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 covenants and agreements may be
modified by this Waiver Agreement and the transactions contemplated
thereby.  As herein modified, the Credit
Agreement (as so amended, the “Modified 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
Modified 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 


 


2

















 


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.


 


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 


 


3

















 


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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4

















 


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:

  	
  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 H. Sieber

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  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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