**Exhibit 10.17**

 

**WAIVER, CONSENT AND AGREEMENT**

 

WAIVER, CONSENT AND AGREEMENT, dated as of March 31, 2005 (this “*Agreement*”), to the Loan and Security Agreement, dated as of February10, 2003, as amended by the First Amendment, dated as of February 19, 2004 and the Second Amendment and Waiver, dated as of June 30, 2004 (as so amended and as the same may be further amended, restated or otherwise modified, the “*LoanAgreement*”), by and among, on the one hand, the lenders identified on the signature pages hereof (each a “*Lender*” and collectively, the “*Lenders*”), and WELLS FARGO FOOTHILL, INC. (f/k/a Foothill CapitalCorporation), a California corporation, as the arranger and administrative agent for the Lenders (the “*Agent*”), and, on the other hand, ELGIN NATIONAL INDUSTRIES, INC., a Delaware corporation (the “*Parent*”), andeach of Parent’s Subsidiaries identified on the signature pages hereof (such Subsidiaries, together with Parent, each a “*Borrower*”, and individually and collectively, jointly and severally, the “*Borrowers*”).

 

WHEREAS, Roberts & Schaefer International, Ltd.(“*R&S International*”) made advances to Roberts & Schaefer Australia Pty. Ltd. (“*R&S Australia*”) consisting of (i) a loan on November 4, 2003, in an amount equal to the Australian Dollar equivalent ofUSD$1,420,000 (the “*First Australia Loan*”), which loan is evidenced by a Promissory Note (the “*First Australia Note*”) pledged by R&S International to the Agent pursuant to the terms of the Pledge Agreement (asdefined in the Loan Agreement), (ii) a loan on June 30, 2004, in an amount equal to the Australian Dollar equivalent of USD$200,000 (the “*Second Australia Loan*”), which loan is evidenced by a Promissory Note (the “*SecondAustralia Note*”) pledged by R&S International to the Agent pursuant to the terms of the Pledge Agreement, and (iii) a loan on January 3, 2005, in an amount equal to the United States Dollar equivalent of AUD$333,333.33 (the“*Third Australia Loan*”; together with the First Australia Loan and the Second Australia Loan, collectively, the “*Australia Loans*”), which loan is evidenced by a Promissory Note (the “*Third AustraliaNote*”; together with the First Australia Note and the Second Australia Note, collectively, the “*Australia Notes*”) pledged by R&S International to the Agent pursuant to the terms of the Pledge Agreement; 

 

WHEREAS, the proceeds of the Australia Loans were used by R&S Australiato make investments in Australian Coal Processing Holdings Pty. Ltd., an Australian special purpose entity incorporated in New South Wales (the *“SPE”*); 

 

WHEREAS, R&S Australia intends to enter into an agreement (the “*SPE APA*”) pursuant to which R&SAustralia will agree to sell to White Mining Limited and Itochu Coal Resources Australia Pty. Ltd. (collectively, “*White Mining*”), and White Mining will agree to purchase from R&S Australia, all of R&S Australia’sinterests in the SPE (the “*SPE Sale*”); 

 

WHEREAS, the Borrowers have requested that the Agent and the Lenders waive and consent to any Events of Default that would otherwise arise as a result of the SPE Sale; and 

 

WHEREAS, the Agent and the Lenders are willing to do so on the terms and conditions set forth herein; 

 

NOW, THEREFORE, in consideration of the premises and other good and valuableconsideration, the parties hereto hereby agree as follows: 

 

1.*Definitions*. Any capitalized term used herein (including in the recitals hereto) and not defined herein shall have the meaning assigned to it in the Loan Agreement. 

 

2. *Waivers and Consents*. Subject to the conditions set forth in this Section 2 and in Section 3 below, the Agent andthe Lenders under the Loan Agreement as of the date hereof hereby (a) consent to the consummation of SPE Sale and (b) waive any Event of Default that would otherwise arise under Section 8.2 of the Loan Agreement from any noncompliance by theBorrowers with Section 7.4 of the Loan Agreement solely by reason of the disposition by R&S Australia of its interests in the SPE; *provided*, that (i) the Borrowers shall have delivered to the Agent a true and correct copy of the fullyexecuted SPE APA, which shall be in form and 

substance reasonably satisfactory to the Agent, (ii) the SPE Sale shall have been consummated on or before April 15, 2005, and R&S Australia shall havereceived aggregate Net Cash Proceeds of not less than AUD$2,125,000 in connection therewith, (iii) R&S Australia shall have repaid in full all amounts owing to R&S International under the Australia Notes, and (iv) notwithstanding anything tothe contrary contained in Section 2.04(c)(viii) of the Loan Agreement, the Borrowers shall have prepaid the outstanding principal amount of the Loans in an amount equal to 100% of the Net Cash Proceeds received by R&S Australia in connectionwith the SPE Sale, which Net Cash Proceeds shall be applied in accordance with Section 4 below. Promptly after the receipt of the Net Cash Proceeds referred to in clause (iv) above, the Agent shall return the original Australia Notes to the R&SInternational for cancellation. 

 

3. *Conditions toEffectiveness*. The effectiveness of this Agreement is subject to the fulfillment, in a manner satisfactory to the Agent, of each of the following conditions precedent (the date such conditions are fulfilled or waived by the Agent is hereafterreferred to as the “*Agreement Effective Date*”): 

 

(a) The representations and warranties contained herein, in Section 5 of the Loan Agreement and in each other Loan Document and certificate or other writing delivered to the Agent or any Lender pursuant thereto on orprior to the Agreement Effective Date shall be true and correct in all material respects on and as of the Agreement Effective Date as though made on and as of such date, except to the extent that such representations and warranties expressly relatesolely to an earlier date (in which case such representations and warranties shall be true and correct in all material respects on and as of such date); 

 

(b) No Default or Event of Default shall have occurred and be continuing on the Agreement Effective Date or result from this Agreementbecoming effective in accordance with its terms; and 

 

(c) The Agent and the Lenders shall have executed this Agreement and received a counterpart of this Agreement that bears the signature of each Borrower. 

 

4. *Consent to Prepayment*. The Agent and the Lenders hereby agree that, notwithstanding anything to the contrarycontained in Section 2.4(d) of the Loan Agreement, the prepayment by the Borrowers referred to in clause (iv) of paragraph 2 above shall be applied *first*, to the outstanding principal amount of the Advances, *second*, to the outstandingprincipal amount of the Term Loan A, until paid in full, and *third*, to the outstanding principal amount of the Term Loan C, until paid in full. 

 

5. *Representations and Warranties*. Each Borrower hereby represents and warrants to the Agent and the Lenders as follows: 

 

(a) The representations and warranties herein, in Section 5of the Loan Agreement and in each other Loan Document and certificate or other writing delivered to the Agent or any Lender pursuant thereto on or prior to the Agreement Effective Date are true and correct in all material respects on and as of theAgreement Effective Date as though made on and as of such date, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties are true and correct in allmaterial respects on and as of such date). 

 

(b) No Default or Event of Default has occurred and is continuing or would result from this Agreement becoming effective in accordance with its terms. 

 

(c) Each Borrower (i) is duly organized and existing and in good standing under the laws of the jurisdiction of its organization, (ii)has all requisite power and authority to execute, deliver and perform this Agreement, and to perform the transactions described herein and (iii) is duly qualified to do business in each jurisdiction in which the character of the properties owned orleased by it or in which the transaction of its business makes such qualification necessary, except where the failure to be so qualified could not reasonably be expected to result in a Material Adverse Change. 

 

(d) The execution, delivery and performance by each Borrowerof this Agreement and the performance by each Borrower of the transaction described herein (i) have been duly authorized by all necessary action, and (ii) do not and will not contravene such Borrower’s Governing Documents. 

(e) The execution, delivery, and performance by each Borrower of this Agreement and theperformance by each Borrower of the transaction described herein do not and will not require any registration with, consent, or approval of, or notice to, or other action with or by, any Governmental Authority or other Person. 

 

(f) This Agreement, when executed and delivered by eachBorrower will be the legally valid and binding obligation of each Borrower, enforceable against each Borrower in accordance with their respective terms. 

 

6. *Miscellaneous*. 

 

(a) *Ratification*. To the extent that the Loan Agreement or any other Loan Document pledges or purports to pledge to Agent, orgrants or purports to grant to Agent a security interest in or lien on, any collateral as security for the Obligations, such pledge or grant of a security interest or lien is hereby ratified and confirmed in all respects. 

 

(b) *No Waiver*. Except as expressly set forth herein,this Agreement is not a waiver of, or consent to, any Default or Event of Default now existing or hereafter arising under the Loan Agreement or any other Loan Document, and the Agent and the Lenders expressly reserve all of their rights and remediesunder the Loan Agreement and the other Loan Documents, under applicable law or otherwise. The waivers, consents and modifications herein are limited to the specifics hereof, shall not apply to any facts or occurrences other than those on which thesame are based, shall not excuse the future non-compliance with the Loan Documents, and shall not operate as a consent to any further or other matter under the Loan Documents. 

 

(c) *Agreement as Loan Document*. Each Borrower hereby acknowledges and agrees that this Agreementconstitutes a “Loan Document” under the Loan Agreement. Accordingly, it shall be an Event of Default under the Loan Agreement if any Borrower fails to perform, keep or observe any term, provision, condition, covenant or agreement containedin this Agreement or if any representation or warranty made by any Borrower under or in connection with this Agreement shall have been untrue, false or misleading in any material respect when made. 

 

(d) *Counterparts*. This Agreement may be executed inany number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart ofthis Agreement by facsimile or electronic mail shall be equally as effective as delivery of an original executed counterpart of this Agreement. 

 

(e) *Headings*. Section headings herein are included for convenience of reference only and shall not constitute a part of thisAgreement for any other purpose. 

 

(f)*Governing Law*. This Agreement shall be governed by, and construed in accordance with, the law of the State of New York. 

 

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**IN WITNESS WHEREOF**, the parties hereto have caused this Agreement to be executed and delivered asof the date first above written. 

 
*******BORROWERS:*********BEST METAL FINISHING, INC.**a Delaware corporationBy: 
/s/    WAYNE J.CONNER        
Name: Wayne J. ConnerTitle: Senior Vice President**CABELL CONSTRUCTION COMPANY**a Delaware corporationBy: 
/s/    WAYNE J.CONNER        
Name: Wayne J. ConnerTitle: Vice President**CENTRIFUGAL SERVICES, INC.**an Illinois corporationBy: 
/s/    WAYNE J.CONNER        
Name: Wayne J. ConnerTitle: Senior Vice President**CLINCH RIVER CORPORATION**a Virginia corporationBy: 
/s/    WAYNE J.CONNER        
Name: Wayne J. ConnerTitle: Senior Vice President**ELGIN INTERNATIONAL, LTD.**a Delaware corporationBy: 
/s/    WAYNE J.CONNER        
Name: Wayne J. ConnerTitle: Vice President**ELGIN NATIONAL INDUSTRIES, INC.**a Delaware corporationBy: 
/s/    WAYNE J.CONNER        
Name: Wayne J. ConnerTitle: Vice President**ELGIN REAL ESTATE HOLDINGS, LTD.**a Delaware corporationBy: 
/s/    WAYNE J.CONNER        
Name: Wayne J. ConnerTitle: Vice President
**LELAND-POWELL FASTENERS, INC.**a Tennessee corporationBy: 
/s/    WAYNE J.CONNER        
Name: Wayne J. ConnerTitle: Senior Vice President**MINING CONTROLS, INC.**a Delaware corporationBy: 
/s/    WAYNE J.CONNER        
Name: Wayne J. ConnerTitle: Senior Vice President**NORRIS SCREEN AND MANUFACTURING, INC.**a West Virginia corporationBy: 
/s/    WAYNE J.CONNER        
Name: Wayne J. ConnerTitle: Senior Vice President**ROBERTS & SCHAEFER COMPANY**a Delaware corporationBy: 
/s/    WAYNE J.CONNER        
Name: Wayne J. ConnerTitle: Senior Vice President**ROBERTS & SCHAEFER INTERNATIONAL, LTD.**a Delaware corporationBy: 
/s/    WAYNE J.CONNER        
Name: Wayne J. ConnerTitle: Senior Vice Presient**SOROS ASSOCIATES, INC.**a Delaware corporationBy: 
/s/    WAYNE J.CONNER        
Name: Wayne J. ConnerTitle: Vice President**SOROS INTERNATIONAL, LTD.**a Delaware corporationBy: 
/s/    WAYNE J.CONNER        
Name: Wayne J. ConnerTitle: Senior Vice President
**TABOR MACHINE COMPANY**a West Virginia corporationBy: 
/s/    WAYNE J.CONNER        
Name: Wayne J. ConnerTitle: Senior Vice President**TRANSERVICE, INC.**a Delaware corporationBy: 
/s/    WAYNE J.CONNER        
Name: Wayne J. ConnerTitle: Senior Vice President**VANCO INTERNATIONAL, INC.**a Georgia corporationBy: 
/s/    WAYNE J.CONNER        
Name: Wayne J. ConnerTitle: Vice President
*******AGENT AND LENDER:*********WELLS FARGO FOOTHILL, INC.**a California corporation, as Agent and as LenderBy: 
/s/    ARTHURHARTFORD        
Name: Arthur HartfordTitle: Senior Vice President*******LENDER:*******  **ABLECO FINANCE LLC**a Delaware limited liability company, as a LenderBy: 
/s/    ERICMILLER          
Name: Eric MillerTitle: Senior Vice President