THIRD AMENDMENT AGREEMENT

 

THIRD AMENDMENT AGREEMENT

 

This THIRD AMENDMENT AGREEMENT (this “Amendment”) is made as of the 31^st day of July, 2007 among:

 

(a)           NN, INC., a Delaware corporation (“US Borrower”);

(b)           each Foreign Borrower, as defined in the Credit Agreement, as hereinafter defined (each such Foreign Borrower, together with US Borrower shall be referred to herein, collectively, as “Borrowers” and, individually, each a “Borrower”);

(c)           the Lenders, as defined in the Credit Agreement;

(d)           AMSOUTH BANK, as Swing Line Lender, as defined in the Credit Agreement; and

(e)           KEYBANK NATIONAL ASSOCIATION, as the lead arranger, book runner and administrative agent for the Lenders under the Credit Agreement (“Agent”).

WHEREAS, Borrowers, Agent and the Lenders are parties to that certain Credit Agreement, dated as of September 21, 2006, that provides, among other things, for loans and letters of credit aggregating One Hundred Thirty-Five Million Dollars ($135,000,000), all upon certain terms and conditions (as amended and as the same may from time to time be further amended, restated or otherwise modified, the “Credit Agreement”);

 

WHEREAS, Borrowers, Agent and the Lenders desire to amend the Credit Agreement to modify certain provisions thereof;

 

WHEREAS, each capitalized term used herein and defined in the Credit Agreement, but not otherwise defined herein, shall have the meaning given such term in the Credit Agreement; and

 

WHEREAS, unless otherwise specifically provided herein, the provisions of the Credit Agreement revised herein are amended effective as of the date of this Amendment;

 

NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein and for other valuable consideration, Borrowers, Agent and the Lenders agree as follows:

 

1.           Retroactive Amendment to Definitions.  Section 1.1 of the Credit Agreement is hereby retroactively amended, effective as of June 30, 2007, to delete the definition of “Consolidated EBITDA” therefrom and to insert in place thereof the following:

“Consolidated EBITDA” shall mean, for any period, as determined on a Consolidated basis and after giving Pro Forma Effect to any Acquisition made during such period, Consolidated Net Earnings for such period plus, without duplication, the aggregate amounts deducted in determining such Consolidated Net Earnings in respect of

 

 

 (a) Consolidated Interest Expense, (b) Consolidated Income Tax Expense, (c) Consolidated Depreciation and Amortization Charges, and (d) (i) non-recurring non-cash charges incurred in accordance with GAAP, minus (ii) extraordinary or unusual non-cash gains not incurred in the ordinary course of business but that were included in the calculation of Consolidated Net Earnings for such period.

 

2.           Closing Deliveries.  Concurrently with the execution of this Amendment, US Borrower shall:

(a)           execute and deliver to Agent, for its sole benefit, the Third Amendment Agent Fee Letter, and pay to Agent, for its sole account, the fees stated therein;

(b)           pay an amendment fee to Agent, for the benefit of each Lender that shall have executed and delivered this Amendment to Agent on or before 5:00 P.M. (Eastern time) on July 30, 2007, in an amount equal to five basis points times such Lender’s Maximum Amount (which amount shall not exceed Sixty-Seven Thousand Five Hundred Dollars ($67,500);

(c)           cause each Guarantor of Payment to execute the attached Acknowledgment and Agreement; and

(d)           pay all legal fees and expenses of Agent in connection with this Amendment.

3.           Representations and Warranties.  Each Borrower hereby represents and warrants to Agent and the Lenders that (a) such Borrower has the legal power and authority to execute and deliver this Amendment; (b) the officers executing this Amendment have been duly authorized to execute and deliver the same and bind such Borrower with respect to the provisions hereof; (c) the execution and delivery hereof by such Borrower and the performance and observance by such Borrower of the provisions hereof do not violate or conflict with the organizational agreements of such Borrower or any law applicable to such Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against such Borrower; (d) no Default or Event of Default exists under the Credit Agreement, nor will any occur immediately after the execution and delivery of this Amendment or by the performance or observance of any provision hereof; (e) such Borrower is not aware of any claim or offset against, or defense or counterclaim to, such Borrower’s obligations or liabilities under the Credit Agreement or any Related Writing; and (f) this Amendment constitutes a valid and binding obligation of such Borrower in every respect, enforceable in accordance with its terms.

 

4.           References to Credit Agreement.  Each reference that is made in the Credit Agreement or any Related Writing shall hereafter be construed as a reference to the Credit Agreement as amended hereby. Except as herein otherwise specifically provided, all terms and provisions of the Credit Agreement are confirmed and ratified and shall remain in full force and effect and be unaffected hereby. This Amendment is a Related Writing.

 

5.           Waiver.  Each Borrower, by signing below, hereby waives and releases Agent and each of the Lenders, and their respective directors, officers, employees, attorneys, affiliates and subsidiaries, from any and all claims, offsets, defenses and counterclaims of which such Borrower is aware, such waiver and release being with full knowledge and understanding of the circumstances and effect thereof and after having consulted legal counsel with respect thereto.

 

6.           Counterparts.  This Amendment may be executed in any number of counterparts, by different parties hereto in separate counterparts and by facsimile signature, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement.

 

7.           Headings.  The headings, captions and arrangements used in this Amendment are for convenience only and shall not affect the interpretation of this Amendment.

 

8.           Severability.  Any term or provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Amendment and the effect thereof shall be confined to the term or provision so held to be invalid or unenforceable.

 

9.           Governing Law.  The rights and obligations of all parties hereto shall be governed by the laws of the State of Ohio, without regard to principles of conflicts of laws.

 

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JURY TRIAL WAIVER.  BORROWERS, THE LENDERS AND AGENT, TO THE EXTENT PERMITTED BY LAW, EACH HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWERS, THE LENDERS AND AGENT, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AMENDMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.

IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of the date first set forth above.

	NN, INC.   By:  /s/ James H. Dorton                                              James H. Dorton Vice President – Corporate Development and Chief Financial Officer   By:  /s/ William C. Kelly, Jr.                                 William C. Kelly, Jr. Vice President, Secretary and Chief Administrative Officer
	KEYBANK NATIONAL ASSOCIATION,    as Agent and as a Lender   By:   /s/ Suzannah Harris                                     Suzannah Harris Vice President
	AMSOUTH BANK,    as Swing Line Lender and as a Lender   By:  /s/ J. Harvey White                                             Name:    J. Harvey White                                            Title:     Executive Vice President

	BRANCH BANKING AND TRUST COMPANY, as a Lender   By:   /s/Mitchell W. Noble                            Name:  Mitchell W. Noble                                  Title:  Vice President
	WELLS FARGO BANK NATIONAL    ASSOCIATION, as a Lender   By:  /s/ Bryan Hulker                                      Name:   Bryan Hulker                                           Title:  Vice President

ACKNOWLEDGMENT AND AGREEMENT

 

The undersigned consent and agree to and acknowledge the terms of the foregoing Third Amendment Agreement dated as of July 31, 2007.  The undersigned further agree that the obligations of the undersigned pursuant to the Guaranty of Payment executed by the undersigned shall remain in full force and effect and be unaffected hereby.

 

The undersigned hereby waive and release Agent and the Lenders and their respective directors, officers, employees, attorneys, affiliates and subsidiaries from any and all claims, offsets, defenses and counterclaims of which the undersigned are aware, such waiver and release being with full knowledge and understanding of the circumstances and effect thereof and after having consulted legal counsel with respect thereto.

 

JURY TRIAL WAIVER.  THE UNDERSIGNED, TO THE EXTENT PERMITTED BY LAW, HEREBY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWERS, AGENT, THE LENDERS AND THE UNDERSIGNED, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AMENDMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.

THE DELTA RUBBER COMPANY   By:  /s/ William C. Kelly, Jr.                        Name:   William C. Kelly, Jr.                             Title:   Officer/Director	TRIUMPH LLC   By:    /s/ Howard Feldenkris                        Name:   Howard Feldenkris                              Title:   Chief Financial Officer
WHIRLAWAY CORPORATION   By:    /s/ Howard Feldenkris                       Name: Howard Feldenkris                                Title:   Chief Financial Officer	INDUSTRIAL MOLDING CORPORATION   By:   /s/ William C. Kelly, Jr.                      Name:  William C. Kelly, Jr.                           Title:   Officer