WAIVER NO. 4 TO CREDIT AGREEMENTWaiver Agreement |
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ENERGY COAL RESOURCES, INC. | BOWIE RESOURCES MANAGEMENT PARTNER, LLC | BOWIE RESOURCES, LLC | COLORADO HOLDING COMPANY, INC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 10.10
EXECUTION VERSION
WAIVER NO. 4
TO CREDIT AGREEMENT
THIS WAIVER NO. 4 TO CREDIT AGREEMENT , dated as of June 14, 2007 (this “ Waiver Agreement ”), is made by and among BOWIE RESOURCES, LLC , a Delaware limited liability company (“ Bowie ”), COLORADO HOLDING COMPANY, INC. , a Delaware corporation (“ CHC ”), BOWIE RESOURCES MANAGEMENT PARTNER, LLC , a Nevada limited liability company (“ BRMP ”) and GENERAL ELECTRIC CAPITAL CORPORATION , as agent for the lenders (“ Lenders ”) party to the Credit Agreement (as defined below)(in such capacity, the “ Agent ”) and as a Lender under the Credit Agreement. Capitalized terms used in this Waiver Agreement and not otherwise defined have the meanings set forth in the Credit Agreement.
W I T N E S S E T H :
WHEREAS , Bowie, CHC, BRMP, the Lenders and the Agent are parties to that certain Credit Agreement dated as of December 20, 2006 (as amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”);
WHEREAS , Bowie, CHC and BRMP have requested that the Agent and the Requisite Lenders agree to waive certain provisions of the Credit Agreement as more particularly set forth herein; and
WHEREAS , the Requisite Lenders and the Agent agree to waive compliance with certain provisions of the Credit Agreement subject to the terms and conditions set forth herein;
NOW, THEREFORE , in consideration of the agreements herein contained, the parties hereto hereby agree as follows:
ARTICLE 1.
WAIVER
Subject to the satisfaction of the terms and conditions set forth herein, the Requisite Lenders and the Agent hereby (i) waive any Default or Event of Default that has occurred by reason of the failure by the Credit Parties to obtain a key man life insurance policy on Keith Sieber in the amount of $3,000,000 as specified in Section 5.22 of the Credit Agreement (“ Key Man Life Insurance ”) on or prior to January 19, 2007 (the “ Waiver ”) and (ii) extend the period of time for delivering such Key Man Life Insurance in accordance with Section 5.22 of the Credit Agreement to, and the Credit Parties hereby agree to deliver such Key Man Life Insurance to the Agent by, July 18, 2007 at 5:00 p.m. (Eastern Standard Time). Each of Bowie, CHC and BRMP acknowledge and agree that the failure by the Credit Parties to deliver the Key Man Life Insurance to the Agent in accordance with Section 5.22 of the Credit Agreement (except with
respect to the date by which such key man life insurance was required to be delivered) by 5:00 p.m. (eastern standard time) on July 18, 2007 will result in an Event of Default under the Credit Agreement and will entitle the Lenders and the Agent to all of the rights and remedies provided to such Lenders and Agent under the Credit Agreement as a result of an Event of Default therein, including without limitation the rights set forth in Section 1.5(d) of the Credit Agreement.
ARTICLE 2.
EFFECTIVENESS
This Waiver Agreement shall become effective as of the date hereof (the “ Effective Date ”) only upon receipt by the Agent of counterparts of this Waiver Agreement, duly executed and delivered on behalf of Bowie, CHC, BRMP and the Requisite Lenders.
ARTICLE 3.
ACKNOWLEDGMENT; COVENANTS; REPRESENTATIONS
3.1 Acknowledgment and Reaffirmation . Each of Bowie, CHC and BRMP hereby reaffirms, as of the Effective Date, the covenants and agreements contained in each Loan Document to which it is a party. The Credit Agreement and each of the other Loan Documents shall remain in full force and effect and is
