EXHIBIT 10.1
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FIRST AMENDMENT TO CREDIT AGREEMENT
EFFECTIVE AS OF JANUARY 11, 2005
among
NATIONAL COAL CORPORATION
as Borrower,
X. X. XXXXX SPECIAL OPPORTUNITIES FUND, L.P.,
as Administrative Agent,
AND
THE LENDERS PARTY HERETO
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FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (this "FIRST AMENDMENT") dated
as of January 11, 2005 (the "FIRST AMENDMENT EFFECTIVE DATE"), is by and among
National Coal Corporation, a Tennessee corporation (the "BORROWER"), each of the
lenders from time to time party hereto ("Lenders"), X. X. Xxxxx Special
Opportunities Fund, L.P., a Delaware limited partnership (as administrative
agent for the Lenders, in such capacity, together with its successors in such
capacity, the "ADMINISTRATIVE AGENT").
RECITALS:
A. The Borrower entered into a Credit Agreement dated as of
November 26, 2004 (the "CREDIT AGREEMENT"), among the Borrower, Administrative
Agent and the Lenders party thereto.
B. The Borrower has requested that certain provisions of the
Credit Agreement be modified and amended.
C. The Borrower, the Collateral Agent and the Lenders have agreed
to amend the Credit Agreement on the terms and conditions contained herein.
AGREEMENT:
In consideration of the premises and the mutual covenants contained
herein and in the Credit Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. TERMS DEFINED IN THE CREDIT AGREEMENT. Each term defined in
the Credit Agreement (as amended hereby) and used herein without definition
shall have the meaning assigned to such term in the Credit Agreement, unless
expressly provided to the contrary. Unless otherwise indicated, all section and
article references in this First Amendment refer to the Credit Agreement.
SECTION 2. AMENDMENTS TO THE CREDIT AGREEMENT.
(a) NEW SECTION 2.06(b)(iv). A new Section 2.06(b)(iv) is
hereby added to the Credit Agreement after Section 2.06(b)(iii) as set
forth below:
(iv) fund working capital needs of the Borrower.
In light of the new Section 2.06(b)(iv) the "and" at the end
of Section 2.06(b)(ii) is deleted and the period at the end of Section
2.06(b)(iii) is deleted and replaced with a semi-colon and the word
"and" after the semi-colon.
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SECTION 3. CONDITIONS. The following is added as Section 7.06 of the
Credit Agreement:
Section 6.03. CONDITIONS TO FIRST AMENDMENT. The obligation of
the Lenders to make the initial advance pursuant to this Agreement
after January 11, 2005 is subject to the following conditions
precedent, in addition to those set forth in Sections 7.02 and 7.03 of
the Agreement:
(a) DUE DILIGENCE. The Administrative Agent
shall be satisfied that Borrower has granted to Administrative
Agent for the benefit of the Lenders and itself a valid, first
priority perfected lien on all of the Properties that Borrower
acquires in connection with any Subsequent Commitment
Increase.
(b) OTHER SECURITY INSTRUMENTS. The
Administrative Agent shall have received such instruments,
each duly and validly executed and delivered by the respective
parties thereto, and in sufficient executed counterparts for
recording purposes when applicable, such security agreements,
financing statements, or titles duly endorsed to
Administrative Agent as Administrative Agent may request in
order to perfect the security interest in all of the
Properties that Borrower acquires in connection with any
Subsequent Commitment Increase.
SECTION 4. LIMITATIONS. The amendments set forth herein are limited
precisely as written and shall not (a) be deemed to be a consent to, or a waiver
or modification of, any other term or condition of the Credit Agreement or (b)
prejudice any right or rights which the Lenders may now have or may have in the
future under or in connection with the Credit Agreement or any of the other
documents or instruments referred to therein. Except as expressly modified
hereby or by express written amendments thereof, the Credit Agreement and each
of the other documents and instruments executed in connection with any of the
foregoing are and shall remain in full force and effect. In the event of a
conflict between this First Amendment and any of the foregoing documents, the
terms of this First Amendment shall be controlling.
SECTION 5. ADOPTION, RATIFICATION AND CONFIRMATION OF CREDIT AGREEMENT.
The Borrower hereby adopts, ratifies and confirms the Credit Agreement, as
amended hereby, and acknowledges and agrees that the Credit Agreement, as
amended hereby, is and remains in full force and effect.
SECTION 6. GOVERNING LAW. THIS FIRST AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. DESCRIPTIVE HEADINGS, ETC. The descriptive headings of the
several sections of this First Amendment are inserted for convenience only and
shall not be deemed to affect the meaning or construction of any of the
provisions hereof.
SECTION 8. ENTIRE AGREEMENT. This First Amendment and the documents
referred to herein represent the entire understanding of the parties hereto
regarding the subject matter hereof and supersede all prior and contemporaneous
oral and written agreements of the parties hereto with respect to the subject
matter hereof.
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SECTION 9. COUNTERPARTS. This First Amendment may be executed in any
number of counterparts (including by telecopy) and by different parties on
separate counterparts and all of such counterparts shall together constitute one
and the same instrument.
In witness whereof, the parties hereto have caused this First Amendment
to be duly executed and delivered by their respective duly authorized officers
as of the First Amendment Effective Date.
[SIGNATURES BEGIN NEXT PAGE]
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The parties hereto have caused this Agreement to be duly executed as of the day
and year first above written.
BORROWER: NATIONAL COAL CORPORATION
By: /S/ XXX X. XXX
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Name: XXX X. XXX
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Title: CHIEF EXECUTIVE OFFICER
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Address: National Coal Corporation
0000 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxx Xxx
[Signature Page to First Amendment to Credit Agreement]
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ADMINISTRATIVE AGENT: X.X. XXXXX SPECIAL OPPORTUNITIES FUND, L.P.
By: X.X. Xxxxx Partners, LLC, its general
partner
By: /S/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX
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Title: MANAGING MEMBER
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Address: 000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
[Signature Page to First Amendment to Credit Agreement]
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LENDER: X. X. XXXXX SPECIAL OPPORTUNITIES FUND, L.P.
By: X.X. Xxxxx Partners, LLC, its general
partner
By: /S/ XXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX
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Title: MANAGING MEMBER
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Address: 000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
[Signature Page to First Amendment to Credit Agreement]
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