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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.
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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.
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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
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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:_______________________________
Xxxxxxxx X. Xxxx, Senior
Vice President
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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.
Xxxxxxxx Development Company
Western Wisconsin Materials, Inc.
Global Stone (USA) Inc.
Global Stone Tenn Lutrell Company
Global Stone Chemstone Corporation
Global Stone Detroit Lime Company
Global Stone St. Clair, Inc.
Global Stone PenRoc Inc.
Global Stone Filler Products Company
By:_______________________________________
Xxxxxxx X. Xxxxx as Treasurer of each
of the companies listed above
Texas Mining, LP
By: Oglebay Norton Industrial Sands, Inc.,
General Partner
By:_____________________________________
Xxxxxxx X. Xxxxx, Treasurer
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