Exhibit 10.19
SECOND AMENDMENT
SECOND AMENDMENT (this "Amendment"), dated as of October 1, 2004, among
Continental Global Group, Inc., a Delaware corporation (the "Company"), N.E.S.
Investment Co. ("N.E.S.") and Wayzata Investment Partners LLC ("Wayzata").
Initial capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to such terms in the Restructuring Agreement referred
to below.
W I T N E S S E T H:
A. The Company, N.E.S. and Wayzata (collectively, the parties) are
parties to that certain Restructuring Agreement dated as of July 22, 2004 and
amended as of July 30, 2004 (as so amended the "Restructuring Agreement"),
pursuant to which the parties agreed to certain terms for the restructuring of
the Company;
B. Pursuant to Section 5(b) of the Restructuring Agreement, N.E.S. is
required, assuming that the Exchange Offer is consummated as provided in the
Restructuring Agreement, to remit, on the date that is one year from the Closing
Date, two million dollars to the Company, or at the direction of the Company, to
the Trustee for the benefit of the holders of the New Notes;
C. Pursuant to Section 5(c) of the Restructuring Agreement, N.E.S. is
required on the Closing Date to provide to the Trustee a letter of credit, in a
form and from an issuer reasonably satisfactory to the Trustee, in the face
amount of two million dollars in respect of N.E.S.' obligation to make the
payment described in the first sentence of Section 5(b) of the Restructuring
Agreement;
D. The Company has requested that N.E.S. and Wayzata amend the
Restructuring Agreement to provide (i) that the two million dollar payment
referenced in Section 5(b) be made to the Xxxxx Fargo Bank, National
Association, as Exchange Agent (the "Exchange Agent") pursuant to the Exchange
Agent Agreement with the Company (as amended from time to time, the "Exchange
Agent Agreement"), and (ii) that the letter of credit referenced in Section 5(c)
of the Restructuring Agreement be provided to the Exchange Agent rather than the
Trustee;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
I. AMENDMENTS
Effective on the date hereof:
(a) The first sentence of 5(b) is deleted and in substitution therefor
the following sentence is added:
Assuming that the Exchange Offer is consummated as
herein provided, on the date that is one year from the Closing
Date, N.E.S. shall remit Two Million Dollars ($2,000,000) to
the Xxxxx Fargo Bank, National Association, as Exchange Agent
(the "Exchange Agent") pursuant to the Exchange Agent
Agreement with the Company (as amended from time to time, the
"Exchange Agent Agreement"), which amount shall be paid over
as provided in Paragraph 8 of the Exchange Agent Agreement,
and which amount shall be in the form of a subordinated loan
from N.E.S. to the Company or a contribution to capital, as
determined by N.E.S. in its sole discretion.
(b) Section 5(c) of the Restructuring Agreement is amended by the
substitution of the term "Exchange Agent" for the term "Trustee" each time the
latter term appears therein.
II. MISCELLANEOUS
(a) Full Force and Effect; Limited Amendment. The amendments
set forth herein shall be limited precisely as provided for herein to the
provisions expressly amended herein and shall not be deemed to be an amendment
to, waiver of, consent to or modification of any other term or provision of the
Restructuring Agreement or any other document referred to therein or herein.
(b) Counterparts. This Amendment may be executed in any number
of separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
(c) Successors and Assigns. This Amendment and the
Restructuring Agreement shall be binding upon and inure to the benefit of each
party and their respective successors and assigns to the extent permitted in the
Restructuring Agreement.
(d) Governing Law. THIS AMENDMENT AND THE RESTRUCTURING
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE
OF NEW YORK.
[signature page follows]
[Signature Page to Second Amendment]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CONTINENTAL GLOBAL GROUP, INC.
By:
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Name:
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Title:
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Wayzata Investment Partners LLC
By:
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Name:
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Title:
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N.E.S. INVESTMENT CO.
By:
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Name:
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Title:
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