EXHIBIT 10.1
AMENDMENT
THIS AMENDMENT, dated as of March 30, 2007 (this "AMENDMENT"), 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"), the LENDERS
party thereto from time to time, and GUGGENHEIM CORPORATE FUNDING, LLC, as
administrative agent (in such capacity, the "ADMINISTRATIVE AGENT") and as
collateral agent for the Lenders. 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 desire to amend certain financial
covenants in the Credit Agreement and other provisions of the Credit Agreement;
and
WHEREAS, the Required Lenders and the Administrative Agent have agreed
to consent to such amendment 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. Amendment. (a) As of the Effective Date (as defined below),
the Administrative Agent and each Lender signatory to an Acknowledgment and
Consent to Amendment hereby consent to the amendments to the Credit Agreement
set forth below.
Section 1.01 of the Credit Agreement is hereby amended by
deleting the defined term "Applicable Margin" in its entirety and replacing such
defined term with the following:
"APPLICABLE MARGIN" means, (a) from the Effective Date through December
31, 2008, a per annum rate equal to (i) Level I below if the Loan
Parties are in compliance with the "Column A" of each financial
covenant in Sections 6.1(a), (b) and (c) and (ii) Level II below if the
Loan Parties are in compliance with "Column B" of each financial
covenant in Sections 6.1(a), (b) and (c), each determined on the last
day of the most recent Fiscal Quarter for which Financial Statements
have been delivered pursuant to Section 5.1(a) or (b). Notwithstanding
the foregoing, the Applicable Margin shall be deemed to be at Level I
(i) from the Effective Date until 2 Business Days after the receipt by
the Administrative Agent of the Financial Statements required to be
delivered pursuant to Section 5.1(a) or (b) and (ii) at any time that
an Event of Default shall have occurred and is continuing.
BASE RATE EURODOLLAR
LOANS RATE LOANS
----------------------------- --------- ----------
Level I ..................... 3.50% 4.50%
----------------------------- --------- ----------
Level II .................... 2.50% 3.50%
----------------------------- --------- ----------
Changes in the Applicable Margin resulting from a change in (x) minimum
Consolidated EBITDA, (y) maximum consolidated Leverage Ratio or (z)
minimum Consolidated Interest Coverage Ratio, on the last day of any
subsequent Fiscal Quarter shall become effective as to all Term Loans
one Business Day following delivery by the Borrower to the
Administrative Agent of new Financial Statements pursuant to Section
5.1(a) or (b), as applicable. Notwithstanding anything to the contrary
set forth in this Agreement (including the then effective financial
covenant calculations), if the Borrower shall fail to deliver such
Financial Statements within any of the time periods specified in
Section 5.1(a) or (b), the Applicable Margin from and including the
51st day after the end of such Fiscal Quarter or the 91st day after the
end of such Fiscal Year, as the case may be, to but not including the
date the Borrower delivers to the Administrative Agent such Financial
Statements shall be at Level I.
(b) From January 1, 2009 through the Maturity Date, the
Applicable Margin shall be at Level II.
Section 6.1(a) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
(a) MINIMUM CONSOLIDATED EBITDA. Permit Consolidated EBITDA of
Holdings and its Subsidiaries as at the last day of any period of four
consecutive fiscal quarters of Holdings ending with any fiscal quarter
set forth below to be less than the amount set forth below in "Column
A" opposite such fiscal quarter:
COLUMN "A" COLUMN "B"
MINIMUM MINIMUM
CONSOLIDATED CONSOLIDATED
FISCAL QUARTER EBITDA EBITDA
---------------------------------------------- ------------ ------------
March 31, 2007 ............................... 2,400,000 $ 5,500,000
June 30, 2007 ................................ 3,700,000 $ 7,900,000
September 30, 2007 ........................... 5,200,000 $ 10,800,000
December 31, 2007 ............................ 8,800,000 $ 13,300,000
March 31, 2008 ............................... 10,000,000 $ 16,200,000
June 30, 2008 ................................ 12,000,000 $ 18,500,000
September 30, 2008 ........................... 15,300,000 $ 20,300,000
December 31, 2008 ............................ 17,100,000 $ 21,600,000
March 31, 2009 ............................... N/A $ 23,100,000
June 30, 2009 ................................ N/A $ 24,700,000
September 30, 2009 ........................... N/A $ 26,200,000
December 31, 2009 ............................ N/A $ 27,700,000
March 31, 2010 ............................... N/A $ 27,000,000
2
Section 6.1(b) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
(b) MAXIMUM CONSOLIDATED LEVERAGE RATIO. Permit the
Consolidated Leverage Ratio on each day of each fiscal quarter set
forth below to exceed the ratio set forth below in "Column A" opposite
such fiscal quarter:
COLUMN "A" COLUMN "B"
MAXIMUM MAXIMUM
CONSOLIDATED CONSOLIDATED
FISCAL QUARTER LEVERAGE RATIO LEVERAGE RATIO
------------------------------------------ -------------- --------------
March 31, 2007 ........................... 27.7 to 1.00 13.50 to 1.00
June 30, 2007 ............................ 17.7 to 1.00 9.75 to 1.00
September 30, 2007 ....................... 12.3 to 1.00 7.25 to 1.00
December 31, 2007 ........................ 7.00 to 1.00 6.00 to 1.00
March 31, 2008 ........................... 6.00 to 1.00 5.00 to 1.00
June 30, 2008 ............................ 4.50 to 1.00 4.50 to 1.00
September 30, 2008 ....................... 4.30 to 1.00 4.25 to 1.00
December 31, 2008 ........................ 4.00 to 1.00 4.00 to 1.00
March 31, 2009 ........................... N/A 3.75 to 1.00
June 30, 2009 ............................ N/A 3.50 to 1.00
September 30, 2009 ....................... N/A 3.25 to 1.00
December 31, 2009 ........................ N/A 3.00 to 1.00
March 31, 2010 ........................... N/A 3.00 to 1.00
Section 6.1(c) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
(c) MINIMUM CONSOLIDATED INTEREST COVERAGE RATIO. Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive
fiscal quarters of Holdings (or, if less, the number of full fiscal
quarters subsequent to the Closing Date) ending with any fiscal quarter
set forth below to be less than the ratio set forth below in "Column A"
opposite such fiscal quarter:
COLUMN "A" COLUMN "B"
MINIMUM MINIMUM
CONSOLIDATED CONSOLIDATED
INTEREST INTEREST
FISCAL QUARTER COVERAGE RATIO COVERAGE RATIO
------------------------------------------ -------------- --------------
March 31, 2007 ............................. .32 to 1.00 1.25 to 1.00
June 30, 2007 .............................. .49 to 1.00 1.50 to 1.00
September 30, 2007 ......................... .66 to 1.00 1.75 to 1.00
December 31, 2007 .......................... 1.20 to 1.00 2.00 to 1.00
March 31, 2008 ............................. 1.39 to 1.00 2.50 to 1.00
June 30, 2008 .............................. 1.71 to 1.00 2.75 to 1.00
September 30, 2008 ......................... 2.25 to 1.00 2.75 to 1.00
0
XXXXXX "X" XXXXXX "X"
MINIMUM MINIMUM
CONSOLIDATED CONSOLIDATED
INTEREST INTEREST
FISCAL QUARTER COVERAGE RATIO COVERAGE RATIO
------------------------------------------ -------------- --------------
December 31, 2008 .......................... 2.59 to 1.00 3.00 to 1.00
March 31, 2009 ............................. N/A 3.00 to 1.00
June 30, 2009 .............................. N/A 3.00 to 1.00
September 30, 2009 ......................... N/A 3.00 to 1.00
December 31, 2009 .......................... N/A 3.00 to 1.00
March 31, 2010 ............................. N/A 3.00 to 1.00
Section 2. CONDITIONS PRECEDENT. This Amendment 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 Administrative Agent shall have
received each of the following, in form and substance satisfactory to the
Administrative Agent:
(i) this Amendment, duly executed by the Borrower and
Holdings, on behalf of itself and each other Loan Party, and the
Administrative Agent;
(ii) an Acknowledgment and Consent to Amendment, in the
form set forth hereto as EXHIBIT A, duly executed by each of the
Required Lenders; and
(iii) such additional documentation as the Administrative
Agent may reasonably require.
(b) PAYMENT OF COSTS AND EXPENSES. The Administrative Agent and
the Lenders shall have received payment of all fees, costs and expenses,
including, without limitation, all costs and expenses of the Administrative
Agent and the Lenders (including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent) in connection
with this Amendment, the Credit Agreement and each other Loan Document.
(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 the Administrative Agent and each Lender, with respect to all Loan
Parties, as follows:
(a) After giving effect to this Amendment, 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 Amendment have been duly authorized by all requisite corporate
or limited liability company
4
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 Amendment, no Default or Event of
Default has occurred and is continuing as of the date hereof.
Section 4. COSTS AND EXPENSES. As provided in Section 9.5 of the Credit
Agreement, the Borrower agrees to reimburse the Administrative Agent for all
reasonable out-of-pocket expenses incurred by the Administrative Agent in
connection with this Amendment, including the reasonable fees, charges and
disbursements of counsel or other advisors for advice, assistance or other
representation in connection with this Amendment.
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 amended and as waived hereby with
respect to the certain requirements outlined above, and this Amendment and the
Credit Agreement shall be read together and construed as a single instrument.
(b) Except as expressly amended 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 Amendment
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 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 Amendment 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
Administrative Agent of a facsimile copy of an executed signature page hereof
shall constitute receipt by the Administrative Agents of an executed counterpart
of this Amendment.
Section 7. GOVERNING LAW. This Amendment 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.
5
Section 8. HEADINGS. Section headings contained in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment 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 AMENDMENT
OR ANY OTHER LOAN DOCUMENT.
[SIGNATURE PAGES FOLLOW]
6
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers and members thereunto duly authorized, on
the date indicated below.
NATIONAL COAL CORP.
AS HOLDINGS
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: CFO
NATIONAL COAL CORPORATION
AS THE BORROWER
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: CFO
7
GUGGENHEIM CORPORATE FUNDING, LLC,
AS ADMINISTRATIVE AGENT
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
8
ACKNOWLEDGEMENT AND CONSENT TO AMENDMENT
Dated as of March 30, 2007
To: GUGGENHEIM CORPORATE FUNDING, LLC, as Administrative Agent
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Managing Director/Xxxx Xxxxxxx
RE: NATIONAL COAL
Reference is made to 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 Delaware
corporation ("HOLDINGS"), NATIONAL COAL CORPORATION, a Delaware limited
liability company (the "BORROWER"), LENDERS party thereto from time to time, and
GUGGENHEIM CORPORATE FUNDING, LLC, as administrative agent (in such capacity,
the "ADMINISTRATIVE AGENT") and as collateral agent for the Lenders. Capitalized
terms used herein but not defined herein are used as defined in the Credit
Agreement as amended.
Holdings and the Borrower have requested that the Required Lenders
consent to an amendment to the Credit Agreement on the terms described in the
Amendment and Consent (the "AMENDMENT"), the form of which is attached hereto.
Pursuant to Section 9.1 of the Credit Agreement, the undersigned Lender
hereby consents to the terms of the Amendment and authorizes the Administrative
Agent to execute and deliver the Amendment on its behalf.
[Signature Page follows]
9
Very truly yours,
MIDLAND NATIONAL LIFE INSURANCE COMPANY
By: Guggenheim Partners Advisory Company
as Agent
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
NORTH AMERICAN COMPANY FOR LIFE AND
HEALTH INSURANCE
By: Guggenheim Partners Advisory Company
as Agent
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
10
