trustee:
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Norwest Center
Sixth and Marquette
Minneapolis, MN 55479-0069
Attention: Corporate Trust Department
Fax Number: (612) 667-2134
Such notices or communications shall be effective when
received and shall be sufficiently given if so given within the time prescribed
in this Indenture.
The Company, the Guarantors or the Trustee by written notice
to the others may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Noteholder shall be
mailed to him by first-class mail, postage prepaid, at his address shown on the
register kept by the Registrar.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication to a Noteholder is mailed in the
manner provided above, it shall be deemed duly given, whether or not the
addressee receives it.
In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
SECTION 12.03. Communications by Holders with Other Holders.
---------------------------------------------
Noteholders may communicate pursuant to TIA Section 312(b)
with other Noteholders with respect to their rights under this Indenture or the
Notes. The Company, the Guarantors, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
<PAGE> 108
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SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
---------------------------------------------------
Upon any request or application by the Company or any
Guarantor to the Trustee to take any action under this Indenture, the Company or
such Guarantor shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 12.05 below) stating that, in the
opinion of the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 12.05 below) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.05. Statements Required in Certificate and Opinion.
-----------------------------------------------
Each certificate and opinion with respect to compliance by or
on behalf of the Company or any Guarantor with a condition or covenant provided
for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, it or he
has made such examination or investigation as is necessary to enable it
or him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such covenant or condition has been complied with.
SECTION 12.06. Rules by Trustee and Agents.
----------------------------
The Trustee may make reasonable rules for action by or
meetings of Noteholders. The Registrar and Paying Agent may make reasonable
rules for their functions.
<PAGE> 109
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SECTION 12.07. Business Days; Legal Holidays.
------------------------------
A "Business Day" is a day that is not a Legal Holiday. A
"Legal Holiday" is a Saturday, a Sunday or other day on which (i) commercial
banks in the City of New York are authorized or required by law to close or (ii)
the New York Stock Exchange is not open for trading. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
SECTION 12.08. Governing Law.
--------------
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
SECTION 12.09. No Adverse Interpretation of Other Agreements.
----------------------------------------------
This Indenture may not be used to interpret another indenture,
loan, security or debt agreement of the Company or any Subsidiary thereof. No
such indenture, loan, security or debt agreement may be used to interpret this
Indenture.
SECTION 12.10. No Recourse Against Others.
No recourse for the payment of the principal of or premium, if
any, or interest, including Additional Interest, on any of the Notes, or for any
claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company or any Guarantor in
this Indenture or in any supplemental indenture, or in any of the Notes, or
because of the creation of any Indebtedness represented thereby, shall be had
against any stockholder, officer, director or employee, as such, past, present
or future, of the Company or of any successor corporation or against the
property or assets of any such stockholder, officer, employee or director,
either directly or through the Company or any Guarantor, or any successor
corporation thereof, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the Notes are solely obligations of
the Company and the Guarantors, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, any stockholder, officer,
employee or director of the Company or any Guarantor, or any successor
corporation thereof, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or the Notes or implied therefrom, and that any and
all such personal liability of, and any and all claims
<PAGE> 110
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against every stockholder, officer, employee and director, are hereby expressly
waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issuance of the Notes. It is understood that this
limitation on recourse is made expressly for the benefit of any such
shareholder, employee, officer or director and may be enforced by any of them.
SECTION 12.11. Successors.
-----------
All agreements of the Company and the Guarantors in this
Indenture and the Notes shall bind their respective successors. All agreements
of the Trustee, any additional trustee and any Paying Agents in this Indenture
shall bind its successor.
SECTION 12.12. Multiple Counterparts.
----------------------
The parties may sign multiple counterparts of this Indenture.
Each signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
SECTION 12.13. Table of Contents, Headings, etc.
---------------------------------
The table of contents, cross-reference sheet and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 12.14. Separability.
-------------
Each provision of this Indenture shall be considered separable
and if for any reason any provision which is not essential to the effectuation
of the basic purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
<PAGE> 111
S-1
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed all as of the date and year first written above.
OGLEBAY NORTON COMPANY
By: ________________________________________
Name:
Title:
OGLEBAY NORTON HOLDING COMPANY
ONCO INVESTMENT COMPANY
COLORADO SILICA SAND, INC.
OGLEBAY NORTON ENGINEERED
MATERIALS, INC.
OGLEBAY NORTON INDUSTRIAL
MINERALS, INC.
OGLEBAY NORTON INDUSTRIAL SANDS, INC.
GLOBAL STONE PORT INLAND, INC.
OGLEBAY NORTON TERMINALS, INC.
d/b/a CLEVELAND BULK TERMINALS
GLOBAL STONE CORPORATION
GLOBAL STONE (U.S.A.) INC.
GLOBAL STONE TENN LUTTRELL
COMPANY
GLOBAL STONE DETROIT LIME COMPANY
GLOBAL STONE ST. CLAIR INC.
GLOBAL STONE CHEMSTONE
CORPORATION
GLOBAL STONE PENROC INC.
GLOBAL STONE FILLER PRODUCTS, INC.
By: ________________________________________
Name:
Title:
<PAGE> 112
S-2
TEXAS MINING, L.P.
By: OGLEBAY NORTON INDUSTRIAL
SANDS, INC.
By: _______________________________________
Name:
Title:
<PAGE> 113
S-3
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By: _________________________________
Name:
Title:
<PAGE> 114
EXHIBIT A
CUSIP
OGLEBAY NORTON COMPANY
No. $
10% SENIOR SUBORDINATED NOTE DUE 2009
OGLEBAY NORTON COMPANY, a Delaware corporation (the
"Company"), for value received, promises to pay to CEDE & CO. or registered
assigns the principal sum of $ dollars on February 1, 2009.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
OGLEBAY NORTON COMPANY
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
Dated: February 1, 1999
Certificate of Authentication
This is one of the 10% Senior Subordinated Notes due 2009
referred to in the within-mentioned Indenture.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By:___________________________________
Dated: February 1, 1999
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[FORM OF REVERSE OF NOTE]
OGLEBAY NORTON COMPANY
10% SENIOR SUBORDINATED NOTE DUE 2009
1. INTEREST. OGLEBAY NORTON COMPANY, a Delaware corporation
(the "Company"), promises to pay, until the principal hereof is paid or made
available for payment, interest on the principal amount set forth on the face
hereof at a rate of 10% per annum. Interest hereon will accrue from and
including the most recent date to which interest has been paid or, if no
interest has been paid, from and including February 1, 1999 to but excluding the
date on which interest is paid. Interest shall be payable in arrears on each
February 1 and August 1, commencing August 1, 1999. Interest will be computed on
the basis of a 360-day year of twelve 30-day months. The Company shall pay
interest on overdue principal and on overdue interest (to the full extent
permitted by law) at a rate of 10% per annum.
2. METHOD OF PAYMENT. The Company will pay interest hereon
(except defaulted interest) to the Persons who are registered Holders at the
close of business on January 15 or July 15 next preceding the interest payment
date (whether or not a Business Day). Holders must surrender Notes to a Paying
Agent to collect principal payments. The Company will pay principal and interest
in money of the United States of America that at the time of payment is legal
tender for payment of public and private debts. Interest may be paid by check
mailed to the Holder entitled thereto at the address indicated on the register
maintained by the Registrar for the Notes.
3. PAYING AGENT AND REGISTRAR. Initially, Norwest Bank
Minnesota, National Association (the "Trustee") will act as a Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice.
Neither the Company nor any of its Affiliates may act as Paying Agent or
Registrar.
4. INDENTURE. The Company issued the Notes under an Indenture
dated as of February 1, 1999 (the "Indenture") among the Company, the Guarantors
(as defined in the Indenture) and the Trustee. This is one of an issue of Notes
of the Company issued, or to be issued, under the Indenture. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939 (15 U.S. Code sections
77aaa-77bbbb), as amended from time to time. The Notes are subject to all such
terms, and Holders are referred to the Indenture and such Act for a statement of
them. Capitalized and certain other terms used herein and not otherwise defined
have the meanings set forth in the Indenture. The Notes are obligations of the
Company limited in aggregate principal amount to $100,000.000.
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5. SUBORDINATION. The Indebtedness evidenced by the Notes and
the Guarantees referred to below is, to the extent and in the manner provided in
the Indenture, subordinated and subject in right of payment to the prior
indefeasible payment in full in cash of all Senior Indebtedness and Guarantor
Senior Indebtedness, respectively, each as defined in the Indenture, and this
Note and the Guarantees are issued subject to such provisions. Each Holder of
this Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee, on behalf of such Holder, to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (c) appoints the Trustee
attorney-in-fact of such Holder for such purpose.
6. OPTIONAL REDEMPTION. (a) The Company, at its option, may
redeem the Notes, in whole or in part, at any time on or after February 1, 2004
upon not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount), set forth below, together, in
each case, with accrued and unpaid interest to the Redemption Date, if redeemed
during the twelve month period beginning on February 1 of each year listed
below:
<TABLE>
<CAPTION>
Year Redemption Price
---- ----------------
<S> <C>
2004................................................................. 105.000%
2005................................................................. 103.333%
2006................................................................. 101.667%
2007 and thereafter.................................................. 100.000%
</TABLE>
(b) Notwithstanding the foregoing, the Company may redeem in
the aggregate up to 35% of the original principal amount of Notes at any time
and from time to time prior to February 1, 2002 at a redemption price equal to
110% of the aggregate principal amount so redeemed, plus accrued and unpaid
interest, if any, to the redemption date out of the Net Proceeds of one or more
Public Equity Offerings; PROVIDED that at least 65% of the aggregate principal
amount of Notes originally issued remain outstanding immediately after the
occurrence of any such redemption and that any such redemption occurs within 60
days following the closing of any such Public Equity Offering.
(c) In the event of a redemption of fewer than all of the
Notes, the Trustee shall select the Notes to be redeemed in compliance with the
requirements of the principal national securities exchange, if any, while such
Notes are listed, or if such Notes are not then listed on a national securities
exchange, on a PRO RATA basis, by lot or in such other manner as the Trustee
shall deem fair and equitable. The Notes will be redeemable in whole or in part
upon not less than 30 nor more than 60 days' prior written notice, mailed by
first class mail to a Holder's last address as it shall appear on the register
maintained by the Registrar of the
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Notes. On and after any redemption date, interest will cease to accrue on the
Notes or portions thereof called for redemption unless the Company shall fail to
redeem any such Note.
7. NOTICE OF REDEMPTION. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the Redemption Date to
each Holder of Notes to be redeemed at his registered address. On and after the
Redemption Date, unless the Company defaults in making the redemption payment,
interest ceases to accrue on Notes or portions thereof called for redemption.
8. OFFERS TO PURCHASE. The Indenture provides that upon
the occurrence of a Change of Control or an Asset Sale and subject to further
limitations contained therein, the Company shall make an offer to purchase
outstanding Notes in accordance with the procedures set forth in the Indenture.
9. REGISTRATION RIGHTS. Pursuant to a Registration
Rights Agreement among the Company, the Guarantors, and CIBC Oppenheimer Corp.,
as selling securityholder, the Company will be obligated to consummate an
exchange offer pursuant to which the Holder of this Note shall have the right to
exchange this Note for notes of a separate series issued under the Indenture (or
a trust indenture substantially identical to the Indenture in accordance with
the terms of the Registration Rights Agreement) which have been registered under
the Securities Act, in like principal amount and having substantially identical
terms as the Notes. The Holders shall be entitled to receive certain additional
interest payments in the event such exchange offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. A Holder may transfer or exchange Notes in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay to it any
taxes and fees required by law or permitted by the Indenture. The Registrar need
not register the transfer of or exchange any Notes or portion of a Note selected
for redemption, or register the transfer of or exchange any Notes for a period
of 15 days before a mailing of notice of redemption.
11 PERSONS DEEMED OWNERS. The registered Holder of this
Note may be treated as the owner of this Note for all purposes.
12. UNCLAIMED MONEY. If money for the payment of
principal or interest remains unclaimed for two years, the Trustee will pay the
money back to the Company at its written request. After that, Holders entitled
to the money must look to the Company for payment as general creditors unless an
"abandoned property" law designates another Person.
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13. AMENDMENT, SUPPLEMENT, WAIVER, ETC. The Company, the
Guarantors and the Trustee (if a party thereto) may, without the consent of the
Holders of any outstanding Notes, amend, waive or supplement the Indenture or
the Notes for certain specified purposes, including, among other things, curing
ambiguities, defects or inconsistencies, maintaining the qualification of the
Indenture under the Trust Indenture Act of 1939, as amended, and making any
change that does not materially and adversely affect the rights of any Holder.
Other amendments and modifications of the Indenture or the Notes may be made by
the Company, the Guarantors and the Trustee with the consent of the Holders of
not less than a majority of the aggregate principal amount of the outstanding
Notes, subject to certain exceptions requiring the consent of the Holders of the
particular Notes to be affected.
14. RESTRICTIVE COVENANTS. The Indenture imposes certain
limitations on the ability of the Company and its Restricted Subsidiaries to,
among other things, incur additional Indebtedness, make payments in respect of
their Capital Stock or certain Indebtedness, make certain Investments, create or
incur liens, enter into transactions with Affiliates, enter into agreements
restricting the ability of Restricted Subsidiaries to pay dividends and make
distributions, issue Preferred Stock of any Restricted Subsidiaries of the
Company, enter into sale and leaseback transactions and on the ability of the
Company to merge or consolidate with any other Person or transfer all or
substantially all of the Company's or any Guarantor's assets. Such limitations
are subject to a number of important qualifications and exceptions. Pursuant to
Section 4.04 of the Indenture, the Company must quarterly report to the Trustee
on compliance with such limitations.
15. SUCCESSOR CORPORATION. When a successor corporation
assumes all the obligations of its predecessor under the Notes and the Indenture
and the transaction complies with the terms of Article Five of the Indenture,
the predecessor corporation will, except as provided in Article Five, be
released from those obligations.
16. DEFAULTS AND REMEDIES. Events of Default are set
forth in the Indenture. Subject to certain limitations in the Indenture, if an
Event of Default (other than an Event of Default specified in Section 6.01(7) or
(8) of the Indenture with respect to the Company) occurs and is continuing, the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
outstanding Notes may, by written notice to the Trustee and the Company, and the
Trustee upon the request of the Holders of not less than 25% in aggregate
principal amount of the outstanding Notes shall, declare all principal of and
accrued interest on all Notes to be immediately due and payable and (i) such
amounts shall become immediately due and payable or (ii) if there are any
amounts outstanding under or in respect of any Senior Indebtedness, such amounts
shall become due and payable upon the first to occur of an acceleration of
amounts outstanding under or in respect of such Senior Indebtedness or five
Business Days after receipt by the Company and the representative of the holders
of Senior Indebtedness, of notice of the acceleration of the Notes. If an Event
of Default specified in Sec-
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<PAGE> 120
tion 6.01(7) or (8) of the Indenture occurs with respect to the Company, the
principal amount of and interest on, all Notes shall IPSO FACTO become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing default (except a
default in payment of principal, premium, if any, or interest on the Notes or a
default in the observance or performance of any of the obligations of the
Company under Article Five of the Indenture) if it determines that withholding
notice is in their best interests.
17. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
18. NO RECOURSE AGAINST OTHERS. No director, officer,
employee incorporator or stockholder, of the Company or any Guarantor shall have
any liability for any obligations of the Company or the Guarantors under the
Notes, the Indenture or the Guarantees or for a claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Notes.
19. DISCHARGE. The Company's obligations pursuant to the
Indenture will be discharged, except for obligations pursuant to certain
sections thereof, subject to the terms of the Indenture, upon the payment of all
the Notes or upon the irrevocable deposit with the Trustee of United States
dollars or U.S. Government Obligations sufficient to pay when due principal of
and interest on the Notes to maturity or redemption, as the case may be.
20. GUARANTEES. The Note will be entitled to the benefits
of certain senior subordinated Guarantees made for the benefit of the Holders.
Reference is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and obligations thereunder of the
Guarantors, the Trustee and the Holders.
21. AUTHENTICATION. This Note shall not be valid until
the Trustee signs the certificate of authentication on the other side of this
Note.
22. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
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<PAGE> 121
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. The Trustee, the
Company, the Guarantor and the Holders agree to submit to the jurisdiction of
the courts of the State of New York in any action or proceeding arising out of
or relating to the Indenture or the Notes.
23. ABBREVIATIONS. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in common),
TENANT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
OGLEBAY NORTON COMPANY
1100 Superior Avenue
Cleveland, OH 44114
Attention: Chief Financial Officer
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<PAGE> 122
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
Date:___________________ Your Signature:_____________________
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:_______________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note
purchased by the Company pursuant to Section 4.09 or Section 4.20 of the
Indenture, check the appropriate box:
[ ] Section 4.09 [ ] Section 4.20
If you want to have only part of the Note purchased by the
Company pursuant to Section 4.09 or Section 4.16 of the Indenture, state the
amount you elect to have purchased:
$_____________________
(multiple of $1,000)
Date:__________________
Your Signature:_____________________________
(Sign exactly as your name appears on
the face of this Note)
____________________
Signature Guaranteed
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<PAGE> 124
EXHIBIT B
---------
[FORM OF LEGEND FOR 144A NOTES AND OTHER NOTES THAT ARE
RESTRICTED NOTES]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS
SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) AGREES THAT IT WILL
NOT PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF THIS NOTE AND THE LAST DATE
ON WHICH THE COMPANY, OR ANY AFFILIATE OF THE COMPANY, WAS THE OWNER OF THIS
NOTE (OR ANY PREDECESSOR OF SUCH SECURITY), RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (C) INSIDE THE UNITED STATES TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (D) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE COMPANY AND THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (E)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
UNDER THE ACT OR (F) PURSUANT TO ANY OTHER EXEMPTION FROM REGISTRATION UNDER THE
ACT (IF AVAILABLE) AND (2) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS
OF THE ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE ACT.
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[FORM OF ASSIGNMENT FOR 144A NOTES AND OTHER NOTES THAT ARE
RESTRICTED NOTES]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance
with the exemption from registration under the
Securities Act provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in
accordance with (a) above and documents are being
furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Sections 2.16 and 2.17 of the Indenture shall have been
satisfied.
Date:___________________ Your Signature:__________________
(Sign exactly as your name
appears on the face of this Note)
Signature Guarantee:_______________________________________________________
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<PAGE> 126
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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<PAGE> 127
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:________________________ _____________________________
NOTICE: To be executed by
an executive officer
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<PAGE> 128
EXHIBIT C
---------
[FORM OF LEGEND FOR REGULATION S NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
UNLESS REGISTERED UNDER THE ACT OR EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT.
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<PAGE> 129
[FORM OF ASSIGNMENT FOR REGULATION S NOTE]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance
with the exemption from registration under the
Securities Act provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in
accordance with (a) above and documents are being
furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Sections 2.16 and 2.17 of the Indenture shall have been
satisfied.
Date:_____________________ Your Signature:______________
(Sign exactly as your name
appears on the face of this Note)
Signature Guarantee:_____________________________________________________
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<PAGE> 130
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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<PAGE> 131
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:________________________ _________________________________
NOTICE: To be executed by
an executive officer
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<PAGE> 132
EXHIBIT D
---------
[FORM OF LEGEND FOR GLOBAL NOTE]
Any Global Note authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required in the
case of a Restricted Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF
THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC")
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IT REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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<PAGE> 133
EXHIBIT E
---------
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------------------------------------
Norwest Bank Minnesota, National Association
Oglebay Norton Company
c/o Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, MN 55479-0069
Attention: Corporate Trust Services
Ladies and Gentlemen:
In connection with our proposed purchase of 10% Senior
Subordinated Notes due 2009 (the "Notes") of Oglebay Norton Company, a Delaware
Corporation (the "Company"), we confirm that:
1. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the
Indenture dated as of February 1, 1999 relating to the Notes and we
agree to be bound by, and not to resell, pledge or otherwise transfer
the Notes except in compliance with, such restrictions and conditions
and the Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the Notes have not been registered under
the Securities Act or any other applicable securities laws, have not
been and will not be qualified for sale under the securities laws of
any non-U.S. jurisdiction and that the Notes may not be offered, sold,
pledged or otherwise transferred except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for
which we are acting as hereinafter stated, that if we should sell any
Notes, we will do so only (i) to the Company or any subsidiary thereof,
(ii) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined in Rule 144A), (iii) to an
institutional "accredited investor" (as defined below) that, prior to
such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you a signed letter containing certain
representations and agreements relating to the restrictions on transfer
of the Notes, (iv) outside the United States to persons other than U.S.
persons in offshore transactions meeting the requirements of Rule 904
of Regulation S under the Securities Act, (v) pursuant to the exemption
form registration pro-
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<PAGE> 134
vided by Rule 144 under the Securities Act (if applicable) or (vi)
pursuant to an effective registration statement, and we further agree
to provide to any person purchasing any of the Notes from us a notice
advising such purchaser that resales of the Notes are restricted as
stated herein.
3. We understand that, on any proposed resale of any Notes, we
will be required to furnish to you and the Company such certifications,
legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Notes purchased
by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and have
such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting each are able to
bear the economic risk of our or their investment, as the case may be.
5. We are acquiring the Notes purchased by us for our account
or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
6. We are not acquiring the Notes with a view toward the
distribution thereof in a transaction that would violate the Securities
Act or the securities laws of any state of the United States or any
other applicable jurisdiction.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[Name of Transferee]
By:________________________
Name:
Title:
Date: _______________________
E-2
<PAGE> 135
EXHIBIT F
---------
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
------------------------
Norwest Bank Minnesota, National Association
Oglebay Norton Company
c/o Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Minneapolis, MN 55479-0069
Attention: Corporate Trust Services
Re: Oglebay Norton Company, a Delaware corporation (the "Company")
10% Senior Subordinated Notes due 2009 (the "Notes")
----------------------------------------------------
Dear Sirs:
In connection with our proposed sale of $__________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a U.S. person
or to a person in the United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through
the facilities of a designated off-shore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 904(a) of
Regulation S;
F-1
<PAGE> 136
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Notes.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Transferee]
By:________________________
F-2
<PAGE> 137
EXHIBIT G
---------
Each of the undersigned (the "Guarantors") hereby jointly and
severally unconditionally guarantees, to the extent set forth in the Indenture
dated as of February 1, 1999 by and among Oglebay Norton Company, as issuer, the
Guarantors, as guarantors, and Norwest Bank Minnesota, National Association, as
Trustee (as amended, restated or supplemented from time to time, the
"Indenture"), and subject to the provisions of the Indenture, (a) the due and
punctual payment of the principal of, and premium, if any, and interest on the
Notes, when and as the same shall become due and payable, whether at maturity,
by acceleration or otherwise, the due and punctual payment of interest on
overdue principal of, and premium and, to the extent permitted by law, interest,
and the due and punctual performance of all other obligations of the Company to
the Noteholders or the Trustee, all in accordance with the terms set forth in
Article Ten of the Indenture, and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at stated maturity, by acceleration or
otherwise.
The obligations of the Guarantors to the Noteholders and to
the Trustee pursuant to this Guarantee and the Indenture are expressly set
forth, and are expressly subordinated and subject in right of payment to the
prior payment in full of all Guarantor Senior Indebtedness, to the extent and in
the manner provided, in Article Ten of the Indenture, and reference is hereby
made to the Indenture for the precise terms and limitations of this Guarantee.
Each Holder of the Note to which this Guarantee is endorsed, by accepting such
Note, agrees to and shall be bound by such provisions.
[Signatures on Following Pages]
G-1
<PAGE> 138
IN WITNESS WHEREOF, each of the Guarantors has caused this
Guarantee to be signed by a duly authorized officer.
OGLEBAY NORTON HOLDING COMPANY
ONCO INVESTMENT COMPANY
COLORADO SILICA SAND, INC.
OGLEBAY NORTON ENGINEERED
MATERIALS, INC.
OGLEBAY NORTON INDUSTRIAL
MINERALS, INC.
OGLEBAY NORTON INDUSTRIAL SANDS, INC.
GLOBAL STONE PORT INLAND, INC.
OGLEBAY NORTON TERMINALS, INC.
d/b/a CLEVELAND BULK TERMINALS
GLOBAL STONE CORPORATION
GLOBAL STONE (U.S.A.) INC.
GLOBAL STONE TENN LUTTRELL COMPANY
GLOBAL STONE DETROIT LIME COMPANY
GLOBAL STONE ST. CLAIR INC.
GLOBAL STONE CHEMSTONE CORPORATION
GLOBAL STONE PENROC INC.
GLOBAL STONE FILLER PRODUCTS, INC.
By:_________________________________
Name:
Title:
G-2
<PAGE> 139
TEXAS MINING, L.P.
By: OGLEBAY NORTON INDUSTRIAL
SANDS, INC.
By:_____________________________
Name:
Title:
G-3
<PAGE> 1
Exhibit 10(w)(2)
================================================================================
REGISTRATION RIGHTS AGREEMENT
dated as of
February 1, 1999
among
OGLEBAY NORTON COMPANY
and
THE GUARANTORS PARTY HERETO
and
CIBC OPPENHEIMER CORP.,
as Selling Securityholder
================================================================================
<PAGE> 2
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
1. Definitions.................................................................................... 1
2. Exchange Offer................................................................................. 4
3. Shelf Registration............................................................................. 6
4. Additional Interest............................................................................ 7
5. Registration Procedures........................................................................ 9
6. Registration Expenses.......................................................................... 15
7. Indemnification................................................................................ 16
8. Rules 144 and 144A............................................................................. 18
9. Underwritten Registrations..................................................................... 18
10. Miscellaneous.................................................................................. 19
(a) Remedies.................................................................................. 19
(b) Enforcement............................................................................... 19
(c) No Inconsistent Agreements................................................................ 19
(d) Adjustments Affecting Registrable Notes................................................... 19
(e) Amendments and Waivers.................................................................... 19
(f) Notices................................................................................... 19
(g) Successors and Assigns.................................................................... 20
(h) Counterparts.............................................................................. 20
(i) Headings.................................................................................. 20
(j) Governing Law............................................................................. 20
(k) Severability.............................................................................. 20
(l) Entire Agreement.......................................................................... 20
(m) Joint and Several Obligations............................................................. 20
(n) Notes Held by the Issuers or Their Affiliates............................................. 20
(o) Guarantors to Become Parties.............................................................. 21
</TABLE>
-i-
<PAGE> 3
REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") dated as of
February 1, 1999, by and among OGLEBAY NORTON COMPANY, a Delaware corporation
(the "COMPANY"), the guarantors party hereto (the "Guarantors," and together
with the Company, the "ISSUERS") and CIBC OPPENHEIMER CORP. as selling
securityholder (the "SELLING SECURITYHOLDER").
This Agreement is entered into in connection with the Exchange
Agreement, dated as of January 26, 1999, among the Issuers and the Selling
Securityholder (the "EXCHANGE AGREEMENT") relating to the issuance by the
Company to the Selling Securityholder of $100,000,000 aggregate principal amount
of its 10% Senior Subordinated Notes due 2009 (the "NOTES"), which are
guaranteed on a senior subordinated basis, jointly and severally, by the
Guarantors, in exchange for the Acquisition Notes (as defined). In order to
induce the Selling Securityholder to enter into the Exchange Agreement, the
Issuers have agreed to provide the registration rights set forth in this
Agreement for the benefit of the holders of Registrable Notes (as defined),
including, without limitation, the Selling Securityholder. The execution and
delivery of this Agreement is a condition to the Selling Securityholder's
obligation to exchange the Acquisition Notes for the Notes under the Exchange
Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
ACQUISITION NOTES: $100,000,000 aggregate principal amount of
the Company's senior subordinated notes due 2008 issued pursuant to a note
purchase agreement dated as of May 15, 1998 among the Company, the guarantors
party thereto and the Selling Securityholder.
ADDITIONAL INTEREST: See Section 4(a).
ADVICE: See Section 5.
AGREEMENT: See the first introductory paragraph to this
Agreement.
APPLICABLE PERIOD: See Section 2(b).
CLOSING DATE: See the Exchange Agreement.
COMPANY: See the first introductory paragraph to this
Agreement.
CONSUMMATION DATE: The 180th day after the Issue Date.
EFFECTIVENESS DATE: The 150th day after the Issue Date.
EFFECTIVENESS PERIOD: See Section 3(a).
EVENT DATE: See Section 4(b).
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
<PAGE> 4
-2-
EXCHANGE AGREEMENT: See the second introductory paragraph to
this Agreement.
EXCHANGE NOTES: See Section 2(a).
EXCHANGE OFFER: See Section 2(a).
EXCHANGE REGISTRATION STATEMENT: See Section 2(a).
FILING DATE: The 75th day after the Issue Date.
GUARANTORS: See the first introductory paragraph to this
Agreement.
HOLDER: Any holder of a Registrable Note or Registrable Notes.
INDEMNIFIED PERSON: See Section 7(c).
INDEMNIFYING PERSON: See Section 7(c).
INDENTURE: The indenture, dated as of February 1, 1999 by and
among the Company, the Guarantors and Norwest Bank Minnesota, National
Association, as trustee, pursuant to which the Notes are being issued, as
amended or supplemented from time to time in accordance with the terms thereof.
INITIAL SHELF REGISTRATION: See Section 3(a).
INSPECTORS: See Section 5(o).
ISSUE DATE: The date on which the original Notes were issued
to the Selling Securityholder in exchange for the Acquisition Notes pursuant to
the Exchange Agreement.
ISSUERS: See the first introductory paragraph to this
Agreement.
NASD: See Section 5(t).
NOTES: See the second introductory paragraph to this
Agreement.
PARTICIPANT: See Section 7(a).
PARTICIPATING BROKER-DEALER: See Section 2(b).
PERSON: An individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government (including any agency or political
subdivision thereof).
PRIVATE EXCHANGE: See Section 2(b).
PRIVATE EXCHANGE NOTES: See Section 2(b).
<PAGE> 5
-3-
PROSPECTUS: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Notes covered by such Registration Statement, and all
other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
RECORDS: See Section 5(o).
REGISTRABLE NOTES: Each Note upon original issuance thereof
and at all times subsequent thereto, each Exchange Note as to which Section
2(c)(iv) hereof is applicable upon original issuance thereof and at all times
subsequent thereto and each Private Exchange Note upon original issuance thereof
and at all times subsequent thereto, until, in the case of any such Note,
Exchange Note or Private Exchange Note, as the case may be, the earliest to
occur of (i) a Registration Statement (other than, with respect to any Exchange
Note as to which Section 2(c)(iv) hereof is applicable) covering such Note,
Exchange Note or Private Exchange Note, as the case may be, has been declared
effective by the Commission and such Note, Exchange Note or Private Exchange
Note, as the case may be, has been disposed of in accordance with such effective
Registration Statement, (ii) such Note, Exchange Note or Private Exchange Note,
as the case may be, is sold in compliance with Rule 144, or is saleable pursuant
to Rule 144(k) under the Securities Act (iii) in the case of any Note, such Note
has been exchanged pursuant to the Exchange Offer for an Exchange Note or
Exchange Notes which may be resold without restriction under federal securities
laws, or (iv) such Note, Exchange Note or Private Exchange Note, as the case may
be, ceases to be outstanding for purposes of the Indenture.
REGISTRATION DEFAULT: See Section 4(a).
REGISTRATION STATEMENT: Any registration statement of the
Issuers, including, but not limited to, the Exchange Registration Statement,
which covers any of the Registrable Notes pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
RULE 144: Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
RULE 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
RULE 415: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
<PAGE> 6
-4-
SECURITIES ACT: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
SELLING SECURITYHOLDER: See the first introductory paragraph
to this Agreement.
SHELF NOTICE: See Section 2(c).
SHELF REGISTRATION: See Section 3(b).
SUBSEQUENT SHELF REGISTRATION: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture and, if existent, the
trustee under any indenture governing the Exchange Notes and Private Exchange
Notes (if any).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A
registration under the Securities Act in which securities of the Company are
sold to an underwriter(s) for reoffering to the public.
2. EXCHANGE OFFER
(a) Unless such an offer is not permitted by applicable law or
SEC policy, each Issuer, jointly and severally, agrees to use its reasonable
best efforts to file with the SEC as soon as practicable after the Closing, but
in no event later than the Filing Date, documents pertaining to an offer to
exchange (the "EXCHANGE OFFER") any and all of the Registrable Notes for a like
aggregate principal amount of debt securities of the Company which are identical
in all material respects to the Notes (the "EXCHANGE NOTES"), guaranteed by the
Guarantors (and which are entitled to the benefits of the Indenture or a trust
indenture which is identical in all material respects to the Indenture (other
than such changes to the Indenture or any such identical trust indenture as are
necessary to comply with any requirements of the Commission to effect or
maintain the qualification thereof under the TIA) and which, in either case, has
been qualified under the TIA), except that the Exchange Notes shall have been
registered pursuant to an effective registration statement under the Securities
Act and will not contain terms with respect to transfer restrictions. The
Exchange Offer will be registered under the Securities Act on the appropriate
form (the "EXCHANGE REGISTRATION STATEMENT"), and the Exchange Offer will comply
with all applicable tender offer rules and regulations under the Exchange Act.
Each Issuer jointly and severally agrees to use its reasonable best efforts to
(x) cause the Exchange Registration Statement to become effective under the
Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer
open for at least 30 days (or longer if required by applicable law) after the
date that notice of the Exchange Offer is mailed to Holders; and (z) consummate
the Exchange Offer with respect to all Notes validly tendered on or prior to the
60th day following the date the Exchange Registration Statement is declared
effective (in any event on or prior to the Consummation Date) (or, in the event
of any extension of the Exchange Offer required by applicable law, the earliest
day following any such extension). Each Holder who participates in the Exchange
Offer will be required to represent that any Exchange Notes received by it will
be acquired in the ordinary course of its business, that at the time of the
consummation of the Exchange Offer such Holder will have no arrangement or
understanding with any Person to participate in the distribution of the Exchange
Notes in violation of the provisions of the Securities Act, that such Holder is
not an affiliate of any Issuer within the meaning of Rule 405 promulgated under
the Securities Act or if it is such an affiliate, that it will comply with the
registration and prospectus delivery requirements of the Securities Act, to the
extent applicable, and that is not acting on behalf of any Person who could not
truthfully make the foregoing representations. Upon consummation of the Exchange
Offer in accor-
<PAGE> 7
-5-
dance with this Section 2, the provisions of this Agreement shall continue to
apply, MUTATIS MUTANDIS, solely with respect to Registrable Notes that are
Private Exchange Notes and Exchange Notes held by Participating Broker-Dealers,
and the Issuers shall have no further obligation to register Registrable Notes
(other than Private Exchange Notes and Exchange Notes held by Participating
Broker-Dealers) pursuant to Section 3 of this Agreement.
(b) The Issuers shall include within the Prospectus contained
in the Exchange Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Selling Securityholder, which shall
contain a summary statement of the positions taken or policies made by the staff
of the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 promulgated
under the Exchange Act) of Exchange Notes received by such broker-dealer in the
Exchange Offer (a "PARTICIPATING BROKER-DEALER"), whether such positions or
policies have been publicly disseminated by the staff of the SEC or such
positions or policies, in the reasonable judgment of the Selling Securityholder,
represent the prevailing views of the staff of the SEC. Such "Plan of
Distribution" section shall also allow the use of the Prospectus by all Persons
subject to the prospectus delivery requirements of the Securities Act, including
all Participating Broker-Dealers, and include a statement describing the means
by which Participating Broker-Dealers may resell the Exchange Notes.
Each Issuer shall use its reasonable best efforts to keep the
Exchange Registration Statement effective and to amend and supplement the
Prospectus contained therein in order to permit such Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such Persons must comply with such
requirements in order to resell the Exchange Notes, PROVIDED that such period
shall not exceed 180 days (or such longer period if extended pursuant to the
last paragraph of Section 5) (the "APPLICABLE PERIOD").
If, prior to consummation of the Exchange Offer, the Selling
Securityholder holds any Notes acquired by it and having, or which are
reasonably likely to be determined to have, the status as an unsold allotment in
the initial distribution, the Issuers upon the request of the Selling
Securityholder shall, simultaneously with the delivery of the Exchange Notes in
the Exchange Offer, issue and deliver to the Selling Securityholder, in exchange
(the "PRIVATE EXCHANGE") for the Notes held by the Selling Securityholder, a
like principal amount of debt securities of the Company that are identical in
all material respects to the Exchange Notes (the "PRIVATE EXCHANGE NOTES"),
guaranteed by the Guarantors (and which are issued pursuant to the same
indenture as the Exchange Notes) except for the placement of a restrictive
legend on the Private Exchange Notes. If possible, the Private Exchange Notes
shall bear the same CUSIP number as the Exchange Notes. Interest on the Exchange
Notes and Private Exchange Notes will accrue from the last interest payment date
on which interest was paid on the Notes surrendered in exchange therefor or, if
no interest has been paid on the Notes, from the Issue Date. Holders of Exchange
Notes and Private Exchange Notes shall vote together as a class on all matters
under the Indenture.
In connection with the Exchange Offer, the Issuers shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York; and
<PAGE> 8
-6-
(iii) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York City time, on the last
business day on which the Exchange Offer shall remain open.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Issuers shall:
(i) accept for exchange all Registrable Notes tendered and
not validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(ii) deliver to he Trustee for cancellation all Registrable
Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly
to each Holder of Registrable Notes, Exchange Notes or Private
Exchange Notes, as the case may be, equal in principal amount to the
Notes of such Holder so accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture, which in either event will provide that the Exchange
Notes will not be subject to the transfer restrictions set forth in the
Indenture and that the Exchange Notes, the Private Exchange Notes and the Notes,
if any, will vote and consent together on all matters as one class and that none
of the Exchange Notes, the Private Exchange Notes or the Notes, if any, will
have the right to vote or consent as a separate class on any matter.
(c) If (i) prior to the consummation of the Exchange Offer,
the Issuers or Holders of at least a majority in aggregate principal amount of
the Registrable Notes reasonably determine in good faith that (A) the Exchange
Notes would not, upon receipt, be freely transferable by such Holders which are
not affiliates (within the meaning of the Securities Act) of the Issuers without
restriction under the Securities Act and without restrictions under applicable
state securities laws or (B) after conferring with counsel, the SEC is unlikely
to permit the commencement of the Exchange Offer prior to the Effectiveness
Date, (ii) subsequent to the consummation of the Private Exchange, any holder of
the Private Exchange Notes so requests, (iii) the Exchange Offer is commenced
and not consummated prior to the Consummation Date, or (iv) in the case of any
Holder that participates in the Exchange Offer (and tenders its Registrable
Notes prior to the expiration thereof), such Holder does not receive Exchange
Notes on the date of the exchange that may be sold without restriction under
federal securities laws (other than due solely to the status of such Holder as
an affiliate of any Issuer within the meaning of the Securities Act) and so
notifies the Company within 30 days following the consummation of the Exchange
Offer (and providing a reasonable basis for its conclusions), then the Issuers
shall promptly deliver to the Holders and the Trustee written notice thereof
(the "SHELF NOTICE") and shall file an Initial Shelf Registration pursuant to
Section 3. The parties hereto agree that following the delivery of a Shelf
Notice to the Holders of Registrable Notes (in the circumstances contemplated by
clauses (i), (iii) and (iv) of the preceding sentence), the Issuers shall not
have any further obligation to conduct the Exchange Offer or the Private
Exchange under this Section 2.
3. SHELF REGISTRATION
If a Shelf Notice is required to be delivered as contemplated
by Section 2(c), then:
(a) INITIAL SHELF REGISTRATION. The Issuers shall prepare and
file with the SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the then
<PAGE> 9
-7-
existing Registrable Notes (the "INITIAL SHELF REGISTRATION"). If the Issuers
shall have not yet filed an Exchange Registration Statement, each Issuer shall
use its reasonable best efforts to file with the SEC the Initial Shelf
Registration on or prior to the Filing Date. In any other instance, each Issuer
shall use its reasonable best efforts to file with the SEC the Initial Shelf
Registration as promptly as practicable but, in any event, within 45 days
following delivery of the Shelf Notice. The Initial Shelf Registration shall be
on Form S-1 or another appropriate form permitting registration of such
Registrable Notes for resale by such Holders in the manner or manners designated
by them (including, without limitation, one or more underwritten offerings). The
Issuers shall not permit any securities other than the Registrable Notes to be
included in the Initial Shelf Registration or any Subsequent Shelf Registration.
Each Issuer shall use its reasonable best efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act, if an Exchange
Registration Statement has not yet been declared effective, on or prior to the
Effectiveness Date, or, in any other instance, as soon as practicable after the
filing thereof and in no event later than 60 days after filing of the Initial
Shelf Registration, and to keep the Initial Shelf Registration continuously
effective under the Securities Act until the date which is 24 months from the
date on which such Initial Shelf Registration is declared effective (subject to
extension pursuant to the last paragraph of Section 5 hereof), or such shorter
period ending when (i) all Registrable Notes covered by the Initial Shelf
Registration have been sold in the manner set forth and as contemplated in the
Initial Shelf Registration or (ii) a Subsequent Shelf Registration covering all
of the Registrable Notes has been declared effective under the Securities Act
(the "EFFECTIVENESS PERIOD").
(b) SUBSEQUENT SHELF REGISTRATIONS. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective for any
reason at any time prior to the termination of the Effectiveness Period, each
Issuer shall use its reasonable best efforts to promptly restore the
effectiveness thereof, and in any event shall, within 45 days of such cessation
of effectiveness, amend the Shelf Registration in a manner reasonably expected
to restore the effectiveness thereof, or file an additional "shelf" Registration
Statement pursuant to Rule 415 covering all of the then existing Registrable
Notes (a "SUBSEQUENT SHELF REGISTRATION"). If a Subsequent Shelf Registration is
filed, each Issuer shall use its reasonable best efforts to cause the Subsequent
Shelf Registration to be declared effective as soon as practicable after such
filing and to keep such Registration Statement continuously effective for a
period equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Initial Shelf Registration or any
Subsequent Shelf Registration was previously continuously effective. As used
herein the term "SHELF REGISTRATION" means the Initial Shelf Registration and
any Subsequent Shelf Registration.
(c) SUPPLEMENTS AND AMENDMENTS. The Issuers shall promptly
supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration or if required by the Securities Act. The Issuers shall
promptly supplement and amend the Shelf Registration if any such supplement or
amendment is requested by the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement or by any
underwriter(s) of such Registrable Notes.
4. ADDITIONAL INTEREST
(c) The Issuers and the Selling Securityholder agree that the
Holders of Registrable Notes will suffer damages if the Issuers fail to fulfill
their obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Company agrees to pay additional interest on the Notes ("ADDITIONAL
INTEREST") under the circumstances and to the extent set forth below:
<PAGE> 10
-8-
(i) if neither the Exchange Registration Statement nor the
Initial Shelf Registration has been filed on or prior to the Filing
Date;
(ii) if neither the Exchange Registration Statement nor the
Initial Shelf Registration has been declared effective on or prior to
the Effectiveness Date;
(iii) if an Initial Shelf Registration required by Section
2(c)(2) has not been filed on or prior to the date 45 days after
delivery of the Shelf Notice;
(iv) if an Initial Shelf Registration required by Section
2(c)(2) has not been declared effective on or prior to the date 105
days after the delivery of the Shelf Notice; and/or
(v) if (A) the Company has not exchanged the Exchange Notes
for all Notes validly tendered in accordance with the terms of the
Exchange Offer on or prior to the Consummation Date or (B) the
Exchange Registration Statement ceases to be effective at any time
prior to the time that the Exchange Offer is consummated as to all
Notes validly tendered or (C) if applicable, the Shelf Registration
has been declared effective and such Shelf Registration ceases to be
effective at any time prior to the termination of the Effectiveness
Period.
(each such event referred to in clauses (i) through (v) above is a
"REGISTRATION DEFAULT"). The sole remedy available to Holders of the Notes for a
Registration Default will be the accrual of Additional Interest as follows: the
per annum interest rate on the Notes will increase by 50 basis points during the
first 90-day period following the occurrence of a Registration Default and until
it is waived or cured; and the per annum interest rate will increase by an
additional 25 basis points for each subsequent 90-day period during which the
Registration Default remains uncured, up to a maximum additional interest rate
of 200 basis points per annum, PROVIDED, HOWEVER, that (x) only Holders of
Private Exchange Notes shall be entitled to receive Additional Interest as a
result of a Registration Default pursuant to clause (iii) or (iv); (y) the
Issuers shall in no event be required to pay Additional Interest for more than
one Registration Default at any given time and (z) (1) upon the filing of the
Exchange Registration Statement or the Initial Shelf Registration (in the case
of (i) above), (2) upon the effectiveness of the Exchange Registration Statement
or a Shelf Registration (in the case of (ii) above), (3) upon the filing of the
Shelf Registration (in the case of (iii) above), (4) upon the effectiveness of
the Shelf Registration (in the case of (iv) above), or (5) upon the exchange of
Exchange Notes for all Notes tendered or the effectiveness of a Shelf
Registration (in the case of (v)(A) above), or upon the subsequent effectiveness
of the Exchange Registration Statement which had ceased to remain effective or
the effectiveness of a Shelf Registration (in the case of (v)(B) above), or upon
the subsequent effectiveness of the Shelf Registration which had ceased to
remain effective (in the case of (v)(C) above), Additional Interest on the Notes
as a result of such clause (i), (ii), (iii), (iv) or (v) (or the relevant
subclause thereof), as the case may be, shall cease to accrue and the interest
rate on the Notes will revert to the interest rate originally borne by the
Notes.
(b) The Issuers shall notify the Holders within one business
day after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "EVENT DATE"). Any amounts of
Additional Interest due pursuant to (a)(i), (a)(ii), (a)(iii), (a)(iv) or (a)(v)
of this Section 4 will be payable in cash semi-annually on each February 1 and
August 1 (to the Holders of record on the January 15 and July 15 immediately
preceding such dates), commencing with the first such date occurring after any
such Additional Interest commences to accrue and until such Registration Default
is cured, by depositing with the Trustee, in trust for the benefit of such
Holders, immediately available funds in sums sufficient to pay such Additional
Interest. The amount of Additional Interest will be determined by multiplying
the applicable Additional Interest rate by the principal amount of the
Registrable Notes, multiplied by a fraction, the numerator of which is the
<PAGE> 11
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number of days such Additional Interest rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve 30-day months
and, in the case of a partial month, the actual number of days elapsed), and the
denominator of which is 360.
5. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Issuers shall effect such registrations
to permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto the
Issuers shall:
(a) Prepare and file with the SEC, as provided herein, a
Registration Statement or Registration Statements as prescribed by
Section 2 or 3, and use their respective reasonable best efforts to
cause each such Registration Statement to become effective and remain
effective as provided herein, PROVIDED that, if (1) such filing is
pursuant to Section 3, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, before
filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Issuers shall, upon written request, furnish
to and afford the Holders of the Registrable Notes covered by such
Registration Statement and each such Participating Broker-Dealer, as
the case may be, their counsel and the managing underwriter(s), if any,
a reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (to the extent
practicable, at least 5 business days prior to such filing). The
Issuers shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto in respect of which the Holders must
be afforded an opportunity to review prior to the filing of such
document, if the Holders of a majority in aggregate principal amount of
the Registrable Notes covered by such Registration Statement, or such
Participating Broker-Dealer, as the case may be, their counsel, or the
managing underwriter(s), if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange
Registration Statement, as the case may be, as may be necessary to keep
such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be;
cause the related Prospectus to be supplemented by any prospectus
supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force)
under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act applicable to them with respect to
the disposition of all securities covered by such Registration
Statement as so amended or in such Prospectus as so supplemented and
with respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus; the Issuers
shall be deemed not to have used their reasonable best efforts to keep
a Registration Statement effective during the Applicable Period if any
of them voluntarily takes any action that would result in selling
Holders of the Registrable Notes covered thereby or Participating
Broker-Dealers seeking to sell Exchange Notes not being able to sell
such Registrable Notes or such Exchange Notes during that period unless
such action is required by applicable law or unless the Issuers comply
with this Agreement, including without limitation, the provisions of
clauses 5(c)(v) and (vi) below.
(c) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Appli-
<PAGE> 12
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cable Period, notify the selling Holders of Registrable Notes, or each
such Participating Broker-Dealer, as the case may be, their counsel and
the managing underwriter(s), if any, promptly (but in any event within
two business days), and confirm such notice in writing, (i) when a
Prospectus or any prospectus supplement or post-effective amendment
thereto has been filed, and, with respect to a Registration Statement
or any post-effective amendment thereto, when the same has become
effective under the Securities Act (including in such notice a written
statement that any Holder may, upon request, obtain, without charge,
one conformed copy of such Registration Statement or post-effective
amendment thereto including financial statements and schedules,
documents incorporated or deemed to be incorporated by reference and
exhibits), (ii) of the issuance by the SEC of any stop order suspending
the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary Prospectus or the
initiation of any proceedings for that purpose, (iii) if at any time
when a Prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Notes or resales of Exchange
Notes by Participating Broker-Dealers the representations and
warranties of the Issuers contained in any agreement (including any
underwriting agreement) contemplated by Section 5(n) below cease to be
true and correct, (iv) of the receipt by any of the Issuers of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation
or threatening of any proceeding for such purpose, (v) of the happening
of any event or any information becoming known that makes any statement
made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any
changes in, or amendments or supplements to, such Registration
Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
that in the case of the Prospectus, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and (vi) of any Issuer's reasonable determination that
a post-effective amendment to a Registration Statement would be
necessary or appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use their reasonable best
efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the Registrable Notes or the
Exchange Notes to be sold by any Participating Broker-Dealer, for sale
in any jurisdiction, and, if any such order is issued, to use their
reasonable best efforts to obtain the withdrawal of any such order as
promptly as practicable.
(e) If a Shelf Registration is filed pursuant to Section 3 and
if requested by the managing underwriter(s), if any, or the Holders of
a majority in aggregate principal amount of the Registrable Notes being
sold in connection with an underwritten offering, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriter(s), if any, or such Holders
reasonably request to be included therein and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment
as soon as practicable after the Company has received notification of
the matters to be incorporated in such Prospectus supplement or
post-effective amendment.
<PAGE> 13
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(f) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Notes who so requests and to each such
Participating Broker-Dealer who so requests and to counsel and the
managing underwriter(s), if any, without charge, one conformed copy of
the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to
be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, deliver to each selling
Holder of Registrable Notes, or each such Participating Broker-Dealer,
as the case may be, their counsel, and the managing underwriter or
underwriters, if any, without charge, as many copies of the Prospectus
or Prospectuses (including each form of preliminary Prospectus) and
each amendment or supplement thereto and any documents incorporated by
reference therein as such Persons may reasonably request; and, subject
to the last paragraph of this Section 5, each Issuer hereby consents to
the use of such Prospectus and each amendment or supplement thereto by
each of the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, and the managing
underwriter or underwriters or agents, if any, and dealers (if any), in
connection with the offering and sale of the Registrable Notes covered
by, or the sale by Participating Broker-Dealers of the Exchange Notes
pursuant to, such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, to use their reasonable best
efforts to register or qualify, and to cooperate with the selling
Holders of Registrable Notes or each such Participating Broker-Dealer,
as the case may be, the managing underwriter or underwriters, if any,
and their respective counsel in connection with the registration or
qualification of (or exemption from such registration or
qualification), such Registrable Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United
States as any selling Holder, Participating Broker-Dealer, or the
managing underwriter or underwriters, if any, reasonably request in
writing, PROVIDED that where Exchange Notes held by Participating
Broker-Dealers or Registrable Notes are offered other than through an
underwritten offering, the Issuers agree to cause their counsel to
perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(h); keep
each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to
be kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions
of the Exchange Notes held by Participating Broker-Dealers or the
Registrable Notes covered by the applicable Registration Statement;
PROVIDED that no Issuer shall be required to (A) qualify generally to
do business in any jurisdiction where it is not then so qualified, (B)
take any action that would subject it to general service of process in
any such jurisdiction where it is not then so subject or (C) subject
itself to taxation in any such jurisdiction where it is not otherwise
so subject.
(i) If a Shelf Registration is filed pursuant to Section 3,
cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with The Depository
<PAGE> 14
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Trust Company; and enable such Registrable Notes to be in such
denominations and registered in such names as the managing underwriter
or underwriters, if any, or Holders may reasonably request.
(j) Use their reasonable best efforts to cause the Registrable
Notes covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the managing
underwriter or underwriters, if any, to consummate the disposition of
such Registrable Notes, except as may be required solely as a
consequence of the nature of such selling Holder's business, in which
case each Issuer will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such
approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, upon the occurrence of any
event contemplated by paragraph 5(c)(v) or 5(c)(vi), as promptly as
reasonably practicable prepare and (subject to Section 5(a)) file with
the SEC, at the joint and several expense of each Issuer, a supplement
or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, or file any other
required document so that, as thereafter delivered to the purchasers of
the Registrable Notes being sold thereunder or to the purchasers of the
Exchange Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(l) Use their reasonable best efforts to cause the Registrable
Notes covered by a Registration Statement or the Exchange Notes, as the
case may be, to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement or the
Exchange Notes, as the case may be, or the managing underwriter or
underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with certificates for the Registrable Notes or Exchange Notes, as the
case may be, in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the Registrable Notes or
Exchange Notes, as the case may be.
(n) In connection with an underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an underwriting
agreement upon such reasonable terms and conditions as are customary in
underwritten offerings of debt securities similar to the Notes and take
all such other actions as are reasonably requested by the managing
underwriter(s), if any, in order to expedite or facilitate the
registration or the disposition of such Registrable Notes, and in such
connection, (i) make such reasonable representations and warranties to
the managing underwriter or underwriters on behalf of any underwriters,
with respect to the business of the Company and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to
be incorporated by reference therein, in each case, as are customarily
made by issuers to underwriters in underwritten offerings of debt
securities similar to the Notes, and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Issuers and updates
thereof in form and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the managing underwriter or
underwriters covering the matters customarily covered in opinions
received in underwritten offerings of debt securities similar to the
Notes and such
<PAGE> 15
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other customary matters as may be reasonably requested by the managing
underwriter(s); (iii) obtain "cold comfort" letters and updates thereof
in form and substance reasonably satisfactory to the managing
underwriter or underwriters from the independent certified public
accountants of the Issuers (and, if necessary, any other independent
certified public accountants of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to the
managing underwriter or underwriters on behalf of any underwriters,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings of debt securities similar to the Notes and such
other matters as may be reasonably requested by the managing
underwriter or underwriters; and (iv) if an underwriting agreement is
entered into, the same shall contain indemnification provisions and
procedures no less favorable than those set forth in Section 7 hereof
(or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Registrable Notes covered by
such Registration Statement and the managing underwriter or
underwriters or agents) with respect to all parties to be indemnified
pursuant to said Section. The above shall be done at each closing under
such underwriting agreement, or as and to the extent required
thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Notes being sold,
or each such Participating Broker-Dealer, as the case may be, the
managing underwriter or underwriters participating in any such
disposition of Registrable Notes, if any, and any attorney, accountant
or other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be (collectively, the
"INSPECTORS"), at the offices where normally kept, during reasonable
business hours, all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "RECORDS")
as shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and cause the officers,
directors and employees of the Company to supply all information in
each case reasonably requested by any such Inspector in connection with
such Registration Statement. Records which the Company determines, in
good faith, to be confidential and any Records which they notify the
Inspectors are confidential shall not be disclosed by the Inspectors
unless (i) the disclosure of such Records is necessary to avoid or
correct a material misstatement or material omission in such
Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction or (iii) the information in such Records has been made
generally available to the public. Each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer or
underwriter will be required to agree that information obtained by it
as a result of such inspections shall be deemed confidential and shall
not be used by it as the basis for any market transactions in the
securities of the Issuers or for any purpose other than in connection
with such Registration Statement unless and until such is made
generally available to the public. Each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer will be
required to further agree that it will, upon learning that disclosure
of such Records is sought in a court of competent jurisdiction, give
prompt notice to the Company and allow the Company to undertake
appropriate action to prevent disclosure of the Records deemed
confidential at their expense.
(p) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture or the
trust indenture provided for in Section 2(a), as the case may be, to be
qualified under the TIA not later than the effective date of the
Exchange Registration Statement or the first Registration Statement
relating to the Registrable Notes; and in connection therewith,
cooperate with the trustee under any such indenture and the Holders of
the Registrable Notes, to effect
<PAGE> 16
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such changes to such indenture as may be required for such indenture to
be so qualified in accordance with the terms of the TIA; and execute,
and use their respective reasonable best efforts to cause such trustee
to execute, all documents as may be required to effect such changes,
and all other forms and documents required to be filed with the SEC to
enable such indenture to be so qualified in a timely manner.
(q) Comply in all material respects with all applicable rules
and regulations of the SEC and make generally available to its
securityholders earnings statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any
similar rule promulgated under the Securities Act) no later than 90
days after the end of any 12-month period (i) commencing at the end of
any fiscal quarter in which Registrable Notes are sold to underwriters
in a firm commitment or best efforts underwritten offering and (ii) if
not sold to underwriters in such an offering, commencing on the first
day of the first fiscal quarter of the Company after the effective date
of a Registration Statement, which statements shall cover said 12-month
periods.
(r) Upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Issuers, in a form
reasonable and customary for underwritten offerings of debt securities
similar to the Notes, addressed to the Trustee for the benefit of all
Holders of Registrable Notes participating in the Exchange Offer or the
Private Exchange, as the case may be, and which includes an opinion
that (i) each Issuer has duly authorized, executed and delivered the
Exchange Notes and Private Exchange Notes and the related indenture and
(ii) each of the Exchange Notes or the Private Exchange Notes, as the
case may be, and the related indenture constitute a legal, valid and
binding obligation of each Issuer, enforceable against each Issuer in
accordance with its respective terms (with reasonable and customary
exceptions and qualifications).
(s) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Issuers (or to such other Person as directed by the Issuers) in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be, the Issuers shall mark, or cause to be marked, on such
Registrable Notes that such Registrable Notes are being canceled in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be; and, in no event shall such Registrable Notes be marked as
paid or otherwise satisfied.
(t) Cooperate with each seller of Registrable Notes covered by
any Registration Statement and the managing underwriter(s), if any,
participating in the disposition of such Registrable Notes and their
respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc. (the "NASD").
(u) Use their respective reasonable best efforts to take all
other reasonable steps necessary to effect the registration of the
Registrable Notes covered by a Registration Statement contemplated
hereby.
The Issuers may require each seller of Registrable Notes or
Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuers such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, as the
Issuers may, from time to time, reasonably request. The Issuers may exclude from
such registration the Registrable Notes of any seller or Participating
Broker-Dealer who fails to furnish such information within a reasonable time
after receiving such request. Each seller as to which any Shelf Registration is
being effected agrees to furnish promptly to the Issuers all information
required
<PAGE> 17
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to be disclosed in order to make the information previously furnished to the
Issuers by such seller not materially misleading.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such Holder
will forthwith discontinue disposition of such Registrable Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be, until such Holder's or
Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(k), or until it is advised in
writing (the "ADVICE") by the Company that the use of the applicable Prospectus
may be resumed, and has received copies of any amendments or supplements
thereto. If so requested by an Issuer, each Holder will use commercially
reasonable efforts to deliver to the requesting Issuer (at such Issuer's cost)
all copies, other than permanent file copies, then in such Holder's possession,
of the requested Prospectus within a reasonable period after receipt of such
notice. In the event the Company shall give any such notice, each of the
Effectiveness Period and the Applicable Period shall be extended by the number
of days during such periods from and including the date of the giving of such
notice to and including the date when each seller of Registrable Notes covered
by such Registration Statement or Exchange Notes to be sold by such Holder or
Participating Broker-Dealer, as the case may be, shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(k) or
(y) the Advice.
6. REGISTRATION EXPENSES
(a) All reasonable fees and expenses incident to the
performance of or compliance with this Agreement by the Issuers shall be borne
by the Issuers, jointly and severally, whether or not the Exchange Offer or a
Shelf Registration is filed or becomes effective, including, without limitation,
(i) all registration and filing fees (including, without limitation, (A) fees
with respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions in the United States (x) where the Holders of Registrable Notes
are located, in the case of the Exchange Notes, or (y) as provided in Section
5(h), in the case of Registrable Notes or Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Notes or Exchange Notes in a form eligible for deposit with The
Depository Trust Company and of printing Prospectuses if the printing of
Prospectuses is reasonably requested by the managing underwriter or
underwriters, if any, or, in respect of Registrable Notes or Exchange Notes to
be sold by any Participating Broker-Dealer during the Applicable Period, if
reasonably requested by the Holders of a majority in aggregate principal amount
of the Registrable Notes included in any Registration Statement or of such
Exchange Notes, as the case may be), (iii) messenger, telephone and delivery
expenses, (iv) reasonable fees and disbursements of counsel for the Issuers and
reasonable fees and disbursements of special counsel for the sellers of
Registrable Notes (subject to the provisions of Section 6(b)), (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(n)(iii) (including, without limitation, the expenses of any special
audit and "cold comfort" letters required by or incident to such performance),
(vi) rating agency fees, (vii) Securities Act liability insurance, if the
Issuers desire such insurance, (viii) fees and expenses of the Trustee and its
counsel, (ix) fees and expenses of all other Persons retained by the Issuers,
(x) internal expenses of the Issuers (including, without limitation, all
salaries and expenses of officers and employees of the Issuers performing legal
or accounting duties), (xi) the expense of any annual audit, (xii) the fees and
expenses incurred in connection with
<PAGE> 18
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any listing of the securities to be registered on any securities exchange and
(xiii) the expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, indentures, securities sales
agreements and any other documents necessary in order to comply with this
Agreement. In the event of an underwritten offering of Registrable Notes the
Company shall not be responsible for any "roadshow" expenses in connection
therewith.
(b) In connection with any Shelf Registration hereunder, the Issuers,
jointly and severally, shall reimburse the Holders of the Registrable Notes
being registered in such registration for the reasonable fees and disbursements
of not more than one counsel (in addition to appropriate local counsel) chosen
by the Holders of a majority in aggregate principal amount of the Registrable
Notes to be included in such Registration Statement and other reasonable
out-of-pocket expenses of the Holders of Registrable Notes incurred in
connection with the registration of the Registrable Notes.
(c) Notwithstanding any of the foregoing, the Issuers shall not have
any obligation to pay any underwriting fees, discounts or commissions
attributable to the sale of Registrable Notes.
7. INDEMNIFICATION
(a) Each Issuer, jointly and severally, agrees to indemnify and hold
harmless each Holder of Registrable Notes and each Participating Broker-Dealer
selling Exchange Notes during the Applicable Period, the officers and directors
of each such Person, and each Person, if any, who controls any such Person
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (each, a "PARTICIPANT"), from and against any and all losses,
claims, damages and liabilities (including, without limitation, the reasonable
legal fees and other expenses actually incurred in connection with any suit,
action or proceeding or any claim asserted) caused by, arising out of or based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary Prospectus, or caused by, arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except insofar
as such losses, claims, damages or liabilities are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Participant furnished to
the Company in writing by such Participant expressly for use therein; PROVIDED
that the foregoing indemnity with respect to any preliminary Prospectus shall
not inure to the benefit of any Participant (or to the benefit of an officer or
director of such Participant or any Person controlling such Participant) from
whom the Person asserting any such losses, claims, damages or liabilities
purchased Registrable Notes or Exchange Notes if such untrue statement or
omission or alleged untrue statement or omission made in such preliminary
Prospectus is eliminated or remedied in the related Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) and a copy of the related Prospectus (as so amended or supplemented)
shall have been furnished to such Participant at or prior to the sale of such
Registrable Notes or Exchange Notes, as the case may be, to such Person.
(b) Each Participant will be required to agree, severally and not
jointly, to indemnify and hold harmless the Issuers, their respective directors
and officers and each Person who controls any of the Issuers within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Issuers to each Participant, but
only with reference to information relating to such Participant furnished to the
Issuers in writing by such Participant expressly for use in any Registration
Statement or Prospectus, any amendment or supplement thereto, or any preliminary
Prospectus. The liability of
<PAGE> 19
-17-
any Participant under this paragraph (b) shall in no event exceed the proceeds
received by such Participant from sales of Registrable Notes or Exchange Notes
giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either
paragraph (a) or (b) of this Section 7, such Person (the "INDEMNIFIED PERSON")
shall promptly notify the Person against whom such indemnity may be sought (the
"INDEMNIFYING PERSON") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain one counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses incurred by such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed in writing to the contrary,
(ii) the Indemnifying Person has failed to retain counsel reasonably
satisfactory to the Indemnified Person or (iii) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and such Indemnified Person shall have been
advised by counsel that there may be one or more legal defenses available to it
which are different from or additional to those available to any such
Indemnifying Person. It is understood that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate law
firm (in addition to any local counsel) for all Indemnified Persons, and that
all such reasonable fees and expenses shall be reimbursed as they are incurred.
Any such separate firm for the Participants and such control Persons of
Participants shall be designated in writing by Participants who sold a majority
in interest of Registrable Notes and Exchange Notes sold by all such
Participants and any such separate firm for the Issuers, their directors, their
officers and such control Persons of the Issuers shall be designated in writing
by the Issuers. The Indemnifying Person shall not be liable for any settlement
of any proceeding effected without its prior written consent, but if settled
with such consent or if there is a final judgment for the plaintiff for which
the Indemnified Person is entitled to indemnification pursuant to this
Agreement, the Indemnifying Person agrees to indemnify any Indemnified Person
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested an Indemnifying Person to reimburse the Indemnified Person
for reasonable fees and expenses incurred by counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 60 days after receipt
by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement; PROVIDED, HOWEVER, that the
Indemnifying Person shall not be liable for any settlement effected without its
consent pursuant to this sentence if the Indemnifying Party is contesting, in
good faith, the request for reimbursement. No Indemnifying Person shall, without
the prior written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Person
is a party and indemnity has been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release (or any other release
reasonably acceptable to the Indemnified Person) of such Indemnified Person from
all liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a) and (b) of
this Section 7 is unavailable to an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein (other than as a result of
the proviso set forth in Section 7(a)), then each Indemnifying Person under such
paragraphs, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the Issuers on the one hand and the
Participants on the other in connec-
<PAGE> 20
-18-
tion with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations.
The relative fault of the Issuers on the one hand and the Participants on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Issuers
or by the Participants and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by PRO RATA allocation
(even if the Participants were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes exceeds the amount of any damages that such Participant has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this Section
7 will be in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
8. RULES 144 AND 144A
Each Issuer covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner and, if at any time
the Company is not required to file such reports, it will, upon the request of
any Holder of Registrable Notes, make publicly available other information of a
like nature so long as necessary to permit sales pursuant to Rule 144 or Rule
144A. Each Issuer further covenants that so long as any Registrable Notes remain
outstanding to make available to any Holder of Registrable Notes in connection
with any sale thereof, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Registrable Notes pursuant to
(a) such Rule 144A, or (b) any similar rule or regulation hereafter adopted by
the SEC.
9. UNDERWRITTEN REGISTRATIONS
If any of the Registrable Notes covered by any Shelf Registration are
to be sold in an underwritten offering, the investment banking firm or firms
that will underwrite the offering and the manager or managers that will manage
the offering will be selected by the Holders of a majority in aggregate
principal amount of such Registrable Notes included in such offering and shall
be reasonably acceptable to the Issuers.
No Holder of Registrable Notes may participate in any underwritten
offering hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
<PAGE> 21
-19-
10. MISCELLANEOUS
(a) REMEDIES. In the event of a breach by any Issuer of any of
its obligations under this Agreement, other than the occurrence of an event
which requires payment of Additional Interest, each Holder of Registrable Notes,
in addition to being entitled to exercise all rights provided herein, in the
Indenture or, in the case of the Selling Securityholder, in the Exchange
Agreement, or granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. Each Issuer, jointly
and severally, agree that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of any of the provisions of
this Agreement and hereby further agrees, jointly and severally, that, in the
event of any action for specific performance in respect of such breach, it shall
waive the defense that a remedy at law would be adequate.
(b) ENFORCEMENT. The Trustee shall be authorized to enforce
the provisions of this Agreement for the ratable benefit of the Holders.
(c) NO INCONSISTENT AGREEMENTS. No Issuer has entered, as of
the date hereof, and no Issuer shall enter, after the date of this Agreement,
into any agreement with respect to any of their securities that is inconsistent
with the rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. No Issuer has entered or will
enter into any agreement with respect to any of its securities which will grant
to any Person piggy-back rights with respect to a Registration Statement
required to be filed under this Agreement.
(d) ADJUSTMENTS AFFECTING REGISTRABLE NOTES. No Issuer shall,
directly or indirectly, take any action with respect to the Registrable Notes as
a class that would adversely affect the ability of the Holders of Registrable
Notes to include such Registrable Notes in a registration undertaken pursuant to
this Agreement.
(e) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Issuers have obtained the written consent of
Holders of at least a majority of the then outstanding aggregate principal
amount of Registrable Notes. Notwithstanding the foregoing, a waiver or consent
to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Notes whose securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders of
Registrable Notes may be given by Holders of at least a majority in aggregate
principal amount of the Registrable Notes being sold by such Holders pursuant to
such Registration Statement, PROVIDED that the provisions of this sentence may
not be amended, modified or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(f) NOTICES. All notices and other communications (including
without limitation any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day courier or telecopier:
(i) if to a Holder of Registrable Notes or any Participating
Broker-Dealer, at the most current address given by the Trustee to the
Issuers; and
(ii) if to the Issuers, to Oglebay Norton Company, 1100
Superior Avenue, Cleveland, OH 44114, Attention: Chief Financial
Officer, and with a copy to Jones, Day, Reavis & Pogue, North Point,
901 Lakeside Avenue, Cleveland, OH 44114-1190, Attention: Charles W.
Hardin, Jr., Esq.
<PAGE> 22
-20-
All such notices and communications shall be deemed to have
been duly given: (i) when delivered by hand, if personally delivered; (ii) five
business days after being deposited in the mail, postage prepaid, if mailed;
(iii) one business day after being timely delivered to a next-day courier; and
(iv) when receipt is acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee
under the Indenture at the address specified in such Indenture.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Registrable Notes; PROVIDED that, with respect
to the indemnity and contribution agreements in Section 7, each Holder of
Registrable Notes subsequent to the Selling Securityholder shall be bound by the
terms thereof if such Holder elects to include Registrable Notes in a Shelf
Registration; PROVIDED, HOWEVER, that this Agreement shall not inure to the
benefit of or be binding upon a successor or assign of a Holder unless and
except to the extent such successor or assign holds Registrable Notes.
(h) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(i) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(k) SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction.
(l) ENTIRE AGREEMENT. This Agreement, together with the
Indenture, is intended by the parties as a final expression of their agreement,
and is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein.
(m) JOINT AND SEVERAL OBLIGATIONS. Unless otherwise stated
herein, each of the obligations of the Issuers under this Agreement shall be
joint and several obligations of each of them.
(n) NOTES HELD BY THE ISSUERS OR THEIR AFFILIATES. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Issuers or their
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
<PAGE> 23
-21-
(o) GUARANTORS TO BECOME PARTIES. The Issuers shall cause each
Person that becomes a "Guarantor" under the Indenture to execute and deliver a
joinder agreement substantially in the form of EXHIBIT A attached hereto.
<PAGE> 24
-22-
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
OGLEBAY NORTON COMPANY
By:
------------------------------------------------
Name:
Title:
GUARANTORS:
OBLEBAY NORTON HOLDING COMPANY
ONCO INVESTMENT COMPANY
COLORADO SILICA SAND, INC.
OGLEBAY NORTON ENGINEERED MATERIALS, INC.
OGLEBAY NORTON INDUSTRIAL MINERALS, INC.
OGLEBAY NORTON INDUSTRIAL SANDS, INC.
GLOBAL STONE PORT INLAND, INC.
OGLEBAY NORTON TERMINALS, INC.
d/b/a Cleveland Bulk Terminals
GLOBAL STONE CORPORATION
GLOBAL STONE (U.S.A.) INC.
GLOBAL STONE TENN LUTTRELL COMPANY
GLOBAL STONE DETROIT LIME COMPANY
GLOBAL STONE ST. CLAIR INC.
GLOBAL STONE CHEMSTONE CORPORATION
GLOBAL STONE PENROC INC.
GLOBAL STONE FILLER PRODUCTS, INC.
By:
------------------------------------------------
Name:
Title:
TEXAS MINING, LP
By: OGLEBAY NORTON INDUSTRIAL SANDS, INC.
By:
------------------------------------------------
Name:
Title:
<PAGE> 25
The foregoing Agreement is hereby confirmed and accepted
as of the date first above written.
CIBC OPPENHEIMER CORP.
By:
--------------------------------------
Name:
Title:
<PAGE> 26
-23-
Exhibit A
---------
[FORM OF JOINDER AGREEMENT]
JOINDER AGREEMENT, dated as of [ ], by each of the
undersigned, pursuant to Section 10(o) the Registration Rights Agreement, dated
as of February 1, 1999, among Oglebay Norton Company, the guarantors party
thereto and CIBC Oppenheimer Corp. as selling securityholder (as amended from
time to time, the "REGISTRATION RIGHTS AGREEMENT"). Terms defined in the
Registration Rights Agreement and used herein without definition have the
meanings given to them in the Registration Rights Agreement.
1. Each of the undersigned hereby acknowledges that it has
received and reviewed a copy of the Registration Rights Agreement and
acknowledges and agrees that, pursuant to this Joinder Agreement, it hereby
becomes party to the Registration Rights Agreement as a Guarantor, bound by all
the covenants, agreements, representations, warranties and acknowledgments
applicable to a Guarantor in the Registration Rights Agreement.
2. The address and jurisdiction of incorporation of each of
the undersigned is set forth below its name on the signature pages hereto.
3. This Joinder Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to the
principles of conflicts of laws thereof.
<PAGE> 27
-2-
IN WITNESS WHEREOF, each of the undersigned has caused this
Joinder Agreement to be duly executed and delivered by its proper and duly
authorized officer as of the date set forth below.
[ ]
By:
---------------------------
Name:
Title:
<PAGE> 1
10(W)(3)
SUPPLEMENTAL INDENTURE
----------------------
Reference is made to that certain Indenture, dated as of February 1,
1999, by and among Oglebay Norton Company, a Delaware corporation ("Original
ONC"), the guarantors party thereto and NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee (the "Indenture"). Capitalized terms used without
definition herein have the meanings given to them in the Indenture.
RECITALS:
---------
A. Pursuant to an Agreement and Plan of Merger, dated as of March 3,
1998, by and among Original ONC, Oglebay Norton Holding Company, a Delaware
corporation ("Holding Company"), ONCO Investment Company, a Delaware
corporation, and Oglebay Norton Merger Company, a Delaware corporation ("Merger
Company"), Merger Company will merge (the "Merger") with and into Original ONC,
with Original ONC as the surviving corporation;
B. Immediately after the Merger, Original ONC will become an indirect
subsidiary of Holding Company and change its name to "ON Marine Services
Company," and Holding Company will change its name to Oglebay Norton Company
("New ONC");
C. The Indenture permits the Merger only if New ONC enters into this
Supplemental Indenture and assumes all of the obligations of Original ONC as the
"Company" thereunder;
D. The Indenture permits the Merger only if Original ONC enters into
this Supplemental Indenture and becomes a Guarantor under the Financing
Documents;
NOW, THEREFORE, in consideration of the above premises, Original ONC
agrees, for the benefit of the Holders, as follows:
Effective with the Merger, Original ONC hereby expressly agrees to
become a Guarantor under the Financing Documents and Original ONC shall cease to
be the "Company" under the Financing Documents.
The laws of the State of New York shall govern this Supplemental
Indenture without giving effect to any conflicts of law principles thereof.
<PAGE> 2
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed, all as of March 5, 1999.
OGLEBAY NORTON COMPANY,
a Delaware corporation, to be renamed
ON MARINE SERVICES COMPANY
By: /s/ John N. Lauer
--------------------------------------
Name: John N. Lauer
Title: Chairman, President & CEO
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By:
--------------------------------------
Name:
Title:
<PAGE> 1
Exhibit 13
CREATING AN
ENVIRONMENT
FOR GROWTH
oglebay norton 1998
<PAGE> 2
a
vision
for growth
[CHART]
<TABLE>
<CAPTION>
1998 Revenues by Segment
<S> <C>
Lime and Limestone 40%
Marine Transportation 40%
Industrial Sands 20%
</TABLE>
OUR VISION: To become the premier growth company in the industrial minerals
industry. - OUR MISSION: To unlock the inherent value in the company for our
stakeholders by empowering our employees to achieve profitable growth. - OUR
STRATEGY: To grow the company by building on established market positions and
through acquisitions of closely related businesses that mine, process and
deliver industrial minerals, while maintaining sound financial stewardship.
<PAGE> 3
at a glance
Oglebay Norton Company supplies essential natural resources to industrial and
commercial customers. Through its three operating segments - Lime and Limestone,
Industrial Sands and Marine Transportation - the company serves customers in a
wide range of industries, including steel, construction, oil and gas, ceramic,
chemical, glass and the electric utility industry. Founded in 1854, the company
has its headquarters in Cleveland, Ohio.
[CHART]
<TABLE>
<CAPTION>
LIME AND LIMESTONE
<S> <C>
Industrial and Chemical 33%
Steel 25%
Environmental 16%
Construction 16%
Lawn & Garden 9%
Agricultural 1%
</TABLE>
[CHART]
<TABLE>
<CAPTION>
INDUSTRIAL SANDS
<S> <C>
Industrial and Chemical 35%
Recreational 23%
Oil Field/Fracturing 22%
Fiberglass 9%
Foundry 6%
Ceramics 3%
Filtration 2%
</TABLE>
[CHART]
<TABLE>
<CAPTION>
MARINE TRANSPORTATION
<S> <C>
Iron Ore 38%
Coal 30%
Limestone 32%
</TABLE>
[MAP OF INDUSTRIAL SANDS, LIME AND LIMESTONE AND MARINE TRANSPORTATION
FACILITIES AND SERVICE AREAS]
INDUSTRIAL SANDS
The Industrial Sands division mines and processes high-purity silica sands at
two facilities in Ohio and six facilities in the southwestern U.S. It is the
fourth largest U.S. producer of industrial sands, producing fracturing sands
which are used in oil-well drilling; foundry sands for hot-metal die casting;
filtration sands; recreational sands for golf courses, playgrounds, athletic
fields, and landscaping; industrial sands used as abrasives and for fillers in
building materials; and silica flour for fiberglass and ceramic production.
*Headquarters: Phoenix, AZ
MARINE TRANSPORTATION
The Marine Transportation division transports dry-bulk cargo between U.S. ports
on the Great Lakes. The division operates 12 self-unloading vessels, the largest
such fleet on the Lakes. The fleet transports primarily iron ore for integrated
steel manufacturers, coal for electric utility companies, and limestone for
construction and other purposes. The division also operates the Cleveland Bulk
Terminal at the Port of Cleveland. * Headquarters: Cleveland, OH
LIME AND LIMESTONE
The Lime and Limestone division mines and processes limestone and produces lime,
a limestone derivative. The division operates 13 facilities, primarily in the
eastern U.S. and Canada, and is the fifth largest U.S. lime producer. Lime is
used for air purification, water treatment, steelmaking, and pulp & paper
production. Chemical limestone is used for water/waste treatment, steelmaking,
glass production, animal feed, fertilizers, and fillers for plastic, latex, and
sealants. Limestone is sized and graded for lawn & garden applications and for
aggregates used in construction. * Headquarters: Atlanta, GA
<PAGE> 4
FINANCIAL HIGHLIGHTS Oglebay Norton Company and Subsidiaries
(Dollars and shares in thousands, except per-share amounts)
<TABLE>
<CAPTION>
Years Ended December 31 1998 1997 1996 1995 1994
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
OPERATIONS
Net sales and operating revenues $238,852 $145,185 $129,697 $126,373 $118,509
Income from operations 37,035 24,465 11,653 12,973 10,370
Earnings before interest, taxes, depreciation and amortization 57,850 37,357 26,843 28,807 29,151
Income from continuing operations 12,036 18,356 11,039 10,624 9,558
Net income 12,036 16,252 15,557 15,361 14,891
- ------------------------------------------------------------------------------------------------------------------------
PER-SHARE DATA
Income from continuing operations (assuming dilution) 2.51 3.81 2.26 2.15 1.92
Net income (assuming dilution) 2.51 3.37 3.18 3.10 2.99
Dividends .80 .75 .65 .60 .50
Book value $ 26.64 $ 24.77 $ 22.01 $ 19.52 $ 17.07
- ------------------------------------------------------------------------------------------------------------------------
OTHER DATA
Shares of common stock outstanding 4,765 4,752 4,835 4,932 4,966
Average shares of common stock outstanding (assuming dilution) 4,786 4,816 4,891 4,948 4,982
Number of employees 1,790 908 935 1,417 1,579
========================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
NET SALES AND
OPERATING REVENUES
(IN MILLIONS)
<S> <C>
Corporate/Other
Industrial Sands
Marine Transportation
Lime and Limestone
</TABLE>
[CHART]
<TABLE>
<CAPTION>
NET INCOME PER SHARE/
DIVIDENDS PER SHARE
(IN DOLLARS)
<S> <C>
Corporate/Other
Industrial Sands
Marine Transportation
Lime and Limestone
</TABLE>
[CHART]
<TABLE>
<CAPTION>
EARNINGS BEFORE INTEREST, TAXES,
DEPRECIATION AND AMORTIZATION (EBITDA)
(IN MILLIONS)
<S> <C>
Corporate/Other
Industrial Sands
Marine Transportation
Lime and Limestone
</TABLE>
[CHART]
<PAGE> 5
To Our Stakeholders:
The 1990s have been a decade of change at Oglebay Norton, and 1998 was no
different. From the early '90s until I joined the company on January 1, 1998,
the board and management shed non-strategic assets and created a sound platform
for the company's expansion. At the end of 1997, our two remaining business
units, Industrial Sands and Marine Transportation, were operating at record
levels, generating strong earnings and cash flows. Oglebay Norton was poised to
grow. I invested my time and money in the company because I believed it was
undervalued and presented a compelling investment opportunity. I believe even
more strongly that our company will prosper in the coming years.
As Chairman, I will share with you certain forward-looking statements including
our current thinking, hopes, beliefs and strategies for the future. I will do so
in this letter, throughout the remainder of this report and in future materials
you may receive. I encourage you to read the Management Discussion and Analysis
in our 1998 Annual Report filed on Form 10-K for a complete discussion of our
operating results and the risks and the challenges facing our business.
Our Vision to Achieve Profitable Growth Our vision, to be the most profitable
growth company in the industrial minerals industry, was crafted through a series
of meetings with our employees and senior management. We intend to own
high-quality, long-lived, permitted reserves of industrial minerals; to extract
them in a highly efficient, safe, and environmentally sensitive manner; and to
deliver them in a cost-competitive way to our valued customers. This is what we
do well. t Delivering profitable growth to our stakeholders can be achieved only
if we perform and unlock the company's inherent value. Management is determined
to unlock the value in the company for you, our stakeholders.
With equity market dynamics being what they are, I do not believe that our
stakeholders are realizing the full value of their interest in Oglebay Norton.
Public companies today with a market capitalization under $150 million have
limited appeal to many investors, especially the institutional money managers
who control most of the dollars available for investing in equity securities.
Equity analysts concentrate their efforts on large-capitalization companies and
industry segments that are better known. At Oglebay Norton, we have few
institutional shareholders, no equity analyst coverage and, in general, are not
well known. Compared with many high-tech companies, we have a solid balance
sheet with significant assets and generate free cash flow in excess of capital
expenditures, dividends and debt service. Yet, our market capitalization at
December 31, 1998, was below book value. We are committed to correcting this
situation.
Strategy: Aligning Employees with Other Stakeholders As you know, my personal
incentive is a one-time grant of stock and performance options you approved last
year and the return on my personal investment. We also have created company
performance incentives for all employees by matching 401(k) contributions with
company stock and establishing a long-term incentive plan for certain key
managers whose goals are to more than double 1998 earnings per share by the year
2002. These plans should assure you that management understands our mission and
must perform in an outstanding manner in the next few years.
Strategy: Profitable Growth The primary reason we are aggressively pursuing
growth by acquisition is to enable us to grow substantially the company's
revenues and earnings per share. We have, therefore, carefully defined our
growth strategy. We will achieve profitable growth by building on established
market positions and by acquiring closely related businesses, while maintaining
sound financial stewardship. Our success with this strategy depends upon our
<PAGE> 6
ability to acquire businesses with high-quality and long-lived reserves and
operating assets that can be improved. The acquired businesses must have the
potential to grow earnings before interest, taxes, depreciation and amortization
(EBITDA) faster than revenues and must have either talented and experienced
management teams, or be able to fit into one of our existing segments. Our
management then must rapidly perform and translate EBITDA growth into earnings
per share. This template for profitable growth has worked well in Industrial
Sands, and now we are applying it to Lime and Limestone. We believe this
strategy also can be extended to other industrial minerals businesses.
Our Operations As you will read in the following pages, 1998 was a year in which
we diversified our operations. We now operate three businesses, each of which is
a market leader in its industry. All are highly efficient and have low-cost
operations with strong, focused customer relationships.
Our newest segment, Lime and Limestone, accounted for almost all of our increase
in revenue and EBITDA. These partial-year results for the business were in line
with our expectations. Global Stone Corporation, which we acquired in May 1998,
was itself built through acquisitions. Several of its operations had been
starved for capital and were under-performing at the time Global Stone acquired
them. Through a combination of better management, plant and equipment upgrades
and operating synergies, Global Stone began to improve operating margins.
Because we used debt to finance Global Stone and two other acquisitions that
make up this segment, the company's earnings were diluted in 1998. We expect
that, with the benefit of a full year of operations, these acquisitions will be
accretive to earnings per share in 1999.
Our Industrial Sands segment delivered its second best year in revenue and
EBITDA, despite weakness in demand in oil field services. This strong
performance was due to operating management's efforts to diversify product end
uses into additional markets, such as the booming California construction and
recreation markets. Colorado Silica Sand, which we acquired in March 1998,
performed well and increased our presence in the environmental and filtration
markets. Our outlook for this segment for 1999 is positive, even though the oil
field service industry is not expected to rebound. We are well positioned to
continue diversification and profitable expansion in industrial sands and
closely related markets.
Our Marine Transportation segment had another extraordinary year. Tonnage,
revenue and EBITDA were at or near 1997 record levels. Despite concerns about
the possible effects of imports on the domestic steel industry and the
uncertainty of weather conditions on the Lakes, our outlook for 1999 is
optimistic. Bookings are strong and we anticipate a prompt beginning of the 1999
navigation season.
Capital Resources 1998 was also a year of change in our capital structure. For
the first time in the company's history, we established a credit rating as well
as a position in the debt market with a $100-million, high-yield bond offering.
In addition, we secured a $215-million revolving credit facility with a
consortium of banks. These two facilities were used to fund our 1998
acquisitions. After due consideration, the company chose to use debt to finance
our growth because of our healthy balance sheet, strong cash flow and speed at
which we could achieve our mission. As we pursue future acquisitions, we will
seek to maintain an appropriate capital structure. Management is confident that
we have access to the necessary capital resources needed to further our growth
strategy while reducing our leverage ratio. We also are confident that, through
disciplined growth and the application of cash to both growth-oriented
investments and debt-reduction initiatives, it is possible
<PAGE> 7
to double 1998 earnings per share by the year 2002.
Looking Ahead We are confident that our full year results in 1999 will be
improved over last year's. We have a motivated and capable management team
closely aligned with stakeholder's interests; high-quality, long-lived operating
assets; leadership positions in many of the markets we serve; and strong
customer relationships with some of the leading companies in their industries. I
firmly believe that our strategy to achieve profitable growth for Oglebay Norton
will provide both near-term and long-lasting benefits for our stakeholders.
Sincerely,
/s/ John N. Lauer
<PAGE> 8
our management team
1998 was a year of change for the company in many respects, including the
restructuring of the executive management team. David Kelsey joined us as our
new chief financial officer in February 1998. David has valuable experience in
financial markets from his years as a senior vice president at GE Capital, and
an entrepreneurial spirit from serving as the CFO of an innovative sports
marketing firm. Working closely with David is Michael Biehl, our vice president
of finance and treasurer. Michael, who joined the company in 1992 from Ernst &
Young LLP, serves as our chief accounting officer. David and Michael complement
each other well and, with the other members of our talented financial staff,
give us the strong financial support we need as we continue to grow. - In
order to achieve our mission of unlocking the value of the company for our
stakeholders, we have undertaken a more aggressive and targeted plan for
diversifying our portfolio of businesses and marketing our stock. Leading this
effort is Jeffrey Gray, our vice president of corporate development and general
counsel. Jeff joined the company in 1997 with notable experience in the area of
mergers and acquisitions and has worked closely with operating management on
strategic growth initiatives. On the marketing front, we have added Rochelle
Walk as our director of corporate affairs and secretary. Shelly uniquely meets
our needs for this role in that she is a corporate lawyer with marketing
management experience. Shelly is responsible for all investor-related matters.
- - Rounding out the corporate team is Ron Compiseno who joined the company last
September as vice president of human resources. Ron's experience in strategic
human resource management has already proven valuable in helping the company
attract and retain the talent we need. - We have completed our transition to a
holding company structure, and will continue to empower the talented people who
run our divisions to make strategic decisions that enhance the value of the
company for our stakeholders. New to our management team is Danny Shepherd, whom
we elected vice president of the Lime and Limestone segment and president of
Global Stone Corporation shortly after the acquisition of Global Stone. Danny
had served as the executive vice president of the U.S. operations of Global
Stone and was responsible for expanding that business through acquisition and
internal growth. - Mark Juszli has done an excellent job running our
Industrial Sands segment for the last five years, and has been promoted to
president of that unit, which relocated to Phoenix in 1998, in order to be
closer to the majority of its operations and customers. Stuart Theis, who has
headed our Marine Transportation segment since 1994, also was promoted to
president of his unit in recognition of his leadership abilities and the
exemplary performance of that unit over the last several years. Both Mark and
Stuart remain vice presidents of Oglebay Norton.
[Photo]
Oglebay Norton officers
Pictured from left to right:
Rochelle F. Walk
Mark P. Juszli
Michael F. Biehl
John N. Lauer
David H. Kelsey
Danny R. Shepherd
Ronald J. Compiseno
Jeffrey S. Gray
Stuart H. Theis
<PAGE> 9
Lime and limestone are used in a wide range of manufacturing industries,
including iron and steel (below) and pulp and paper. Lime is the principal agent
used in flue gas desulfurization for power plants (below left). The division
also produces aggregate stone, which is a principal component in concrete and
asphalt (left). Finely ground limestone powders are used to make the backing
material for carpet (above left), while lawn and garden products (above)
represent an emerging growth market.
Oglebay Norton entered the lime and limestone markets in 1998 by acquiring three
established businesses, the largest of which was Global Stone Corporation, under
whose name the Lime and Limestone division continues to trade. These
acquisitions dramatically changed the complexion of the company. Lime and
Limestone now accounts for half of our revenue base and is the fifth largest
producer of lime in North America.
- -WHY LIME AND LIMESTONE? For nearly a century and a half, we have been
extracting minerals from the ground and processing them for use in industrial
applications. Producing limestone is a natural extension of our established
abilities, and producing lime, a limestone derivative, adds value to the
limestone processing chain. We capitalized on opportunities to acquire the Port
Inland limestone facilities and Global Stone in the spring and then augmented
this division with the Filler Products business in September. In a very short
period of time, we acquired a substantial market position, particularly in the
mid-west, mid-Atlantic and southeastern regions of the U.S. We also created a
strong platform for continued expansion.
- -MARKET DIVERSIFICATION This division serves six principal markets -
environmental, lawn and garden, industrial filler and chemical applications,
construction, agriculture and steel. This diversification helps us balance a
cyclical downturn in any one industry and creates multiple opportunities for
further growth. Three areas in particular - environmental, lawn and garden, and
industrial fillers - present special growth opportunities in light of increasing
regulation of air and water discharges and strong demand for new housing and
consumer goods.
- -PRODUCT LINE EXTENSION Sales of lime generate the greatest portion of this
segment's revenues. Lime is a chemical widely used in manufacturing processes
and industries, including pulp and paper, agriculture, construction, and iron
and steel. It also is an extremely effective neutralizing agent, making it an
integral component in many environmental applications.
- -Limestone products of high calcium carbonate content, referred to as chemical
limestone, are essential raw materials in many industrial and agricultural uses,
including cement and fiberglass production, and for soil stabilization. Chemical
limestone is
<PAGE> 10
produced at most of the division's facilities. Finely ground limestone powders,
known as fillers, are important components in the manufacture of building
products such as roofing tiles, vinyl flooring, wallboard and joint compounds,
and backing material for carpets. The addition of Filler Products substantially
enhanced the existing production of limestone fillers at the division's
facilities in Pennsylvania and Virginia.
Lawn and garden products are an emerging component of this segment's business.
These products include decorative stone, paving stones, pelletized limestone for
use as garden lime, sand, and stone for retaining walls and rock gardens. They
are distributed under the Global Stone label at home and garden centers and
major retailers along the East Coast and in the Ohio Valley.
The division produces aggregate stone, which is crushed and graded rock, at
several of its facilities. Aggregate stone is a principal component in concrete
and asphalt and is used in other construction applications.
- -EXPANSION We are committed to pursuing growth in the lime and limestone
markets through acquisition as well as expansion and extension of the
capabilities at our existing facilities. We believe that by doing so we will
optimize results for our stakeholders.
The Industrial Sands division supplies customers in a diverse mix of industries.
Fracturing sands from the division's quarries in the Southwest are used in
oil-well drilling (below). Silica flour is used in the manufacture of glass,
fiberglass and ceramics (below right). Other grades of sand are used to make
roof shingles (above), stucco siding, and brick (above right). The division also
supplies specialty recreational sands to leading golf courses around the country
(right).
Oglebay Norton has mined and processed industrial sands for over 30 years. As a
result of acquisitions and expansion initiatives at the company's existing
operations, revenues for this segment have more than doubled in the last four
years, making Oglebay Norton Industrial Sands the fourth largest producer of
high-purity silica sands in the United States.
- -NOT ALL SANDS ARE CREATED EQUAL Sand is common, but industrial-grade sands are
not. A few figures help highlight this point: On average, 31 million tons of
industrial-grade sand, compared with one billion tons of construction-grade
sand, are produced each year in the U.S. - making industrial sand just three
percent of the total domestic sand production. The average selling price of
industrial sand is four times higher than that of ordinary construction sand.
The specialty sands we produce serve important industrial end-use markets that
we have worked hard to identify and capture. We intend to continue to expand the
markets and number of customers we serve.
- -THE OIL AND GAS MARKET We produce a large portion of the industrial sands used
by the U.S. oil and gas industry as part of the secondary recovery process. Our
facilities in Brady and Voca, Texas, and Colorado Springs, Colorado, supply oil
service companies throughout the United States and Canada with "frac sands."
These are whole-grain sands whose high compressive strength and spherical shape
are needed to prop up fissures in the rock strata created
<PAGE> 11
during the fracturing process and enable the hydrocarbons to flow to the well
head. Our operations in Riverside and Bakersfield, California, produce
pulverized and other specialty sands that also serve the oil and gas industry.
- -INDUSTRIAL MARKETS We serve a variety of industrial end users around the
country with specialty sands. For example, we supply the stucco, grout and tile,
and roofing industries in southern California with sands from our facility in
Orange County that meet demanding specifications for size, shape and color. As a
result of economic growth in this region, we expanded our production at this
facility in 1998. Our two plants in Ohio provide finely ground, high-purity
silica sands for use in making fiberglass and ceramics. Our facility in Colorado
Springs supplies large-grain, specially screened sands for filtration and
environmental applications. Our Brady and Voca facilities also supply specialty
sands for foundry, abrasive, and filtration applications.
- -RECREATION MARKETS We proudly meet the demands of many of the country's finest
golf courses for sands and sand blends with the particular color, shape,
composition and performance characteristics needed for sand traps and tee and
green construction. We service this growing market and broader sports turf and
recreational markets from our Orange County, Colorado Springs, Brady, and Ohio
operations.
- -WE ARE COMMITTED TO GROWTH Over the last several years, our Industrial Sands
segment has grown and delivered outstanding results. We own strategically
located long-lived reserves of high-purity industrial sands, and are dedicated
to serving the needs of our customers. We continue to identify and pursue
opportunities to expand by acquiring reserves and businesses that serve new
markets. We have become the leading producer of industrial sands in the
Southwest, and we are committed to applying this template for success to
additional markets and applications to enhance our leadership position.
The Marine Transportation division operates a fleet of 12 self-unloading vessels
that transport ore, coal, limestone and other dry-bulk cargos between ports on
the Great Lakes (above). The division primarily serves the steel and electrical
utilities industries (below and left), as well as the chemical and construction
industries. Typically, about 90 percent of the tonnage shipped by the division
moves under multi-year contracts, which limits the impact of short-term changes
in production levels.
Oglebay Norton has been transporting bulk materials on the Great Lakes since the
1800s. In each of the last several years our fleet of 12 self-unloading vessels
has carried roughly 24 million tons of iron ore, limestone and coal - about 20
percent of the total tonnage hauled by U.S. flag vessels on the Great Lakes.
Marine Transportation primarily serves the steel, electric utility and
construction industries.
- -THIS IS A LOGISTICS BUSINESS We know that the highest value we provide to our
customers is reliable delivery of the materials they require. It is no small
feat to move 24 million tons of material during the nine-month sailing season on
the Great Lakes. It is an even greater feat to move these materials efficiently
in accordance with our customers' needs. To accomplish these objectives, we
focus our energies on carefully maintaining, safely operating and
<PAGE> 12
effectively dispatching our fleet.
- -MINIMIZING COSTLY DELAYS We work hard to minimize the delays that can be costly
for us as well as our customers. Our comprehensive maintenance programs,
state-of-the-art technology, expert dispatchers and highly trained crews enable
us to deliver materials on time. Each year during the winter lay-up period, we
maintain and upgrade our fleet to keep our vessels in optimal operating
condition. By sailing only in the fresh waters of the Great Lakes, we avoid the
corrosive effects of salt water on our hulls and equipment. During the sailing
season, we work closely with our customers to develop optimized delivery
schedules, to minimize time waiting in port and to secure backhauls.
- -We continually investigate and add sophisticated electronic navigational and
other systems to our vessels to enhance performance. In 1998, for example, we
installed automated steering systems on some of our vessels that resulted in
markedly shorter lake transit times and, therefore, reduced fuel costs. Other
recently added navigational technology enables our crews to operate safely and
efficiently, even in adverse sailing conditions. At times, however, there is no
substitute for human experience and judgment, so we make sure our crews are the
best trained in the industry. Their record for safety and pride in their work
delivers the tonnage to meet customer demand.
- -Our long-standing safety training program continues to reduce our injury
experience on the vessels and their related costs. We keenly pursue cost-saving
opportunities as they develop, but we keep firmly in mind the paramount need to
preserve the safe and reliable operation of our vessels for the benefit of our
customers.
- -DELIVERING RESULTS FOR OUR CUSTOMERS Waterborne transportation remains the most
economical and environmentally friendly method of transporting bulk materials.
Our largest vessels, the thousand-footers, carry 60,000 tons of iron ore, as
much cargo as six 100-car unit trains. Success in this business, however,
requires more than the mere potential for economic operation, it requires
execution. We measure our success in Marine Transportation by the preservation
and growth of customer loyalty - we have served many of our large customers for
more than 20 years - and by the historical generation of a steady cash-flow
stream. These factors combine to make our Marine Transportation unit an
exemplary performer in the eyes of our customers and other stakeholders.
DIRECTORS
BRENT D. BAIRD
Private Investor; Formerly Limited Partner, Trubee,
Collins & Co., Buffalo, New York
Member, New York Stock Exchange
Executive Committee, Audit Committee
MALVIN E. BANK
Partner, Thompson Hine & Flory LLP, Cleveland, Ohio, attorneys
Executive Committee, Director Search and Governance Committee
WILLIAM G. BARES
Chairman, President and Chief Executive Officer,
The Lubrizol Corporation, Wickliffe, Ohio,
<PAGE> 13
supplier of chemical additives to the petroleum industry
Chairman of the Executive Committee
JAMES T. BARTLETT
Managing Director, Primus Venture Partners, venture capital firm
Compensation and Organization Committee, Audit Committee
ALBERT C. BERSTICKER
Chairman, Ferro Corporation, producer of specialty coatings,
plastics, chemicals and ceramics
Chairman of the Audit Committee, Executive Committee,
Compensation and Organization Committee
R. THOMAS GREEN, JR.
Retired; Formerly Chairman, President and
Chief Executive Officer of the Company
Executive Committee
RALPH D. KETCHUM
President and Chief Executive Officer, RDK Capital, Inc.,
Pepper Pike, Ohio, investments
Compensation and Organization Committee, Chairman of the
Director Search and Governance Committee
JOHN N. LAUER
Chairman, President and Chief Executive Officer of the Company
WILLIAM G. PRYOR
President, Van Dorn Demag Corporation, manufacturer of
plastic injection molding equipment
Audit Committee, Director Search and Governance Committee
JOHN D. WEIL
President, Clayton Management Co.,
St. Louis, Missouri, investments
Chairman of the Compensation and Organization Committee,
Director Search and Governance Committee
OFFICERS
JOHN N. LAUER
Chairman, President and Chief Executive Officer
MICHAEL F. BIEHL
<PAGE> 14
Vice President, Finance and Treasurer
RONALD J. COMPISENO
Vice President, Human Resources
JEFFREY S. GRAY
Vice President, Corporate Development
and General Counsel
MARK P. JUSZLI
Vice President, Industrial Sands
DAVID H. KELSEY
Vice President and Chief Financial Officer
DANNY R. SHEPHERD
Vice President, Lime and Limestone
STUART H. THEIS
Vice President, Marine Transportation
ROCHELLE F. WALK
Director, Corporate Affairs and Secretary
JOHN KIRN, JR.
Senior Counsel and Assistant Secretary
Three directors will retire at the 1999 Annual Meeting:
Brent D. Baird, R. Thomas Green, Jr., and Ralph D. Ketchum.
Brent Baird joined the Board of Oglebay in 1990 and has served actively on
several committees. His experience, particularly in marine transportation and
banking, has provided valuable insight and excellent guidance during these
transitional years.
In his 33 years with Oglebay Norton, Tom Green left a laudable management
legacy. Most recently as chairman, and previously as company president and chief
executive officer, Tom was instrumental in establishing a strong foundation on
which the company could grow.
Ralph Ketchum joined the Board of Oglebay Norton in 1992. He served on a variety
of committees of the Board, most recently chairing the Director Search and
Governance Committee. He has worked with dedication and has consistently
endeavored to represent the shareholders in each action he supported.
<PAGE> 15
We thank each of them for their loyal dedication and service to the company and
wish them well in the future.
CORPORATE AND SHAREHOLDER INFORMATION
EXECUTIVE OFFICE
1100 Superior Avenue
Cleveland, OH 44114-2598
Telephone: 216-861-3300
Fax: 216-861-2863
www.oglebaynorton.com
INDUSTRIAL SANDS DIVISION
Three Gateway
410 N. 44th Street, Suite 320
Phoenix, AZ 85008
Phone: 602-389-4399
Fax: 602-389-4389
FACILITIES:
Bakersfield, CA
Brady, TX
Colorado Springs, CO
Glassrock, OH
Millwood, OH
Riverside, CA
San Juan Capistrano, CA
Voca, TX
LIME AND LIMESTONE DIVISION
Global Stone Corporation
10998 Crabapple Road, Suite 101
Roswell, GA 30075
Phone: 770-992-1268
Fax: 770-992-0488
Facilities:
Buchanan, VA
Chatsworth, GA
Cisco, GA
Detroit, MI
Elijay, GA
Gulliver, MI
Ingersoll, ON
Luttrell, TN
<PAGE> 16
Macon, GA
Marble City, OK
Middletown, VA
Strasburg, VA
York, PA
MARINE TRANSPORTATION DIVISION
1100 Superior Avenue
Cleveland, OH 44114
Phone: 216-861-8749
Fax: 216-861-2315
Facilities:
Cleveland, OH
Toledo, OH
STOCKHOLDER INQUIRIES:
Copies of the SEC Form 10-K for 1998 are available
on the company's website and will be provided
without charge to stockholders upon written request to:
Rochelle F. Walk
Director, Corporate Affairs and Secretary
Oglebay Norton Company
1100 Superior Avenue
Cleveland, OH 44114-2598
216-861-8734
Information relating to share certificates or
dividend payments should be directed to:
Transfer Agent
National City Bank
Corporate Trust Operations
Cleveland, OH 44135-1385
Telephone: 1-800-622-6757
INDEPENDENT AUDITORS
Ernst & Young LLP
Cleveland, OH
1999 ANNUAL MEETING OF STOCKHOLDERS
April 28, 1999, 9:00 a.m.
Ciao Cucina
Playhouse Square
1515 Euclid Avenue
<PAGE> 17
Cleveland, OH
COMMON STOCK AND DIVIDENDS
The Company's common stock is traded on the NASDAQ National Market. NASDAQ/NMS
Symbol: OGLE. The company had 412 stockholders of record at December 31, 1998
and 451 at December 31, 1997. The following is a summary of the market range and
dividends for each quarterly period in 1998 and 1997 for the company's common
stock.
<PAGE> 18
Oglebay Norton Company
1100 Superior Avenue
21st Floor
Cleveland, Ohio 44114-2598
Phone: 216-861-3300
Fax: 216-861-2863
www.oglebaynorton.com
<PAGE> 1
EXHIBIT 21
SUBSIDIARIES OF OGLEBAY NORTON COMPANY
<TABLE>
<CAPTION>
STATE OF INCORPORATION
NAME OF SUBSIDIARY OR ORGANIZATION
------------------ ----------------------
<S> <C>
Canadian Ferro Hot Metal Specialties Limited Ontario, Canada
Colorado Silica Sand, Inc. Colorado
Laxare, Inc. West Virginia
Oglebay Norton Engineered Materials, Inc. Ohio
Oglebay Norton Industrial Minerals, Inc. Ohio
Oglebay Norton Industrial Sands, Inc. California
Oglebay Norton Investment Company Delaware
Oglebay Norton Marine Services Company Delaware
Oglebay Norton Terminals, Inc. d/b/a Cleveland Bulk Ohio
Terminals
ON Coast Petroleum Company Texas
ON Marine Services Company Delaware
ONCO WVA, Inc. West Virginia
ONTEX, Inc. Delaware
Saginaw Mining Company Ohio
Texas Mining, LP Delaware
Global Stone Corporation Ohio
Global Stone (U.S.A.) Inc. Delaware
Global Stone Chemstone Company Delaware
Global Stone Detroit Lime Company Delaware
Global Stone Filler Products Company Delaware
Global Stone Ingersoll Ltd. Canada
Global Stone James River, Inc. Delaware
Global Stone PenRoc Inc. Delaware
Global Stone Port Inland, Inc. Michigan
Global Stone St. Clair Inc. Delaware
Global Stone Tenn Luttrell Company Delaware
</TABLE>
<PAGE> 1
EXHIBIT 23
Consent of Independent Auditors
We consent to the incorporation by reference in the following Registration
Statements of our report dated February 16, 1999, with respect to the
consolidated financial statements of Oglebay Norton Company included in this
Annual Report (Form 10-K) for the year ended December 31, 1998:
Registration Statement Number 33-58819 on Form S-8 dated April 26, 1995
pertaining to the Oglebay Norton Company Director Stock Plan;
Registration Statement Number 33-29046 on Form S-8 dated June 9, 1989,
pertaining to the Oglebay Norton Company Employee Stock Ownership Plan
and Trust;
Registration Statement Number 33-21006 on Form S-8 dated April 21, 1988,
pertaining to the Oglebay Norton Company Employee Stock Ownership Plan
and Trust.
/s/ ERNST & YOUNG LLP
Cleveland, Ohio
March 19, 1999
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 1,940,410
<SECURITIES> 0
<RECEIVABLES> 36,624,374
<ALLOWANCES> 1,194,000
<INVENTORY> 28,450,091
<CURRENT-ASSETS> 78,055,200
<PP&E> 566,194,939
<DEPRECIATION> 218,752,499
<TOTAL-ASSETS> 565,623,762
<CURRENT-LIABILITIES> 50,744,096
<BONDS> 312,066,074
0
0
<COMMON> 7,253,332
<OTHER-SE> 119,680,080
<TOTAL-LIABILITY-AND-EQUITY> 565,623,762
<SALES> 143,298,784
<TOTAL-REVENUES> 238,852,390
<CGS> 96,117,801
<TOTAL-COSTS> 210,816,952
<OTHER-EXPENSES> 1,935,068
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 19,280,532
<INCOME-PRETAX> 17,694,617
<INCOME-TAX> 5,659,000
<INCOME-CONTINUING> 12,035,617
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
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<EPS-PRIMARY> 2.52
<EPS-DILUTED> 2.51
</TABLE>
