Exhibit 4.23
WAIVER AND CONSENT
WAIVER AND CONSENT, dated as of
January __, 2006, to the Loan Agreement, dated as of
September 15, 2004 (as amended to date, the “Loan
Agreement”), by and among THERMACLIME, INC. , an
Oklahoma corporation (“ ThermaClime ”),
CHEROKEE NITROGEN HOLDINGS, INC. , an Oklahoma corporation
(“ Cherokee ”) and each of the Subsidiaries of
ThermaClime identified on the signature pages thereof (such
Subsidiaries, together with ThermaClime and Cherokee, each a
“ Borrower ”, and collectively, the “
Borrowers ”), the lenders identified on the signature
pages thereof (each a “ Lender ” and
collectively, the “ Lenders ”) and ORIX
Capital Markets, LLC , a Delaware limited liability company, as
agent for the Lenders (the “ Agent
”).
ThermaClime has notified the Agent
that it has not complied with Section 6.1(c) of the Loan
Agreement due to the fact that it will be unable to deliver to the
Agent Parent’s and ThermaClime’s and its
Subsidiaries’ budget or business plan for fiscal year 2006
until February 15, 2006, and ThermaClime has requested a
waiver of such noncompliance. The undersigned have agreed to such
waiver pursuant to the terms hereof.
1. Defined Terms . All terms
used herein which are defined in the Loan Agreement and not
otherwise defined herein are used herein as defined
therein.
2. Conditional Waiver;
Effectiveness .
(a) Pursuant to the request of
ThermaClime, the undersigned hereby waives any Event of Default
arising under the Loan Agreement as a result of the
Borrowers’ failure to comply with Section 6.1(c) of the
Loan Agreement with respect to Parent’s and
ThermaClime’s and its Subsidiaries’ budget or business
plan for fiscal year 2006, expressly provided that such budget or
business plan is delivered to the Agent on or before
February 15, 2006, and in the absence of such occurrence, this
Waiver and Consent shall be of no force and effect, and
(b) This Waiver and Consent
(i) shall become effective as of the date set forth above when
signed by the Agent, (ii) shall be effective only in this
specific instance and for the specific purposes set forth herein,
and (iii) does not allow for any other or further departure
from the terms and conditions of the Loan Agreement or any Other
Agreement, which terms and conditions shall continue in full force
and effect.
3. Representations, Covenants and
Warranties; No Default . Except for the representations and
warranties of the Borrowers made as of a particular date, the
representations, covenants and warranties
