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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.
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(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 i
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