EXHIBIT 10.61
AMENDMENT NO. 1 AND WAIVER TO
FINANCING AGREEMENT
AMENDMENT NO. 1 AND WAIVER, dated as of April 23, 2004 (this
"Amendment") to the Financing Agreement, dated as of February 25, 2004 (the
"Financing Agreement"), by and among Oglebay Norton Company, an Ohio
corporation, as a debtor and debtor-in-possession (the "Borrower"), each
subsidiary of the Borrower listed as a "Guarantor" on the signature pages
thereto, each as a debtor and debtor-in-possession (each a "Guarantor" and
collectively, the "Guarantors"), the lenders party thereto (each a "Lender" and
collectively, the "Lenders"), Silver Point Finance, LLC, a Delaware limited
liability company ("Silver Point"), as collateral agent and syndication agent
for the Lenders and as co-lead arranger (in such capacities, the "Collateral
Agent"), General Electric Capital Corporation, a Delaware corporation ("GE
Capital"), as administrative agent for the Lenders (in such capacity, the
"Administrative Agent" and together with the Collateral Agent, each an "Agent"
and collectively, the "Agents"), and GECC Capital Markets Group, Inc., as
co-lead arranger.
WHEREAS, the Borrower, the Guarantors, the Lenders and the
Agents have agreed to certain amendments and waivers to the Financing Agreement
(including a reduction of the Total Commitment from $75,000,000 to $70,000,000)
on the terms and conditions hereinafter set forth;
Accordingly, the Borrower, the Guarantors, the Lenders and the
Agents hereby agree as follows:
1. Definitions. All terms used herein which are defined
in the Financing Agreement and not otherwise defined herein shall have the
meanings assigned to them in the Financing Agreement.
2. Amendments.
(a) Section 1.01 of the Financing Agreement is
hereby amended by adding the following definitions in the appropriate
alphabetical order:
"'Commitment Letter Note' means the Senior
Promissory Note dated February 23, 2004 in the original
principal amount of $4,325,000 jointly and severally made by
the Loan Parties in favor of Silver Point."
"'Consolidated EBITDA' means, with respect
to any Person for any period, the sum of (a) the net income
(loss) of such Person and its Subsidiaries for such period,
determined on a consolidated basis and in accordance with
GAAP, but excluding from the determination thereof (without
duplication) (i) any extraordinary or non-recurring gains or
non-cash losses or gains or losses from Dispositions, (ii)
non-cash restructuring charges and cash restructuring charges
related to professional and advisory fees in respect of the
transactions contemplated by this Agreement, and (iii) effects
of discontinued operations; and (b) without duplication, the
sum of the following amounts of such Person and its
Subsidiaries for such period and to the extent deducted in
clause (a) above with respect to such
Person for such period: (i) Consolidated Net Interest Expense,
(ii) income tax expense, (iii) depreciation expense, and (iv)
amortization expense, (v) non-cash depletion, and (vi)
non-cash accretion."
"'Consolidated Net Interest Expense' means,
with respect to any Person for any period, gross interest
expense of such Person and its Subsidiaries for such period
determined on a consolidated basis and in accordance with GAAP
(including, without limitation, interest expense paid to
Affiliates of such Person), less (i) the sum of (A) interest
income for such period and (B) gains for such period on
Hedging Agreements (to the extent not included in interest
income above and to the extent not deducted in the calculation
of gross interest expense), plus (ii) the sum of (A) losses
for such period on Hedging Agreements (to the extent not
included in gross interest expense) and (B) the upfront costs
or fees for such period associated with Hedging Agreements (to
the extent not included in gross interest expense), in each
case, determined on a consolidated basis and in accordance
with GAAP."
"'Excess Availability' means, at any time,
the difference between (i) Availability and (ii) the sum of
(A) the aggregate outstanding principal amount of all Loans,
(B) the then outstanding Letter of Credit Obligations, (C) the
aggregate amount, if any, of all post-petition trade payables
of the Borrower and its Subsidiaries aged in excess of 70 days
past the original invoice due date of such post-petition trade
payables, and (D) all held checks, provided that, the amounts
for clauses (C) and (D) hereof shall be determined on Tuesday
of each week and measured as of the Friday of the immediately
preceding week."
(b) Clause (ii) of the definition of "Borrowing
Base" in Section 1.01 of the Financing Agreement is hereby amended by deleting
the amount "$5,000,000" and substituting in lieu thereof "$10,000,000".
(c) The definition of "Final Maturity Date" in
Section 1.01 of the Financing Agreement is hereby amended in its entirety to
read as follows:
"'Final Maturity Date' means the date which
is the earliest of (i) February 25, 2005, as such date may be
extended pursuant to the terms of Section 2.12(a), (ii) the
effective date of a plan of reorganization in the Chapter 11
Cases that has been confirmed by an order of the Bankruptcy
Court, (iii) the day on which the Loan Parties incur any
debtor-in-possession super-priority Indebtedness other than
pursuant to this Agreement, and (iv) such earlier date on
which all Loans shall become due and payable in accordance
with the terms of this Agreement and the other Loan
Documents."
(d) The definition of "Permitted Indebtedness"
in Section 1.01 of the Financing Agreement is hereby amended by (i)
redesignating clause (h) thereof as the new clause (j) and (ii) adding the
following new clauses (h) and (i) to read as follows:
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"(h) Indebtedness (excluding
Indebtedness for borrowed money) not to exceed $6,000,000 in
the aggregate outstanding at any time incurred in connection
with the maintenance of deposit accounts with, and the
provision of cash management services by, commercial banks in
the ordinary course of business;
(i) Indebtedness of any Loan Party in
connection with the financing of insurance premiums incurred
in the ordinary course of business; and"
(e) The definition of "Permitted Liens" in
Section 1.01 of the Financing Agreement is hereby amended by (i) deleting the
word "and" at the end of clause (h) thereof, (ii) redesignating clause (i)
thereof as the new clause (m), and (iii) adding the following new clauses (i),
(j), (k) and (l) to read as follows:
"(i) Liens in favor of Key Bank securing
Indebtedness permitted by clause (h) of the definition of
"Permitted Indebtedness" in an aggregate amount not exceeding
$2,000,000 at any time outstanding;
(j) Liens in favor of Key Bank on the
investments permitted under Section 8.02(e)(x), provided that
such Liens are on investments in an aggregate amount not
exceeding $1,000,000 at any time outstanding;
(k) Liens in favor of Key Bank securing
Indebtedness permitted by clause (h) of the definition of
"Permitted Indebtedness" in an aggregate amount not exceeding
$3,000,000 at any time outstanding;
(l) Liens on unearned insurance
premiums and returned insurance premiums securing the
Indebtedness incurred in connection with the financing of
insurance premiums permitted by clause (i) of the definition
of "Permitted Indebtedness";
(m) Liens existing on the Filing Date
on the Vessels known as "Xxxxx X. Xxxxxx" and "Wolverine";
and"
(f) The definition of "Permitted Priority Liens"
in Section 1.01 of the Financing Agreement is hereby amended in its entirety to
read as follows:
"'Permitted Priority Liens' means (i) in the
case of Liens that are senior to the Liens granted in favor of
the Agents and the Lenders by the Bankruptcy Court Orders and
this Agreement, all Permitted Liens other than the Liens
permitted under clauses (b), (c), (k) and (n) of the
definition of the term "Permitted Lien" and (ii) in the case
of Liens that are pari passu with the Liens granted in favor
of the Agents and the Lenders by the Bankruptcy Court Orders
and this Agreement, the Lien permitted under clause (i) of the
definition of the term "Permitted Liens"."
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(g) The definition of the term "Required
Lenders" in Section 1.01 of the Financing Agreement is hereby amended in its
entirety to read as follows:
"'Required Lenders' means, at any time,
Lenders whose aggregate Pro Rata Shares (calculated under
clause (b) of the definition of "Pro Rata Shares") equal or
exceed 66-2/3%."
(h) Section 2.05(c)(iii) of the Financing
Agreement is hereby amended by adding the following sentence at the end of such
Section:
"Notwithstanding anything to the contrary
set forth in this Section 2.05(c)(iii), to the extent required
pursuant to paragraph 20 of the Final Bankruptcy Court Order,
the Net Cash Proceeds from a Disposition shall be deposited in
a collection account, which account and all amounts in such
account shall be Collateral for the Obligations and subject to
a perfected, first priority Lien in favor of the
Administrative Agent for the benefit of the Agents and the
Lenders, shall be under the full dominion and control of the
Administrative Agent and shall be used by the Loan Parties
and/or applied to the Obligations in accordance with the Final
Bankruptcy Court Order.
(i) Section 8.01(a)(vi) of the Financing
Agreement is hereby amended by deleting the period "4 Business Days" in the
second line thereof and substituting "15 days" in lieu thereof.
(j) Section 8.01(r) of the Financing Agreement
is hereby amended in its entirety to read as follows:
"(r) Post-Closing Items. Cause the following
to occur:
(i) (A) on or before the Final
Facility Effective Date (or such later date as agreed to in
writing by the Administrative Agent) with respect to any
deposit accounts of the Loan Parties located at Key Bank,
establish a cash management system (including with respect to
all cash management, control and lockbox agreements) in
accordance with Section 9.01 herein, which cash management
system shall be reasonably satisfactory in all respects to the
Agents, and (B) on or before April 30, 2004 (or such later
date as agreed to in writing by the Administrative Agent) with
respect to deposit accounts of the Loan Parties located at any
bank other than Key Bank, establish a cash management system
(including with respect to all cash management, control and
lockbox agreements) in accordance with Section 9.01 herein,
which cash management system shall be reasonably satisfactory
in all respects to the Agents.
(ii) provided to the Agents on or
before the Final Facility Effective Date (or such later date
as agreed to in writing by the Agents) (A) a first preferred
ship mortgage for each Vessel, and (B) U.S. Coast Guard
documentation, records and abstracts showing that the Vessels
are free and clear of all Liens other than Permitted Liens as
well as a current U.S. Coast Guard certification for each
Vessel."
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(k) Section 8.02(e) of the Financing Agreement
is hereby amended by (i) deleting the word "and" at the end of clause (ix)
thereof, (ii) redesignating clause (x) thereof as the new clause (xi), and (iii)
adding the following new clause (x) to read as follows:
"(x) investments in an aggregate amount
not in excess of $1,000,000 maintained at Key Bank in
connection with the deposit accounts maintained with, and the
cash management services provided by, Key Bank, and"
(l) Section 8.02(g) of the Financing Agreement
is hereby amended in its entirety to read as follows:
"(g) Capital Expenditures. For each
month set forth below, make or commit or agree to make, or
permit any of its Subsidiaries to make or commit or agree to
make, any Capital Expenditure (by purchase made or Capitalized
Lease entered into after the Filing Date) that would cause the
aggregate amount of all such Capital Expenditures arising from
purchases made or Capitalized Leases entered into by the Loan
Parties and their Subsidiaries for the period from the Filing
Date to the end of such month to exceed the amount set forth
below corresponding to such month:
Month Amount
-----------------------------------------------
March 2004 $ 7,901,000
-----------------------------------------------
April 2004 $10,798,000
-----------------------------------------------
May 2004 $13,200,000
-----------------------------------------------
June 2004 $14,741,000
-----------------------------------------------
July 2004 $16,946,000
-----------------------------------------------
August 2004 $18,131,000
-----------------------------------------------
September 2004 $19,548,000
-----------------------------------------------
October 2004 $20,657,000
-----------------------------------------------
November 2004 $21,455,000
-----------------------------------------------
December 2004 $21,715,000
-----------------------------------------------
, provided that, the Borrower shall negotiate with the Agents in good faith to
determine the maximum level of Capital Expenditures for each fiscal calendar
month of the Borrower from January, 2005 through May, 2005, which amounts shall
be agreed to by the Borrower and the
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Agents on or before November 30, 2004 and when so agreed shall be incorporated
into this Agreement by an amendment that will not require the consent of any
other Lender."
(m) A new Section 8.03 is hereby added to the
Financing Agreement to read as follows:
"Section 8.03. Financial Covenants. So long
as any principal of or interest on any Loan, any reimbursement
obligation with respect to any Letter of Credit or any other
Obligation (whether or not due) shall remain unpaid or any
Lender shall have any Commitment hereunder, each Loan Party
shall not, unless the Required Lenders shall otherwise consent
in writing:
(a) Consolidated EBITDA.
Permit aggregate Consolidated EBITDA of the Borrower and its
Subsidiaries at the end of each month set forth below for the
period from February 23, 2004 to the end of such month to be
less than the applicable amount set forth below corresponding
to such month:
Month Amount
----------------------------------------
March 2004 ($ 3,000,000)
----------------------------------------
April 2004 $ 500,000
----------------------------------------
May 2004 $ 6,000,000
----------------------------------------
June 2004 $12,000,000
----------------------------------------
July 2004 $18,000,000
----------------------------------------
August 2004 $23,000,000
----------------------------------------
September 2004 $29,000,000
----------------------------------------
October 2004 $34,500,000
----------------------------------------
November 2004 $37,000,000
----------------------------------------
December 2004 $36,000,000
----------------------------------------
, provided that, the Borrower shall negotiate with the Agents in good faith to
determine the minimum level of Consolidated EBITDA for each fiscal calendar
month of the Borrower and its Subsidiaries from January, 2005 through May, 2005,
which amounts shall be agreed to by the Borrower and the Agents on or before
November 30, 2004 and when so agreed shall be
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incorporated into this Agreement by an amendment that will not require the
consent of any other Lender.
(b) Excess Availability. Permit
Excess Availability at any time during each month set forth
below to be less than the applicable amount set forth below
corresponding to such month:
Month Amount
-----------------------------------
April 2004 $5,000,000
-----------------------------------
May 2004 $ 500,000
-----------------------------------
June 2004 $ 500,000
-----------------------------------
July 2004 $2,500,000
-----------------------------------
August 2004 $2,500,000
-----------------------------------
September 2004 $5,000,000
-----------------------------------
October 2004 $7,500,000
-----------------------------------
November 2004 $7,500,000
-----------------------------------
December 2004 $7,500,000
-----------------------------------
, provided that, the Borrower shall negotiate with the Agents in good faith to
determine the minimum level of Excess Availability for each fiscal calendar
month of the Loan Parties from January, 2005 through May, 2005, which amounts
shall be agreed to by the Borrower and the Agents on or before November 30, 2004
and when so agreed shall be incorporated into this Agreement by an amendment
that will not require the consent of any other Lender; provided, however, that
in no case shall Excess Availability be less than $500,000."
(n) Section 8.02(r) of the Financing Agreement
is hereby deleted in its entirety and the following is substituted in lieu
thereof.
"(r) Payments. Make any payment of
principal or interest or otherwise on account of any
Indebtedness or trade payable incurred prior to the Filing
Date, provided that such payments may be made: (i) to the
holders of, or in respect of, wage, salary, commission,
employee benefit and other employee compensation obligations
(including expense reimbursements) which arose prior to the
Filing Date; (ii) to landlords in connection with the
assumption of unexpired leases under Section 365 of the
Bankruptcy Code; (iii) to lessors and non-debtor parties to
executory contracts in connection with the assumption of such
Leases and
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contracts under Section 365 of the Bankruptcy Code; (iv) in
respect of workers' compensation benefits and liability and
property insurance policies of the Loan Parties; (v) in
respect of payroll taxes, sales and use taxes, franchise
taxes, and other taxes payable by the Loan Parties in the
ordinary course of their businesses, garnishment payments or
other trust fund disbursements in accordance with past
practice of the Loan Parties; (vi) to the holders of Permitted
Liens, the proceeds of the assets subject to such Permitted
Liens in connection with the sale of such assets; (vii) in
respect of claims of the vendors identified by the Loan
Parties as being critical to the continued operation of the
Loan Parties' business in an aggregate amount not to exceed
$2,500,000, subject to approval of the Bankruptcy Court;
(viii) in respect of customer freight charges incurred in the
ordinary course of business, in an aggregate amount not to
exceed $2,700,000; (ix) in respect of ministerial services and
other fees, costs, charges and expense of banks providing cash
management services to the Loan Parties under their
contractual arrangements; (x) in respect of claims related to
the Loan Parties' customer programs (including warranty
programs and other obligations related to resolving customer
disputes and promotional programs) in the ordinary course of
business and consistent with past practice of the Loan
Parties; (xi) in respect of interest, fees and cost with
respect to the Existing Credit Facility at the non-default
contract rate pursuant to the Bankruptcy Court Orders,
provided that, any modifications or amendments to the
provisions of the Bankruptcy Court Orders granting adequate
protection payments or liens in favor of the Existing Agents
and Existing Lenders has been consented to by the Agents and
the Required Lenders; and (xii) in respect of amounts payable
under the Commitment Letter Note, in the case of each of
clauses (i) through (xii) above, after prior written notice of
such payment has been given by the Borrower to the Agents and
subject to approval of the Bankruptcy Court."
(o) Section 9.01(a) of the Financing Agreement
is hereby amended by deleting the words "On and after the date that is fifteen
(15) Business Days of the Interim Facility Effective Date" and substituting "On
and after April 30, 2004 (or such later date as agreed to in writing by the
Administrative Agent)" in lieu thereof.
(p) Section 9.03(a)(iv) of the Financing
Agreement is hereby amended in its entirety to read as follows:
"(iv) on Tuesday of each week as of the
Friday of the immediately preceding week (or the first Tuesday
following any week that includes the last day of a calendar
month) or at such more frequent intervals as any Agent may
reasonably request from time to time, (i) a Notice of
Borrowing with supporting collateral reports with respect to
the Borrower including all additions (supported by invoice
registers and/or debt memo registers) and reductions
(supported by cash receipts journal and credit memo journal)
with respect to Accounts of the Loan Parties and (ii) a
Borrowing Base Certificate referred to in Section 8.01(a)(vi)
in each case accompanied by such supporting detail and
documentation as may be requested by any Agent;".
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(q) Section 10.01 of the Financing Agreement is
hereby amended by (i) deleting the word "or" at the end of clause (x) thereof,
(ii) redesignating clause (y) thereof as the new clause (z), and (iii) adding
the following new clause (y) to read as follows:
"(y) the Borrower and the Agents fail to
agree on the covenant levels for the fiscal calendar months of
January, 2005 through May, 2005 in accordance with Sections
8.02(g), 8.03(a), or 8.03(b) hereof on or before November 30,
2004; or"
(r) Schedules.
(i) The Financing Agreement is hereby
amended by amending Schedule 1.01(A) in its entirety to read as set forth in
Exhibit A attached hereto. All references to "Schedule 1.01(A)" in the Financing
Agreement shall mean such schedule as set forth in Exhibit A hereto.
(ii) The Financing Agreement is hereby
amended by amending Schedule 7.01(o) in its entirety to read as set forth in
Exhibit B attached hereto. All references to "Schedule 7.01(o)" in the Financing
Agreement shall mean such schedule as set forth in Exhibit B hereto.
3. Waiver and Consent. (a) Effective as of the Amendment
Effective Date (as defined below), and in reliance upon the representations and
warranties of the Borrower and the Guarantors set forth in the Financing
Agreement, this Amendment and the other Loan Documents, and in accordance with
Section 13.02 of the Financing Agreement, the Agents and the Required Lenders
hereby consent to, and waive any Event of Default that may otherwise arise under
the Financing Agreement or any of the other Loan Documents resulting solely in
connection with (i) the failure of the Borrower to deliver a Borrowing Base
Certificate within four (4) Business Days after the last day of February 2004
and March 2004 as required by Section 8.01(a)(vi) of the Financing Agreement,
(ii) the failure of the Loan Parties to enter into an amendment to the Financing
Agreement on or before the date that is within ten (10) Business Days of the
Interim Facility Effective Date as required by Section 8.01(r)(i) of the
Financing Agreement, (iii) the failure of the Loan Parties to establish a cash
management system satisfactory to the Agents as required by Section 8.01(r)(ii)
of the Financing Agreement on or before the date that is within fifteen (15)
Business Days of the Interim Facility Effective Date, provided that such cash
management system is established (A) with respect to Key Bank, on or before the
Final Facility Effective Date and (B) with respect to any other bank, on or
before April 30, 2004, and (iv) the failure of the Borrower to provide to
Administrative Agent, a Notice of Borrowing and Borrowing Base Certificate
during February 2004 on Tuesday of each week as of the Friday of the immediately
preceding week as required by Section 9.03(a)(iv) of this Agreement.
(b) This waiver and consent (i) shall become
effective as of the Amendment Effective Date, (ii) shall be effective only in
this specific instance and for the specific purposes set forth herein, and (iii)
does not allow for any other or further departure from the terms and conditions
of the Financing Agreement or any other Loan Document, which terms and
conditions shall continue in full force and effect.
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4. Representations and Warranties. Each of the Borrower
and the Guarantors hereby jointly and severally represents and warrants to the
Agents and the Lenders as follows:
(a) Subject to the terms of the Bankruptcy Court
Orders, each of the Loan Parties has all requisite power and authority to
execute, deliver and perform this Amendment, and to perform the Financing
Agreement, as amended hereby.
(b) The execution, delivery and performance of
this Amendment by each of the Loan Parties, and the performance by each of the
Loan Parties of the Financing Agreement, as amended hereby, (i) have been duly
authorized by all necessary action, (ii) do not and will not contravene its
charter or by-laws, its limited liability company or operating agreement or its
certificate of partnership or partnership agreement, as applicable, or any
applicable law or any contractual restriction binding on or otherwise affecting
it or any of its properties (other than conflicts breaches and defaults, the
enforcement of which will be stayed by virtue of the filing of the Chapter 11
Cases) or any order or decree of any Court or Governmental Authority (including,
without limitation, any order entered in the Chapter 11 Cases), (iii) do not and
will not result in or require the creation of any Lien (other than pursuant to
any Loan Document) upon or with respect to any of its material properties, and
(iv) do not and will not result in any material default, noncompliance,
suspension, revocation, impairment, forfeiture or nonrenewal of any material
permit, license, authorization or approval applicable to its operations or any
of its properties.
(c) Except for the entry of the Bankruptcy Court
Orders, no authorization or approval or other action by, and no notice to or
filing with, any Governmental Authority is required in connection with the due
execution, delivery and performance by any Loan Party of this Amendment or the
performance by any Loan Party of the Financing Agreement, as amended hereby.
(d) Subject to the entry of, and the terms of
the Bankruptcy Court Orders, this Amendment and the Financing Agreement, as
amended hereby, constitute the legal, valid and binding obligations of each Loan
Party, enforceable against such Persons in accordance with their terms.
5. Conditions to Effectiveness. This Amendment shall
become effective as of April __, 2004 (the "Amendment Effective Date"), only
upon the satisfaction in full of the following conditions precedent:
(a) The Agents shall have received counterparts
of this Amendment that bear the signatures of the Borrower, each Guarantor, the
Agents and the Lenders.
(b) The representations and warranties contained
in this Amendment and, after giving effect to Paragraph 3 hereof, in Article VII
of the Financing Agreement and each other Loan Document shall be correct on and
as of the date hereof as though made on and as of such date (except where such
representations and warranties relate to an earlier date in which case such
representations and warranties shall be true and correct as of such earlier
date).
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(c) After giving effect to Paragraph 3 hereof,
no Default or Event of Default shall have occurred and be continuing on the date
hereof or result from the Amendment becoming effective in accordance with its
terms.
6. Continued Effectiveness of the Financing Agreement
and Loan Documents. Each of Loan Parties hereby (a) acknowledges and consents to
this Amendment, (b) confirms and agrees that each Loan Document to which it is a
party is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects except that on and after the Amendment
Effective Date all references in any such Loan Document to the "Financing
Agreement", the "Agreement", "thereto", "thereof", "thereunder" or words of like
import referring to the Financing Agreement shall mean the Financing Agreement
as amended by this Amendment, and (c) confirms and agrees that to the extent
that any such Loan Document purports to assign or pledge to the Collateral Agent
for the benefit of the Agents and the Lenders, or to grant to the Collateral
Agent for the benefit of the Agents and the Lenders a security interest in or
Lien on, any collateral as security for the obligations of any Loan Party from
time to time existing in respect of the Financing Agreement (as amended hereby)
and the Loan Documents, such pledge, assignment and/or grant of the security
interest or Lien is hereby ratified and confirmed in all respects. Nothing
herein shall be deemed to entitle any Loan Party to a consent to, or a waiver,
amendment, modification or other change of, any of the terms, conditions,
obligations, covenants or agreements contained in the Financing Agreement or any
other Loan Document in similar or different circumstances.
7. Miscellaneous.
(a) This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of
this Amendment by telefacsimile shall be equally as effective as delivery of an
original executed counterpart of this Amendment. Any party delivering an
executed counterpart of this Amendment by telefacsimile also shall deliver an
original executed counterpart of this Amendment, but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability and
binding effect of this Amendment.
(b) Section and paragraph headings herein are
included for convenience of reference only and shall not constitute a part of
this Amendment for any other purpose.
(c) THIS AMENDMENT 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 EXCEPT AS GOVERNED
BY THE BANKRUPTCY CODE AND EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN
ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT.
(d) The Borrowers will pay on demand all
reasonable fees, costs and expenses of the Agents and the Lenders executing this
Amendment in connection with the preparation, execution and delivery of this
Amendment or otherwise payable under the Financing
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Agreement, including, without limitation, reasonable fees, disbursements and
other charges of Xxxxxxx Xxxx & Xxxxx LLP, counsel to the Collateral Agent.
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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.
BORROWER:
OGLEBAY NORTON COMPANY
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Chief Financial Officer
GUARANTORS:
ERIE NAVIGATION COMPANY
ERIE SAND AND GRAVEL COMPANY
ERIE SAND STEAMSHIP CO.
GLOBAL STONE CHEMSTONE CORPORATION
GLOBAL STONE CORPORATION
GLOBAL STONE FILLER PRODUCTS, INC.
GLOBAL XXXXX XXXXX RIVER, INC.
GLOBAL STONE MANAGEMENT COMPANY
GLOBAL STONE PENROC LP
GLOBAL STONE PORTAGE, LLC
GLOBAL STONE ST. CLAIR INC.
GLOBAL STONE TENN XXXXXXXX COMPANY
GS LIME COMPANY
GS PC INC.
MICHIGAN LIMESTONE OPERATIONS, INC.
MOUNTFORT TERMINAL, LTD.
OGLEBAY NORTON ENGINEERED MATERIALS, INC.
OGLEBAY NORTON INDUSTRIAL SANDS, INC.
OGLEBAY NORTON MANAGEMENT COMPANY
OGLEBAY NORTON MARINE MANAGEMENT
COMPANY, L.L.C.
OGLEBAY NORTON MARINE SERVICES
COMPANY, L.L.C.
OGLEBAY NORTON MINERALS, INC.
OGLEBAY NORTON SPECIALTY MINERALS, INC.
OGLEBAY NORTON TERMINALS, INC.
ON COAST PETROLEUM COMPANY
ON MARINE SERVICES COMPANY
ONCO INVESTMENT COMPANY
ONCO WVA, INC.
ONMS MANAGEMENT COMPANY, LLC
ONTEX, INC.
SAGINAW MINING COMPANY
TEXAS MINING, LP
By: /s/ Xxxxx X. Xxxxxx
_______________________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
COLLATERAL AGENT:
SILVER POINT FINANCE, LLC
By: /s/ Xxxxxxx X. Gelfard
_______________________________________________
Name: Xxxxxxx X. Gelfard
Title: Chief Financial Officer
ADMINISTRATIVE AGENT AND LENDER:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
_______________________________________________
Name: Xxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
LENDER:
SEA PINES FUNDING LLC
By: /s/ Xxx X. Xxxxxx
_______________________________________________
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
