EXHIBIT 10.1
INSTALLMENT SALE CONTRACT (SECURITY AGREEMENT)
PURCHASER(S): SELLER (DEALER):
NATIONAL COAL CORPORATION ▇▇▇▇▇▇ SUPPLY COMPANY
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ P O BOX 35900
LOUISVILLE, KY 40232-5900
COUNTY: ▇▇▇▇
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Subject to the terms and conditions set forth below and on the following page(s)
hereof, Seller ▇▇▇▇▇ ▇▇▇▇▇ the equipment described below (the "Unit" or "Units")
to Purchaser, and Purchaser (if more than one, jointly and severally), having
been offered both a cash sale price and a time sale price, hereby buys the Units
from Seller on a time sale basis
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NEW (IF USED) DELIVERED
OR FIRST MODEL DESCRIPTION OF UNITS SERIAL # CASH SALE
USED USED PRICE
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(1) NEW D10T Caterpillar TRACK-TYPE TRACTOR RJG00238 878,660.00
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FIRST DESCRIPTION OF ADDITIONAL SECURITY
USED (MAKE, MODEL & SERIAL NUMBER) Sub-Total $ 878,660.00
----------------------------------------- Sales Tax $ 0.00
1. Total Cash Sale
Price $ 878,660.00
Cash Down Pay 0.00
Net Trade-in Allow 0.00
----------------------------------------- 2. Total Down Payment $ 0.00
FIRST DESCRIPTION OF TRADE-IN EQUIPMENT 3. Unpaid Balance of
USED (MAKE, MODEL & SERIAL NUMBER) Cash Prices (1+2) 878,660.00
----------------------------------------- 4. Official Fees
(Specify) $ 350.00
DOC FEES 350.00
5. Physical Damage
Insurance $
----------------------------------------- 6. Principal Balance
Amount Financed)
3+4+5) $ 878,660.00
Trade-in Value 0.00 7. Finance Charge
Less Owing to (___ of a ____) (Time Price
Differential) $ 60,467.30
Net Trade-in Allowance 0.00 8. Time Balance
(Total of Payments)
Location of Units: ▇▇▇▇ COUNTY, KENTUCKY (6+7) $ 939,477.30
Time Sale Balance
(Total of Payment
Price) (2+8) $ 939,477.30
10. Annual Percentage
Rate 5.00%
11. Date FINANCE CHARGE
begins to accrue 7-14-05
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Purchaser hereby sells and conveys to Seller the above described Trade-in
Equipment and warrants it to be free and clear of all claims, liens, security
interests and encumbrances except to the extent shown above.
1. PAYMENT: Purchaser shall pay to Seller, at ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇ or such other location Seller designates in writing, the Time Balance
(item 8 above) as follows [check (a) or (b)]:
___ (a) in 30 equal monthly installments of $0.00 each, with the first
installment due on 8/14/2005, and the balance of the installments due on the
like day of each month thereafter, (except no payments shall be due during the
month(s) of (_____ n/_____)), until the entire indebtedness has been paid; or
___ (b) in accordance with the Payment Schedule attached to this Contract.
(Provisions of section 1 continued on next page.)
SEE FOLLOWING PAGES(S) FOR ADDITIONAL TERMS AND CONDITIONS WHICH ARE A PART OF
THIS CONTRACT.
LIABILITY INSURANCE COVERAGE FOR BODILY INJURY AND PROPERTY DAMAGE CAUSED TO
OTHERS IS NOT INCLUDED IN THIS CONTRACT.
NOTICE TO PURCHASER: (1) DO NOT SIGN THIS CONTRACT BEFORE YOU READ IT OR IF IT
CONTAINS ANY BLANK SPACED; (2) YOU ARE ENTITLED TO AN EXACT COPY OF THE CONTRACT
YOU SIGN; (3) UNDER THE LAW YOU MAY HAVE THE RIGHT TO PAY OFF IN ADVANCE THE
FULL AMOUNT DUE AND TO OBTAIN A PARTIAL REFUND OF THE FINANCE CHARGE; (40 IF
THIS CONTRACT IS NOT EXECUTED BY PRUCHASES ON OR BEFORE THE CONTRACT MAY BE
CONSIDERED NULL AND VOID BY SELLER.
ADDITIONAL TERMS AND CONDITIONS
1. PAYMENT (continued): Purchaser shall pay to Seller a late payment charge
equal to the lesser of (1) the highest charge allowed by law or (b) 5% of the
amount of any payment (including any accelerated payment) not made when due
under this Contract (or such later date as may be required by applicable law).
Upon prepayment in full of acceleration of the total unpaid Time Balance,
Purchaser shall receive a rebate of the unearned portion of the Finance Charge
computed on an actuarial basis less a processing fee. Except as otherwise
expressly provided herein, the obligations of Purchaser hereunder shall not be
affected by any defect in, damage to, loss of or interference with possession or
use of any Unit, by the attachment of any lien or claim to any Unit, or for any
other cause.
2. DISCLAMER OF WARRANTIES: Purchaser acknowledges and agrees that Seller is not
the manufacturer of the Unit(s) and the Purchaser has selected each Unit based
on Purchaser's own judgment without any reliance whatsoever on any statements or
representations made by Seller. AS BETWEEN SELLER AND PURCHASE, THE UNIT(S) ARE
PROVIDED "AS IS" WITHOUT ANY WATTANTIES OF ANY KIND. PURCHASER HEREBY EXPRESSLY
DISCLAIMS a) ALL WARRANTIES OF MERCHANTABILITY, b) ALL WARRANTIES OF FITNESS FOR
A PARTICULAR PURPOSE, AND c) ALL WARRANTEIS AGAINST INFRINGEMENT OR THE LIKE.
Seller assigns to Purchaser its interest in any of the manufacturer's warranties
on the Unit(s).
3. POSSESSION, USE AND MAINTENANCE: Purchaser shall not (a) use any Unit
improperly, carelessly, unsafely or in violation of any law or regulation or for
personal, family, or household purposes or for any purpose other than the
Purchaser's business (including agricultural business); (b) permit the use of
any Unit by anyone other than Purchaser or change the permanent location of any
Unit from the county and state specified above without first prior written
consent of Seller; or (c) sell, lease, assign or transfer, or create, or suffer
to exist any lien, claim, security interest or encumbrance on any of its rights
hereunder or in any Unit. The Units are and shall remain personal property
irrespective of their use or manner of attachment to realty. Upon prior notice
to Purchaser, Seller or its agent shall have the right (but not the obligation)
at all reasonable times to inspect any Unit. Purchaser shall at its expense
maintain the Units in good operating order, repair and condition. Purchase shall
not alter any Unit or affix any equipment to any Unit if such alteration or
addition would impair the originally intended function or reduce the value of
such Unit. Any alteration or addition to any Unit shall be at the sole risk of
Purchaser.
4. TAXES: Purchaser shall promptly pay all taxes, assessments, fees and other
charges when levied or assessed against any Unit or the ownership or use
thereof, on this Contract or any payments made or to be made to Seller.
5. WAIVER AND INDEMNITY: PURCHASES HEREBY AGREES TO RELEASE DEFEND, INDEMNIFY
AND HOLD HARMLESS SELLER, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND ASSIGNS
FROM AND AGAINST ANY CLAIMS OF PURCHASER OR THIRD PARTIES, INCLUDING CLAIMS
BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, PERSONAL INJURY, PROPETY
DAMAGE,
STRICT LIABILITY OR NEGLIGENCE, FOR ANY LOSS, DAMAGE OR INJURY CAUSE BY OR
RELATING TO THE DESIGN, MANUFACTURE, SELECTION, DELIVERY, CONDITION, OPERATION,
USE, OWNERSHIP, MAINTENANCE OR REPAIR OF ANY UNIT. FURTHER, PURCHASER AGREES TO
BE RESPONSIBLE FOR ALL COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEY'S FEES,
INCURRED BY SELLER OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND ASSIGNS IN
DEFENDING SUCH CLAIMS OR IN ENFORCING THIS PROVISION. UNDER NO CONDTION OR CAUSE
OF ACTION SHALL SELLER BE LIABLE FOR ANY LOSS OF ACTUAL OR ANTICIPATED BUSINESS
OR PROMPTS OR ANYSPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
6. INSURANCE: Purchaser, at it expense, shall keep each Unit and all equipment
listed as Additional Security insured against all risks for their full insurable
value and shall maintain comprehensive public liability insurance in an amount
reasonably acceptable to Seller. All such insurance shall be in such form and
with such companies as Seller shall reasonably approve, shall be primary,
without right of contribution from any insurance carried by Seller, and shall
provide that such insurance may not be cancelled or altered so as to affect the
interest of Seller without at least 30 days' prior written notice to Seller. All
insurance covering loss or damage too the Units and Additional Security shall
name Seller (or its designee) as loan payee and be payable to Seller as its
Interest may appear. Purchaser agrees to notify Seller of any occurrence which
may become the basis of an insurance claim hereunder and not to make any
adjustments with insurers without Seller's prior written consent. Prior to the
first delivery of any Unit to Purchase, Purchaser shall deliver to Seller
satisfactory evidence of such insurance coverage.
7. EVENTS OF DEFAULT: Each of the following shall constitute an "Event of
Default" hereunder: (a) Purchaser shall fail to make any payments to Seller when
due hereunder or fail to observe or perform any other covenant, agreement or
warranty made by purchaser hereunder; (b) any representation or warranty of
Purchaser obtained herein or in any document furnished to Seller in connection
herewith shall be incorrect or misleading when made; (c) any Unit or additional
security shall become lost, stolen, destroyed irreparably damaged or subject to
any sale, lien, claim, security interest or encumbrance (either than in favor of
Seller or its assignee); (d) any default shall occur under any other agreement
between Purchaser and Seller; (e) Purchaser or any guarantee of this Contract
shall cease to do business, become insolvent, make an assignment for the benefit
of creditors or file any petition under any bankruptcy, reorganization,
insolvency or moratorium law, or any other law for the relief of debtors; (f)
any involuntary petition shall be filed under any bankruptcy statute against
Purchaser or any guarantor of the Contract or any receiver, trustee or similar
official shall be appointed to take possession of the properties of Purchaser or
any guarantor of this Contract unless such petitioner appointment ceases to be
in effect within 30 days of said filing or appointment; (g) Seller shall
reasonably deem itself to be insecure; or (h) any breach or repudiation by any
guarantor shall occur under any guaranty obtained by Seller in connection with
this Contract.
8. REMEDIES: If any event of Default shall occur, Seller may, at its option, do
any one or more of the following: (a) Declare all amounts due or in become due
under this Contract, excluding any unearned portion of the Finance Charge,
immediately due and payable; (b) recover any additional damages and expenses
sustained by Seller by reason the breach of any covenant,
representation or warranty contained in this Contract; (c) enforce the security
interest granted hereunder; (d) without notice, liability or legal process,
enter upon the premises where any of the Units or additional security maybe and
take possession thereof, and 9e) require Purchaser to assemble the Units and
additional security and make them available to Seller at a place designated by
Seller which is reasonably convenient to both parties. Time is of the essence of
this Contract. Seller shall have all rights given to a secured party by law and
may retain all monies theretofore paid by Purchaser hereunder as compensation
for the reasonable use of the Units by Purchaser. Seller may, at its option,
undertake commercially reasonable efforts to sell the Units and additional
security, and the proceeds of any such sale shall be applied: First, to
reimburse Seller for all reasonable expenses of retaking, holding, preparing for
sale, and selling the Units and additional security, including all taxes and
reasonable attorneys' fees, and second, to the extent not previously paid by
Purchaser, in pay Seller all amounts then due or accrued under this contract,
including any accelerated payments and later payment charges. Any surplus shall
be paid to the person entitled thereto. Purchaser shall promptly pay any
deficiency to Seller. Purchase acknowledges that sales for each or on credit to
a wholesaler, retailer or user of the Units or additional security, and with or
without the Units or additional security being present at such sale, are all
commercially reasonable. Purchaser agrees to pay all reasonable attorneys' fees
(in the extent permitted by applicable law) and all costs and expenses incurred
by Seller in enforcing this Contract. The remedies provided herein shall be
cumulative and in addition to all other remedies at law or in equity. If
Purchaser fails to perform any of its obligations under this Contract, Seller
may (but need not) at any time thereafter perform such obligation, and the
expenses incurred in connection therewith shall be payable by Purchaser upon
demand.
9. SECURITY INTEREST; PRUCHASE ASSURANCES AND REPRESENTATIONS: To secure payment
of Purchaser's indebtedness to Seller hereunder and the performance of all
obligations of Purchaser hereunder, Purchaser hereby grants to Seller a
continuing security interest in the Units, and in the equipment, of any,
described as Additional Security on the front of this Contract, including all
attachments, accessories and optional features for such Units and Additional
Security (whether or not installed therein) and all substitutions, replacements,
additional and accessions thereto and proceeds off all the foregoing including,
but not limited to, proceeds to the form of chattel paper. Purchaser will, at
its expense, do any act and execute, acknowledge, deliver, file, register and
record any Documents which Seller deems desirable in its discretion to protect
Seller's security interest and Seller's rights and benefits under this Contract.
Purchaser hereby irrevocably appoints Seller as Purchaser's Attorney-in-Fact for
the signing and filing of such documents and authorizes Seller to delegate these
limited powers. Purchaser acknowledges the signature of Seller or said delegates
upon such documents to be the same as Purchaser's own for all purposes and with
the present intent to authenticate the document. Purchaser represents and
warrants to Seller that (a) Purchaser has the power to make, deliver and perform
under this Contract; (b) the person executing and delivering this Contract is
authorized to so on behalf of Purchaser; (c) this Contract constitutes a valid
obligation of Purchaser, legally binding under and enforceable in accordance
with its terms, and (d) all credit, financial and other information submitted to
Seller in connection with this Contract is and shall be true, correct and
complete. Purchaser further represents and warrants to Seller that Purchaser is
and shall remain a Corporation registered in the state of TENNESSEE ("Business
Location"); and Purchaser will not change its form of business organization or
business Location without prior written notice to Seller.
10. ASSIGNMENT; COUNTERPARTS: The rights and remedies of Seller under this
Contract may be assigned by Seller at any time. If this Contract is assigned by
Seller, the term "Seller" shall thenceforth mean Seller's assignee, and if
assigned to a partnership, shall thenceforth mean such partnership and, for
purposes of Sections 2, 4, 5 and 6, each partner in such partnership. If
notified by Seller, Purchaser shall release any claim Purchases may have against
Seller hereunder. No assignment of this Contract or any right or obligation
hereunder may be made by Purchaser without the prior written consent of Seller.
This Contract shall be binding upon and (ILLEGIBLE) to the benefit of Seller and
Purchaser and their respective successors and assigns. Although multiple
counterparts of this document may be signed; only the counterpart accepted,
acknowledged and certified by Caterpillar Financial Service Corporation on the
signature page thereof as the original will continue original chattel paper.
11. EFFECT OF WAIVER; ENTIRE AGREEMENT; MODIFICATION OF CONTRACT; NOTICES: No
delay or omission to exercise any right or remedy according to Seller hereunder
shall impair any such right or remedy nor shall it be conserved to be a waiver
of any breach or default of Purchaser. Any waiver or consent by Seller under
this Contract much be in writing specifically set forth. This Contract
completely states the rights of Seller and Purchaser with respect to the Units
and supersedes all prior agreements with respect thereto. No variation or
modification of this Contract shall be valid unless in writing. All notices
hereunder shall be in writing, addressed to each party at the address set forth
on the front of this Contract or as such other address as may hereafter be
furnished in writing.
12. APPLICABLE LAW, JURISDICTIONA ND JURY TRIAL WAIVER, PROVISIONS; This
Agreement shall be governed by and construed under the laws of the State of
Tennessee, without giving effect to the conflict-in-laws principles thereof, and
Purchaser hereby consents to one jurisdiction of any state or federal court
located within the State of Tennessee. THE PARTIES HERETO HEREBY WAIVE THE RIGHT
TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TOT HIS AGREEMENT, THE
OBLIGATIONS OR THE COLLATERAL.
13. SEVERBILITY, SURVIVAL OF COVENANTS: If any provision of this Contract shall
be invalid under any applicable law, such provision shall be deemed omitted but
the reaming provisions hereof shall be given effect. All obligations of
Purchaser under this contract shall survive the expiration or termination of
this Contract to the extent required for their full observance and performance.
PURCHASER ACKNOWLEDGES RECEIPT OF A FULLY COMPLETED COPY OF THIS CONTRACT
EXECUTED BY BOTH PURCHASER AND SELLER.
Purchaser(s) and Seller have duly executed this Contract as of July 14, 2005.
Purchaser(s): Seller:
NATIONAL COAL CORPORTION ▇▇▇▇▇▇ SUPPLY COMPANY
By /s/ ▇▇▇ ▇. ▇▇▇ By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------- -------------------------
Name (Print) ▇▇▇ ▇. ▇▇▇ Name (PRINT) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title CEO Title VPS CFO
Rider No. 1 dated _____________, 2005 to the
Installment Sale Contract
Between ▇▇▇▇▇▇ SUPPLY COMPANY
And National Coal Corporation
WHEREAS, ▇▇▇▇▇▇ SUPPLY COMPANY ("Dealer") and National Coal Corporation
("Purchaser") are parties to that certain Installment Sale Contract (the
"CONTRACT"), dated of even date herewith;
WHEREAS, Dealer will assign the Contract to Caterpillar Financial Services
Corporation ("CAT FINANCIAL") pursuant to that certain Assignment of ISC dated
of even date herewith; and
NOW THEREFORE, in consideration of the mutual agreements herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. SECTION 7 is hereby amended to provide for an additional "Event of
Default" (as defined in the Contract) as follows: "(i) a Change of Control shall
occur or exist. "CHANGE IN CONTROL" shall mean the occurrence of one or more of
the following events; (a) any sale, lease, exchange or other transfer (in a
single transaction or a series of related transactions) of 51% of the assets of
Purchaser, (b) the acquisition of ownership, directly or indirectly,
beneficially or of record, by an person, entity, organization or group which
shall collectively or individually total 51% or more of the outstanding shares
of the voting stock of Purchaser; or (c) ▇▇▇ ▇▇▇ shall no longer serve as an
officer or director of Purchaser."
2. Except as amended hereby, the Contract remains in full force and effect
and enforceable in accordance with its terms. The amendments set forth herein
shall be effective as of the date hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers duly authorized thereto as of the date first above
written.
NATIONAL COAL CORPORATION ▇▇▇▇▇▇ SUPPLY COMPANY
By: /s/ ▇▇▇ ▇. ▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: CEO Title: VPS, CFO
CROSS-COLLATERAL AND CROSS-DEFAULT AGREEMENT
Caterpillar Financial Corporation
Gentlemen:
You have purchased one or more conditional sales contracts or lease agreements
(herein designated "Accounts"), arising from the bona fide sale, or lease to us,
by various vendors or lessors of equipment and inventory (herein designated
"Collateral"), and/or you have made direct loans to, or otherwise extended
credit, to us evidenced Accounts creating security interests in Collateral.
In order to induce you to extend our time of payment on one or more Accounts,
and/or to make additional loans to us, and/or to purchase additional Accounts,
and inconsideration of you so doing, and for other good and valuable
consideration, the receipt of which we hereby acknowledge, we agree as follows:
All presently existing and hereafter acquired Collateral in which you have or
shall have a security interest, shall secure the payment and performance of all
of our liabilities and obligations to you, of every kind and character, whether
joint or several, direct or indirect, absolute or contingent, due or to become
due, and whether under presently existing or hereafter created Accounts or
agreements, or otherwise.
We further agree that your security interesting the property covered by an
Account now held, or hereafter acquired by you, shall not be terminated, in
whole or in part, until and unless all indebtedness of every kind, due or to
become due, owed by us to you are to retain your security interest in all
property covered by all Accounts held or acquired by you, as security for
payment and performance under each such Account, notwithstanding the fact that
one or more of such Accounts may become fully paid.
This instrument is intended to create cross-default and cross-security between
and among all the within described Accounts now owned, or hereafter acquired, by
you.
A default under any Account or agreement shall be deemed to be a default under
all other Accounts and agreements. A default shall result if we fail to pay any
sum when due, on any Account or agreement, or if we beach any of the other terms
and conditions thereof, or if we became insolvent, cease to do business as a
going concern, make an assignment for the benefit of creditors, or if a petition
for a receiver or if bankruptcy is filed by or against us, or if any of our
property is seized, attached or levied upon. Upon our default, any or all
Accounts and agreements shall, at your option, become immediately due and
payable, without notice or demand to us or any other party obligated thereon,
and you shall have,, and may exercise any and all rights and remedies of a
secured party under the Uniform Commercial Code, as enacted in the applicable
jurisdiction and as otherwise granted to you under any Account or other
agreement. We hereby waive, to the maximum extent permitted by law, notices of
default, notices of repossession and sale or other disposition of Collateral,
and all other notices, and in the event any such notice can not be waived, we
agree that if such notice is mailed to us, postage prepaid, to
the address shown below at least five (5) days prior to the exercise by you of
any of your rights or remedies, such notice shall be deemed to be reasonable,
and shall fully satisfy any requirement for giving notice.
All rights granted to you hereunder shall be cumulative and not alternative,
shall be in addition to and shall in no manner impair or affect your rights and
remedies under any existing Account, agreement, statute or rule of law.
This Agreement shall be governed by and construed under the laws of the State of
Tennessee, without giving effect to the conflict-of-laws principles thereof, and
we hereby consent to the jurisdiction of any state or federal court located
within the State of Tennessee. THE PARTIES HERETO HEREBY WAIVE THE RIGHT TO
TRIAL BY JURY IN ANYACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE
OBLIGATIONS OR THE COLLATERAL.
This agreement may not be varied or altered, nor its provisions waived except by
your duly executed written agreement. This agreement shall inure to the benefit
of your successors and assigns, and shall be binding upon our heirs,
administrators, executors, legal representatives, successors and assigns.
IN WITNESS WHEREOF, this agreement is executed this _________________ day of
________________.
NATIONAL COAL CORPORATION
Signature: /s/ ▇▇▇ ▇. ▇▇▇
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Name (PRINT) ▇▇▇ ▇. ▇▇▇
Title: CEO