EXHIBIT 10.1
WAIVER
THIS WAIVER, dated as of November 16, 2007 (this "WAIVER"), to
the CREDIT AGREEMENT, dated as of October 12, 2006 (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among NATIONAL COAL CORP., a Florida corporation ("HOLDINGS"),
NATIONAL COAL Corporation, a Tennessee corporation (the "BORROWER"), and the
LENDERS party thereto from time to time. Capitalized terms used herein but not
defined herein are used as defined in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, Holdings and the Borrower have requested that the
Lenders waive a provision of the Credit Agreement;
WHEREAS, the Lenders have agreed to waiver the provision of
the Credit Agreement on the terms and subject to the conditions herein provided.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and obligations herein set forth and other good and valuable
consideration, the adequacy and receipt of which is hereby acknowledged, and in
reliance upon the representations, warranties and covenants herein contained,
the parties hereto, intending to be legally bound, hereby agree as follows:
Section 1. WAIVER. As of the Effective Date (as defined below), each
Lender hereby waive compliance with Section 6.1(a) of the Credit Agreement in
respect of each of the fiscal quarters ending March 31, 2008 and June 30, 2008.
Section 2. CONDITIONS PRECEDENT. This Waiver shall become effective as
of the date (the "EFFECTIVE DATE") on which each of the following conditions
precedent shall have been satisfied or duly waived:
(a) CERTAIN DOCUMENTS. The Required Lenders shall have
received each of the following, in form and substance satisfactory to
the Required Lenders:
(i) this Waiver, duly executed by the Borrower and
Holdings, on behalf of itself and each other Loan Party, and
the Lenders;
(ii) such additional documentation as the Required
Lenders may reasonably require.
(b) PAYMENT OF COSTS AND EXPENSES. The Lenders shall have
received payment of all fees, costs and expenses, including, without
limitation, all costs and expenses of the Lenders (including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel
for each Lender) in connection with this Waiver.
(c) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties contained in Section 3 below shall be
true and correct.
Section 3. REPRESENTATIONS AND WARRANTIES. Each of Holdings and the
Borrower, on behalf of itself and each Loan Party, hereby represents and
warrants to each Lender, with respect to all Loan Parties, as follows:
(a) After giving effect to this Waiver, each of the
representations and warranties in the Credit Agreement and in the other
Loan Documents are true and correct in all material respects on and as
of the date hereof as though made on and as of such date, except to the
extent that any such representation or warranty expressly relates to an
earlier date and except for changes therein expressly permitted by the
Credit Agreement.
(b) The execution, delivery and performance by Holdings and
the Borrower of this Waiver have been duly authorized by all requisite
corporate or limited liability company action and will not violate the
articles of incorporation or bylaws (or other constituent documents) of
Holdings or the Borrower.
(c) After giving effect to this Waiver, no Default or Event of
Default has occurred and is continuing as of the date hereof.
Section 4. COSTS AND EXPENSES. In accordance with and in addition to
Section 9.5 of the Credit Agreement, the Borrower agrees to reimburse the
Lenders for all reasonable out-of-pocket expenses incurred by the Lenders in
connection with this Waiver, including the reasonable fees, charges and
disbursements of counsel or other advisors for advice, assistance or other
representation in connection with this Waiver.
Section 5. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
(a) As of the Effective Date, each reference in the Credit
Agreement and the other Loan Documents to "THIS AGREEMENT,"
"HEREUNDER," "HEREOF," "HEREIN," or words of like import, and each
reference in the other Loan Documents to the Credit Agreement
(including, without limitation, by means of words like "THEREUNDER",
"THEREOF" and words of like import), shall mean and be a reference to
the Credit Agreement as waived hereby with respect to the certain
requirements outlined above, and this Waiver and the Credit Agreement
shall be read together and construed as a single instrument.
(b) Except as expressly waived hereby, all of the terms and
provisions of the Credit Agreement and all other Loan Documents are and
shall remain in full force and effect and are hereby ratified and
confirmed.
(c) The execution, delivery and effectiveness of this Waiver
shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Administrative Agent, any Lender
under the Credit Agreement or any Loan Document, or constitute a waiver
or amendment of any other provision of the Credit Agreement or any Loan
Document except as and to the extent expressly set forth herein.
(d) Each of Holdings, the Borrower and (by its acknowledgement
hereof as set forth on the signature pages hereto) each other Loan
Party, hereby confirms that the guaranties, security interests and
liens granted pursuant to the Loan Documents continue to guarantee and
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secure the Obligations as set forth in the Loan Documents and that such
guaranties, security interests and liens remain in full force and
effect.
Section 6. COUNTERPARTS. This Waiver may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Receipt by the Required
Lenders of a facsimile copy of an executed signature page hereof shall
constitute receipt by the Required Lenders of an executed counterpart of this
Waiver.
Section 7. GOVERNING LAW. This Waiver and the rights and obligations of
the parties hereto shall be governed by, and construed and interpreted in
accordance with, the law of the State of New York.
Section 8. HEADINGS. Section headings contained in this Waiver are
included herein for convenience of reference only and shall not constitute a
part of this Waiver for any other purposes.
Section 9. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS WAIVER OR
ANY OTHER LOAN DOCUMENT.
Section 10. ACKNOWLEDGEMENT AND CONSENT BY GUARANTORS. Each guarantor
listed on the signature pages hereof (each, a "GUARANTOR" and collectively,
"GUARANTORS") hereby acknowledges that it has read this Waiver and consents to
the terms thereof, and hereby confirms and agrees that, notwithstanding the
effectiveness of this Waiver, the obligations of each Guarantor under the
Security and Guarantee Agreement dated October 12, 2006 (as amended through the
date hereof, the "SECURITY AND GUARANTEE AGREEMENT") shall not be impaired or
affected and the Security and Guarantee Agreement is, and shall continue to be,
in full force and effect and is hereby confirmed and ratified in all respects.
Each Guarantor further agrees that nothing in the Credit Agreement, this Waiver
or any other Loan Document shall be deemed to require the consent of such
Guarantor to any future amendment or waiver to the Credit Agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver
to be executed by their respective officers and members thereunto duly
authorized, on the date indicated below.
NATIONAL COAL CORP.
AS HOLDINGS
By: /S/ XXXXXX X. XXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & CEO
NATIONAL COAL CORPORATION
AS THE BORROWER
By: /S/ XXXXXX X. XXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & CEO
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NC RAILROAD, INC., AS A GUARANTOR
By: /S/ XXXXXXX X. XXXX
----------------------------------
Name:
Title:
NC TRANSPORTATION INC., AS A GUARANTOR
By: /S/ XXXXXXX X. XXXX
----------------------------------
Name:
Title:
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BIG BEND 38 INVESTMENTS L.P., AS A LENDER
By: 2M Companies, Inc., General Partner
By: /S/ XXXXXXXXX XXXXX
----------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Vice President
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J-K NAVIGATOR FUND, L.P., AS A LENDER
By: Steelhead Partners, LLC
Its: General Partner
By: /S/ XXXXXXX XXXXXXXX
----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Manager
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STEELHEAD OFFSHORE CAPITAL, LP,
AS A LENDER
By: Steelhead Partners, LLC
Its: Investment Manager
By: /S/ XXXXXXX XXXXXXXX
----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Manager
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