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 hereby
ratified and confirmed in all respects.


 


3.2           Representations and Warranties, Etc.  Each
of Bowie, CHC and BRMP represents and warrants to each other party hereto that:


 


3.2.1        each
of the representations and warranties of Bowie, CHC and BRMP, as applicable,
set forth in the Credit Agreement and the other Loan Documents is true and
correct in all respects as of the date of the execution and delivery of this
Waiver Agreement by Bowie, CHC and BRMP (unless stated to relate to a specific
earlier date, in which case such representations and warranties shall be true
and correct in all respects as of such date), with the same effect as if made
on such date;


 


3.2.2        the
execution and delivery by Bowie, CHC and BRMP of this Waiver Agreement and the
performance by Bowie, CHC and BRMP of their respective obligations under the
Credit Agreement, (i) are within the powers of Bowie, CHC and BRMP, as
applicable, (ii) have been duly authorized by all necessary action on the
part of Bowie, CHC and BRMP, as applicable, (iii) have received all
necessary governmental approval and (iv) do not and will not contravene or
conflict with (A) any provision of law or the certificate of incorporation
or by-laws or operating agreement or other organizational documents of Bowie,
CHC or BRMP, as applicable, or (B) any agreement, judgment, injunction,
order, decree or other instrument binding upon Bowie, CHC or BRMP or any of
their respective Subsidiaries; and


 


3.2.3        both
this Waiver Agreement and the other Loan Documents are the legal, valid and
binding obligations of Bowie, CHC and BRMP enforceable against Bowie, CHC and
BRMP in accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency or other similar laws of general application
affecting the enforcement of creditors’ rights or by general principles of
equity limiting the availability of equitable remedies.


 


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3.3              Course of Dealing, Etc. 
Bowie, CHC and BRMP hereby acknowledge and agree that the acceptance by
each Lender and the Agent of this document shall not be construed in any manner
to establish any course of dealing on any Lender’s or the Agent’s part,
including the providing of any notice or the requesting of any acknowledgment
not otherwise expressly provided for in any Loan Document with respect to any
future consent, amendment, waiver, supplement or other modification to any Loan
Document or any arrangement contemplated by any Loan Document.


 


ARTICLE
4.


 


MISCELLANEOUS


 


4.1              Loan Document Pursuant to Credit Agreement.  This
Waiver Agreement is a Loan Document executed pursuant to the Credit Agreement
and shall be construed, administered and applied in accordance with all of the
terms and provisions of the Credit Agreement.


 


4.2              Counterparts.  This
Waiver Agreement may be executed by the parties hereto in several counterparts,
each of which when executed and delivered shall be deemed to be an original and
all of which shall constitute together but one and the same agreement.  Delivery of an executed counterpart of a
signature page to this Waiver Agreement by facsimile shall be effective as
delivery of a manually executed counterpart of this Waiver Agreement.


 


4.3              Governing Law.  THIS
WAIVER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN THAT STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.


 


4.4              Lenders.  The Agent acknowledges and
agrees that its execution of this Agreement as Agent and as a Lender
constitutes the approval and consent of the Agent and the Requisite Lenders
(each as defined in the Credit Agreement) to the transactions herein described.


 


4.5              Limited
Waiver. The Waiver set forth above is subject to the conditions and
limitations set forth herein and shall be applicable only for the purposes, and
the period, set forth herein, and not for any other purposes or with respect to
any subsequent period.  The Waiver
contained herein shall not apply to any other Default or Event of Default,
regardless of whether such Default or Event of Default is prior or subsequent
to any of the matters referred to herein or is of the same or a different type
as any of the matters referred to herein. 
With respect to any other Default or Event of Default, the Agent retains
and reserves all rights and remedies of every and any kind to which it may be
entitled under the Credit Agreement, any Loan Document or any document
contemplated by or delivered to the Agent or the Lenders in connection with
the Credit Agreement, including the right to pursue any and all security
it holds for the Obligations.


 


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IN WITNESS
WHEREOF, the signatories hereto have caused this
Waiver Agreement to be executed by their respective duly authorized
representatives as of the day and year first above written.


 


	
   

  	
  BOWIE RESOURCES, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 

  	
  Scott Dyer

  
	
   

  	
  Name:

  	
   

  	
  Scott Dyer

  
	
   

  	
  Title:

  	
   

  	
  CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COLORADO HOLDING COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 

  	
  Stephen Addington

  
	
   

  	
  Name:

  	
   

  	
  Stephen Addington

  
	
   

  	
  Title:

  	
   

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BOWIE RESOURCES MANAGEMENT 

  PARTNER, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 

  	
  Keith H. Sieber

  
	
   

  	
  Name:

  	
   

  	
  Keith H. Sieber

  
	
   

  	
  Title:

  	
   

  	
  President

  



 


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  GENERAL ELECTRIC CAPITAL 

  CORPORATION, as Agent and Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 

  	
  Matthew A. Toth, III

  
	
   

  	
  Name:

  	
   

  	
  Matthew A. Toth, III

  
	
   

  	
  Title:

  	
   

  	
  Authorized Signatory

  



 


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