EXHIBIT 10.5
[FORM OF]
AMENDMENT NUMBER ONE TO
SECURED PROMISSORY NOTE
THIS AMENDMENT NUMBER ONE TO SECURED PROMISSORY NOTE (this "AMENDMENT") is made
and entered into as of the [12th] day of August, 2005, by and between National
Coal Corporation, a Tennessee corporation (the "BORROWER"), and [Crestview
Capital Master, LLC] ("HOLDER").
RECITALS
A. The Company has issued in favor of Holder a Senior Secured
Promissory Note, dated as of March 10, 2005, in the original principal amount of
[Two Million Sixty-Four Thousand Ninety Dollars and Thirty-Seven Cents]
([$2,064,090.37]) (the "SECURED NOTE").
B. The Borrower and Holder each desire to amend the Secured Note
to change the Maturity Date as provided herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Holder hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein and not defined
herein shall have the meanings given such terms in the Secured Note. "Purchase
Agreement" as used in the Secured Note shall mean that certain Note and Warrant
Purchase Agreement dated as of March 10, 2005 (together with all schedules and
exhibits thereto, the "Purchase Agreement").
2. MATURITY DATE. The Secured Note is hereby amended to change
the definition of "Maturity Date" therein to mean March 31, 2006.
3. PENALTIES
(a) Notwithstanding the extension of the Maturity Date
pursuant to SECTION 2 hereof, if all payments of principal, accrued but unpaid
interest and all other amounts payable in respect to the Secured Note are not
paid to Holder on or before December 1, 2005, Borrower agrees to pay to Holder
an amount equal to three percent (3%) of the outstanding principal on such date
as a penalty, with such penalty to be paid on or before December 15, 2005.
(b) Notwithstanding the extension of the Maturity Date
pursuant to SECTION 2 hereof, and in addition to any penalty incurred pursuant
to SECTION 3(A), if all payments of principal, accrued but unpaid interest and
all other amounts payable in
respect to the Secured Note are not paid to Holder on or before January 16,
2005, Borrower agrees to pay to Holder an amount equal to three (3%) of the
outstanding principal on such date as a penalty, with such penalty to be paid on
or before January 30, 2006.
4. MISCELLANEOUS. Except as expressly set forth in this
Amendment, all of the terms of the Secured Note shall remain in full force and
effect. All references in the Secured Note to "Secured Note", "hereunder",
"hereof", or words of like import referring to the Secured Note shall mean and
be a reference to the Secured Note as and to the extent it is amended by this
Amendment and any amendments to the Purchase Agreement. All references to the
Secured Note in the Purchase Agreement, the Security Agreement and the Parent
Guaranty executed as of March 10, 2005 in connection with the Secured Note,
shall mean and be a reference to the Secured Note as and to the extent it is
amended by this Amendment and by any amendments to the Purchase Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment, or
have caused this Amendment to be executed by their duly authorized officers, as
of the day and year first above written.
"BORROWER"
National Coal Corporation, a Tennessee corporation
By:
----------------------------
Xxxx X. Xxxxxx
Title: Chief Financial Officer
"HOLDER"
[Crestview Capital Master, LLC]
By: ____________________________________
Name: ________________________
Title: ________________________
