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 


 

















 


to
an amendment to Section 6.4 of the Credit Agreement to permit the
execution and delivery by the Borrower of the Synfuel Contracts, (ii) grant
the Waiver and (iii) amend the Credit Agreement as set forth herein, in
each case, in the manner, and subject to the terms and conditions set forth
herein; and


 


                NOW, THEREFORE, in consideration of the mutual agreements
herein contained and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto hereby agree as
follows:


 


Section 1.  Consent.  Subject to the
terms and conditions set forth herein, and in reliance on
the representations and warranties of the Credit Parties set forth herein, the
Agent and the Lenders hereby acknowledge and consent to the execution and
delivery by the Borrower of the Synfuel Contracts in the form attached hereto
as part of Exhibit A, with such modifications thereto, prior to the
execution and delivery thereof, as may be consented to by the Agent.


 


Section 2.  Limited Waiver.  Subject to the terms and conditions set forth
herein, and in reliance on the representations and warranties of the Credit
Parties set forth herein, the Agent and the Lenders hereby waive the Leverage
Ratio Default.


 


Section 3.  Amendments.   The Credit Agreement is hereby amended as
follows:


 


(a)  Section 6.4 of the Credit Agreement
is amended by adding thereto, immediately following the heading thereof and
prior to subsection (a) thereof, the following phrase, which shall be
deemed to modify each subsection of such Section 6.4:


 


“Except
for the Synfuel Contracts,”


 


(b)  Annex A to the Credit Agreement is amended
by adding thereto, in the proper alphabetical order, the following additional
defined terms:


 


(i)        “Fourth Amendment”
shall mean that certain Consent, Limited Waiver and Amendment No. 4 to the
Credit Agreement, dated as of August     , 2007, by
and among Agent, Lender and the Loan Parties.


 


(ii)     “Synfuel Contracts”
means and refers to the “Synfuel Contracts” as defined in the Fourth Amendment.


 


Section 4.  Conditions Precedent.  This Agreement shall not become effective
until the date (the “Effective Date”) on which the Agent has received
each and all of the following:


 


(a)  counterparts of this Agreement, duly
executed and delivered on behalf of Bowie, CHC, BRMP and the Requisite Lenders;
and


 


(b)  copies of the Synfuels Contracts, as
executed and delivered, in such respective forms as are within the meaning of “Synfuels
Contracts” as set forth in this Agreement.


 


 


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Section 5.  Representations and Warranties.  To
induce the Agent and the Lenders to enter into this Agreement, each Loan Party
hereby represents and warrants that as of the date hereof:


 


(a)  all
representations and warranties made under the Credit Agreement and the other
Loan Documents, to the extent applicable to such Loan Party, shall be deemed to
be made, and shall be true and correct in all respects, at and as of the
Effective Date except to the extent that any such representation or warranty
expressly relates to an earlier date, in which case such representation and
warranty shall have been true and correct in all respects as of such earlier
date, or previously fulfilled in accordance with the terms hereof;


 


(b)  the key man
insurance required pursuant to Section 5.4(c)(vii) and Section 5.22
of the Credit Agreement has been obtained as of the Effective Date, in accordance
with the requirements of the Credit Agreement, as modified by that certain
Waiver No. 4 to Credit Agreement, dated as of June 14, 2007;


 


(c)  there exists no
Default or Event of Default under the Credit Agreement or any of the Loan
Documents;


 


(d)  the execution and
delivery by the Loan Parties of this Agreement, (i) are within the powers
of the Loan Parties, as applicable, (ii) have been duly authorized by all
necessary action on the part of the Loan Parties, 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 the Loan Parties, as applicable, or (B) any agreement,
judgment, injunction, order, decree or other instrument binding upon the Loan
Parties or any of their respective Subsidiaries; and


 


(e)  this Agreement has been duly executed and delivered by the duly authorized
officers of each Loan Party, and this Agreement and the Credit Agreement are
the legal, valid and binding obligation of each Loan Party enforceable against
it in accordance with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization or other similar laws
affecting creditors’ rights generally and by general principles of equity.


 


All
representations and warranties made under this Agreement shall survive, and not
be waived by, the execution of this Agreement by the Lenders and the Agent, any
investigation or inquiry by any Lender or the Agent, or the making of any loans
under the Credit Agreement.


 


Section 6.  Acknowledgment
and Reaffirmation.  The Loan Parties hereby reaffirm and ratify
in all respects, as of the Effective Date, the covenants and agreements
contained in each Loan Document to which it is a party.  The Credit Agreement and the other Loan
Documents shall remain unchanged and in full force and effect in accordance
with their respective terms and shall constitute the legal, valid, binding and
enforceable obligations of the Credit Parties to the Lenders and the Agent,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting creditors’ rights
generally and by 


 


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general principles of
equity.  This Agreement shall not be
construed to (i) impair the validity, perfection or priority of any lien
or security interests securing the Obligations; (ii) waive or impair any
rights, powers or remedies of the Agent or the Lenders under the Credit
Agreement and the other Loan Documents; (iii) constitute an agreement by
the Agent or the Lenders or require the Agent or the Lenders to extend the time
for payment of any of the Obligations; or (iv) constitute a waiver of any
right of the Agent or the Lenders to insist on strict compliance by the Credit
Parties with each and every term, condition and covenant of this Agreement and
the other Loan Documents in accordance therewith.


 


Section 7.  Course
of Dealing, Etc.  Each Loan
Party hereby acknowledges and agrees that the execution, delivery and
performance of this Agreement by the Agent and the Lenders do not and shall not
create (nor shall the Loan Parties rely upon the existence of or claim or
assert that there exists) any obligation of the Agent or the Lenders to
consider or agree to any other amendment of or consent with respect to, any of
the Loan Documents, or any other instrument or agreement to which the Agent or
any Lender is a party (collectively, a “Modification or Waiver”), and in
the event that the Agent or any of the Lenders subsequently agree to consider
any requested Modification or Waiver, neither the existence of this Agreement
nor any other conduct of the Agent or any of the Lenders related hereto, shall
be of any force or effect on the Agent’s or any of the Lenders’ consideration
or decision with respect to any such requested Modification or Waiver, and the
Agent and the Lenders shall not have any obligation whatsoever to consider or
agree to any such Modification or Waiver.


 


Section 8.  Miscellaneous.


 


(a)  Material
Contract.  Each Loan Party hereby
acknowledges and agrees that the Synfuels Contracts are “Material Contracts” as
such term is defined in the Credit Agreement.


 


(b)  Loan Document
Pursuant to Credit Agreement.  This 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.


 


(c)  Counterparts.  This 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 Agreement by facsimile
shall be effective as delivery of a manually executed counterpart of this
Agreement.


 


(d)  Governing Law.  THIS 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.


 


(e)  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 


 


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and the Requisite Lenders to the transactions herein
described.


 


(f)  Relationship of
the Parties.  The relationship of the
Loan Parties and the Agent has been and shall continue to be, at all times,
that of debtors and creditors and not as joint venturers or partners.  Nothing contained in this Agreement, any
instrument, document or agreement delivered in connection herewith or in the
Credit Agreement or any other Loan Document shall be deemed or construed to
create a fiduciary relationship between or among the parties.


 


(g)  Further
Actions; Successors and Assigns. 
Each of the Loan Parties agrees to take any further action that the
Lenders or the Agent shall reasonably request from time to time in connection
herewith to evidence the agreements set forth herein.  This Agreement shall be binding upon and
inure to the benefit of the successors and permitted assigns of the parties
hereto.


 


[signature pages follow]


 


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IN WITNESS WHEREOF, the
signatories hereto have caused this 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:

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  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 Sieber

  
	
   

  	
  Title:

  	
  President

  



 


 


 


 


 


 


 


 


 


 


 


[Signature
Page to Consent, Limited Waiver
and Amendment No. 4 To The Credit Agreement]


 

















 


	
   

  	
  GENERAL ELECTRIC CAPITAL CORPORATION, as Agent
  and Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Matthew A. Toth, III

  
	
   

  	
  Name:

  	
  Matthew A. Toth, III

  
	
   

  	
  Title:

  	
  Authorized Signatory

  



 


 


 


 


 


 


 


[Signature
Page to Consent, Limited Waiver
and Amendment No. 4 To The Credit Agreement]


 


 

















 


EXHIBIT A


 


SYNFUEL CONTRACTS


 


(in the respective forms attached)


 


1.   Security Agreement between W2 Holdings LLC
and Bowie Resources, LLC, dated as of June 1, 2007.


 


2.   Guarantee of Lehman Brothers Holdings Inc.,
dated as of August 7, 2007.


 


3.  Guarantee of Loyola Synfuels, LLC and
Sentinel Energy, LLC, dated as of June 1, 2007.


 


4.   Letter of Amendment between Bowie Resources,
LLC and Tennessee Valley Authority, dated as of June 1, 2007.


 


5.   First Amendment to Letter Agreement between
Bowie Resources, LLC and W2 Holdings LLC, dated as of June 1, 2007.


 


6.   First Amendment to Site Lease and Services
Agreement (with Easements) between Bowie Resources, LLC and W2 Holdings LLC,
dated as of June 1, 2007.


 


7.   First Amendment to Feedstock Supply
Agreement between Bowie Resources, LLC and W2 Holdings LLC, dated as of June 1,
2007.


 


8.   Security Deposit, Disbursement and Control
Agreement by and among W2 Holdings LLC, Bowie Resources, LLC and Branch Banking
and Trust Company, dated as of June 1, 2007.


 


 


 


 


[Exhibit
A to Consent, Limited Waiver
and Amendment No. 4 To The Credit Agreement]