EXHIBIT 10.4
WAIVER AND AMENDMENT NO. 3
THIS WAIVER AND
AMENDMENT NO. 3, dated as of October
19, 2007 (this
"WAIVER AND AMENDMENT"), to the CREDIT AGREEMENT,
dated as of October
12, 2006
(as amended by the
Amendment dated March 30, 2007 and Amendment No. 2 and
Limited Waiver dated
August 16, 2007, 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 have requested that the
Administrative Agent
and the Lenders waive
certain provisions of the Credit
Agreement;
WHEREAS, Holdings and
the Borrower desire to amend certain provisions
of the Credit Agreement; and
WHEREAS, the Lenders
and the Administrative Agent have agreed to waive
certain provisions of
the Credit Agreement and amend certain provisions of the
Credit Agreement,
in each case,
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),
the
Administrative Agent and each Lender hereby:
(a) waive the Fee set forth in Section 2.9(f) of the Credit
Agreement in respect of the December 31, 2007 Target Date;
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(b) waive compliance with Section 6.1(a) of the Credit
Agreement in respect of each of the fiscal quarters ending September
30, 2007 and December 31, 2007; and
(c) waive the
registration and
processing fee of
$3,500 set
forth in Section 9.6(e) of the Credit Agreement solely with respect
to
each Assignment
and Acceptance delivered on or before the
Effective
Date pursuant to Section 3(d) hereof.
Section 2. AMENDMENT.
As of the Effective
Date, the Administrative
Agent and each Lender hereby consent to the following
amendments to the
Credit
Agreement:
(a) Section 1.1 of the Credit Agreement is hereby amended by
inserting the following defined terms in the appropriate place so
as to
preserve the alphabetical order of the definitions in such
Section:
"ACCELERATING LENDERS" as defined in Section 9.1.
"ACCELERATION" as defined in Section 9.1.
"ACCELERATION NOTICE" as defined in Section 9.1.
"ACCELERATION NOTICE LENDERS" as defined in Section 9.1.
"ACCELERATION PURCHASE NOTICE" as defined in Section 9.1.
"ACQUISITION": the
acquisition of Mann Steel Products, Inc.,
an Alabama corporation, expected to be consummated on or
about October
19,
2007.
"AGREED ACCELERATION NOTICE" as defined in Section 9.1.
"AGREED REMEDY NOTICE" as defined in Section 9.1.
"GCF" as defined in Section 8.9.
"KEY DEFAULT" as defined in Section 7.
"LENDER FEE LETTER"
means the letter dated
October 19, 2007,
addressed to Holdings
and Borrower with
respect to certain fees to be
paid from time to time to Big Bend 38 Investments L.P., J-K Navigator
Fund, L.P.
and Steelhead Offshore Capital, LP or any of their
respective successors or assigns.
"NON-ACCELERATING LENDER" as defined in Section 9.1.
"NON-REMEDYING LENDER" as defined in Section 9.1.
"REMEDIES" as defined in Section 9.1.
"REMEDYING LENDERS" as defined in Section 9.1.
"REMEDY NOTICE" as defined in Section 9.1.
"REMEDY NOTICE LENDERS" as defined in Section 9.1.
"REMEDY PURCHASE NOTICE" as defined in Section 9.1.
"SPECIAL ACCELERATION INSTRUCTION" as defined in Section 9.1.
"SPECIAL REMEDY INSTRUCTION" as defined in Section 9.1.
"THIRD AMENDMENT"
means the Waiver and
Amendment No. 3 dated
October 19, 2007 among Holdings, Company, and Administrative
Agent.
"THIRD AMENDMENT EFFECTIVE DATE": means October 19, 2007.
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"UNRESTRICTED SUBSIDIARIES": means: (i) NCC Corp., an
Alabama
corporation and
wholly-owned
subsidiary
of Holdings, and (ii) the
subsidiaries of NCC Corp. acquired pursuant to that certain
Purchase
Agreement, dated as of
June 18, 2007,
as amended to date;
PROVIDED,
that such entities constitute "Unrestricted Subsidiaries" as
defined in
the Senior Secured
Indenture.
To the extent NCC
Corp. or any of
its
subsidiaries no longer
constitute an "Unrestricted Subsidiary" under
the Senior Secured Indenture, each such Unrestricted
Subsidiary shall
no longer
be an "Unrestricted Subsidiary" hereunder, shall
automatically be
designated as a Subsidiary of Holdings hereunder and
shall be joined to this Agreement and the other Loan Documents
pursuant
to Section 5.10(c).
"WARRANT" means each
of the warrants,
substantially
in the
form of Exhibit A, that may be issued by Holdings to each of the
Warrantholders pursuant to the Lender Fee Letter.
"WARRANTHOLDER" means
each of the Lenders party to the Lender
Fee Letter and their respective successors and assigns.
(b) Section 1.1 of the Credit Agreement is hereby amended by
inserting the following definitions in lieu thereof:
"ADMINISTRATIVE AGENT"
as defined in the preamble hereto and
any successor
administrative agent pursuant to Section 8.9.
"LOAN DOCUMENTS": this
Agreement, the Security Documents, the
Fee Letter, the Lender
Fee Letter, the
Warrants (if any), any Term
Notes and each other agreement or document executed by a Loan Party
and
delivered to the Administrative Agent or any Lender in connection
with
or pursuant to any of the foregoing.
"REQUIRED LENDERS": at
any time, the holders of more than 50%
of the sum of the aggregate unpaid principal amount of the Term
Loans
then outstanding.
"SUBSIDIARY": as to
any Person, a
corporation,
partnership,
limited liability
company or other
entity of which shares of stock or
other ownership
interests having ordinary voting power (other than
stock or such other
ownership interests having such power only by
reason of the
happening of a
contingency) to elect
a majority of the
board of directors or other managers of such corporation, partnership
or other entity are at the time owned, or the management of which is
otherwise controlled,
directly or indirectly through one or more
intermediaries,
or both, by such
Person. Unless
otherwise
qualified,
all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement
shall refer
to a Subsidiary or Subsidiaries of the Borrower. An
Unrestricted
Subsidiary shall not be considered a Subsidiary of either
the Borrower or Holdings unless such Unrestricted Subsidiary no longer
constitutes an
"Unrestricted
Subsidiary"
under the Senior Secured
Indenture and
in such event, such Unrestricted Subsidiary shall
automatically be
designated as a Subsidiary of Holdings hereunder and
shall be joined to this Agreement and the other Loan Documents
pursuant
to Section 5.10(c).
"SUBSIDIARY
GUARANTOR": each Subsidiary of Holdings other than
any Excluded Foreign Subsidiary and the Unrestricted
Subsidiaries.
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(c) Section 1.1 of the Credit Agreement is hereby amended by
replacing
"Administrative Agent"
with "Required Lenders" in each
instance in
the definition of "Consolidated Leverage Ratio" and
"Permitted Acquisition".
(d) Section 2.4(f) of
the Credit Agreement
is hereby amended
and restated in its entirety to read as follows:
(f) FEES. The Borrower agrees to pay the fees payable
to the Administrative Agent for acting in such capacity in the
amounts and
on the dates set forth in the Fee Letter;
provided, however, the
fees set forth in the Fee Letter shall
not be increased
without the
consent of
Required Lenders.
Holdings and the Borrower agree to pay the fees payable to the
Lenders in accordance with the Lender Fee Letter.
(e) Section 2.6(b) of
the Credit Agreement
is hereby amended
and restated in its entirety to read as follows:
(b) Unless
the Required Lenders shall otherwise
agree, if on any date
Holdings, the Borrower
or any of their
respective
Subsidiaries shall
receive Net Cash Proceeds from
any Asset Sale,
Purchase Price Refund or Recovery Event then,
on the date of receipt by Holdings, the Borrower or any of
their respective
Subsidiaries of such Net Cash Proceeds, the
Term Loans shall be
prepaid by an amount
equal to the amount
of such Net Cash
Proceeds, as set forth
in Section
2.12(e).
The provisions of this
Section do not constitute a consent to
the
consummation
of any Disposition not
permitted by Section
6.5.
(f) Section 2.12(e) of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
(e)
(A) after the occurrence and during the
continuance of an
Event of Default
specified in Section 7(a)
or Section
7(j), (B) after the occurrence and during the
continuance of an
Event of Default
specified in Section 7(i)
with respect to a
material portion
of the Collateral, (C)
after the occurrence
and during the
continuance of any other
Event of Default not
specified in subclause
(A) or (B) above
and the acceleration of the Obligations pursuant to Section 7
or (D) with respect to any mandatory prepayments pursuant to
Section 2.6,
in each case,
all payments in respect of the
Obligations and
all proceeds of the Collateral shall be
applied against the Obligations in the following order:
(i) FIRST, to pay incurred and unpaid fees, expenses
and indemnities
of the Administrative Agent under the Loan
Documents;
(ii) SECOND,
to pay incurred and unpaid fees,
expenses and
indemnities
of the Lenders under the Loan
Documents;
(iii) THIRD, to pay
interest then due and payable in
respect of the Term Loans;
(iv) FOURTH, to the prepayment of the Term Loans then
outstanding; and
(v) FIFTH, to pay all other Obligations.
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If sufficient funds
are not available to fund all payments to
be made in respect of any of the Obligations described in any of the
foregoing clauses (i)
through (v), the
available funds being
applied
with respect to any such Obligation shall be allocated to the
payment
of such Obligations ratably, based on the proportion of the
Administrative
Agent's, Lender's or
other Secured Party's interest in
the aggregate
outstanding
Obligations described
in such clause.
The
order of priority set forth in clauses (ii) through (v) of this
Section
2.12(e) may at any
time and from time to time be changed by the
agreement of the Lenders in the Term Loan Facility without
necessity of
notice to or consent of or approval by the Borrower, any other Loan
Party, any Secured Party that is not a Lender or any other
Person.
(g) Section
2.18(b)(vi)
of the Credit
Agreement is hereby
amended and restated in its entirety to read as follows:
(vi) the replacement
financial institution,
if not
already a Lender,
shall be reasonably satisfactory to the
Required Lenders
(h) Section 5.9 of the Credit Agreement is hereby amended
and
restated in its entirety to read as follows:
5.9 [Reserved].
(i) Section 5.10(c) of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
(c) With respect to any new Subsidiary (other than an
Excluded Foreign
Subsidiary or an
Unrestricted
Subsidiary)
created or acquired
after the Closing Date
(which, for the
purposes of
this paragraph, shall include any existing
Subsidiary that ceases to be an Excluded Foreign Subsidiary or
an Unrestricted
Subsidiary which ceases to be an Unrestricted
Subsidiary) by
Holdings, the Borrower or any of their
respective
Subsidiaries, promptly
(i) execute and deliver to
the Administrative
Agent such amendments to the Security
Agreement as the
Administrative
Agent or Required Lenders
deems necessary or
advisable to grant to
the Administrative
Agent, for the
benefit of the Secured
Parties, a perfected
first priority
security interest in the Capital Stock of such
new Subsidiary that is owned by Holdings, the Borrower or any
of their respective Subsidiaries, (ii) deliver to the
Administrative
Agent the certificates representing such
Capital Stock,
together with undated stock powers, in blank,
executed and
delivered by a duly authorized officer of
Holdings, the Borrower or such Subsidiary, as the case may be,
(iii) cause such new
Subsidiary (A) to
become a party to the
Security Agreement,
(B) to comply with
Section 5.10(a) and
Section 5.10(b)
and (C) to take such
actions necessary or
advisable to grant to the Administrative Agent for the benefit
of the Secured Parties
a perfected first
priority security
interest in the Collateral described in the Security Agreement
with respect
to such new Subsidiary, including, without
limitation, the filing
of Uniform Commercial
Code financing
statements in such
jurisdictions
as may be required by the
Security Agreement
or by law or as may be
requested by the
Administrative
Agent or Required Lenders, and (iv) if
requested by the
Administrative
Agent or Required
Lenders,
deliver to the Administrative Agent legal opinions relating to
the matters described
above, which opinions
shall be in form
and substance, and
from counsel,
reasonably
satisfactory to
the Administrative Agent and Required Lenders.
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(j) Section 5 is hereby amended by adding a new Section 5.14:
5.14
POST-THIRD AMENDMENT
EFFECTIVE
DATE
REQUIREMENTS.
(a) Within 15 days of the Third Amendment Effective
Date, the Lenders
shall have received a reliance letter with
respect to the legal
opinion delivered
on the Closing
Date
pursuant to
Section 4.1(i) from Trenam, Kemker, Scharf,
Barkin, Frye,
O'Neill & Mullis, Professional Association,
special counsel to the
Loan Parties,
in form and
substance
reasonably satisfactory to the Required Lenders.
(b) Borrower
agrees to promptly
provide to Lenders
such additional
information
regarding
Borrower and the
Collateral as the
Lenders may from time to time reasonably
request.
(k) Section 6.4(c) of
the Credit Agreement
is hereby amended
and restated in its entirety to read as follows:
(c) [Reserved].
(l) Section 6.5(d) of
the Credit Agreement
is hereby amended
and restated in its entirety to read as follows:
(d) the sale
or issuance of (i) any Subsidiary's
Capital Stock to
Holdings, the Borrower or any Subsidiary
Guarantor, or (ii) the
Capital Stock of Holdings in an amount
not to exceed
$12,000,000; provided
the proceeds thereof are
used to consummate the
Acquisition,
including the
financing
thereof, or (iii) warrants to purchase up to 250,000 shares of
the Capital
Stock of Holdings issued to NCC Corp. in
connection with the
capitalization thereof
and any shares of
Capital Stock of Holdings issued or issuable upon the exercise
thereof;
(m) Section 6.6(b) of
the Credit Agreement
is hereby amended
and restated in its entirety to read as follows:
(b) [Reserved].
(n) Section 6.8(f) of
the Credit Agreement
is hereby amended
and restated in its entirety to read as follows:
(f) [Reserved].
(o) Section 6.8 of the Credit Agreement is hereby amended by
deleting "and" at the
end of Section 6.8(g),
by replacing the
period
after Section 6.8(h)
with "; and" and by adding the following as a new
clause (i):
(i) the following Investments by Holdings in NCC
Corp. (i) an
Investment
in NCC Corp.
in an amount not to
exceed $12,000,000
from the proceeds of the Disposition
permitted under Section 6.5(d)(ii), and (ii) the issuance of
the warrant to NCC Corp. to purchase up to 250,000
shares of
Capital Stock of Holdings described in Section 6.5(d)(iii).
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(p) Section 6.9(c) of
the Credit Agreement
is hereby amended
and restated in its entirety to read as follows:
(c) amend its
certificate of
incorporation
in any
manner determined by the Required Lenders to be adverse to the
Lenders.
(q) Section 6.16 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
6.16 LIMITATION ON HEDGE AGREEMENTS. Enter into any
Hedge Agreement other
than Hedge Agreements
entered into in
the ordinary
course of business, and not for speculative
purposes, to protect
against changes in prices of commodities
used by the Loan Parties in the ordinary course of business.
(r) The last paragraph of Section 7 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
then, and in any
such event (and subject to the
Intercreditor Agreement),
(A) if such event is an Event of Default specified in
clause (i) or (ii) of paragraph (f) above, automatically the Term
Loans
hereunder (with accrued interest thereon) and all other amounts
owing
under this Agreement
and the other Loan
Documents shall
immediately
become due and payable;
(B) if such event is an Event of Default specified in
paragraph (a) above arising out of the failure to pay any principal
of,
or interest
on, any Term Loan or
the failure to pay
amounts due and
payable under the
Lender Fee Letter (a
"KEY DEFAULT"),
upon (i) the
request of
the Required Lenders or (ii) receipt of an Agreed
Acceleration Notice or a Special Acceleration Instruction pursuant to
Section 9.1, the Administrative Agent shall, by notice to the
Borrower,
declare the Term Loans
hereunder (with accrued interest thereon) and
all other amounts
owing under this Agreement and the other Loan
Documents to be due
and payable forthwith,
whereupon the same shall
immediately become due and payable; or
(C) if such event is any other Event of Default, upon
the request of the Required Lenders, the Administrative Agent
shall, by
notice to the Borrower, declare the Term Loans hereunder
(with accrued
interest thereon) and
all other amounts owing under this Agreement and
the other Loan Documents to be due and payable forthwith, whereupon
the
same shall immediately become due and payable.
Notwithstanding
anything to
the contrary in the Loan Documents
(including Section 6.2 of the Security Agreement), and subject to the
Intercreditor
Agreement, if such
event is a Key Default, upon (i) the
request of the
Required Lenders or
(ii) receipt of an
Agreed Remedy
Notice or a Special
Remedy Instruction
pursuant to Section
9.1, the
Administrative Agent shall, by notice to the Borrower, exercise any
and
all rights
and remedies available at law or in equity, including
without limitation,
all rights and remedies under the Security
Documents, to collect the amounts due.
(s) Section 8.1 of the Credit Agreement is hereby amended
and
restated in its entirety to read as follows:
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8.1 APPOINTMENT.
Each Lender hereby
designates and
appoints the Administrative Agent as the agent of such
Lender
under this Agreement
and the other Loan
Documents, and
each
Lender authorizes the Administrative Agent, in such capacity,
to take such action on its behalf under the provisions of this
Agreement and the
other Loan Documents
and to exercise
such
powers and perform such duties as are expressly delegated to
the Administrative
Agent by the terms of
this Agreement and
the other Loan
Documents, together
with such other powers as
are reasonably
incidental
thereto.
Notwithstanding
any
provision to the contrary elsewhere in this Agreement, the
Administrative
Agent shall
not have any duties or
responsibilities,
except those expressly set forth herein, or
any fiduciary
relationship
with any Lender,
and no implied
covenants,
functions, responsibilities, duties, obligations or
liabilities shall be
read into this
Agreement or any other
Loan Document or otherwise exist against the Administrative
Agent.
(t) Section 8.9 of the Credit Agreement is hereby amended
and
restated in its entirety to read as follows:
8.9 SUCCESSOR
ADMINISTRATIVE
AGENT.
Guggenheim
Corporate
Funding, LLC
("GCF")
in its capacity as
Administrative Agent
may resign upon 30
days' notice to
the
Lenders and the Borrower; provided that the effective date
of
such resignation
is no earlier than
January 15,
2008. Any
successor Administrative Agent to GCF may resign upon 60 days'
notice to the Lenders and the Borrower. If the Administrative
Agent shall
resign as Administrative Agent under this
Agreement and the other Loan Documents in accordance with this
Section 8.9, then (i) if GCF is the resigning Administrative
Agent, the
Borrower shall pay to GCF the amount of
fees due
and owing under
the Fee Letter; provided such fees do not
exceed $7,500 in any
fiscal quarter (or the
pro rata portion
thereof, as
applicable) and (ii)
the Required Lenders
shall
appoint a successor
agent for the Lenders,
which successor
agent shall (unless an
Event of Default under Section 7(a) or
Section 7(f) with respect to the Borrower shall have occurred
and be continuing or unless such successor agent is a Lender)
be subject to approval by the Borrower (which approval shall
not be unreasonably
withheld or delayed), whereupon such
successor agent shall succeed to the rights, powers and duties
of the Administrative
Agent, and the term "Administrative
Agent" shall mean such
successor agent
effective upon such
appointment and
approval, and the former Administrative
Agent's rights,
powers and duties as Administrative Agent
shall be terminated,
without any other or further act or deed
on the part of such former Administrative Agent or any of
the
parties to this Agreement or any holders of the Term Loans. If
no successor agent has accepted appointment as Administrative
Agent by the
date that is 10 days following a retiring
Administrative Agent's
notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless
thereupon become
effective, and the
Lenders shall assume and
perform all
of the duties of the Administrative Agent
hereunder until such
time, if any, as the
Required Lenders
appoint a successor
agent as provided
for above.
After any
retiring
Administrative Agent's resignation as Administrative
Agent, the
provisions
of this Section 8 shall inure to its
benefit as to any
actions taken or
omitted to be taken by it
while it was the Administrative Agent under this Agreement and
the other Loan Documents. Notwithstanding anything herein in
the contrary, the
Required Lenders may, in consultation with
Borrower, replace the Administrative Agent upon three Business
Days' written notice to Administrative Agent.
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(u) Section 8.10 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
8.10 AMENDMENTS; NOTICES. Notwithstanding anything to
the contrary
herein
or in any Security Document,
Administrative Agent
shall not enter
into or consent to
any
amendment,
modification,
termination or
waiver of any
provision contained
in any Security Document (except as
otherwise expressly
permitted or required pursuant to the
terms of this Agreement or the applicable Security Document)
without the prior consent of Required Lenders (or, if required
pursuant to Section
9.1, all Lenders). The Administrative
Agent is hereby
authorized by each of
the Lenders to
effect
any release of Liens or guarantee obligations contemplated by
Section 5.1
of the Intercreditor Agreement. All notices
delivered to or by Administrative Agent hereunder or under the
other Loan Documents
shall promptly be
delivered to Required
Lenders in accordance with Section 9.2.
(v) The first paragraph of Section 9.1 of the Credit Agreement
is hereby amended by replacing the following phrase "(upon the written
consent of the Required Lenders)" with "(with the written
instruction
of the Required Lenders)".
(w) Section 9.1(i) of
the Credit Agreement
is hereby amended
by replacing
the following phrase "without the consent of the
Administrative Agent
and each Lender directly affected thereby" with
"without the consent of each Lender directly affected thereby".
(x) Section 9.1(ii) of the Credit Agreement is hereby amended
by replacing
the following phrase "without the consent of the
Administrative Agent
and all Lenders" with "without the consent of all
Lenders".
(y) Section 9.1(iii) of the Credit Agreement is hereby amended
by replacing the following phrase "without the written consent of
the
Administrative Agent and all Lenders" with "without the written
consent
of all Lenders".
(z) Section 9.1(v) of
the Credit Agreement
is hereby amended
by replacing
the following phrase "without the consent of the
Administrative Agent
and each Lender directly affected thereby" with
"without the consent of each Lender directly affected thereby".
(aa) The last paragraph of Section 9.1 of the Credit Agreement
is hereby amended and restated in its entirety to read as
follows:
If, in connection with any proposed amendment,
modification, waiver,
or termination
(a "PROPOSED
CHANGE")
requiring the consent of the Required Lenders or all affected
Lenders, the
consent of holders of
50% or more of the sum of
the aggregate unpaid
principal amount of
the Term Loans then
outstanding is obtained but the consent of other Lenders whose
consent is
required is not
obtained (any such Lender whose
consent is not obtained as described in this Section 9.1 being
referred to as a "NON-CONSENTING LENDER"), then, an Eligible
Assignee shall
have the right to purchase from such
Non-Consenting Lender,
and such Non-Consenting Lender agrees
that it shall sell and assign to such Eligible Assignee, all
of the applicable Term Loans of such Non-Consenting Lender for
an amount equal to the
principal balance of all applicable
Term Loans held by the
Non-Consenting Lender
and all accrued
interest and fees with
respect thereto through the date of
sale; PROVIDED, HOWEVER, that such purchase and sale shall not
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be effective
until the Administrative Agent shall have
received from such
Eligible Assignee an
executed
Assignment
and Acceptance whereby
such Eligible Assignee
shall agree to
be bound by the terms hereof.
After the occurrence and during the continuance of a
Key Default,
if the holders of 50% of the sum of
aggregate
unpaid principal
amount of the Term
Loans then
outstanding
(the
"ACCELERATING LENDERS") wish to instruct the
Administrative Agent to declare the Term Loans hereunder (with
accrued interest
thereon) and all other
amounts owing
under
this Agreement
and the other
Loan Documents to be due and
payable forthwith
(an "ACCELERATION"), such Accelerating
Lenders may send a written notice (an "ACCELERATION NOTICE")
to the other Lenders (the "ACCELERATION NOTICE LENDERS") of
their proposal to instruct the Administrative Agent to cause
an Acceleration.
Within five days after the Acceleration
Notice is given, the
Acceleration
Notice Lenders (or any
of
them) may then take either the following actions: (i) send a
notice to the Accelerating Lenders and to the Administrative
Agent indicating
their
agreement with the Accelerating
Lenders' proposal and instructing the Administrative Agent to
cause an Acceleration (the "AGREED ACCELERATION NOTICE"); or
(ii) send a notice
to the Accelerating Lenders and to the
Administrative Agent
indicating
that they do NOT agree
with
the Accelerating
Lenders' proposal and offering to
purchase
the Accelerating
Lenders' Term Loans in
accordance with this
Section 9.1 (the "ACCELERATION PURCHASE NOTICE"). If none of
the Acceleration
Notice Lenders sends an Agreed Acceleration
Notice or an
Acceleration Purchase
Notice within five days
after the Acceleration Notice is given, the Acceleration
Notice Lenders
shall be deemed to have given an Agreed
Acceleration Notice and the Accelerating Lenders (without the
requirement of
affirmative
consent from any Acceleration
Notice Lender)
shall
be entitled to instruct the
Administrative Agent
to cause an
Acceleration
(a "SPECIAL
ACCELERATION
INSTRUCTION"). In
the event that an Agreed
Acceleration Notice
and an Acceleration
Purchase Notice
are
timely given by
different Acceleration Notice Lenders in
response to the same
Acceleration
Notice, then the Agreed
Acceleration Notice shall govern.
Any Acceleration
Notice
Lender
who sends an
Acceleration Purchase Notice as contemplated by clause (ii) in
the paragraph
above
is referred to herein as a
"NON-ACCELERATING LENDER"). Within five days after an
Acceleration Purchase
Notice is given and
provided that the
Accelerating Lenders
have not revoked their Acceleration
Notice or the Event of Default upon which such Acceleration
Notice is based has not been cured or waived on or before such
fifth day, a Non-Accelerating Lender shall purchase (or
shall
arrange for an
Eligible Assignee to purchase), and such
Accelerating Lender
agrees that it shall sell and assign
to
such Non-Accelerating Lender or Eligible Assignee, as the case
may be, all of the applicable Term Loans of such Accelerating
Lender for an amount
equal to the
principal balance of all
applicable Term
Loans held by the Accelerating Lender all
accrued interest
and fees with respect
thereto through the
date of sale; PROVIDED, HOWEVER, that such purchase and sale
shall not be effective
until the
Administrative Agent
shall
have received from
such Non-Accelerating
Lender or Eligible
Assignee, as the
case may be,
an executed Assignment and
Acceptance whereby
such Non-Accelerating
Lender or Eligible
Assignee, as the case
may be, shall agree to
be bound by the
terms hereof;
PROVIDED
FURTHER
that if such executed
Assignment and
Acceptance
is not delivered to the
Administrative Agent
within five days after
an Acceleration
Purchase Notice is
given, then the
Non-Accelerating
Lender
shall be deemed to have given an Agreed Acceleration Notice
and the Accelerating
Lenders shall be entitled to give a
Special Acceleration Instruction to the Administrative Agent.
- 10 -
<PAGE>
After the occurrence and during the continuance of a
Key Default,
if the holders of 50% of the sum of
aggregate
unpaid principal
amount of the Term
Loans then
outstanding
(the "REMEDYING
LENDERS") wish to instruct the Administrative
Agent to exercise any and all rights and remedies available at
law or in equity, including without limitation, all rights and
remedies under the Security Documents, to collect the amounts
due ("REMEDIES"), such Remedying Lenders may (either following
an acceleration
pursuant to clause (B)
of the last paragraph
of Section 7 or concurrently with delivery of an
Acceleration
Notice) send a written notice (a "REMEDY NOTICE") to the other
Lenders (the "REMEDY
NOTICE LENDERS") of their proposal to
instruct the Administrative Agent to exercise Remedies. Within
five days after the Remedy Notice is given, the Remedy Notice
Lender (or any of
them) may then take
either the
following
actions: (i) send a notice to the Remedying Lenders and to the
Administrative Agent
indicating
their agreement with the
Remedying Lenders' proposal and instructing the Administrative
Agent to exercise
Remedies (the "AGREED REMEDY NOTICE"); or
(ii) send a notice to the Remedying Lenders and to the
Administrative Agent
indicating
that they do NOT agree
with
the Remedying Lenders'
proposal and offering
to purchase the
Remedying Lenders'
Term Loans in accordance with this Section
9.1 (the "REMEDY
PURCHASE NOTICE"). If none of the Remedy
Notice Lenders
sends an Agreed Remedy Notice or a Remedy
Purchase Notice
within five days after
the Remedy Notice
is
given, the Remedy Notice Lenders shall be deemed to have given
an Agreed Remedy Notice and the Remedying Lenders (without the
requirement of
affirmative
consent from any Remedy Notice
Lender) shall be entitled to instruct the Administrative Agent
to
exercise Remedies (a "SPECIAL REMEDY INSTRUCTION"). In the
event that an
Agreed Remedy Notice and a Remedy Purchase
Notice are timely given by different Remedy Notice Lenders in
response to the same
Remedy Notice,
then the Agreed
Remedy
Notice shall govern.
Any Remedy Notice Lender who sends a Remedy Purchase
Notice as contemplated
by clause (ii) in the
paragraph above
is referred to herein
as a "NON-REMEDYING
LENDER"). Within
five days after a Remedy Purchase Notice is given and provided
that the Remedying
Lenders have not revoked their Remedy
Notice or the Event of Default upon which such Remedy
Notice
is based has not been cured or waived on or before such fifth
day, a Non-Remedying
Lender shall purchase
(or shall arrange
for an Eligible
Assignee to
purchase),
and such Remedying
Lender agrees
that
it shall sell and assign to such
Non-Remedying Lender or Eligible Assignee, as the case may be,
all of the applicable Term Loans of such Remedying Lender for
an amount equal to the
principal balance of all applicable
Term Loans held by the Remedying Lender all accrued interest
and fees with respect thereto through the date of sale;
PROVIDED, HOWEVER,
that such purchase and sale shall not be
effective until the
Administrative Agent
shall have received
from such Non-Remedying Lender or Eligible Assignee, as the
case may be, an executed Assignment and Acceptance whereby
such Non-Remedying
Lender or Eligible
Assignee, as the
case
may be, shall agree to be bound by the terms hereof; PROVIDED
FURTHER that if such executed Assignment and Acceptance is not
delivered to the Administrative Agent within five days after a
Remedy Purchase Notice is given, then the Non-Remedying Lender
shall be deemed to have given an Agreed Remedy Notice and the
Remedying Lenders
shall be entitled to give a Special Remedy
Instruction to the Administrative Agent.
- 11 -
<PAGE>
Each Lender agrees
that, in the event
that its Term
Loans are being
purchased by another Lender pursuant to this
Section 9.1,
it shall execute and deliver to the
Administrative Agent
an Assignment and Acceptance to evidence
such sale and purchase and shall deliver to the Administrative
Agent any Term Note (if the assigning Lender's Term Loans are
evidenced by Term Notes) subject to such Assignment and
Acceptance; PROVIDED,
HOWEVER, that the failure of any such
Lender or Eligible
Assignee to execute an Assignment and
Acceptance shall not
render such sale and
purchase (and the
corresponding assignment) invalid.
(bb) Section 9.5(a) of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
(a) to pay or reimburse the Administrative Agent and
each Lender
for all of their
respective
reasonable
out of
pocket costs and
expenses incurred in connection with the
syndication of the
Term Loan Facility
and the development,
preparation and execution of, and any amendment, supplement or
modification to, this
Agreement and the
other Loan Documents
and any other
documents prepared in
connection
herewith or
therewith (including
without limitation the Assignment and
Acceptance of
each Lender dated on or about the Third
Amendment Effective
Date, the Lender Fee Letter and the
Warrants), and the
consummation
and administration of the
transactions
contemplated hereby
and thereby, including,
without limitation,
the reasonable fees and disbursements and
other charges of counsel to the Administrative Agent and each
Lender and the charges of Intralinks,
(cc) Section 9.6(a) of the Credit Agreement is hereby amended
by replacing the following phrase "without the prior written
consent of
the Administrative
Agent and each
Lender" with "without the prior
written consent of each Lender".
(dd) Section 9.6(c) of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
(c) Any Lender (an
"ASSIGNOR") may,
in accordance
with applicable
law and upon written notice to the
Administrative Agent, at any time and from time to time assign
to any Eligible
Assignee or, with the consent of the Required
Lenders and the Borrower (which, in each case, shall not be
unreasonably withheld
or delayed), to a Person that is not an
Eligible Assignee (each, an "ASSIGNEE") all or any part of its
rights and obligations
under this
Agreement pursuant to an
Assignment and
Acceptance,
substantially
in the form of
Exhibit D (an "ASSIGNMENT AND ACCEPTANCE"), executed by such
Assignee and such
Assignor (and, where the consent of the
Required Lenders and the Borrower is required pursuant to the
foregoing
provisions, by
the Required Lenders and the
Borrower) and
delivered to the Required Lenders for its
acceptance and
recording in the
Register; PROVIDED that no
such assignment to an
Assignee (other than
any Lender or any
Affiliate,
Related Fund
or Control Investment Affiliate
thereof) shall be in
an aggregate
principal amount of less
than $1,000,000
(other than in the
case of an assignment
of
all of a Lender's
interests under this Agreement), unless
otherwise agreed by the Required Lenders. Upon such execution,
delivery,
acceptance and
recording,
from and after the
effective date
determined
pursuant to such
Assignment
and
Acceptance, (x)
the Assignee thereunder shall be a party
hereto and, to the
extent provided
in such Assignment and
Acceptance, have
the rights and obligations of a Lender
hereunder with Term
Loans as set forth
therein, and (y)
the
Assignor thereunder
shall, to the extent provided in such
- 12 -
<PAGE>
Assignment and
Acceptance, be
released from its
obligations
under this Agreement
(and, in the case of
an Assignment and
Acceptance
covering all
of an Assignor's rights and
obligations under this Agreement, such Assignor shall cease to
be a party hereto,
except as to Section 2.13, 2.14 and 9.5 in
respect of the
period prior to such effective date). For
purposes of the minimum assignment amounts set forth in this
paragraph, multiple
assignments by two or
more Related Funds
shall be aggregated.
Notwithstanding
any provision of this
Section, the consent of the Borrower shall not be required for
any assignment
that occurs at any time when any Event of
Default shall have occurred and be continuing.
(ee) Section 9.15 of the Credit Agreement is hereby amended by
replacing the
following
phrase
"then
the Borrower and the
Administrative Agent
agree" with "then the
Borrower and the
Required
Lenders agree".
(ff) Section 9.15 of
the Credit Agreement
is hereby further
amended by replacing the following phrase "the Administrative Agent
and
the Required Lenders" with "the Required Lenders".
Section 3. CONDITIONS PRECEDENT. This Waiver and 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 and Required
Lenders shall
have received each of the following, in form and
substance satisfactory to the Required Lenders:
(i) this Waiver and
Amendment, duly
executed by the
Borrower and Holdings, on behalf of itself and each other Loan
Party, the Lenders and the Administrative Agent;
(ii) the Lender Fee Letter, duly executed by each of
Borrower, Holdings and the Lenders.
(iii) a certificate of
the Secretary or an Assistant
Secretary of Holdings and Borrower, dated the Effective Date,
certifying (1) that
there have been no changes since the
Closing Date to (A)
the by-laws (or
equivalent
constituent
document) of Holdings and Borrower, (B) the resolutions of
Holdings' and
Borrower's Board of
Directors (or
equivalent
governing body)
approving and authorizing the execution,
delivery and performance of the Credit Agreement and the other
Loan Documents to which it is a party and (C) the certificate
of incorporation (or equivalent constituent document) of each
Holdings and Borrower;
and (2) the true, correct and complete
copy of the resolutions of such Holdings' and Borrower's Board
of Directors (or
equivalent
governing body) approving and
authorizing the
execution, delivery
and performance of
this
Waiver and Amendment;
(iv) reliance
letters with respect to the legal
opinions delivered
on the Closing
Date pursuant to Section
4.1(i) of the Credit
Agreement from (1) Stubbs Alderton &
Markiles, LLP,
counsel to the Loan
Parties and (2) Charles
Kite, General Counsel of the Loan Parties; and
(v) such additional
documentation
as the Required
Lenders may reasonably require.
- 13 -
<PAGE>
(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 and each Lender (including any Person that
becomes
a Lender on the Third Amendment Effective Date) in connection with
this
Waiver and Amendment,
each of the Assignment and Acceptances dated on
or about the date hereof, the Lender Fee Letter,
the Credit
Agreement
and each other Loan Document.
(c)
REPRESENTATIONS AND WARRANTIES. Each of the
representations and
warranties
contained in Section 4
below shall be
true and correct.
(d) ASSIGNMENT AND ACCEPTANCE. The Administrative Agent shall
have received an
Assignment and
Acceptance
from each of Big Bend
38
Investments L.P.,
J-K Navigator
Fund, L.P. and Steelhead Offshore
Capital, LP, in each case, duly executed by each of the parties
thereto
and appended hereto as Schedule A.
(e) [Reserved.]
(f) CONSUMMATION OF CERTAIN TRANSACTIONS.
(i) All conditions to
the acquisition of
Mann Steel
Products, Inc. (the
"ACQUISITION") set
forth in Article 7 of
the Purchase
Agreement dated June 18, 2007 by and between
Holdings, Mann Steel
Products, Inc., an
Alabama corporation,
and Frank C. Mann,
II and William T. Mann (the "PURCHASE
AGREEMENT") shall have
been satisfied or the
fulfillment of
any such conditions shall have been waived with the consent of
the Required Lenders and the transactions contemplated thereby
shall have been (or contemporaneously with the consummation of
the transactions
contemplated by
Section 3(d) of this Waiver
and Amendment will be) consummated.
(ii) All conditions to the transactions contemplated
by the Subscription
Agreement dated
October 19, 2007 between
Holdings and the investors listed therein (the "SUBSCRIPTION
AGREEMENT") set
forth in Section 7 of the Subscription
Agreement shall have
been satisfied or the fulfillment of any
such conditions shall have been waived with the consent of the
Required Lenders and
the transactions
contemplated
thereby
shall have been (or contemporaneously with the consummation of
the transactions
contemplated by
Section 3(d) of this Waiver
and Amendment will be) consummated.
(iii) The Lenders
shall have received a
certificate
in form and substance
acceptable to the Lenders signed by an
appropriate officer of the Borrower and Holdings certifying to
the fulfillment
of the conditions set forth in Section
3(c)
and 3(f) hereof.
(g) PURCHASE AGREEMENT; LOAN DOCUMENTS.
(i) The Lenders shall have received a fully executed
or conformed copy of
the Purchase Agreement
(including
all
exhibits,
schedules and
side letters thereto) and any
documents executed in connection therewith, and the Purchase
Agreement shall be in
full force and effect and no provision
thereof shall
have been modified or waived in any respect
determined by the Lenders to be material, without the consent
of the Lenders.
- 14 -
<PAGE>
(ii) The Lenders shall
have received a final form of
the Subscription Agreement (including all exhibits, schedules
and side letters thereto) and any documents executed in
connection therewith, and no provision thereof shall have been
modified or waived in any respect determined by the Lenders to
be material, without the consent of the Lenders.
(iii) The Lenders shall have received complete copies
of all of the Loan
Documents (in each
case, including all
exhibits, schedules
and side letters
thereto other than
the
Fee Letter) and such Loan Documents shall be in full force and
effect and shall not been amended, restated, supplemented or
otherwise modified
other than by the
Amendment to the Credit
Agreement dated
March 30, 2007, the Amendment No. 2 and
Limited Waiver to the Credit Agreement dated August 16, 2007
and this Waiver and Amendment.
(h) VOTING AGREEMENT
(i)
Jon E. Nix, Jenco Capital Corporation and Crestview
Capital Master,
LLC shall each have
entered into a Voting
Agreement
dated the date hereof
(the "VOTING
AGREEMENT")
satisfactory
to the
Lenders, in the form set forth hereto as EXHIBIT B.
Section 4.
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 Waiver and Amendment, each of
the representations
and warra
