nn10q063007ex10_1.htm


    EXHIBIT
      10.1

    


     

    THIRD
      AMENDMENT AGREEMENT

     

    This
      THIRD AMENDMENT AGREEMENT (this “Amendment”) is made as of the 31st 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.

     

    [Remainder
      of page intentionally left blank.]

     

    



    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    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                             

               

               

            


    


    
      
              

            Signature
            Page 1 of 2 to 

                   
 Third
            Amendment
            Agreement          

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


    
      	 	
              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                                        

               

            


    


    
      
              

                  Signature
            Page 2 of 2
            to    
            Third
          Amendment
          Agreement          

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    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                                                

               

            


    

    


    


    



    
      
                       Signature
          Page to    

                  Acknowledgment
            and Agreement