Exhibit 10.5
CONSENT, LIMITED WAIVER AND
AMENDMENT NO. 4 TO THE CREDIT AGREEMENT
THIS CONSENT, LIMITED WAIVER AND
AMENDMENT NO. 4 TO THE CREDIT AGREEMENT, dated as of
August , 2007 (this “
Agreement ”), is made by and among BOWIE RESOURCES,
LLC , a Delaware limited liability company (the “
Borrower ”); COLORADO HOLDING COMPANY, INC., a
Delaware corporation (“ CHC ”); BOWIE
RESOURCES MANAGEMENT PARTNER, LLC , a Nevada limited liability
company (“ BRMP ” and together with the Borrower
and CHC, collectively the “ Loan Parties ”); and
GENERAL ELECTRIC CAPITAL CORPORATION , a Delaware
corporation, as agent (the “ Agent ”) for the
lenders (the “ Lenders ”) party from time to
time to the Credit Agreement described below and, for itself, as a
Lender. Capitalized terms used in this Agreement and not
otherwise defined herein have the same meanings as set forth in the
Credit Agreement, as amended hereby.
W I T N E S S E T H
:
WHEREAS , the Loan Parties, the other Credit Parties
signatory thereto from time to time, the Lenders and the Agent are
parties to that certain Credit Agreement, dated as of
December 20, 2006 (as amended, amended and restated, modified
or supplemented from time to time, the “ Credit
Agreement ”) pursuant to which the Lenders made certain
loans and certain other extensions of credit to the
Borrower;
WHEREAS , the Borrower and W2 Holdings LLC, a Delaware
limited liability company and an Affiliate of the Borrower, wish to
enter into those certain contracts listed on Exhibit A
attached hereto (in the respective forms attached to
Exhibit A, with such modifications, prior to the execution and
delivery thereof to which the Agent may consent, the “
Synfuel Contracts ”);
WHEREAS , Section 6.4 of the Credit Agreement, in
its current form, prohibits the Borrower from entering into the
Synfuel Contracts;
WHEREAS , the Borrower has requested that the Agent and
Lenders grant their respective consent to an amendment to
Section 6.4 of the Credit Agreement to permit the execution
and delivery by the Borrower of the Synfuels Contracts (the
“Consent”);
WHEREAS , Section 6.10 of the Credit Agreement
requires the Borrower to meet certain Financial Covenants, as set
forth in Annex E to the Credit Agreement;
WHEREAS , the Borrower has breached Section 6.10 of
the Credit Agreement, in respect of the Maximum Leverage Ratio set
forth in Annex E to the Credit Agreement, for the Fiscal Quarter
ended June 30, 2007 (the “Leverage Ration
Default”);
WHEREAS , the Credit Parties have requested that the
Agent and the Borrowers waive the Leverage Ratio Default (the
“Waiver”);
WHEREAS , the Agent and the Lenders are willing to
(i) grant their respective consents