Exhibit 10.9
Execution Copy
WAIVER NO. 3
TO CREDIT
AGREEMENT
THIS WAIVER NO. 3 TO CREDIT
AGREEMENT, dated as of May 18, 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 party to the Credit Agreement
described below (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, as modified hereby.
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 the same may be amended,
modified or supplemented from time to time, the “ Credit
Agreement ”); and
WHEREAS, Bowie, CHC, BRMP and the
Agent entered into that certain Waiver No. 2 to Credit
Agreement dated as of May 2, 2007 (the “ Original
Waiver ”) pursuant to which the Agent and the Lenders
(i) waived the Defaults and Events of Default that had
occurred as a result of the Borrower’s failure to deliver the
Financial Information (as hereinafter defined) and
(ii) extended the date by which the Borrower was required to
deliver such Financial Information to the Agent until May 14,
2007;
WHEREAS, the Lenders and the Agent
wish to waive compliance with certain provisions of the Credit
Agreement and the Original Waiver 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 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 deliver
the financial information, Compliance Certificates, accounting firm
reports, annual letters and certifications specified in clause
(d) of Annex D of the Credit Agreement (the “
Financial Information ”) on or prior to May 14,
2007 (the “ Waiver ”) and (ii) extend the
period of time for delivering such Financial Information in
accordance with
Annex D of the Credit Agreement to, and the
Credit Parties hereby agree to deliver such Financial Information
to the Agent by, May 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 Financial
Information to the Agent in accordance with clause (d) of
Annex D of the Credit Agreement (except with respect to the date by
which such Financial Information was required to be delivered) by
5:00 p.m. (eastern standard time) on May 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) .
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, including, in each case, as such
