Exhibit 10.27
AMENDMENT NO. 2 AND WAIVER
TO
FINANCING
AGREEMENT
AMENDMENT NO. 2 AND WAIVER, dated as
of December 12, 2005 (this “ Amendment ”),
to the Financing Agreement, dated as of January 31, 2005, as
amended by Amendment No. 1 thereto, dated as of June 1,
2005 (as so amended, the “ Financing Agreement
”), by and among Oglebay Norton Company, an Ohio corporation
(the “ Parent ”), each subsidiary of the Parent
listed as a “Borrower” on the signature pages to the
Financing Agreement (together with the Parent, each a “
Borrower ” and collectively, the “
Borrowers ”), each subsidiary of the Parent listed as
a “Guarantor” on the signature pages to the Financing
Agreement (each a “ Guarantor ” and collectively
the “ Guarantors ”, and together with the
Borrowers, each a “ Loan Party ” and
collectively, the “ Loan Parties ”), the lenders
from time to time party thereto (each a “ Lender
” and collectively, the “ Lenders ”),
Silver Point Finance, LLC, a Delaware limited liability company, as
collateral agent and syndication agent for the Lenders and as lead
arranger (in such capacities, together with its successors and
assigns in such capacities, if any, the “ Collateral
Agent ”), Wells Fargo Foothill, Inc., a California
corporation, as administrative agent for the Lenders (in such
capacity, together with its successors and assigns in such
capacity, if any the “ Administrative Agent ”;
and together with the Collateral Agent, each an “
Agent ” and collectively the “ Agents
”), and JPMorgan Chase Bank and Bank of America, N.A, each as
a documentation agent for the Lenders (in such capacity, together
with their respective successors and assigns in such capacity, if
any, each a “ Documentation Agent ” and
collectively, the “ Documentation Agents
”).
Preamble
The Borrowers, the Guarantors, the
Required Lenders (as defined in the Financing Agreement) and the
Agents wish to (i) amend the Financing Agreement and
(ii) waive the requirement to deliver a fairness opinion in
connection with the O-N Minerals (St. Clair) Sale (as defined
below). Accordingly, the parties hereto 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. Amendment .
Section 8.02(h) of the Financing Agreement is hereby amended
by inserting the following new clause “(v)” immediately
before clause “(w)” therein:
“(v) any Loan Party may pay
any management fees or any other fees or expenses (including the
reimbursement thereof by any Loan Party) to any other Loan Party
pursuant to any management, consulting or other services agreement
with any other Loan Party;”
3. Waiver . Effective as of
the Amendment Effective Date (as defined below), in accordance with
Section 13.02 of the Financing Agreement, the Required Lenders
hereby waive any requirement to deliver a fairness opinion pursuant
to Section 8.02(c)(i)(C) of the Financing Agreement, in
connection with the sale by O-N Minerals (St. Clair)
Company
(formerly known as Global Stone St. Clair Inc.)
of (i) the Facility located in Marble City, Oklahoma,
(ii) all mining and processing equipment related thereto and
(iii) all limestone reserves located within, or under such
Facility (the “O-N Minerals (St. Clair)
Sale”).
The waiver set forth above shall be
effective only in this specific instance and for the specific
purposes set forth herein and does not allow any other or further
departure from the terms of the Financing Agreement or any other
Loan Documents, which terms shall continue in full force and
effect.
4. Representations and
Warranties . Each Loan Party hereby jointly and severally
represents and warrants to the Agents and the Lenders that this
Amendment and the Financing Agreement, as amended hereby,
constitute the legal, valid and binding obligations of each Loan
Party, enforceable against such Loan Party in accordance with their
terms.
5. Conditions to
Effectiveness . This Amendment shall become effective (the
“ Amendment Effective Date ”) upon the date on
which the Collateral Agent shall have received counterparts of this
Amendment that bear the signatures of each Borrower, each
Guarantor, each Agent and the Required Lenders.
6. Continued Effectiveness of the
Financing Agreement and Other Loan Documents .
(a) Each Loan Party hereby
(i) acknowledges and consents to this Amendment,
(ii) confirms and agrees that the Financing Agreement and each
other 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 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 (iii) 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 or Guaranteed Obligations, as the
case may be, of any Loan Party from time to time existing in
respect of the Financing Agreement and the other Loan Documents,
such pledge, assignment and/or grant of the secu
