EXHIBIT 10.1
LOAN MODIFICATION AGREEMENT
THIS LOAN MODIFICATION AGREEMENT (this "Agreement") is made and entered
into to be effective as of December 10, 2009, by and among CENTAURUS ENERGY
MASTER FUND, LP ("Lender"), a Delaware limited partnership, NATIONAL COAL
CORPORATION ("Borrower"), a Tennessee corporation, NATIONAL COAL CORP.
("Holdings"), a Florida corporation, JACKSBORO COAL COMPANY, INC. ("Jacksboro"),
a Tennessee corporation, and NC RAILROAD, INC. ("Railroad"), a Tennessee
corporation for the purposes set forth herein (Holdings, Jacksboro and Railroad
are hereinafter sometimes collectively referred to as "Guarantors"; and Borrower
and Guarantors are hereinafter sometimes singly and collectively referred to as
"Grantors").
R E C I T A L S
A. On or about April 9, 2009, Next View Partners, LLC ("Next
View" or "Original Lender") made a loan to Borrower in the original principal
amount of Ten Million Dollars and No/100 ($10,000,000.00) ("Loan"). The Loan is
evidenced and secured by, among other documents, the following documents: (i)
"Revolving Credit Agreement" ("Credit Agreement"), executed by Borrower,
Holdings, and Next View, as Administrative Agent (in such capacity hereinafter
referred to as the "Administrative Agent") and as Original Lender, dated as of
Xxxxx 0, 0000, (xx) "Revolving Note" ("Note") executed by Borrower, payable to
the order of Original Lender, in the original principal amount of the Loan,
(iii) "Security and Guarantee Agreement" ("Security Agreement"), by and among
Grantors and Administrative Agent, dated April 9, 2009, (iv) "Intercreditor
Agreement" (together with all amendments thereto, the "Intercreditor
Agreement"), by and among Administrative Agent, Xxxxx Fargo Bank, N.A.
("Trustee"), in its capacity as Trustee and Collateral Agent for the holders of
the Second Lien Obligations (as defined therein), and acknowledged and agreed to
by Borrower and Grantors, dated April 9, 2009, as amended by that certain "First
Amendment to Intercreditor Agreement," dated on or about August 17, 2009 by and
between the Administrative Agent and Trustee, (v) "Collateral Assignment of
Agreements" ("Collateral Assignment"), executed by and between Borrower and in
favor of Original Lender, dated April 9, 2009, (vi) "Fee and Leasehold Deed of
Trust, Assignment of Leases and Subleases, Security Agreement, Fixture Filing
and As-Extracted Collateral Filing," executed by Borrower, as grantor, for the
benefit of Administrative Agent, recorded in (a) BK/PG: 1500/564-608, Register's
Office of Xxxxxxxx County, Tennessee, (b) BK/PG: X000/000-000, Xxxxxxxx Xxxxxx
xx Xxxxxxxx Xxxxxx, Xxxxxxxxx, and (c) BK/PG: 252/143, Register's Office of
Xxxxx County, Tennessee, (vii) "Fee and Leasehold Deed of Trust, Assignment of
Leases and Subleases, Security Agreement, Fixture Filing and As-Extracted
Collateral Filing", executed by Jacksboro, as grantor, for the benefit of
Administrative Agent, recorded in BK/PG: T545/497-547, Register's Office of
Xxxxxxxx County, Tennessee, respectively (viii) "Fee and Leasehold Deed of
Trust, Assignment of Leases and Subleases, Security Agreement, Fixture Filing
and As-Extracted Collateral Filing" executed by Railroad, as grantor, for the
benefit of Administrative Agent, recorded in (a) BK/PG: 1509/222-265, Register's
LOAN MODIFICATION AGREEMENT - PAGE 1
Office of Xxxxxxxx County, Texas, (b) BK/PG: X000/000-000, Xxxxxxxx'x Xxxxxx xx
Xxxxxxxx Xxxxxx, Xxxxxxxxx, and (c) BK/PG: 255/1, Register's Office of Xxxxx
County, Tennessee, respectively, and (ix) "Memorandum of Security Agreement,"
dated on or about August 17, 2009, by and among Original Lender, Railroad, and
Borrower. The Credit Agreement, Note, Security Agreement, each of the
above-referenced deeds of trust (collectively, the "Deeds of Trust"), Collateral
Assignment, Intercreditor Agreement, and all other documents and instruments
evidencing, securing or any manner relating to the Loan or hereinafter sometimes
collectively referred to as the "Loan Documents."
B. Prior to the execution of this Agreement, Lender has acquired
from Original Lender all of Original Lender's rights, title and interest in and
to the Loan, including, but not limited to, the Note and all other Loan
Documents, and all liens and security interests held by Original Lender,
securing payment of the Loan, and the Note is now payable to the order of
Lender.
C. Grantors have requested Lender modify the Loan, including
extending the Maturity Date of the Note, and otherwise modifying the Loan as
more particularly set forth herein, and Lender has agreed to renew and modify
the Loan, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. CURRENT NOTE BALANCE. Notwithstanding anything contained
herein or in the Loan Documents to the contrary, Borrower hereby acknowledges
and confirms that (a) the original committed amount of the Loan was
$10,000,000.00, (b) the current outstanding principal balance of the Loan is
$3,000,000.00, and (c) the new face amount of the Note is now $5,000,000.00, and
in no event shall Lender have the obligation to fund any principal under the
Loan in excess of $5,000,000.00.
2. TRANSFER LOAN. Grantors hereby acknowledge and confirm Lender
has acquired all of Original Lender's rights to title of interest in and to the
Loan and the Loan Documents, and all security interests, liens and warranties
securing payment thereof, and Lender is the current holder of the Loan, Note and
Loan Documents.
3. MODIFICATION OF LOAN DOCUMENTS. Effective as of the date of
this Agreement, the Loan Documents are hereby modified and amended as follows:
a. All references to "Lender," "Beneficiary," or any
other defined term used to refer to Original Lender, as lender under the Loan
Documents, shall now refer to Centaurus Energy Master Fund, LP.
LOAN MODIFICATION AGREEMENT - PAGE 2
b. Centaurus Energy Master Fund, LP, in addition to
being Lender, has been assigned all rights, duties and obligations of Next View
as Administrative Agent and, from this day forward, Centaurus Energy Master
Fund, LP, when acting in such capacity as administrative agent, shall be deemed
the "Administrative Agent," with all such attending rights, duties and
obligations.
c. All references to Notice of Lender in the Loan
Documents are hereby modified and amended to read in their entireties as
follows: "Centaurus Energy Master Fund, LP, 0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000, telephone number 000-000-0000, facsimile no.
000-000-0000."
d. The principal amount of the Loan and Note is hereby
reduced to $5,000,000.00, and Lender shall have no obligation to fund any
principal amount on the Loan in excess of $5,000,000.00. Accordingly, all
references to the Revolving Note Amount of $10,000,000.00 are hereby modified
and amended in their entireties to read as "$5,000,000.00." It is the intent of
the parties that the Revolving Loan Facility, including references thereto in
Schedule 1 of the Credit Agreement, shall be $5,000,000.00. In no event shall
Lender be obligated to any amount in excess of the $5,000,000.00 loan amount,
including, but not limited to, pursuant to the provisions of Section 2.2.(b). of
the Credit Agreement. Any Loan proceeds to be advanced after the date hereof
shall be advanced pursuant to the terms of the Credit Agreement.
e. The Maturity Date of the Loan is hereby extended to
December 15, 2010. Accordingly, all references to the "Maturity Date" in the
Credit Agreement, and any other Loan Documents, shall mean December 15, 2010. No
additional consent shall be required by any party to extend the Maturity Date to
December 15, 2010. Borrower shall have no right to further extend the Maturity
Date without the consent of Lender, which consent shall be Lender's sole and
absolute discretion.
f. Notwithstanding anything in the Loan Documents to the
contrary, interest on the unpaid principal balance of the Loan from day to day
remaining shall from this date forward accrue at a rate of 15% per annum, simple
interest, based on a 360-day year. Upon the occurrence of an Event of Default,
sums due under the Note shall bear interest as provided in Section 2.5(b) of the
Credit Agreement.
g. The minimum coal production amounts set forth in
Section 6.1(a) of the Credit Agreement, and the minimum coal shipments set forth
in Section 6.1(b) of the Credit Agreement, are hereby amended as reflected on
Schedule 1 to this Agreement.
h. Loan proceeds drawn from time to time by Borrower
under the Note and Credit Agreement may be used for Borrower's working capital
and other general corporate purposes of Borrower, including payments of
principal and interest on existing indebtedness of Borrower.
LOAN MODIFICATION AGREEMENT - PAGE 3
4. CREDIT EXTENSION FEE. Contemporaneous with the execution of
this Agreement, Borrower shall pay to Lender a facility fee in the amount of
$150,000.00 ("Facility Fee"). The Facility Fee shall be deemed fully earned upon
the full execution of this Agreement. The Facility Fee is in addition to any
other fees heretofore paid by Borrower under the Credit Agreement, including,
but not limited to, the Commitment Fee heretofore paid by Borrower pursuant to
Section 2.7(a) of the Credit Agreement. Borrower shall have no obligation to pay
to Lender any portion of the Commitment Fee not heretofore paid by Borrower to
the Original Lender.
5. CLOSING COSTS AND ATTORNEYS FEES. Contemporaneous with the
full execution of this Agreement, Borrower shall pay all closing costs and third
party fees and costs incurred by Lender associated with this transaction
including, but not limited to, attorneys' fees, accountant fees, recording fees,
title insurance premiums, and title company closing and escrow fees incurred by
virtue of the Loan modification evidenced by this Agreement. Failure to pay the
same when due or upon demand shall constitute a default under this Agreement and
the Loan Documents.
6. TITLE INSURANCE. At Lender's option and request, Borrower
shall obtain and deliver to Lender, and pay the premium for, an endorsement to
Lender's policy of title insurance (a) bringing the effective date of the policy
current; (b) reflecting that no liens, encumbrances, or other matters subsequent
to the Deeds of Trust have been recorded against the respective properties
secured thereto; and (c) insuring the continuing priority of the Deeds of Trust
as security for the Note, as modified, as a first and prior Deeds of Trust
against the Mortgage Properties subject only to general taxes not yet
delinquent, existing exceptions, and such other exceptions as Lender may consent
to in writing.
7. REPRESENTATIONS AND COVENANTS BY BORROWER AND GRANTORS. (i)
Borrower and Grantors hereby represent, warrant and covenant to Lender as
follows:
a. This Agreement is duly authorized, executed, and
delivered by Borrower and constitutes a legal, valid, and binding obligation of
Borrower, fully enforceable in accordance with the terms hereof. Borrower is a
Tennessee corporation in existence.
b. This Agreement has been duly authorized, executed,
and delivered by Holdings and constitutes a legal, valid, and binding obligation
of Holdings, fully enforceable in accordance with the terms hereof. Holdings is
a Florida corporation in existence.
c. This Agreement is duly authorized, executed, and
delivered by Jacksboro and constitutes a legal, valid, and binding obligation of
Borrower, fully enforceable in accordance with the terms hereof. Jacksboro is a
Tennessee corporation in existence.
LOAN MODIFICATION AGREEMENT - PAGE 4
d. This Agreement is duly authorized, executed, and
delivered by Railroad and constitutes a legal, valid, and binding obligation of
Borrower, fully enforceable in accordance with the terms hereof. Railroad is a
Tennessee corporation in existence.
e. Grantors are in strict and complete compliance with
all the terms and conditions of the Loan Documents, as modified by this
Agreement.
f. Grantors have no defenses to the payment of the Note,
the performance of the strict terms of the Security Agreement, Deeds of Trust or
other Loan Documents, or right of offset or claim against Lender. Grantors each
specifically acknowledge and agree that Original Lender and Lender have
performed each and all of its obligations, commitments, and agreements under the
Loan Documents and all other agreements related to the indebtedness, both
written and verbal, direct or implied, up to and including the date of this
Agreement, that neither Original Lender nor Lender is in default in the
observance or performance of any obligation, commitment, agreement, or covenant,
expressed or implied, including, but not limited to, covenants of good faith and
fair dealing, to be observed or performed by Original Lender or Lender under the
foregoing, and that no facts exist and no event has occurred which now or
hereafter will authorize Grantors to fail or refuse to abide by the terms of the
Loan Documents, or form the basis, in whole or in part, for a claim or defense
of any kind including, but not limited to, lack of good faith or fair dealing
against Lender. In consideration of (i) the extension and modification of the
Note, as herein provided, and (ii) the other benefits received by Grantors
hereunder, Grantors each hereby RELEASE, RELINQUISH and forever DISCHARGE
Lender, as well as its predecessors, successors, assigns, agents, officers,
directors, employees and representatives, of and from any and all claims,
demands, actions and causes of action of any and every kind or character, past
or present, which Grantors may have against Lender and its predecessors,
successors, assigns, agents, officers, directors, employees and representatives
arising out of or with respect to (a) any right or power to bring any claim
against Lender for usury or to pursue any cause of action against Lender based
on any claim of usury, and (b) any and all transactions relating to the Loan
Documents occurring prior to the date hereof, including any loss, cost, or
damage, of any kind or character, arising out of or in any way connected with or
in any way resulting from the acts, actions, or omissions of Lender, and its
predecessors, successors, assigns, agents, officers, directors, employees and
representatives, including any breach of fiduciary duty, breach of any duty of
fair dealing, breach of confidence, breach of funding commitment, undue
influence, duress, economic coercion, conflict of interest, negligence, bad
faith, malpractice, intentional or negligent infliction of mental distress,
tortious interference with contractual relations, tortious interference with
corporate governance or prospective business advantage, breach of contract,
deceptive trade practices, libel, slander or conspiracy, but in each case only
to the extent permitted by applicable law.
LOAN MODIFICATION AGREEMENT - PAGE 5
g. All real and personal property taxes and special
assessments (as applicable) currently assessed against the Collateral and/or
Mortgaged Properties have been paid in full, except for general taxes which are
not yet delinquent.
(ii) In addition to the above representations and
warranties, Grantors each hereby reaffirm and restate all representation and
warranties heretofore made by such party in the Loan Documents, as of the date
hereof. Grantors each hereby represent and warrant to Lender that all financial
statements, asset schedules, accounts receivable schedules, and any and all
other written information delivered to Lender by Grantors in connection with
this Agreement are true and correct in all material respects, and, as to
financial information, fairly represents the financial parties of the respective
parties as of the date hereof and of its operations and cash flow for the period
indicated therein, and have been prepared in accordance with GAAP applied
consistently through the periods reflected therein.
(iii) Guarantors hereby reaffirm any and all
guaranty obligations as set forth in the Security Agreement, and,
notwithstanding anything contained in the Loan Documents to the contrary, or
seemingly to the contrary, each Guarantor hereby irrevocably and unconditionally
guarantees to Lender and its successors and assigns the payment and performance
of all Obligations as and when the same shall be due payable, whether by lapse
of time, by acceleration of maturity, maturity, or otherwise, until all
Obligations have been paid in full, and hereby acknowledge and confirm that
nothing contained herein shall be deemed to diminish, reduce or otherwise affect
the guaranty obligations of each of the Guarantors contained in the Security
Agreement.
8. DEFAULT. Any default by Grantors under this Agreement
(including any misrepresentation under Paragraph 7 above) shall also constitute
an Event or Default under the Loan Documents. In the event of any default,
Lender shall be entitled to exercise all of its remedies hereunder and under the
Loan Documents, and at law or in equity. In addition, a default under certain
Indenture, dated December 29, 2005 ("Indenture"), pursuant to which Borrower has
issued its 10.5% Senior Secured Notes due, 2010, and Borrower's failure to cure
such default within any notice and cure, if any, shall be deemed default
hereunder and Event of Default under the Loan Documents.
9. BANKRUPTCY. In the event that any of the Grantors should file
for protection under the Bankruptcy Code, or if any involuntary proceeding under
the Bankruptcy Code is commenced against Borrower, and an order of relief is
entered, Lender shall be entitled to immediate relief from the automatic stay so
that Lender may proceed with foreclosure of the Property and otherwise enforce
its security interest in any of the Property owned in whole or in part by the
debtor.
10. NO FURTHER COMMITMENT. Grantors hereby acknowledge and agree
that this Agreement modifies the Note, the Deeds of Trust, Security Agreement
and the Loan Documents only to the extent and on the terms set forth herein, and
this Agreement is not, nor shall it be, construed as a commitment by Lender to
LOAN MODIFICATION AGREEMENT - PAGE 6
modify the Note, the Deeds of Trust, or any of the Loan Documents securing the
Note in any other respect. Borrower further agrees that it is precluded from
claiming that any prior written or oral negotiations, discussions, comments,
questions, or representations not specifically incorporated into this Agreement
or the Loan Documents are binding upon Lender. Furthermore, none of the same
shall in any manner whatsoever be deemed to modify or constitute a waiver of the
rights and obligations of the parties as stated in the Loan Documents or this
Agreement.
11. FULL FORCE AND EFFECT. Except as otherwise modified herein,
each and every provision of the Note, the Deeds of Trust, and all other Loan
Documents shall be and remain in full force and effect. Borrower hereby
reaffirms the Note, as modified hereby, and all of the indebtedness secured by
the Deed of Trust and Loan Documents, and agrees to perform the obligations
thereunder as they become due.
12. SECURITY INSTRUMENTS. The Deeds of Trust, Security Agreement
and all other Loan Documents shall continue to secure Borrower's obligations
under the Note, as modified. Grantors hereby reaffirms all liens and security
interests securing the Note as granted in the Loan Documents, including, without
limitation, the Security Agreement and each of the Deeds of Trust, and
acknowledge all of the same to be valid and subsisting first and prior liens and
security interest encumbering the Collateral and Mortgaged Properties. Nothing
contained in this Agreement shall be deemed to release, eliminate or reduce any
such lien and security interests.
13. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, personal
representatives, successors, and permitted assigns.
14. FURTHER ASSURANCES. Borrower and Grantors agree to execute and
deliver such documents and to perform such other acts, promptly upon request, as
Lender requests and which are, in Lender's reasonable judgment, necessary or
appropriate to effectuate the purposes of this Agreement. This Agreement and any
memorandum hereof may be filed and recorded by Lender with any governmental
agency or other public office.
15. AMENDMENT. This Agreement may be modified, amended, changed,
or terminated, in whole or in part, only by an agreement in writing duly
authorized and executed by Borrower, Grantors and Lender.
16. WAIVER. The waiver of any breach of any of the provisions of
this Agreement by any party shall not constitute a continuing waiver or a waiver
of any subsequent breach by said party either of the same or of another
provision of this Agreement.
LOAN MODIFICATION AGREEMENT - PAGE 7
17. EXCLUSIVE AGREEMENT. This Agreement contains the entire
agreement between the parties with respect to the modification of the Note, the
Deeds of Trust, and the Loan Documents evidenced hereby and no statement,
promise, or inducement made by any party or the agent of any party that is not
contained in this Agreement shall be valid or binding.
18. HEADINGS FOR CONVENIENCE ONLY. The paragraph headings,
captions, and titles contained herein are intended for convenience and reference
only and are not intended to define, limit, or describe the scope or intent of
any provision of this Agreement.
19. SEVERABILITY. Invalidation of any of the provisions of this
Agreement or any paragraph, sentence, clause, phrase, or word herein, or the
application thereof in any given circumstance, shall not affect the validity of
the remainder of this Agreement.
20. TIME OF THE ESSENCE. Time is of the essence for the
performance of each and every provision hereof.
21. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Texas.
22. LITIGATION. The parties hereto hereby stipulate and agree that
any litigation regarding the Note or any instrument evidencing, relating to, or
securing the indebtedness evidenced by the Note, including, but not limited to,
this Agreement, shall be tried by the court having jurisdiction over the matter
and the right to trial by jury is hereby expressly waived. In the event the Note
is placed in the hands of an attorney for collection, or in the event a
deficiency arises from a foreclosure, Lender will be entitled to collect a
reasonable attorney's fee.
23. COUNTERPARTS/FACSIMILE EXECUTION. This Agreement may be
executed in multiple identical separate counterparts and combined to make a
fully executed Agreement. This Agreement may also be executed and delivered by
facsimile and a facsimile executed copy will be deemed to constitute an original
for all purposes, although the parties agree to provide to each other an
original fully executed counterpart as soon as is practicable for purposes of
recording an original in the appropriate Real Property Records.
24. DEFINED TERMS. Any capitalized term used herein, but not
defined herein, shall have that meaning as set forth in the Loan Documents.
[Signatures follow on the page immediately hereafter.]
LOAN MODIFICATION AGREEMENT - PAGE 8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the date and year above first written.
LENDER AND ADMINISTRATIVE AGENT:
CENTAURUS ENERGY MASTER FUND, LP
By: Centaurus Energy Management, LP,
its Investment Manager
By: Centaurus Advisors, LLC
its general partner
By: Xxxx X. Xxxxxx
Sole Member
By: /S/ XXXX X. XXXXXX
-------------------------
Xxxx X. Xxxxxx
BORROWER:
NATIONAL COAL CORPORATION
a Tennessee corporation
By: /S/ XXXXXXX X. XXXXXX
------------------------------------------------
Xxxxxxx X. Xxxxxx, Senior Vice-President and CFO
GUARANTORS:
NATIONAL COAL CORP.
a Florida Corporation
By: /S/ XXXXXXX X. XXXXXX
------------------------------------------------
Its: CFO
------------------------------------------------
LOAN MODIFICATION AGREEMENT - PAGE 9
JACKSBORO COAL COMPANY
a Tennessee corporation
By: /S/ XXXXXXX X. XXXXXX
------------------------------------------------
Its: CFO
------------------------------------------------
NC RAILROAD, INC.
a Tennessee corporation
By: /S/ XXXXXXX X. XXXXXX
------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer
LOAN MODIFICATION AGREEMENT - PAGE 10
STATE OF TEXAS ss.
ss.
COUNTY OF XXXXXX xx.
Before me, XXXXXXXXX XXXXXX, a Notary Public of said County and State,
personally appeared XXXX X. XXXXXX, with whom I am personally acquainted (or
proved to me on the basis of satisfactory evidence), and who, upon oath,
acknowledged himself to be SOLE MEMBER of Centaurus Advisors, LLC, general
partner of Centaurus Energy Management, LP, Investment Manager of CENTAURUS
ENERGY MASTER FUND, LP, the within named bargainor, and that he as such SOLE
MEMBER, being duly authorized so to do, executed the foregoing instrument for
the purposes therein contained, by signing his name as a SOLE MEMBER.
WITNESS my hand and seal, at Office in HOUSTON, TX this 10TH day of
December, 2009.
/S/ XXXXXXXXX XXXXXX
------------------------------
Notary Public
My commission expires: 6/24/2012
STATE OF TENNESSEE ss.
ss.
COUNTY OF Xxxx xx.
Before me, XXXXXX X. XXXXXX, a Notary Public of said County and State,
personally appeared XXXXXXX X. XXXXXX, with whom I am personally acquainted (or
proved to me on the basis of satisfactory evidence), and who, upon oath,
acknowledged himself to be CHIEF FINANCIAL OFFICER of NATIONAL COAL CORPORATION,
a Tennessee corporation, the within named bargainor, and that he as such CHIEF
FINANCIAL OFFICER, being duly authorized so to do, executed the foregoing
instrument for the purposes therein contained, by signing his name as a CHIEF
FINANCIAL OFFICER.
WITNESS my hand and seal, at Office in KNOXVILLE this 9TH day of
December, 2009.
/S/ XXXXXX X. XXXXXX
------------------------------
Notary Public
My commission expires: 5-1-2013
LOAN MODIFICATION AGREEMENT - PAGE 11
STATE OF TENNESSEE ss.
ss.
COUNTY OF Xxxx xx.
Before me, XXXXXX X. XXXXXX, a Notary Public of said County and State,
personally appeared XXXXXXX X. XXXXXX, with whom I am personally acquainted (or
proved to me on the basis of satisfactory evidence), and who, upon oath,
acknowledged himself to be CHIEF FINANCIAL OFFICER of NATIONAL COAL CORP., a
Florida corporation, the within named bargainor, and that he as such CHIEF
FINANCIAL OFFICER, being duly authorized so to do, executed the foregoing
instrument for the purposes therein contained, by signing his name as a CHIEF
FINANCIAL OFFICER.
WITNESS my hand and seal, at Office in KNOXVILLE this 9TH day of
December, 2009.
/S/ XXXXXX X. XXXXXX
------------------------------
Notary Public
My commission expires: 0-0-0000
XXXXX XX XXXXXXXXX ss.
ss.
COUNTY OF Xxxx xx.
Before me, XXXXXX X. XXXXXX, a Notary Public of said County and State,
personally appeared XXXXXXX X. XXXXXX, with whom I am personally acquainted (or
proved to me on the basis of satisfactory evidence), and who, upon oath,
acknowledged himself to be CHIEF FINANCIAL OFFICER of JACKSBORO COAL COMPANY, a
Tennessee corporation, the within named bargainor, and that he as such CHIEF
FINANCIAL OFFICER, being duly authorized so to do, executed the foregoing
instrument for the purposes therein contained, by signing his name as a CHIEF
FINANCIAL OFFICER.
WITNESS my hand and seal, at Office in KNOXVILLE this 9TH day of
December, 2009.
/S/ XXXXXX X. XXXXXX
------------------------------
Notary Public
My commission expires: 5-1-2013
LOAN MODIFICATION AGREEMENT - PAGE 12
STATE OF TENNESSEE ss.
ss.
COUNTY OF Xxxx xx.
Before me, XXXXXX X. XXXXXX, a Notary Public of said County and State,
personally appeared XXXXXXX X. XXXXXX, with whom I am personally acquainted (or
proved to me on the basis of satisfactory evidence), and who, upon oath,
acknowledged himself to be SECRETARY/CFO of NC RAILROAD, INC., a Tennessee
corporation, the within named bargainor, and that he as such SECRETARY/CFO,
being duly authorized so to do, executed the foregoing instrument for the
purposes therein contained, by signing his name as a SECRETARY/CFO.
WITNESS my hand and seal, at Office in KNOXVILLE this 9TH day of
December, 2009.
/S/ XXXXXX X. XXXXXX
------------------------------
Notary Public
My commission expires: 5-1-2013
LOAN MODIFICATION AGREEMENT - PAGE 13
SCHEDULE 1
Minimum Coal Production
QUARTER ENDING MINIMUM COAL PRODUCTION
MARCH 31, 2010 170,000 TONS
-------------- ------------
JUNE 30, 2010 170,000 TONS
------------- ------------
SEPTEMBER 30, 2010 170,000 TONS
------------------ ------------
Minimum Coal Shipments
QUARTER ENDING MINIMUM COAL SHIPMENTS
MARCH 31, 2010 170,000 TONS
-------------- ------------
JUNE 30, 2010 170,000 TONS
------------- ------------
SEPTEMBER 30, 2010 170,000 TONS
------------------ ------------
LOAN MODIFICATION AGREEMENT - PAGE 14
