AMENDMENT NO. 1 TO COMMITMENT AGREEMENT
Exhibit 10.2
AMENDMENT NO. 1 TO COMMITMENT AGREEMENT
As of June 29, 2004
To the Subscribers under the
Commitment Agreement referred to below
Ladies and Gentlemen:
Reference is made to the Commitment Agreement, dated as of February 23, 2004, entered into by and among Oglebay Norton Company and the other parties (the “Subscribers”) signatory thereto (the “Agreement”). Defined terms used but not otherwise defined herein shall have the meaning ascribed to them in the Agreement. The Company has agreed to amend the Agreement (1) to provide for the sale of an additional $5 million of Preferred Shares to those Subscribers having a Standby Commitment, (2) to change the date on which the non-completion of the Restructuring Transaction will become a Termination Event from August 31, 2004 to October 15, 2004, (3) to change the date prior to which the Registration Statement shall be declared effective from August 23, 2004 to September 23, 2004, (4) to reflect the fact that the filing of the Registration Statement does not require the Bankruptcy Court’s prior authorization, (5) to reflect the fact that the shares of Common Stock to be issued to the holders of the Subordinated Notes may be included in the Registration Statement, (6) to reflect the fact that no stockholders agreement shall be entered into among the Subscribers and the Company and that a registration rights agreement may be entered into among the Company and the Subscribers under certain conditions set forth herein, and (7) to amend the provision that releases from its rights and obligations under the Agreement any Subscriber that does not consent to the amendment of the Agreement. The total of $85 million of Preferred Shares will represent approximately 74.4% of the equity of reorganized Oglebay before dilution for the Management Options and the Warrants.
Upon receipt of the Requisite Subscribers’ consent as described herein, the Agreement shall be amended as follows:
1. Paragraph (D) of the Preliminary Statements of the Agreement shall be amended by adding thereto the following:
“In addition, the Company will issue and sell to those holders of Subordinated Notes having a Standby Commitment (as defined herein) and the Third Party Investors, and those holders of Subordinated Notes and Third Party Investors shall purchase, additional Preferred Shares for an aggregate purchase price of $5 million.”
As of June 29, 2004
Page 2
2. The following sentence is added as the penultimate sentence of Section 1(a) of the Agreement:
“In addition to the Preferred Shares having an aggregate purchase price of $80 million that are subject to the Offering and notwithstanding the provisions of Exhibit A to this Agreement, each Noteholder having a Standby Commitment and each Third Party Investor agrees to purchase, and the Company agrees to issue and sell to such Noteholders and Third Party Investors, a pro rata portion of that number of Preferred Shares having an aggregate purchase price of $5 million, such pro rata portions to be based upon such Subscribers’ respective Standby Commitment Amounts.”
3. The references to “$80 million” in Section 1(b) of the Agreement and under “Offering of New Convertible Preferred Stock” in Exhibit A of the Agreement shall be deleted and replaced by “$85 million.”
4. The reference to “August 23, 2004” in Section 2 of the Agreement shall be deleted and replaced by “September 23, 2004.”
5. Sections 6(a)(xi) and (6(a)(xii) shall be deleted in their entirety and replaced by the following:
“(xi) the issuance of the shares of Common Stock to the holders of the Subordinated Notes in respect of the cancellation thereof in accordance with the Plan shall be exempt from the registration requirements of the Securities Act by virtue of Section 1145 of the Bankruptcy Code or shall be included in the Registration Statement; and
(xii) if requested by the Requisite Subscribers, the Company shall enter into customary registration rights agreement with any Subscribers or other persons who may be deemed to be underwriters providing demand and piggy-back registration rights, subject to customary restrictions, such agreement to be reasonably satisfactory in form and substance to the Requisite Subscribers.”
6. Section 6(b)(i) of the Agreement shall be deleted in its entirety and replaced by the following: “(i) [intentionally omitted].”
7. Section 7(a)(vii) of the Agreement shall be deleted in its entirety and replaced by the following:
“(vii) the Restructuring Transaction is not completed by October 15, 2004”
As of June 29, 2004
Page 3
8. The second sentence of Section 8 of the Agreement shall be deleted in its entirety and replaced by the following:
“Notwithstanding the foregoing, no such amendment of this Agreement or any waiver or consent hereunder shall, unless in writing and signed by a Subscriber affected thereby, be effective as to such Subscriber to do any of the following: (i) increase or decrease the Commitment Amount or decrease the Commitment Fee of such Subscriber; (ii) decrease the percentage ownership specified under “Existing Senior Subordinated Notes” in Exhibit A to the Agreement; (iii) change the definition of “Required Subscribers”; or (iv) amend this Section 8 of the Agreement.”
9. In order to give effect to the increase from $80 million to $85 million the aggregate purchase price of the Preferred Shares to be purchased by the Subscribers in accordance with Section 1(a) of the Agreement, as amended hereby, the respective Commitment Amounts and Commitment Fees of those Subscribers listed on Schedule I attached hereto shall be increased to the respective Increased Commitment Amounts and Increased Commitment Fees set forth opposite the names of such Subscribers on Schedule I.
The delivery to the Company of this letter duly executed by you will evidence your agreement to the amendments to the Agreement set forth above. These amendments will become effective upon delivery to the Company of copies of this letter duly executed by the Requisite Subscribers. If the Company does not receive a copy of this letter duly executed by you, you will be deemed not to have consented to the proposed amendments set forth in this letter and will be released from all of your rights and obligations under the Agreement in accordance with Section 8.
The provisions of Section 14 of the Agreement relating to counterparts and facsimile signatures shall be applicable to this Amendment No. 1 to the Agreement.
As of June 29, 2004
Page 4
Except as amended hereby, the Agreement shall remain in full force and effect in accordance with its terms.
| Very truly yours, | ||||
| OGLEBAY NORTON COMPANY | ||||
| By: |
/s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Chief Financial Officer and Treasurer | |||
As of June 29, 2004
Page 5
NOTEHOLDERS:
SUBSCRIBERS
Airlie Opportunity Fund, L.P.
| By: | /s/ Xxxx Xxxxxxxxxx | |
| Name: | Xxxx Xxxxxxxxxx | |
| Title: | Managing Director | |
| Airlie Opportunity Fund Cayman, LTD | ||
| By: |
/s/ Xxxx Xxxxxxxxxx | |
| Name: |
Xxxx Xxxxxxxxxx | |
| Title: |
Managing Director | |
| Xxxxxx X. Xxxxxxxxxxx Trust | ||
| By: |
/s/ Xxxxxx X. Xxxxxxxxxxx | |
| Name: |
Xxxxxx X. Xxxxxxxxxxx | |
| Title: |
Trustee | |
| Berlin Capital Growth, L.P. | ||
| By: |
Berlin Financial, Ltd., its general partner | |
| By: |
/s/ Xxxxxx X. Xxxxxx | |
| Name: |
Xxxxxx X. Xxxxxx | |
| Title: |
Managing Member | |
| J Xxxxxx Investments LLC | ||
| By: |
Berlin Financial, Ltd., its investment advisor | |
| By: |
/s/ Xxxxxx X. Xxxxxx | |
| Name: |
Xxxxxx X. Xxxxxx | |
| Title: |
Managing Member | |
As of June 29, 2004
Page 6
Xxxxxx Xxxxxxxx & Company, Incorporated
| By: |
/s/ Xxxxxx X. Xxxxxxxxxx | |
| Name: |
Xxxxxx X. Xxxxxxxxxx | |
| Title: |
Chairman and Chief Executive Officer | |
| Xxxxxxxxxxx X. Xxxxxx | ||
| By: |
/s/ Xxxxxxxxxxx X. Xxxxxx | |
| X. Xxxxxxxx Xxxxx | ||
| By: |
/s/ X. Xxxxxxxx Xxxxx | |
| Xxxx Xxxxxxx | ||
| By: |
/s/ Xxxx Xxxxxxx | |
| Xxxx Xxxxxxx | ||
| By: |
/s/ Xxxx Xxxxxxx | |
| Xxxxxx Xxxxxxx | ||
| By: |
/s/ Xxxxxx Xxxxxxx | |
| Xxxxxx XxXxxxx | ||
| By: |
/s/ Xxxxxx XxXxxxx | |
As of June 29, 2004
Page 7
| Connecticut General Life Insurance | ||
| By: |
/s/ Xxxx Xxxxxx | |
| Name: |
Xxxx Xxxxxx | |
| Title: |
Senior Vice President | |
| Xxxx Xxxxxxx | ||
| By: |
/s/ Xxxx Xxxxxxx | |
| Xxxxxx Xxxxxx | ||
| By: |
/s/ Xxxxxx Xxxxxx | |
| Xxxx Xxxxxxxxx | ||
| By: |
/s/ Xxxx Xxxxxxxxx | |
| Xxxxx 1990 Living Trust | ||
| By: |
/s/ Xxxxxxxx Xxxxx | |
| Name: |
Xxxxxxxx Xxxxx | |
| Title: |
Trustee | |
| Xxxxxxx & Xxxxxx Value Partners, L.P. | ||
| By: |
/s/ Xxxxxx Xxxxxxx | |
| Name: |
Xxxxxx Xxxxxxx | |
| Title: |
General Partner | |
As of June 29, 2004
Page 8
| Xxxxxxx Xxxxxxxx | ||
| By: |
/s/ Xxxxxxx Xxxxxxxx | |
| Xxxxxxx X. Xxxxx | ||
| By: |
/s/ Xxxxxxx X. Xxxxx | |
| Xxxxxxx X. Xxxxx XXX | ||
| By: |
/s/ Xxxxxxx X. Xxxxx | |
| Name: |
Xxxxxxx X. Xxxxx | |
| Xxxxxxx Xxxxxx Xxxxxx Trust | ||
| By: |
/s/ Xxxxxxx X. Xxxxx | |
| Name: |
Xxxxxxx X. Xxxxx | |
| Title: |
Trustee | |
| Abigail Xxxxx Xxxxxx Trust | ||
| By: |
/s/ Xxxxxxx X. Xxxxx | |
| Name: |
Xxxxxxx X. Xxxxx | |
| Title: |
Trustee | |
| Xxxx Xxxxx | ||
| By: |
/s/ Xxxx Xxxxx | |
As of June 29, 2004
Page 9
| Steadfast LLC | ||
| By: |
/s/ Xxxxxx X. Xxxxx | |
| Name: |
Xxxxxx X. Xxxxx | |
| Title: |
Manager | |
| Blythefield Farms LLC | ||
| By: |
/s/ Xxxxxxx X. Xxxxx | |
| Name: |
Xxxxxxx X. Xxxxx | |
| Title: |
Manager | |
| Xxxxxxx Xxxxxxxxxxx | ||
| By: |
/s/ Xxxxxxx Xxxxxxxxxxx | |
| Heritage Xxxx Foundation | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: |
Xxxxxxx X. Xxxxx | |
| Title: |
Trustee | |
| Xxxxxxxx Xxxxxxxxxx Trust | ||
| By: |
/s/ Xxxx Xxxxxxxxxx | |
| Name: |
Xxxx Xxxxxxxxxx | |
| Title: |
Trustee | |
| Xxxxxxxxx X. Xxxxxxxxxx Trust | ||
| By: |
/s/ Xxxxxxx X. Xxxxx | |
| Name: |
Xxxxxxx X. Xxxxx | |
| Title: |
Trustee | |
As of June 29, 2004
Page 10
| Xxxxxxxx X. Xxxxxxxxxx Trust | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | |
| Title: | Trustee | |
| Xxxxxxx X. Xxxxxxxxxx Trust | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | |
| Title: | Trustee | |
| Xxxx Xxxxxxxxxx | ||
| By: | /s/ Xxxx Xxxxxxxxxx | |
| Xxxxx Xxxxxxxxx | ||
| By: | /s/ Xxxxx Xxxxxxxxx | |
| Xxxxxxx X. Xxxxxxxxx | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
| CFG Trust | ||
| By: | /s/ Xxxxxx X. Xxxxxxxxxxx | |
| Name: | Xxxxxx X. Xxxxxxxxxxx | |
| Title: | Trustee | |
As of June 29, 2004
Page 11
| Xxxxxx X. Xxxxxxx | ||
| By: |
/s/ Xxxxxx X. Xxxxxxx | |
| WCI Steel, Inc. Defined Pension Benefit Plan | ||
| By: | Banc One High Yield Partners, LLC | |
| By: |
/s/ Xxxxx X. Xxxxxxxx, Xx. | |
| Name: |
Xxxxx X. Xxxxxxxx, Xx. | |
| Title: |
Manager | |
| Legacy Aggressive High Yield Fund | ||
| By: | Banc One High Yield Partners, LLC | |
| By:
|
/s/ Xxxxx X. Xxxxxxxx, Xx. | |
| Name: |
Xxxxx X. Xxxxxxxx, Xx. | |
| Title: |
Managing Director/General Counsel | |
| Southern UTE Permanent Fund | ||
| By: | Banc One High Yield Partners, LLC | |
| By:
|
/s/ Xxxxx X. Xxxxxxxx, Xx. | |
| Name: |
Xxxxx X. Xxxxxxxx, Xx. | |
| Title: |
Manager | |
| Southern UTE Growth Fund | ||
| By: | Banc One High Yield Partners, LLC | |
| By: |
/s/ Xxxxx X. Xxxxxxxx, Xx. | |
| Name: |
Xxxxx X. Xxxxxxxx, Xx. | |
| Title: |
Manager | |
As of June 29, 2004
Page 12
| Pacholder High Yield Fund, Inc. | ||
| By: | Banc One High Yield Partners, LLC | |
| By: |
/s/ Xxxxx X. Xxxxxxxx, Xx. | |
| Name: |
Xxxxx X. Xxxxxxxx, Xx. | |
| Title: |
Secretary | |
| One Group Income Bond Fund | ||
| By: | Banc One High Yield Partners, LLC | |
| By: |
/s/ Xxxxx X. Xxxxxxxx, Xx. | |
| Name: |
Xxxxx X. Xxxxxxxx, Xx. | |
| Title: |
Manager | |
| One Group High Yield Bond Fund | ||
| By: | Banc One High Yield Partners, LLC | |
| By: |
/s/ Xxxxx X. Xxxxxxxx, Xx. | |
| Name: |
Xxxxx X. Xxxxxxxx, Xx. | |
| Title: |
Manager | |
| THIRD PARTY INVESTORS | ||
| Xxxx Xxxxx | ||
| By: |
/s/ Xxxx Xxxxx | |
| Xxxxxx X. Xxxxx | ||
| By: |
/s/ Xxxxxx X. Xxxxx | |
As of June 29, 2004
Page 13
| Xxxxxx X. Xxxxxx | ||
| By: |
/s/ Xxxxxx X. Xxxxxx | |
| Xxxxxx X. Xxxxxx | ||
| By: |
/s/ Xxxxxx X. Xxxxxx | |
| Gator Investment Company | ||
| By: |
/s/ Xxxx Xxxxxxx | |
| Name: |
Xxxx Xxxxxxx | |
| Title: |
Member | |
| Fledgling Associates LLC | ||
| By: |
/s/ Xxxxxx Xxxxx | |
| Name: |
Xxxxxx Xxxxx | |
| Title: |
Manager | |
| Xxxxxxxx Xxxxxxxx | ||
| By: |
/s/ Xxxxxxxx Xxxxxxxx | |
As of June 29, 2004
Page 14
SCHEDULE I
| Subscriber |
Principal Amount of Subordinated Notes Beneficially Owned |
Increased Commitment Amount |
Increased Commitment Fee | ||||||
| Noteholders |
|||||||||
| Airlie Opportunity Fund, L.P. |
$ | 3,705,000 | $ | 7,870,326 | $ | 304,596 | |||
| Airlie Opportunity Fund Cayman, LTD |
$ | 1,045,000 | $ | 2,219,836 | $ | 85,912 | |||
| Berlin Capital Growth, L.P. |
$ | 1,125,000 | $ | 1,682,814 | $ | 57,141 | |||
| J Xxxxxx Investments LLC |
$ | 5,995,000 | $ | 8,967,547 | $ | 304,497 | |||
| Xxxxxxxxxxx X. Xxxxxx |
$ | 300,000 | $ | 792,399 | $ | 32,420 | |||
| X. Xxxxxxxx Xxxxx |
$ | 400,000 | $ | 871,859 | $ | 33,993 | |||
| Xxxxxx Xxxxxxx |
$ | 10,000 | $ | 597,423 | $ | 29,631 | |||
| Xxxxxx XxXxxxx |
$ | 320,000 | $ | 807,183 | $ | 32,679 | |||
| Xxxx Xxxxxxxxx |
$ | 1,000,000 | $ | 1,902,637 | $ | 71,132 | |||
| Xxxxxxx & Xxxxxx Value Part. L.C. |
$ | 8,700,000 | $ | 20,988,419 | $ | 840,621 | |||
| Xxxx Xxxxx |
$ | 100,000 | $ | 544,836 | $ | 24,842 | |||
| Xxxxxx X. Xxxxxxx |
$ | 150,000 | $ | 1,094,264 | $ | 51,113 | |||
| Pacholder High Yield Fund, Inc. |
$ | 2,250,000 | $ | 2,563,473 | $ | 74,174 | |||
| One Group High Yield Bond Fund |
$ | 4,250,000 | $ | 6,487,528 | $ | 222,376 | |||
| Third Party Investors |
|||||||||
| Xxxx Xxxxx |
$ | 1,108,039 | $ | 55,402 | |||||
| Xxxxxx X. Xxxxx |
$ | 1,108,039 | $ | 55,402 | |||||
| Xxxxxx X. Xxxxxx |
$ | 3,324,116 | $ | 166,206 | |||||
| Xxxxxx X. Xxxxxx |
$ | 3,324,116 | $ | 166,206 | |||||
| Gator Investment Company |
$ | 1,108,039 | $ | 55,402 | |||||
| Fledgling Associates LLC |
$ | 5,540,194 | $ | 277,010 | |||||
| Xxxxxxxx Xxxxxxxx |
$ | 3,324,116 | $ | 166,206 | |||||
