EXHIBIT 10.57
EXECUTION COPY
COMMITMENT AGREEMENT
This Commitment Agreement (this "Agreement"), dated as of February 23,
2004, is entered into by and among Oglebay Norton Company, an Ohio corporation
(the "Company"), holders of Subordinated Notes (as defined herein) signatories
hereto and any other holders of Subordinated Notes that become a party hereto
(each, a "Noteholder" and, collectively, the "Noteholders") and certain third
party accredited investors signatory hereto (the "Third Party Investors," and
together with the Noteholders, the "Subscribers").
PRELIMINARY STATEMENTS
A. The Company and its subsidiaries propose to consummate a plan
of reorganization (the "Plan") in cases filed under chapter 11 of title 11 of
the United States Code (the "Chapter 11 Cases"), on terms and conditions
consistent in all material respects with this Agreement, the Silver Point
Commitment Letter (defined below) and the Term Sheet (defined below)(the
"Restructuring Terms").
B. Contemporaneously with the execution of this Agreement, Silver
Point Finance, LLC ("Silver Point") and the Company have entered into a letter
agreement pursuant to which Silver Point has committed to provide a $305,000,000
debtor-in-possession and exit financing (the "DIP/Exit Facility") to the Company
(the "Silverpoint Commitment Letter").
C. Under the terms and upon the effective date of the Plan, (i)
existing classes of equity in the Company and interests therein will be
cancelled and the holders thereof will receive the treatment provided for in the
Term Sheet, and (ii) the Company's 10% Senior Subordinated Notes due 2009 (the
"Subordinated Notes") will be cancelled and the Company will, in exchange
therefor, issue shares of common stock (the "Common Stock"). The holders of the
Subordinated Notes will have the right to subscribe for shares of convertible
preferred stock of the reorganized Company (the "Preferred Shares") having the
rights and preferences set forth in the Term Sheet attached hereto as Exhibit A
(the "Term Sheet"). The Subscribers believe that the MLO earn-out contract
claims under the Interest Purchase Agreement among the Company, Johnson Mining
Inc., The Cary Mining Company Inc., Michigan Minerals Associates, Inc, and
Michigan Limestone Operations Limited Partnership, dated April 14, 2000 (the
"MLO Contract"), should be rejected, provided that the Company will retain its
ability to seek assumption of such claims either through the Plan or by
assumption motion and, provided, further that the Requisite Subscribers (defined
below) may terminate this Agreement if they do not approve such assumption.
D. Under the terms of the Plan, the Company will implement, among
other things, an offering (the "Offering") registered under the Securities Act
of 1933, as amended (the "Securities Act"), pursuant to which the Company will
extend to holders of the Subordinated Notes and the Third Party Investors the
right to purchase Preferred Shares for an aggregate purchase price of $80
million.
E. The Noteholders hold the principal amount of Subordinated
Notes set forth opposite their respective names on the signature pages to this
Agreement, which represents 40.3% of the aggregate amount of Subordinated Notes
outstanding.
F. The proceeds from the issuance of the Preferred Shares will be
used to fund the redemption of the Company's outstanding Senior Secured Notes
due 2008 (the "Senior Notes") pursuant to the Plan as set forth in this
Agreement, the Term Sheet and the Silver Point Commitment Letter.
STATEMENT OF AGREEMENT
In consideration of the premises and the mutual covenants and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
1. Commitments; Purchase Price.
(a) Each Noteholder agrees to subscribe for and purchase
that number of Preferred Shares having an aggregate Purchase Price (defined
below) equal to such Noteholder's pro rata share of the total number of
Preferred Shares issuable pursuant to the Offering based on such Noteholders
respective beneficial ownership of the total amount of outstanding Subordinated
Notes (the "Basic Commitment Amount"). In addition, each Noteholder and each
Third Party Investor agrees to subscribe for and purchase (the "Standby
Commitment") Preferred Shares issuable pursuant to the Offering that are not
subscribed for and purchased by holders of the Subordinated Notes other than the
Noteholders ("Unsubscribed Shares") having an aggregate Purchase Price (the
"Standby Commitment Amount") determined as follows: (i) each Noteholder's
Standby Commitment shall equal up to that number of Unsubscribed Shares having
an aggregate Purchase Price equal to the difference between (x) such
Noteholder's Commitment Amount set forth opposite its name on the signature page
of this Agreement and (y) such Noteholder's Basic Commitment Amount; and (ii)
each Third-Party Investor's Standby Commitment shall equal up to that number of
Unsubscribed Shares having an aggregate Purchase Price equal to such Third-Party
Investor's Commitment Amount set forth opposite its name on the signature page
of this Agreement. If the aggregate Purchase Price of the Unsubscribed Shares is
less than the aggregate Standby Commitment Amounts of the Noteholders and
Third-Party Investors, the Unsubscribed Shares shall be allocated to the
Noteholders and the Third-Party Investors pro rata based upon the amounts of
their respective Standby Commitment Amounts. For the avoidance of doubt, in no
event shall any Subscriber be obligated to purchase Preferred Shares for an
aggregate Purchase Price in excess of such Subscriber's Commitment Amount.
(b) The purchase price of the Preferred Shares sold to
the Subscribers pursuant to this Agreement shall be at the price and terms
offered to the offerees pursuant to the Offering (the "Purchase Price"),
provided that the aggregate gross Purchase Price for all Preferred Shares
offered and sold to the Subscribers shall not exceed $80 million (unless
otherwise agreed to by the Subscribers after good faith negotiations with the
Company).
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(c) Use of Proceeds. All proceeds from the issuance and
sale of the Preferred Shares will be applied by the Company to the redemption of
the Senior Notes.
2. Registration of Shares. The offer and sale of the Preferred
Shares will be registered under the Securities Act. The Company agrees to
promptly seek the approval of the Bankruptcy Court for the Offering and, unless
waived by Subscribers representing two-thirds of the aggregate Commitment
Amounts pursuant to this Agreement (the "Requisite Subscribers"), to prepare and
file with the Securities and Exchange Commission (the "SEC") a registration
statement under the Securities Act with respect to the Offering of the Preferred
Shares (the "Registration Statement") as soon as practicable after the filing of
its petition in the Chapter 11 Cases and to use its best efforts to cause the
Registration Statement to become effective as soon as possible thereafter and,
in any event, prior to August 23, 2004 (or such other date as may be reasonably
requested and agreed by the Requisite Subscribers). The Company will afford the
Subscribers and their counsel and financial advisors the opportunity to review
and comment on the Registration Statement and any amendments or supplements
thereto prior to the filing thereof with the SEC. The terms and conditions of
the Offering shall be consistent with the Restructuring Terms, including the
deposit of the Purchase Price and stock certificates representing the Preferred
Shares in escrow until the Effective Date or termination of the Plan.
3. Consideration for the Commitments; Satisfaction of the
Commitment.
(a) In consideration for the Commitments, each Subscriber
that is a Noteholder will be entitled to receive a fee, payable in cash on the
Effective Date of the Plan, equal to (i) two percent (2%) of its Basic
Commitment Amount and (ii) five percent (5%) of its Standby Commitment Amount,
which payment shall be deemed to have been earned post-petition.
(b) In consideration for the Commitments, each Subscriber
that is a Third Party Investor will be entitled to receive a fee, payable in
cash on the Effective Date of the Plan, equal to five percent (5%) of such Third
Party Investor's Commitment Amount, which payment shall be deemed to have been
earned post-petition.
(c) The Company shall pay the reasonable fees and
out-of-pocket expenses of Jefferies & Company, Inc., the Subscribers' financial
advisor, and Stroock & Stroock & Lavan LLP, the Subscribers' legal counsel,
concurrently with the purchase of the Preferred Shares by the Subscribers.
(d) The Subscribers may, in their sole discretion,
satisfy their respective Commitments directly and/or indirectly through one or
more of their respective affiliates, separate accounts within their control, or
investment funds under their or their respective affiliates' management;
provided, however, any such non-Subscriber entities shall be required to make
the representations and warranties set forth in Section 5(b) (solely with
respect to their satisfaction of the Commitments) to the Company.
4. Representations and Warranties.
(a) On the date hereof and as of the Effective Date, the
Company represents and warrants to the Subscribers as follows:
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(i) The Company is a corporation duly
incorporated, validly existing, and in good standing under the laws of the State
of Ohio. The Company is duly licensed or qualified to do business as a foreign
corporation and is in good standing under the laws of any other jurisdiction in
which the character of the properties owned or leased by it or in which the
transaction of its business makes such qualification necessary, except where the
failure to be so qualified or to be in good standing would not, individually or
in the aggregate, reasonably be expected to have a material adverse effect on
the Company. The Company has all requisite corporate power and authority to own,
operate, and lease its properties and carry on its businesses as now conducted.
(ii) Each of the subsidiaries of the Company is
duly organized, validly existing, and in good standing under the laws of the
jurisdiction of its organization. All of the outstanding shares of capital stock
of each of the Company's subsidiaries is duly authorized, validly issued, fully
paid and nonassessable and all such shares are owned by the Company or another
wholly-owned subsidiary of the Company (other than director's qualifying
shares).
(iii) The Company has the requisite corporate
power and authority to execute and deliver this Agreement. This Agreement, the
Plan, and the consummation and performance by the Company of the transactions
contemplated by this Agreement and the Plan have been or will be duly authorized
by all requisite corporate action. The Company has duly executed and delivered
this Agreement. This Agreement constitutes the valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
subject to the effectiveness of the Plan and except as the enforceability of
this Agreement may otherwise be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting the
enforcement, of creditors' rights generally, public policy and general equitable
principles.
(iv) The execution, delivery and performance of
this Agreement and the definitive documents implementing, achieving and relating
to the Restructuring Terms (the "Definitive Documents") by the Company and the
consummation by the Company of the transactions contemplated hereby and thereby
have been or will be as of the Effective Date of the Plan, duly and validly
authorized by all necessary corporate action on the part of the Company and all
required approvals of the Bankruptcy Court.
(v) The execution and delivery of this Agreement
by the Company does not, and upon the effectiveness of the Plan, the
consummation by the Company of the transactions contemplated hereby will not:
(A) conflict with or violate the Certificate of Incorporation, bylaws or other
organizational documents of the Company; (B) to the best of the Company's
knowledge, conflict with or violate any law, order or agreement applicable to
the Company or by which any property or asset of the Company is bound or
affected; or (C) result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, result
in the loss of a benefit under, or give to others any right of purchase or sale,
or any right of termination, amendment, acceleration, cancellation of, or result
in the creation of a lien on any property or asset of the Company pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise, or other instrument or obligation to which the Company is a
party or by which the Company or any property or asset of the Company is bound
or affected, except, in the case of clauses (B) and (C), for any such
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conflicts, violations, breaches, defaults, events, losses, payments,
cancellations, encumbrances, or other occurrences that would not, individually
or in the aggregate, have material adverse effect to the Company's operations.
(vi) Except for the failure to pay interest when
due on the Subordinated Notes and defaults under certain of its other
indebtedness, to the best of the Company's knowledge, the Company is not in
conflict with, or in default or violation of, any law, order, or agreement
applicable to the Company or by which any property or asset of the Company is
bound or affected, except for such conflicts, defaults, or violations that are
not, individually or in the aggregate, material to the Company.
(vii) No representation or warranty of the Company
contained in this Agreement, and no statement relating to the Company contained
in any other document, certificate or other instrument delivered or to be
delivered by or on behalf of the Company pursuant to this Agreement, the
Restructuring Terms or the Plan contains any untrue statement of a material fact
or omits to state any material fact necessary, in light of the circumstances
under which it was made, in order to make the statements herein or therein not
misleading.
(b) Each Subscriber represents and warrants to the
Company solely with respect to itself as follows:
(i) Such Subscriber is duly organized, validly
existing, and in good standing under the laws of the state of its organization.
(ii) Such Subscriber has all requisite power and
authority to execute and deliver this Agreement, and all requisite power,
authority and financial ability to perform its obligations hereunder, and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement, and the consummation of the transactions contemplated hereby,
have been duly authorized by all requisite action of such Subscriber. Such
Subscriber has duly executed and delivered this Agreement. This Agreement is
valid and legally binding obligation of such Subscriber, enforceable against the
Subscriber in accordance with its terms, except that the enforceability of this
Agreement may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights generally, public policy and general equitable principles.
(iii) The execution and delivery of this Agreement
by such Subscriber does not, and the consummation by such Subscriber of the
transactions contemplated hereby will not, (A) conflict with or violate the
applicable organizational documents of such Subscriber; (B) conflict with or
violate any law, order or agreement applicable to such Subscriber; or (C) result
in a breach of any contract, agreement or instrument by which such Subscriber is
bound, except in the case of clauses (B) and (C) for any such conflicts,
violations, breaches, defaults, events, losses, payments, cancellations,
encumbrances, or other occurrences that are not, individually or in the
aggregate, material to such Noteholder.
5. Additional Covenants.
(a) DIP/Exit Facility. The Company shall (i) continue its
negotiation of the DIP/Exit Facility with Silver Point in ongoing consultation
with the Subscribers, (ii) shall
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execute definitive agreements regarding the DIP/Exit Facility not inconsistent
with the Silver Point Commitment Letter and otherwise acceptable in form and
substance to the Subscribers (the "Definitive DIP/Exit Documents") and (iii)
shall comply with all covenants under the Definitive DIP/Exit Documents as in
effect on the date of the final DIP/Exit order.
(b) No Solicitation. Without the prior written consent of
the Requisite Subscribers, the Company shall not, directly or indirectly,
through an officer, director, employee, representative or agent of the Company
or its affiliates, and shall not permit any such officer, director, employee,
representative or agent to seek, solicit, encourage or initiate (including by
way of furnishing information, except to the extent the Company is advised by
its counsel that it is required to do so to comply with its fiduciary duties)
any inquiries or proposals regarding, or participate in negotiations or
discussions concerning, any plan, proposal or offer of reorganization,
restructuring or alternative financing other than the Plan or the Restructuring
Terms (any of the foregoing inquiries or proposals being referred to herein as
an "Alternative Proposal"), provided, however, that the Company may continue to
engage in its ongoing negotiation of the Silver Point Commitment Letter in
accordance with subsection (a) of this Section. Nothing in this Section shall
prevent the Company, its affiliates and their respective officers and directors
from taking any action in connection with an Alternative Proposal to the extent
required to comply with its fiduciary obligations as set forth in Section 17 of
this Agreement or the Bankruptcy Code.
(c) The Company shall promptly notify the Subscribers
upon the receipt of any Alternative Proposal, any modification of or amendment
to any Alternative Proposal, or of any request for non-public information
relating to the Company in connection with an Alternative Proposal by any person
or entity that informs the Board that it is considering making, or has made, an
Alternative Proposal. Such notice to the Subscribers shall be made orally and in
writing, and shall indicate the identity of the person making the Alternative
Proposal or intending to make an Alternative Proposal or requesting non-public
information, the terms of any such Alternative Proposal or modification or
amendment to an Alternative Proposal, and whether the Company is providing or
intends to provide access to such non-public information. The Company shall also
notify the Subscribers if it enters into negotiations concerning an Alternative
Proposal.
(d) Except pursuant to court order, the Company shall not
enter into a definitive agreement with respect to an Alternative Proposal (i)
without the prior written consent, in their sole discretion, of the Requisite
Subscribers or (ii) unless this Agreement has been terminated in accordance with
Section 7 of this Agreement.
(e) The Company hereby covenants that it will promptly
deliver to the Subscribers, and each Subscriber hereby covenants that it will
promptly deliver to the Company and any other unaffiliated Subscriber, written
notice of any matter, event or development that would (i) render any
representation or warranty made by it herein inaccurate or incomplete in any
respect or (ii) constitute or result in a breach by it of, or a failure by it to
comply with, any covenant herein.
(f) The Company shall furnish the Subscribers with copies
of all notices, documents and other deliveries that the Company furnishes to
Silver Point pursuant to the terms
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of the Silver Point Commitment Letter and the definitive agreements relating to
the DIP/Exit Facility. In addition, the Company will furnish the Subscribers
with such information regarding itself and its subsidiaries as the Subscribers
may reasonably request.
(g) The parties agree that in the event the Company seeks
the assumption of the MLO Contract either through the Plan or by assumption
motion, then the Requisite Subscribers may terminate the Agreement pursuant to
Section 7(a) hereof in the event they do not provide their prior written consent
to such assumption.
6. Conditions Precedent.
(a) The obligation of each Subscriber to perform its
obligations hereunder shall be subject to the following conditions which can be
waived only by the Requisite Subscribers:
(i) the fees and expenses referred to in Section
3(c) hereof shall have been paid in full;
(ii) the Company shall continue its negotiation
of the DIP/Exit Facility with Silver Point and shall execute the Definitive
DIP/Exit Documents consistent in all material respects with the Silver Point
Commitment Letter and otherwise acceptable in form and substance to the
Subscribers;
(iii) the Plan, containing terms and conditions
consistent in all material respects with the Restructuring Terms, including the
DIP/Exit Facility, and otherwise containing terms and conditions reasonably
satisfactory to the Subscribers, shall have been confirmed by the Bankruptcy
Court;
(iv) all general unsecured claims (other than the
MLO Contract claim, unless the Requisite Subscribers agree that such claim may
be assumed pursuant to Section 5(g) hereof) will pass through bankruptcy as
unimpaired claims;
(v) the order of the Bankruptcy Court confirming
the Plan (the "Confirmation Order") shall be reasonably acceptable in form and
substance to the Subscribers, shall have been entered by the Bankruptcy Court,
and shall be a final order;
(vi) the Plan shall be consummated on terms
consistent in all material respects with the Restructuring Terms, the disclosure
statement, plan supplement documents and the Definitive Documents shall be in
form and substance reasonably satisfactory to the Subscribers, and any
modifications to the Plan or the Restructuring Terms on or after the date hereof
shall be in form and substance reasonably acceptable to the Subscribers;
(vii) the representations and warranties of the
Company contained herein shall be true and correct in all material respects on
and as of the date hereof and the Effective Date, with the same force and effect
as though made on and as of such date, except to the extent that any
representation or warranty is made as of a specified date, in which case such
representation or warranty shall be true and correct as of such specified date,
and the Company shall have performed or complied with, in all material respects,
its covenants required to be
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performed or complied with under this Agreement (and the Company shall have
delivered to the Subscribers a certificate signed by an authorized executive to
the effect that each of the conditions specified in this subsection (a)(vi) is
satisfied in all respects);
(viii) if applicable, any applicable waiting period
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,
shall have expired or been terminated early;
(ix) 100% of the Preferred Shares are issued and
sold pursuant to the Offering, this Agreement and the Term Sheet;
(x) the Registration Statement, if filed, shall
have become effective and the issuance of the Preferred Shares issuable pursuant
to the Offering and the shares of Common Stock issuable upon conversion thereof
shall have been duly registered under the Securities Act;
(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; and
(xii) the Company shall have entered 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, and a stockholders
agreement reasonably satisfactory in form and substance to the Requisite
Subscribers.
(b) The obligation of the Company to perform its
obligations hereunder shall be subject to the following conditions:
(i) the Bankruptcy Court shall have entered an
order authorizing the Company to file the Registration Statement;
(ii) the Plan, in a form consistent in all
material respects with the Restructuring Terms, shall have been confirmed by the
Bankruptcy Court;
(iii) the Confirmation Order shall have been
entered by the Bankruptcy Court, and shall be a final order;
(iv) the representations and warranties of the
Subscribers contained herein shall be true and correct in all material respects
on and as of the date hereof and the Effective Date, with the same force and
effect as though made on and as of such date, except to the extent that any
representation or warranty is made as of a specified date, in which case such
representation or warranty shall be true and correct as of such specified date,
and the Subscribers shall have performed or complied with, in all material
respects, their covenants required to be performed or complied with under this
Agreement; and
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(v) if applicable, any applicable waiting period
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,
shall have expired or been terminated early.
7. Termination.
(a) The Requisite Committed Noteholders shall be entitled
to terminate this Agreement and their obligations hereunder by giving two (2)
business days' written notice thereof to the Company in the event (i) the
Company materially breaches this Agreement, (ii) satisfaction of the conditions
set forth in Section 6(a) does not occur, (iii) a default or an event of default
occurs under the Definitive DIP/Exit Documents or the Silver Point Commitment
Letter or the Definitive DIP/Exit Facility is otherwise terminated, (iv) the
Company or its affiliates or their respective officers, directors, employees,
representatives or agents shall seek, solicit, encourage or initiate (including,
except as provided in Section 5(b) above, by way of furnishing information) any
inquiries or proposals regarding, or participate in negotiations or discussions
concerning any Alternative Proposal, (v) the Company shall enter into a
definitive agreement with respect to an Alternative Proposal without the prior
written consent, in their sole discretion, of the Requisite Subscribers, (vi)
the Company seeks the assumption of the MLO Contract either through the Plan or
by assumption motion without the prior written consent of the Requisite
Subscribers, or (vii) the Restructuring Transaction is not completed by August
31, 2004 (each, a "Termination Event").
(b) Within the two (2) business days' notice period, each
Termination Event may be (i) cured, if curable, by the Company or (ii) waived by
the written agreement of the Requisite Subscribers.
(c) If a Termination Event occurs which is not cured or
waived in accordance with subsection (b) above and written notice of termination
is provided as specified in herein, this Agreement shall terminate and, except
for rights of the Subscribers under Section 16, which shall survive such
termination, no party hereto shall have any continuing liability or obligation
to pay any other party hereunder; provided however, that the Company and the
Subscribers shall have all of the rights and remedies available under applicable
law, including under this Agreement, and no such termination shall relieve the
Subscribers or the Company or any of their subsidiaries from liability for
breach or non-performance of their respective obligations hereunder prior to the
date of such termination, and provided further, that if (X) the Subscribers
terminate this Agreement pursuant to subsection (a)(v) of this Section or (Y)
this Agreement is terminated or rejected by the Company for any reason other
than the material breach by the Subscribers and prior to such termination an
Alternative Proposal has been pending or made which Alternative Proposal is
entered into or consummated prior to the Effective Date, then the Subscribers
will be entitled to receive from the Company a payment of the fees payable in
cash to Subscribers pursuant to Sections 3(a) and 3(b) hereof, which payment
shall be deemed to have been earned post-petition, and shall be made
concurrently with the effectiveness of any plan of reorganization.
(d) The Company may terminate or reject this Agreement if
the Subscribers materially breach this Agreement or, prior to entering into an
agreement regarding an Alternative Proposal, provided that (i) the Board of
Directors of the Company has determined in good faith
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(based on the advice of its financial advisor and counsel) that the failure to
take such action would be inconsistent with its fiduciary obligations set forth
in Section 17 of this Agreement or under the Bankruptcy Code, (ii) the Company
has given the Subscribers two (2) business days' advance oral and written notice
of the Company's intention to enter into such an agreement and (iii) the
Subscribers will be entitled to receive the fees payable pursuant to subsection
(c) above.
8. Amendments; Release. This Agreement may not be modified,
amended or supplemented except in a writing signed by the Company and the
Requisite Subscribers. Following the amendment of this Agreement, any Subscriber
that did not consent to such amendment shall be released from this Agreement and
will thenceforth have no further rights or obligations hereunder (other than for
liability arising from any breach hereof prior to such release).
9. GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO ANY CONFLICTS OF LAW PROVISIONS WHICH WOULD REQUIRE THE
APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. BY ITS EXECUTION AND DELIVERY
OF THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ANY LEGAL ACTION, SUIT OR PROCEEDING AGAINST IT WITH RESPECT TO ANY
MATTER UNDER OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT RENDERED IN ANY SUCH ACTION, SUIT OR
PROCEEDING, MAY BE BROUGHT IN ANY FEDERAL OR STATE COURT IN THE BOROUGH OF
MANHATTAN, THE CITY OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY ACCEPTS AND SUBMITS ITSELF TO
THE NONEXCLUSIVE JURISDICTION OF EACH SUCH COURT, GENERALLY AND UNCONDITIONALLY,
WITH RESPECT TO ANY SUCH ACTION, SUIT OR PROCEEDING. NOTWITHSTANDING THE
FOREGOING CONSENT TO JURISDICTION, UPON THE COMMENCEMENT OF THE CHAPTER 11
CASES, EACH OF THE PARTIES AGREES THAT THE BANKRUPTCY COURT SHALL HAVE EXCLUSIVE
JURISDICTION WITH RESPECT TO ANY MATTER UNDER OR ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT.
10. Headings. The headings of the Sections, paragraphs and
subsections of this Agreement are inserted for convenience only and shall not
affect the interpretation hereof.
11. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of the parties hereto and their respective successors,
assigns, heirs, executors, administrators and representatives. The invalidity or
unenforceability at any time of any provision hereof shall not affect or
diminish in any way the continuing validity and enforceability of the remaining
provisions hereof.
12. No Third-Party Beneficiaries. Unless expressly stated herein,
this Agreement shall be solely for the benefit of the parties hereto and no
other person or entity shall be a third party beneficiary hereof.
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13. Prior Negotiations; Entire Agreement. This Agreement
constitutes the entire agreement of the parties and supersedes all prior
negotiations with respect to the subject matter hereof, except that the parties
hereto acknowledge that any confidentiality agreements heretofore executed among
the parties shall continue in full force and effect.
14. Counterparts; Facsimile Signatures. This Agreement may be
executed in counterparts, each of which shall be deemed an original and all of
which shall constitute one and the same agreement. In the event that any
signature is delivered by facsimile transmission, such signature shall create a
valid and binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile signature page were an original thereof.
15. Notices. All notices and other communications under this
Agreement shall be in writing, sent contemporaneously to all of the parties
hereto, and deemed given when delivered by hand or by facsimile during standard
business hours (from 8:00 a.m. to 6:00 p.m.) at the place of receipt at the
addresses and facsimile numbers set forth below, with a copy to each person
identified thereon, provided that notices to the Subscribers shall be delivered
at the addresses and facsimile numbers set forth below such Subscriber's
signature pages hereto, with a copy to:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038
Phone: (212) 806-5400
Fax: (212) 806-6006
Attention: Wendell Adair and Christopher Donoho
If to the Company:
Oglebay Norton Company
North Point Tower
1001 Lakeside Avenue
Cleveland, Ohio 44114-1151
Phone: (216) 861-3300
Fax: (216) 861-2863
Attention: Chief Financial Officer
With a copy to:
Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Phone: (216) 586-3939
Fax: (216) 579-0212
Attention: David G. Heiman
-11-
16. Survival. Notwithstanding the termination of this Agreement
pursuant to Section 7, the agreements and obligations of the parties in Sections
9, 11, 12, and 13 shall survive such termination and shall continue in full
force and effect for the benefit of the Noteholders in accordance with the terms
hereof.
17. Fiduciary Duties. Notwithstanding anything to the contrary
herein, nothing in this Agreement shall be construed so as to limit (a) the
Company or any directors or officers of the Company from exercising, in such
person's sole discretion, its fiduciary duties arising from such person's
capacity as an officer or director of the Company under applicable law and the
Bankruptcy Code, and the exercise, in such person's sole discretion, of such
fiduciary duties shall under no circumstances be deemed to constitute a breach
of the terms of this Agreement, or (b) any Noteholder or representative of a
Noteholder that becomes a member of a statutory committee established in the
Chapter 11 Cases, pursuant to Section 1102 of the Bankruptcy Code, to from
exercising in its sole discretion, its fiduciary duties arising from such
person's capacity as a statutory committee member, and the exercise, in the sole
discretion of such Noteholder or representative thereof, of such fiduciary
duties shall under no circumstances be deemed to constitute a breach of the
terms of this Agreement (but such service on the statutory committee shall not
otherwise affect the continuing validity or enforceability of this Agreement
with respect to such statutory committee member in its individual capacity).
* * * *
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
-12-
IN WITNESS WHEREOF, the parties have caused this Commitment Agreement
to be executed as of the date first written above.
OGLEBAY NORTON COMPANY
By: /s/ Julie Boland
---------------------------------------
Name: Julie Boland
Title: Vice President, Chief Financial
Officer, and Treasurer
NOTEHOLDERS:
SUBSCRIBERS
AIRLIE OPPORTUNITY FUND, L.P.
By: /s/ Adam Goodfriend Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: Adam Goodfriend $3,705,000
Title: Managing Director
Address: Commitment Amount:
c/o Airlie Opportunity Fund, L.P. $7,410,000
115 East Putnam Avenue
Greenwich, CT 06830 Commitment Fee:
Fax: (203) 661-0479 $281,580
AIRLIE OPPORTUNITY FUND CAYMAN, LTD
By: /s/ Adam Goodfriend Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: Adam Goodfriend $1,045,000
Title: Managing Director
Address: Commitment Amount:
c/o Airlie Opportunity Fund Cayman, LTD $2,090,000
115 East Putnam Avenue
Greenwich, CT 06830 Commitment Fee:
Fax: (203) 661-0479 $79,420
ROBERT T. CLUTTERBUCK TRUST
By: /s/ Robert T. Clutterbuck Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: Robert T. Clutterbuck $655,000
Title: Trustee
Address: Commitment Amount:
Kensington Oval $524,000
Rocky River, OH 44116
Fax: (440) 356-5259 Commitment Fee:
$10,480
THOMAS G. BERLIN
/s/ Thomas G. Berlin Principal Amount of Subordinated Notes
- ------------------------------------------- Beneficially Owned:
$7,120,000
Address:
23811 Chagrin Blvd. 275
Beachwood, OH 44122 Commitment Amount:
Fax: (216) 514-3344 $10,202,000
Commitment Fee:
$339,120
STIFEL NICOLAUS & COMPANY, INCORPORATED
By: /s/ Ronald J. Kruszewski Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: Ronald J. Kruszewski $655,000
Title: Chairman and Chief Executive Officer
Address: Commitment Amount:
501 N. Broadway $524,000
St. Louis, MO 63102
Fax: (314) 342-2115 Commitment Fee:
$10,480
CHRISTOPHER R. SIEGEL
By: /s/ Christopher R. Siegel Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
$300,000
Address: Commitment Amount:
c/o Ingalls & Snyder LLC $740,000
61 Broadway
New York, NY 10006
Fax: (212) 269-4177 Commitment Fee:
$29,800
H. SHEPPARD BOONE
By: /s/ H. Sheppard Boone Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
$400,000
Address:
c/o Ingalls & Snyder LLC Commitment Amount:
61 Broadway $820,000
New York, NY 10006
Fax: (212) 269-4177 Commitment Fee:
$31,400
NEIL JANOVIC
By: /s/ Neil Janovic Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
$400,000
Address:
c/o Ingalls & Snyder LLC
61 Broadway Commitment Amount:
New York, NY 10006 $320,000
Fax: (212) 269-4177
Commitment Fee:
$6,400
ADAM JANOVIC
By: /s/ Adam Janovic Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
$150,000
Address:
c/o Ingalls & Snyder LLC Commitment Amount:
61 Broadway $120,000
New York, NY 10006
Fax: (212) 269-4177 Commitment Fee:
$2,400
THOMAS BOUCHER
By: /s/ Thomas Boucher Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
$10,000
Address:
c/o Ingalls & Snyder LLC Commitment Amount:
61 Broadway $540,000
New York, NY 10006
Fax: (212) 269-4177 Commitment Fee:
$26,760
THOMAS DITOSTO
By: /s/ Thomas DiTosto Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
$320,000
Address:
c/o Ingalls & Snyder LLC
61 Broadway Commitment Amount:
New York, NY 10006 $755,000
Fax: (212) 269-4177
Commitment Fee:
$30,070
CONNECTICUT GENERAL LIFE INSURANCE
By: /s/ Leon Meyers Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: Leon Meyers $2,000,000
Title: Senior Vice President
Address: Commitment Amount:
c/o Ingalls & Snyder LLC $1,600,000
61 Broadway
New York, NY 10006 Commitment Fee:
Fax: (212) 269-4177 $32,000
EVAN JANOVIC
By: /s/ Evan Janovic Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
$300,000
Address:
c/o Ingalls & Snyder LLC
61 Broadway Commitment Amount:
New York, NY 10006 $240,000
Fax: (212) 269-4177
Commitment Fee:
$4,800
ROBERT ALTMAN
By: /s/ Ronald Altman Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
$500,000
Address:
c/o Ingalls & Snyder LLC
61 Broadway Commitment Amount:
New York, NY 10006 $400,000
Fax: (212) 269-4177
Commitment Fee:
$8,000
JOHN DOUGHERTY
By: /s/ John Dougherty Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
$1,000,000
Address:
c/o Ingalls & Snyder LLC
61 Broadway Commitment Amount:
New York, NY 10006 $1,800,000
Fax: (212) 269-4177
Commitment Fee:
$66,000
RAMER 1990 LIVING TRUST
By: /s/ Lawrence Ramer Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: Lawrence Ramer $200,000
Title: Trustee
Address: Commitment Amount:
c/o Ingalls & Snyder LLC $160,000
61 Broadway
New York, NY 10006 Commitment Fee:
Fax: (212) 269-4177 $3,000
INGALLS & SNYDER VALUE PART. L.C.
By: /s/ Thomas Boucher Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: Thomas Boucher $8,700,000
Title: General Partner
Address: Commitment Amount:
c/o Ingalls & Snyder LLC $19,663,000
61 Broadway
New York, NY 10006 Commitment Fee:
Fax: (212) 269-4177 $774,350
SHANNAH FERGUSON
By: /s/ Shannah Ferguson Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
$620,000
Address:
c/o Ingalls & Snyder LLC
61 Broadway Commitment Amount:
New York, NY 10006 $496,000
Fax: (212) 269-4177
Commitment Fee:
$9,920
THERESA M. FOOTE
By: /s/ Theresa M. Foote Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
$400,000
Address:
c/o Ingalls & Snyder LLC
61 Broadway Commitment Amount:
New York, NY 10006 $320,000
Fax: (212) 269-4177
Commitment Fee:
$6,400
KENNETH J. FOOTE IRA
By: /s/ Kenneth J. Foote Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: Kenneth J. Foote $100,000
Address:
c/o Ingalls & Snyder LLC Commitment Amount:
61 Broadway $80,000
New York, NY 10006
Fax: (212) 269-4177 Commitment Fee:
$1,600
WILLIAM ROBERT THOMAS TRUST
By: /s/ Shirley A. Foote Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: Shirley A. Foote $150,000
Title: Trustee
Address: Commitment Amount:
c/o Ingalls & Snyder LLC $120,000
61 Broadway
New York, NY 10006 Commitment Fee:
Fax: (212) 269-4177 $2,400
ABIGAIL FOOTE THOMAS TRUST
By: /s/ Shirley A. Foote Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: Shirley A. Foote $200,000
Title: Trustee
Address: Commitment Amount:
c/o Ingalls & Snyder LLC $160,000
61 Broadway
New York, NY 10006 Commitment Fee:
Fax: (212) 269-4177 $3,200
LYNN FOOTE
By: /s/ Lynn Foote Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
$100,000
Address:
c/o Ingalls & Snyder LLC
61 Broadway Commitment Amount:
New York, NY 10006 $500,000
Fax: (212) 269-4177
Commitment Fee:
$22,600
STEADFAST LLC
By: /s/ Steven M. Foote Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: Steven M. Foote $100,000
Title: Manager
Address: Commitment Amount:
c/o Ingalls & Snyder LLC $80,000
61 Broadway
New York, NY 10006 Commitment Fee:
Fax: (212) 269-4177 $1,600
BLYTHEFIELD FARMS LLC
By: /s/ Kenneth J. Foote Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: Kenneth J. Foote $100,000
Title: Manager
Address: Commitment Amount:
c/o Ingalls & Snyder LLC $80,000
61 Broadway
New York, NY 10006 Commitment Fee:
Fax: (212) 269-4177 $1,600
RICHARD GROENENDYKE
By: /s/ Richard Groenendyke Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
$120,000
Address:
c/o Ingalls & Snyder LLC
61 Broadway Commitment Amount:
New York, NY 10006 $96,000
Fax: (212) 269-4177
Commitment Fee:
$1,920
HERITAGE MARK FOUNDATION
By: /s/ Kenneth J. Foote Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: Kenneth J. Foote $2,300,000
Title: Trustee
Address: Commitment Amount:
c/o Ingalls & Snyder LLC $1,840,000
61 Broadway
New York, NY 10006 Commitment Fee:
Fax: (212) 269-4177 $36,800
BRADFORD SHINGLETON TRUST
By: /s/ Brad Shingleton Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: Brad Shingleton $175,000
Title: Trustee
Address: Commitment Amount:
c/o Ingalls & Snyder LLC $140,000
61 Broadway
New York, NY 10006 Commitment Fee:
Fax: (212) 269-4177 $2,800
ELIZABETH A. SHINGLETON TRUST
By: /s/ Shirley A. Foote Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: Shirley A. Foote $100,000
Title: Trustee
Address: Commitment Amount:
c/o Ingalls & Snyder LLC $80,000
61 Broadway
New York, NY 10006 Commitment Fee:
Fax: (212) 269-4177 $1,600
JENNIFER C. SHINGLETON TRUST
By: /s/ Shirley A. Foote Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: Shirley A. Foote $100,000
Title: Trustee
Address: Commitment Amount:
c/o Ingalls & Snyder LLC $80,000
61 Broadway
New York, NY 10006 Commitment Fee:
Fax: (212) 269-4177 $1,600
REBECCA M. SHINGLETON TRUST
By: /s/ Shirley A. Foote Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: Shirley A. Foote $75,000
Title: Trustee
Address: Commitment Amount:
c/o Ingalls & Snyder LLC $60,000
61 Broadway
New York, NY 10006 Commitment Fee:
Fax: (212) 269-4177 $1,200
BRAD SHINGLETON
By: /s/ Brad Shingleton Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
$150,000
Address:
c/o Ingalls & Snyder LLC
61 Broadway Commitment Amount:
New York, NY 10006 $120,000
Fax: (212) 269-4177
Commitment Fee:
$2,400
DAVID SHULDINER
By: /s/ David Shuldiner Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
$75,000
Address:
c/o Ingalls & Snyder LLC
61 Broadway Commitment Amount:
New York, NY 10006 $60,000
Fax: (212) 269-4177
Commitment Fee:
$1,200
KENNETH P. SINGLETON
By: /s/ Kenneth P. Singleton Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
$100,000
Address:
c/o Ingalls & Snyder LLC
61 Broadway Commitment Amount:
New York, NY 10006 $80,000
Fax: (212) 269-4177
Commitment Fee:
$1,600
CFG TRUST
By: /s/ Cheryl F. Groenendyke Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: Cheryl F. Groenendyke $250,000
Title: Trustee
Address: Commitment Amount:
c/o Ingalls & Snyder LLC $200,000
61 Broadway
New York, NY 10006 Commitment Fee:
Fax: (212) 269-4177 $4,000
MARTIN L. SOLOMON
By: /s/ Martin L. Solomon Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
$150,000
Address:
c/o Ingalls & Snyder LLC
61 Broadway Commitment Amount:
New York, NY 10006 $1,000,000
Fax: (212) 269-4177
Commitment Fee:
$46,400
WCI STEEL, INC. DEFINED PENSION BENEFIT PLAN
BY: BANC ONE HIGH YIELD PARTNERS, LLC
By: /s/ James P. Shanahan, Jr. Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: James P. Shanahan, Jr. $100,000
Title: Manager
Address: Commitment Amount
c/o Banc One High Yield Partners, LLC $80,000
8044 Montgomery Rd.
Suite 555 Commitment Fee:
Cincinnati, OH 45236 $1,600
Fax: (513) 985-3217
LEGACY AGGRESSIVE HIGH YIELD FUND
BY: BANC ONE HIGH YIELD PARTNERS, LLC
By: /s/ James P. Shanahan, Jr. Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: James P. Shanahan, Jr. $150,000
Title: Managing Director/General Counsel
Address: Commitment Amount:
c/o Banc One High Yield Partners, LLC $120,000
8044 Montgomery Rd.
Suite 555 Commitment Fee:
Cincinnati, OH 45236 $2,400
Fax: (513) 985-3217
SOUTHERN UTE PERMANENT FUND
BY: BANC ONE HIGH YIELD PARTNERS, LLC
By: /s/ James P. Shanahan, Jr. Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: James P. Shanahan, Jr. $151,000
Title: Manager
Address: Commitment Amount:
c/o Banc One High Yield Partners, LLC $120,800
8044 Montgomery Rd.
Suite 555 Commitment Fee:
Cincinnati, OH 45236 $2,416
Fax: (513) 985-3217
SOUTHERN UTE GROWTH FUND
BY: BANC ONE HIGH YIELD PARTNERS, LLC
By: /s/ James P. Shanahan, Jr. Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: James P. Shanahan, Jr. $90,000
Title: Manager
Address: Commitment Amount:
c/o Banc One High Yield Partners, LLC $72,000
8044 Montgomery Rd.
Suite 555 Commitment Fee:
Cincinnati, OH 45236 $1,440
Fax: (513) 985-3217
PACHOLDER HIGH YIELD FUND, INC.
BY: BANC ONE HIGH YIELD PARTNERS, LLC
By: /s/ James P. Shanahan, Jr. Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: James P. Shanahan, Jr. $2,250,000
Title: Secretary
Address: Commitment Amount:
c/o Banc One High Yield Partners, LLC $2,500,000
8044 Montgomery Rd.
Suite 555 Commitment Fee:
Cincinnati, OH 45236 $71,000
Fax: (513) 985-3217
ONE GROUP INCOME BOND FUND
BY: BANC ONE HIGH YIELD PARTNERS, LLC
By: /s/ James P. Shanahan, Jr. Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: James P. Shanahan, Jr. $500,000
Title: Manager
Address: Commitment Amount:
c/o Banc One High Yield Partners, LLC $400,000
8044 Montgomery Rd.
Suite 555 Commitment Fee:
Cincinnati, OH 45236 $8,000
Fax: (513)-985-3217
ONE GROUP HIGH YIELD BOND FUND
BY: BANC ONE HIGH YIELD PARTNERS, LLC
By: /s/ James P. Shanahan, Jr. Principal Amount of Subordinated Notes
--------------------------------------- Beneficially Owned:
Name: James P. Shanahan, Jr. $4,250,000
Title: Manager
Address: Commitment Amount:
c/o Banc One High Yield Partners, LLC $6,207,200
8044 Montgomery Rd.
Suite 555 Commitment Fee
Cincinnati, OH 45236 $208,360
Fax: (513)-985-3217
THIRD PARTY INVESTORS
JOHN STEIN
By: /s/ John Stein Commitment Amount:
--------------------------------------- $1,000,000
Address:
507 Carew Tower Commitment Fee:
Cincinnati, OH 45202 $50,000
Fax: (513)-241-1026
STEVEN N. STEIN
By: /s/ Steven N. Stein Commitment Amount:
--------------------------------------- $1,000,000
Address:
507 Carew Tower Commitment Fee:
Cincinnati, OH 45202 $50,000
Fax: (513) 241-1026
ROBERT L. GIPSON
By: /s/ Robert L. Gipson Commitment Amount:
--------------------------------------- $3,000,000
Address:
c/o Ingalls & Snyder LLC Commitment Fee:
61 Broadway $150,000
New York, NY 10006
Fax: (212) 269-4177
THOMAS L. GIPSON
By: /s/ Thomas L. Gipson Commitment Amount:
--------------------------------------- $3,000,000
Address:
c/o Ingalls & Snyder LLC Commitment Fee:
61 Broadway $150,000
New York, NY 10006
Fax: (212) 269-4177
GATOR INVESTMENT COMPANY
By: /s/ Adam Janovic Commitment Amount:
--------------------------------------- $1,000,000
Name: Adam Janovic
Title: Member
Commitment Fee:
Address: $50,000
c/o Ingalls & Snyder LLC
61 Broadway
New York, NY 10006
Fax: (212) 269-4177
FLEDGLING ASSOCIATES LLC
By: /s/ Edward Stern Commitment Amount:
--------------------------------------- $5,000,000
Name: Edward Stern
Title: Manager
Address: Commitment Fee:
c/o Ingalls & Snyder LLC $250,000
61 Broadway
New York, NY 10006
Fax: (212) 269-4177
NIKOLAOS MONOYIOS
By: /s/ Nikolaos Monoyios Commitment Amount:
--------------------------------------- $3,000,000
Address:
c/o Ingalls & Snyder LLC Commitment Fee:
61 Broadway $150,000
New York, NY 10006
Fax: (212) 269-4177